For our other posts about this case, click HERE.
Article in the EU VAT Directive
Articles 63, 64(1), 66(1), 90 of the EU VAT Directive 2006/112/EC
The chargeable event shall occur and VAT shall become chargeable when the goods or the services are supplied.
Where it gives rise to successive statements of account or successive payments, the supply of goods, other than that consisting in the hire of goods for a certain
period or the sale of goods on deferred terms, as referred to in point (b) of Article 14(2), or the supply of services shall be regarded as being completed on
expiry of the periods to which such statements of account or payments relate
By way of derogation from Articles 63, 64 and 65, Member States may provide that VAT is to become chargeable, in respect of certain transactions or certain
categories of taxable person at one of the following times:
(a) no later than the time the invoice is issued;
(b) no later than the time the payment is received;
(c) where an invoice is not issued, or is issued late, within a specified period from the date of the chargeable event.’
(1) In the case of cancellation, refusal or total or partial non-payment, or where the price is reduced after the supply takes place, the taxable amount shall be
reduced accordingly under conditions which shall be determined by the Member States
(2) In the case of total or partial non-payment, Member States may derogate from paragraph 1.
In the tax year 2012 at issue, the applicant provided a taxable brokerage service for T-GmbH on the basis of a fee agreement. T-GmbH had instructed the applicant to act as an intermediary in the context of an agreement to purchase a plot of land. In return, the applicant would receive a fee of € 1,000,000, plus VAT, from T-GmbH. The applicant had fully complied with its obligations under this contract. The agreed fee was to be paid in five annual installments of € 200,000 plus sales tax. In the following years, the applicant drew up invoices indicating the tax on the respective installments, received those amounts and paid tax on the basis of the amount received. After an audit of the turnover tax, the defendant (tax authorities, hereinafter: FA) assumed that the applicant had to pay tax on the full fee for her mediation because of the mediation service. FA has amended the 2012 sales tax determination by decision. The objection to this has been rejected. In contrast, the tax court at first instance has largely upheld the appeal. The applicant already provided her brokerage service during the tax year at issue, as is apparent from the fee agreement. In view of the Court’s case law on the VAT Directive and taking into account the case law of the Bundesfinanzhof, except for the first amount received in 2013, the other amounts must be considered irrecoverable.
The referring court has doubts about the interpretation of Article 64 (1) of the VAT Directive. That provision excludes a installment agreement – as in the present case – from its scope in the case of supplies of goods sold on installment. There is no provision in national law corresponding to Article 64 (1) of the VAT Directive. Furthermore, the question arises whether it is compatible with the duty of the tax collector that, in respect of a service already provided on 7 November 2012, it must be assumed for that year that the tax (if the answer to the first question is answered in the negative) is due without any reduction in the taxable amount,
Further, a PDF with more background information can be found HERE.
Does a service provided on a single occasion and therefore not in relation to a certain period of time give rise to successive statements of account or successive payments within the meaning of Article 64(1) of the VAT Directive 1 merely on the basis of an agreement to pay in instalments?
Alternatively, if the first question is answered in the negative: Is non-payment within the meaning of Article 90(1) of the VAT Directive to be assumed if the taxable person, when providing his service, agrees that the service is to be paid for in five annual instalments and the national law relating to cases of subsequent payment provides for an adjustment by which the previous reduction in the taxable amount is cancelled again in accordance with that article?
Similar ECJ cases
How did countries implement the case? Your feedback appreciated! Let us know