Flashback on ECJ Cases – C-433/08 (Yaesu Europe) – Signature of authorized representative is sufficient in a request for refund

On December 3, 2009, the ECJ issued its decision in the case C-433/08 (Yaesu Europe).

Context: Eighth VAT Directive – Arrangements for the refund of VAT to taxable persons not established in the territory of the country – Annex A – Application for a refund – Meaning of ‘signature’ of that application – National legislation requiring the personal signature of the taxable person, or of the statutory representative of that person, and ruling out signature by an agent

Article in the EU VAT Directive

Article 3(a) and 6 of the Eight Directive.

Article 3(a) of the Eighth Directive provides:

‘To qualify for refund, any taxable person as referred to in Article 2 who supplies no goods or services deemed to be supplied in the territory of the country shall:

(a) submit to the competent authority referred to in the first paragraph of Article 9 an application modelled on the specimen contained in Annex A, attaching originals of invoices or import documents. Member States shall make available to applicants an explanatory notice which shall in any event contain the minimum information set out in Annex C’.

Article 6 of the Eighth Directive provides:

‘Member States may not impose on the taxable persons referred to in Article 2 any obligation, in addition to those referred to in Articles 3 and 4, other than the obligation to provide, in specific cases, the information necessary to determine whether the application for refund is justified.’

At the bottom of the specimen form for a VAT refund application, set out in Annex A to the Eighth Directive, space is left not only for an entry indicating the place and date of the application, but also for a ‘signature’, with no further explanation.

Facts

On 30 June 2006, Yaesu Europe applied for a refund of the input VAT paid in Germany for the period from January to December 2005. The application was submitted on the official form provided for that purpose in Germany, on which, in a box numbered 9, reference is made to ‘personal signature and company seal’.
In a covering letter, the lawyers of Yaesu Europe, who are established in Germany and are also mentioned on the above form as being authorised to accept service of legal documents for that company, stated that they had signed the application on behalf of their client. Enclosed with the letter was an ‘authorisation to act in the procedure for refund of the input tax’, drawn up by the statutory representative of Yaesu Europe, empowering those lawyers to act as the company’s legal representatives in all procedures relating to the refund of VAT.
By decision of 1 September 2006, the Bundeszentralamt refused the application for a refund, on the ground that it did not bear the personal signature of the taxable person, in breach of Paragraph 18(9) of the UStG.
After an unsuccessful objection, Yaesu Europe brought an action before the Finanzgericht (Finance Court). The Finanzgericht upheld the position of the Bundeszentralamt, holding that Paragraph 18(9) of the UStG did not infringe Articles 3 and 6 of the Eighth Directive and that the term ‘signature’ on the specimen application form set out in Annex A to that directive had of necessity to be construed as a reference to the personal signature of the taxpayer, the position being in any case that, for the purposes of implementation, the German legislature enjoys discretion in that regard under the third paragraph of Article 249 EC.
Yaesu Europe appealed to the Bundesfinanzhof on a point of law, maintaining essentially that the Finanzgericht had misinterpreted the term ‘signature’ on the specimen form set out in Annex A to the Eighth Directive and relying, in that regard, on the fact that a number of Member States expressly authorise signature of the refund application by an agent. Yaesu Europe argues, moreover, that the term must be interpreted uniformly throughout the European Community.

Questions

Is the term ‘Signature’ in the specimen in Annex A to the Eighth Council Directive 79/1072/EEC of 6 December 1979 on the harmonization of the laws of the Member States relating to turnover taxes – Arrangements for the refund of value added tax to taxable persons ¹ not established in the territory of the country, which is to be used to submit an application for a refund of turnover tax pursuant to Article 3(a) of the directive, to be to be given a uniform Community law interpretation?

If the answer to the first question is in the affirmative:

Is the term ‘Signature’ to be understood as meaning that the application for a refund must be signed by the taxable person himself or, in regard to a legal person, by its statutory representative, or is the signature of an agent (for example, a representative for tax purposes or an employee of the taxable person) sufficient?

AG Opinion

None

Decision

‘Signature’ of an application for a refund of value added tax, as referred to in the specimen form set out in Annex A to the Eighth Council Directive 79/1072/EEC of 6 December 1979 on the harmonisation of the laws of the Member States relating to turnover taxes – Arrangements for the refund of value added tax to taxable persons not established in the territory of the country, is a Community law notion which must be interpreted uniformly to the effect that such a refund application need not necessarily be signed by the taxable person in person and that the signature of an agent may be sufficient for those purposes.

Summary

Concept of “signature” in request for refund

The concept of signature in the model application for VAT refund in Annex A to the Eighth Directive constitutes a concept of Community law which must be interpreted uniformly in the sense that such a request for refund does not have to be signed by the taxable person himself, but that in this context it is sufficient that it be signed by an authorized representative.

Source: