On September 5, 2024, the ECJ issued its judgment in the case C-83/23 (H GmbH).
Context: Reference for a preliminary ruling — Harmonisation of tax laws — Common system of value added tax — Directive 2006/112/EC — VAT wrongly invoiced and paid — Correction of the invoice — Insolvency of the supplier — Refund of VAT to the supplier — Refusal of the tax authority to refund the VAT directly to the purchaser — Priority as regards the right to a refund of the VAT — Risk of double refund of the VAT Value added tax (VAT) – Threat to tax revenue
Article in the EU VAT Directive
Articles 167, 168(a) of the EU VAT Directive 2006/112/EC.
Article 167
“The right to deduct arises when the deductible tax becomes payable. »
Article 168(a)
“To the extent that the goods and services are used for the purposes of his taxed transactions, the taxable person is entitled, in the Member State in which he carries out these transactions, to deduct from the amount of tax for which he is liable the following amounts:
(a) the VAT due or paid in that Member State for the goods which are or will be supplied to him and for the services which are or will be supplied to him by another taxable person”.
Facts
Facts:
The applicant, the legal successor of “KG”, leases boats, among other things through so-called Sale-and-lease-back transactions between KG (buyer) and E-GmbH (seller). E-GmbH provided KG with the invoices relating to the sale of boats stating VAT to be paid, reported and paid the domestic VAT in its tax returns. However, the boats were not located in Germany at the time of sale, but Italy. The domestic VAT charged by E-GmbH to KG was payable by E-GmbH and was therefore not deductible as input tax for KG. KG has refunded all input tax to the German tax authorities and asked E-GmbH to revise the invoice so that it no longer shows domestic tax. E-GmbH had meanwhile initiated insolvency proceedings. The tax authorities refunded the amount of VAT paid by E-GmbH to the estate. The applicant is seeking an adjustment of the VAT it owes before the German court.
Consideration:
National rules must make it possible, on the one hand, for the service provider who has paid the VAT by mistake to request a refund from the tax authorities, and, on the other hand, for the recipient of the service to recover the amount unduly paid from that service provider by civil law. Where the refund of VAT becomes impossible or excessively difficult, in particular in the event of the insolvency of the service provider, Member States should provide for the means necessary to enable the service recipient to recover the VAT wrongly charged and paid. to get. However, the question in the present case is whether there is a civil law right of recovery or merely a right to issue an invoice with Italian VAT. The supplier in the main proceedings also has the option of identifying himself for VAT purposes in Italy, so that he can then send an invoice to the recipient of the service, stating the VAT of that Member State, stating the VAT number of that Member State. could provide. That invoice would then entitle the applicant to deduct input tax in Italy. However, this could preclude the fact that direct VAT refund claims are not generally based on turnover tax under the VAT Directive, but that if the harmonization of the VAT system in the European Union is not fully is implemented, the “domestic right of refund” only relates to the national turnover tax paid. so that he could then provide the recipient of the service with an invoice stating the VAT of this Member State, stating a VAT number of this Member State. That invoice would then entitle the applicant to deduct input tax in Italy. However, this could preclude the fact that direct VAT refund claims are not generally based on turnover tax under the VAT Directive, but that if the harmonization of the VAT system in the European Union is not fully is implemented, the “domestic right of refund” only relates to the national turnover tax paid. so that he could then provide the recipient of the service with an invoice stating the VAT of this Member State, stating a VAT number of this Member State. That invoice would then entitle the applicant to deduct input tax in Italy. However, this could preclude the fact that direct VAT refund claims are not generally based on turnover tax under the VAT Directive, but that if the harmonization of the VAT system in the European Union is not fully is implemented, the “domestic right of refund” only relates to the national turnover tax paid. That invoice would then entitle the applicant to deduct input tax in Italy. However, this could preclude the fact that direct VAT refund claims are not generally based on turnover tax under the VAT Directive, but that if the harmonization of the VAT system in the European Union is not fully is implemented, the “domestic right of refund” only relates to the national turnover tax paid. That invoice would then entitle the applicant to deduct input tax in Italy. However, this could preclude the fact that direct VAT refund claims are not generally based on turnover tax under the VAT Directive, but that if the harmonization of the VAT system in the European Union is not fully is implemented, the “domestic right of refund” only relates to the national turnover tax paid.
Questions
1. Does a domestic recipient of a service have a so-called direct right of action against the domestic tax authorities, in accordance with the judgment of the Court of Justice of the European Union of 15 March 2007, Reemtsma Cigarettenfabriken (C-35/05, EU:C :2007:167), when
a) the recipient of the supply is issued by a supplier, who is also established in the country, with an invoice showing the domestic VAT, which the recipient of the supply pays, with the supplier duly deducting the VAT indicated on the invoice pays off,
b) however, the service charged is a service provided in another Member State,
c) the recipient of the supply is therefore denied the deduction of domInvoiestic input tax, since no domestic tax is legally due,
d) the supplier subsequently revises the invoice so that it no longer indicates internal tax and consequently reduces the amount of the invoice by the amount of tax that was indicated,
e) the recipient of the performance is unable to enforce claims for payment against the provider due to insolvency proceedings relating to the property of the provider; and
f) it is possible for the supplier, who has not yet been identified in the other Member State, to identify himself for VAT purposes in that Member State, so that he can subsequently send an invoice to the recipient of the supply, stating a VAT number of this Member State. specifying the VAT of this Member State, which would entitle the recipient of the supply in this Member State to deduct input VAT by means of the special procedure under Directive 2008/9/EC of 12 February 2008?
2. Is it relevant to the answer to this question that the domestic tax authorities have refunded the tax to the supplier on the basis of a mere revision of the invoice, although the supplier has not done anything with regard to his assets due to the initiation of insolvency proceedings? paid back to the recipient of the service?
Source: ecer.minbuza.nl
AG Opinion
None
Decision
Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, as amended by Council Directive 2010/45/EU of 13 July 2010, is to be interpreted in the light of the principles of VAT effectiveness and neutrality
must be interpreted as meaning that:
the recipient cannot claim directly from the tax authorities of the Member State in whose territory he is established a refund of the VAT which he has paid to the supplier who has erroneously invoiced and paid to the tax authorities of the first Member State the national VAT of that Member State instead of the VAT legally payable in another Member State; if they have already refunded the VAT to the supplier who is in insolvency proceedings.
Summary
Source
Similar ECJ cases
- C-35/05 (Reemtsma Cigarettenfabriken) – No refund of VAT via 8th VAT Directive if not legally due, but ….
- C-397/21 (HUMDA) – Judgment – Refund of wrongly charged VAT by the tax authorities if supplier has gone into liquidation
Reference to the case in the other EU MS
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