The Reemtsma claim therefore also applies in the case of civil law limitation. This is consistent. The recipient thus experiences further protection if his claim to deduct input VAT has failed. The contrary view of the Federal Ministry of Finance (circular dated 12 April 2022; KMLZ VAT Newsletter 20 | 2022) therefore violates EU law and must be abandoned. This should also apply to other passages of the Federal Ministry of Finance’s letter that fall short of the ECJ’s standards. Further questions regarding the Reemtsma claim are already before the ECJ, awaiting clarification (C-83/23). The German Federal Fiscal Court has referred further questions to the ECJ for decision in a cross-border case. One of the questions to be clarified is how the Reemtsma claim should be handled if the tax office has already unlawfully refunded the VAT, according to sec. 14c of the German VAT Act, to the supplier. Affected recipients should apply for a grace decision and appeal. Proceeding against the strict view of the tax authorities now appears promising in many cases.
Source: kmlz.de
See also
- C-83/23 (H GmbH) – Questions – Refund of VAT wrongly charged to the buyer in case supplier initiated insolvency proceedings
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