Question: Should the supplier issue a creditnote to its customer in case a rebate is granted to be able to adjust the output VAT downwards? Or is e.g. an invoice from the customer acceptable as well?
This question was discussed in the case C-717/19 (Boehringer Ingelheim).
Relevant articles in the EU VAT Directive 2006/112/EC
Article 73
In the case of supplies of goods and services other than those referred to in Articles 74 to 77, the taxable amount shall include the total consideration received or to be received by the supplier from the customer or a third party for the transactions in question, including subsidies directly linked to the transaction price.
Article 90
1. In the event of cancellation, cancellation, cancellation, non-payment or only partial payment or reduction of the price after the time of the transaction, the tax base shall be reduced accordingly under conditions to be determined by the Member States.
Article 273
Member States may lay down other obligations which they consider necessary to ensure the correct collection of VAT and to avoid fraud, provided that domestic transactions between Member States and taxable persons are treated equally, provided that such obligations are not met in trade between: Member States give rise to formalities at the border crossing.
The possibility in para. Paragraph 1 may not be used to impose invoicing obligations other than those laid down in Chapter 3.
Question to ECJ
… Article 273 of the [VAT Directive] must then be interpreted as precluding national legislation such as that at issue in the main proceedings, according to which an invoice is required for a subsequent reduction of the tax base. issued in the name of the person entitled to a refund documenting the completion of the transaction giving rise to that refund, when the transaction allowing for the subsequent reduction of the tax base is otherwise duly substantiated and can be checked subsequently; , partly based on public and official information [,] and ensures the correct collection of the tax? ‘
Argumentation ECJ
65 In such a case, the principle of neutrality of VAT and the principle of proportionality require the Member State concerned to allow the taxable person to prove to the national tax authorities in another way that the transaction giving rise to a reduction in the taxable amount has actually been completed (cf. See, to that effect, judgment of 26.1.2012, Kraft Foods Polska, C-588/10, EU: C: 2012: 40, paragraph 40). This is all the more true when the transaction in question, as in the present case, took place in relation to a State entity.
66 In the light of the foregoing considerations, the answer to the second question must be that Article 90 (1) of the VAT Directive provides: Article 273 must be interpreted as precluding national legislation which makes a subsequent reduction of the taxable amount subject to the condition that the taxable person entitled to a refund is in possession of an invoice which: is issued in the name of the person concerned, documenting the execution of the transaction giving rise to said repayment, even when such an invoice has not been issued and the execution of that transaction can be substantiated by other means.
Decision
2) Article 90 (1) Article 273 of Directive 2006/112 must be interpreted as precluding national legislation which makes the subsequent reduction of the VAT base conditional on the taxable person being entitled to a refund. of an invoice issued in the name of the person concerned documenting the execution of the transaction giving rise to said repayment, even when such invoice has not been issued and the execution of that transaction can be substantiated by other means.
