ECJ C-378/21 (P GmbH) – Judgment – No VAT liability in case wrongly charged VAT for B2C transactions

On December 8, 2022, the ECJ issued its decision in the case C-378/21 (P GmbH).

Context: Request for a preliminary ruling – Value added tax – Error as to the correct rate – Adjustment of the tax liability – Factual impossibility to correct invoices already issued – Correction of invoices not necessary where the recipients of the supplies are non-taxable persons – No risk of loss of tax revenue – Plea of unjust enrichment

Articles in the EU VAT Directive

Article 203 of the EU VAT Directive 2006/112/EC.

Article 203 (Liability of VAT)

VAT shall be payable by any person who enters the VAT on an invoice.

Facts

P GmbH is a limited liability company under Austrian law which operates an indoor playground.
The 20% standard rate of VAT was charged for the admission fees to the indoor playground in 2019. Cash register receipts were issued in each case, which are small-value invoices under Paragraph 11(6) of the Austrian law on turnover tax. In fact, however, a 13% reduced rate of tax should have been applied.
The customers of P GmbH are exclusively final consumers, who do not have a right of deduction.
P GmbH corrected its annual VAT return for the year 2019 in order to be credited for the overpaid VAT. That credit was refused by the Finanzamt (‘the Tax Office’) because the higher VAT is payable as a result of accounting for the individual invoices without correction and because P GmbH would enrich itself with a correction as the customers had paid the VAT. Succinct presentation of the reasoning in the request for a preliminary ruling
It is clear that the tickets issued by P GmbH for the payment of the admission fees are invoices within the meaning of the VAT Directive. They are simplified invoices under Article 238 read in conjunction with Article 226b of the directive. They give rise to a liability for payment of VAT under accounting rules under Paragraph 11(12) of UStG 1994.
The customers of P GmbH are exclusively final consumers without a right of deduction. The question therefore arises whether Article 203 of the VAT Directive can be applied, as in this case there cannot be a threat to tax revenue due to the deduction of input tax by the recipient of the supply.
A correction of invoices is, in principle, possible in Austria, but the corrected invoices must be sent to the person to whom the supply is made. That is not
possible in the present case, as the final consumers are no longer identifiable.
In Austria, the view has been taken that a change in VAT, especially if there is no danger to tax revenue and an invoice correction is technically or factually impracticable, should also be possible without an invoice correction. However, this is countered by the argument that taxable persons are not obliged to issue invoices in transactions with consumers. If this had not been done, the invoices would not now have to be corrected.
The question also arises whether, in a case such as that described, the invoice correction can be precluded in relation to the recipients of the services.
In the present case, the VAT for the admission fees was ultimately paid by the customers, not by P GmbH. If P GmbH were to receive money back from the state by correcting the VAT, that would constitute an enrichment of P GmbH.
Austrian national law provides that, where taxes and duties are omitted, the prices are to be reduced by those amounts.
The Tax Office also based its refusal of VAT correction on the consequent enrichment of P GmbH. The case-law of the Court of Justice in Cases C-191/12 and C-309/06 also appears to support that interpretation.
The question thus arises as to whether a VAT correction is precluded where the final consumers have borne the tax as part of the consideration and so enriching the trader by the correction of the VAT.

Questions

Is VAT payable by the issuer of the invoice under Article 203 of the VAT Directive if, as in the present case, there may be no risk of loss of tax revenue, because the recipients of the services are final consumers who are not entitled to the right of deduction?
If the first question is answered in the affirmative and VAT is payable by the issuer of an invoice under Article 203 of the VAT Directive:
Can the correction of invoices in respect of the recipients of services be precluded if, on the one hand, a risk of loss of tax revenue is excluded and, on the other, the correction of invoices is effectively impossible?
Does the fact that final consumers have borne the tax as part of the consideration, thereby enriching the taxable person by correcting the VAT, preclude the correction of the VAT?

AG Opinion

(1) If the recipients of the services are final consumers who are not entitled to the right of deduction, VAT is not payable by the issuer of the invoice under Article 203 of the VAT Directive. However, in so far as the addressees of the invoices included taxable persons, the tax liability under Article 203 of the VAT Directive does apply. If necessary, the proportion of such invoices is to be determined by means of an estimate.

(2) The principles of proportionality and neutrality of VAT require a possibility to adjust VAT liability, which is configured as an abstract liability for risk under Article 203 of the VAT Directive. The obligation to permit a correction exists irrespective of the elimination of the resulting risk of loss of tax revenue, where the issuer of the invoice had acted in good faith. Acting in good faith exists where the taxable person made an error of law for which it cannot be held responsible. If, on the other hand, it did not act in good faith in that sense, elimination of the risk of loss of tax revenue is a mandatory requirement. For that purpose, the invoice must in principle be corrected. If it is not possible for the issuer of the invoice to do so, that impossibility comes within the scope of the risk assumed by it. In that case, the tax liability under Article 203 of the VAT Directive continues to exist.

(3) The fact that the final consumers paid a price which was calculated incorrectly (because it contained too high a VAT component and therefore too low a profit margin) does not preclude an adjustment of tax liability under Article 203 of the VAT Directive. Unjust enrichment of the taxable person does not follow from that in any event where a ‘fixed amount’ (fixed price) was agreed.

Decision

Art. 203 of Council Directive 2006/112/EC of November 28, 2006 on the common system of value added tax as amended by Council Directive (EU) 2016/1065 of June 27, 2016

is to be interpreted as follows

a taxable person who has provided a service and has invoiced an amount of VAT calculated on the basis of an incorrect tax rate is not liable under this provision for the wrongly invoiced part of the VAT if there is no risk to tax revenue because this service was provided exclusively to end consumers who are not entitled to deduct input tax.

Summary

The ECJ ruled in favor of taxpayers who wrongly overcharged VAT to B2C customers. In principle, VAT incorrectly invoiced remains due as there is a risk of loss of tax revenue given the recipient is potentially entitled to recover such VAT (art. 203 of the VAT Directive). The Court however confirmed the AG’s opinion that this provision should not apply when recipients are final consumers who do not have a right to deduct input VAT.

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