Senatex GmbH v Finanzamt Hannover-Nord.

• Jurisdiction: European Union
• Celex Number: 62014CJ0518
• ECLI: ECLI:EU:C:2016:691
• Docket Number: C-518/14
• Court: Court of Justice (European Union)
• Procedure Type: Cuestión prejudicial - sobreseimiento
• Date: 15 September 2016

JUDGMENT OF THE COURT (Fourth Chamber)

15 September 2016 ( *1 )

‛Reference for a preliminary ruling — Common system of value added tax — Directive 2006/112/EC — Article 167, Article 178(a), Article 179 and Article 226(3) — Deduction of input tax — Invoices not showing a tax number or VAT identification number — Legislation of a Member State excluding the ex tunc correction of an invoice’

In Case C‑518/14,

REQUEST for a preliminary ruling under Article 267 TFEU from the Niedersächsisches Finanzgericht (Finance Court of Lower Saxony, Germany), made by decision of 3 July 2014, received at the Court on 18 November 2014, in the proceedings

Senatex GmbH

v

Finanzamt Hannover-Nord,

THE COURT (Fourth Chamber),

composed of T. von Danwitz, President of the Chamber, C. Lycourgos, E. Juhász, C. Vajda (Rapporteur) and K. Jürimäe, Judges,

Advocate General: Y. Bot,

Registrar: C. Strömholm, Administrator,

having regard to the written procedure and further to the hearing on 14 January 2016,

after considering the observations submitted on behalf of:

— Senatex GmbH, by D. Hippke, Prozessbevollmächtigter, and A. Hüttl, Rechtsanwalt,

— the German Government, by T. Henze and K. Petersen, acting as Agents,

— the European Commission, by M. Wasmeier and M. Owsiany-Hornung, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 17 February 2016,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).

2 The request has been made in proceedings between Senatex GmbH and the Finanzamt Hannover-Nord (Hannover-Nord Tax Office, Germany, ‘the tax office’) concerning the tax office’s refusal to allow the deduction of input value added tax (VAT) paid by Senatex for the years in which the invoices held by Senatex were issued, on the ground that in their original form they did not satisfy the requirements of national tax legislation.

Legal context

EU law

3 Under Article 63 of Directive 2006/112: ‘The chargeable event shall occur and VAT shall become chargeable when the goods or the services are supplied.’

4 Article 167 of Directive 2006/112 provides: ‘A right of deduction shall arise at the time the deductible tax becomes chargeable.’

5 Under Article 168 of Directive 2006/112: ‘In so far as the goods and services are used for the purposes of the taxed transactions of a taxable person, the taxable person shall be entitled, in the Member State in which he carries out these transactions, to deduct the following from the VAT which he is liable to pay: (a) the VAT due or paid in that Member State in respect of supplies to him of goods or services, carried out or to be carried out by another taxable person; …’

6 Article 178 of Directive 2006/112 provides: ‘In order to exercise the right of deduction, a taxable person must meet the following conditions: (a) for the purposes of deductions pursuant to Article 168(a), in respect of the supply of goods or services, he must hold an invoice drawn up in accordance with Articles 220 to 236 and Articles 238, 239 and 240; …’

7 Article 179 of Directive 2006/112 reads as follows: ‘The taxable person shall make the deduction by subtracting from the total amount of VAT due for a given tax period the total amount of VAT in respect of which, during the same period, the right of deduction has arisen and is exercised in accordance with Article 178. However, Member States may require that taxable persons who carry out occasional transactions, as defined in Article 12, exercise their right of deduction only at the time of supply.’

8 Article 219 of Directive 2006/112 provides: ‘Any document or message that amends and refers specifically and unambiguously to the initial invoice shall be treated as an invoice.’

9 Under Article 226 of Directive 2006/112: ‘Without prejudice to the particular provisions laid down in this Directive, only the following details are required for VAT purposes on invoices issued pursuant to Articles 220 and 221: … (3) the VAT identification number referred to in Article 214 under which the taxable person supplied the goods or services; …’

10 Article 273 of Directive 2006/112 provides: ‘Member States may impose other obligations which they deem necessary to ensure the correct collection of VAT and to prevent evasion, subject to the requirement of equal treatment as between domestic transactions and transactions carried out between Member States by taxable persons and provided that such obligations do not, in trade between Member States, give rise to formalities connected with the crossing of frontiers. The option under the first paragraph may not be relied upon in order to impose additional invoicing obligations over and above those laid down in Chapter 3.’

