Refund of VAT – VAT not legally due
In this case, an Italian taxable person had supplied advertising services 1) to a German taxable person (Reemtsma) and mistakenly charged Italian VAT on the invoice; for VAT purposes, the services were deemed to be rendered in Germany.
1.Articles 2 and 5 of the Eighth Directive […] must be interpreted as meaning that VAT that is not due and has been invoiced in error to the beneficiary of the services and paid to the tax authorities of the Member State where those services were supplied, is not refundable under those provisions.
2.Except in the cases expressly provided for in Article 21(1) (Art. 193 to 201 in the EU VAT Directive 2006/112/EU) of the Sixth Directive […], as amended by Directive 92/111 […], only the supplier must be considered to be liable for payment of VAT for the purposes of the tax authorities of the Member State where the services were supplied.
3.The principles of neutrality, effectiveness and nondiscrimination do not preclude national legislation, according to which only the supplier may seek reimbursement of the sums unduly paid as VAT to the tax authorities and the recipient of the services may bring a civil law action against that supplier for recovery of the sums paid but not due. However, where reimbursement of the VAT would become impossible or excessively difficult, the Member States must provide for the instruments necessary to enable that recipient to recover the unduly invoiced tax in order to respect the principle of effectiveness.
Source Curia
