VATupdate

ECJ C-281/20 analyzed – Part 2: ”naming” and ” status” of the supplier, formal or material condition for the right to deduct VAT

On November 11, 2021, the ECJ issued its decision in the case C-281/20 (Ferimet, S. L.) – Decision – No Input VAT deduction for self-invoice with reverse charge VAT with fictitious supplier.

The court case develops an interesting argumentation on the Right to Deduct VAT, and more specifically when there is a suspicion that fraud is involved.

In a series of newsitems, we will highlight some interesting obeservations from the decision of the Court.

Part 1 dealt with regard to the Formal vs. Material requirements of the Right to deduct VAT.

In part 2, we classify whether the ”naming” and ”status” of the supplier is either a formal or material condition

Cfr. paragraph 27 of the judgement in the case C-281/20

  • The naming of the supplier on the invoice (invoice requirement per art. 226) is a formal condition for the exercise of that right.
  • The status of the supplier (is he a ”taxable perons”?) of the goods or services as a taxable person is among the material conditions for the exercise of that right.

 

Note: In the AG Opinion of the case C-80/20 (Wilo Salmson France), the AG mentions under point 9, that the supplier name is a ”material” condition of an invoice as per art. 178(a) of the EU VAT Directive 2006/112/EC.

93.      In my opinion, a document is in fact an invoice within the meaning of Article 178(a) of the VAT Directive if it enables both the recipient of the supply and the tax authorities to establish which supplier has charged which recipient of the supply which amount in VAT and for which transaction. That means it needs to state the supplier, the recipient of the supply, the goods or services supplied, the price and the VAT, which must be stated separately. (53) If those five essential items of information are provided, the spirit and purpose of the invoice are fulfilled and the right of deduction ultimately arises.

See EU Invoicing Requirements: Material vs. Formal requirements of a valid invoice (based on AG Opinion in ECJ case C-80/20)

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