German law

11 In accordance with the first sentence of Paragraph 15(1)(1) of the Umsatzsteuergesetz (Law on turnover tax, ‘the UStG’), an operator may deduct as input tax the tax lawfully due in respect of supplies of goods and services effected by another operator in the course of his business (input supplies).

12 The second sentence of Paragraph 15(1)(1) of the UStG provides that the exercise of the right to deduct VAT is subject to the operator holding an invoice drawn up in accordance with Paragraphs 14 and 14a of the UStG. Such an invoice must in particular include all the details listed in Paragraph 14(4)(1) to (9) of the UStG.

13 According to the settled case-law of the Bundesfinanzhof (Federal Finance Court, Germany), amounts of input tax paid may be deducted only in the tax period in which all the substantive conditions for the exercise of that right within the meaning of the first sentence of Paragraph 15(1) of the UStG are satisfied.

14 Paragraph 31(5) of the Umsatzsteuer-Durchführungsverordnung (Regulation implementing turnover tax) provides generally that an invoice may be corrected if it does not contain all the information required by Paragraph 14(4) or Paragraph 14a UStG or if information in the invoice is inaccurate. For that purpose, it suffices to communicate the missing or inaccurate information by a document which specifically and clearly refers to the invoice. The correction is subject to the same formal and substantial requirements as those provided for in Paragraph 14 of the UStG.

15 In the particular cases of the incorrect or unfounded mention of VAT, Paragraph 14c(1) and (2) of the UStG provides that Paragraph 17(1) of the UStG is to apply by analogy. Under that provision, corrections to invoices take effect not retrospectively but for the period in which the corrected invoice is transmitted to its addressee or in which the application for correction is granted after any risk to the collection of tax has been eliminated.

16 If the deduction is refused because of missing or incorrect details in the invoice, the right to deduction of VAT may, in German law, arise as a result of the correction of the invoice at the time of correction. In that event, while the tax authorities’ receipts from VAT remain the same, the application of the interest for late payment provided for by Paragraph 233a of the Abgabenordnung (Tax Code) entails an additional financial burden.

The dispute in the main proceedings and the questions referred for a preliminary ruling

17 Senatex operates a wholesale textile business. In each of its tax returns for 2008 to 2011 it included deductions of input VAT in respect of commission statements issued to its commercial agents and the invoices of an advertising designer.

18 On 21 January 2013 the tax office decided to carry out between 11 February and 17 May 2013 an on-the-spot check to ascertain the correctness of Senatex’s tax returns for 2008 to 2011. In that check, the tax office found that the deduction of input tax in respect of commission statements issued by Senatex to its commercial agents was not possible, since those statements did not constitute regular invoices within the meaning of Paragraph 15(1) in conjunction with Paragraph 14(4) of the UStG. According to the tax office, the documents did not contain, either in the commission statements or in their annexes, the addressee’s tax number or VAT registration number. In addition, they did not refer to any other document from which those details could be deduced. For the same reasons, the tax office found that the deduction on the basis of the invoices issued by the advertising designer was also not allowed.

19 On 2 May 2013, while the on-the-spot check was still in progress, Senatex corrected the commission statements for 2009 to 2011 issued to its commercial agents, so that the tax number or VAT identification number of each commercial agent was added to those documents. The advertising designer’s invoices for 2009 to 2011 were also corrected in like manner on that date, that is, during the on-the-spot check.

20 Nonetheless, the tax office on 2 July 2013 issued amended tax notices for 2008 to 2011 in which, on the basis of the findings made in its on-the-spot check, they reduced the sums which Senatex was entitled to deduct as VAT, on the ground that the conditions for deduction had not been satisfied for those years, but were met only from the time of correction of the invoices in 2013.

21 By letter of 19 July 2013...