A has concluded a so-called Design, Build, Maintain, Operate and Finance agreement with a municipality and an educational foundation. In connection with the construction, A sent invoices with VAT to the municipality, which the municipality paid. In April 2019, A sent credit invoices to the municipality on the one hand and, on the other hand, issued an invoice for the same total amount, but without VAT.
The question is whether A is entitled to a refund of VAT for the second quarter of 2019 on the basis that VAT was incorrectly charged earlier (revision of Article 37 VAT).
The court of Zeeland-West-Brabant is of the opinion that this is not the case. The agreement offers no basis for A’s assertion that there is an (investment) subsidy by the municipality to A and that there is no performance in return for the amount invoiced to the municipality. On the contrary, the agreement indicates that the amount invoiced to the municipality is compensation for a performance by A. Since there is a direct link between the payment and the performance, there is a supply for consideration and a taxable supply for value added tax. A’s assertion that an amount equal to the construction costs cannot constitute the actual consideration for that consideration does not alter this.
Source BTW jurisprudentie
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