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Incorrectly charged VAT, invoices and unjust enrichment

The AG has opined that the obligation to pay the full amount of VAT incorrectly shown on an invoice may not apply where the recipient are final consumers who are not entitled to deduct VAT: P GmbH v Finanzamt Osterreich (Case C-378/21) (8 September 2022). The AG has concluded that there is no risk of a mismatch between output VAT and input VAT in such cases that requires output VAT incorrectly included on an invoice to be collected. The opinion appears at odds with the UK legislation in VATA 1994 Schedule 11 which provides that any VAT shown on an invoice is recoverable as a debt owed to the Crown.

The opinion also appears to eliminate considerations around unjust enrichment in such cases and is contrary to the approach of HMRC in the UK. As such, it will be interesting to see if the CJEU follow the opinion in this respect.

Source: simmons-simmons.com

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