General Court T-773/25 (Finanzamt für Großbetriebe) – Questions – Ex Nunc Implications of Late Invoices in Triangular Transactions

The General Court of the European Union has released facts and questions in the case T-773/25 (Finanzamt für Großbetriebe).

Artciles in the EU VAT Directive

Article 40
The place of an intra-Community acquisition of goods shall be deemed to be the place where dispatch or transport of the goods to the person acquiring them ends.

Article 41
Without prejudice to Article 40, the place of an intra-Community acquisition of goods as referred to in Article 2(1)(b)(i) shall be deemed to be within the territory of the Member State which issued the VAT identification number under which the person acquiring the goods made the acquisition, unless the person acquiring the goods establishes that VAT has been applied to that acquisition in accordance with Article 40.
If VAT is applied to the acquisition in accordance with the first paragraph and subsequently applied, pursuant to Article 40, to the acquisition in the Member State in which dispatch or transport of the goods ends, the taxable amount shall be reduced accordingly in the Member State which issued the VAT identification number under which the person acquiring the goods made the acquisition.

Article 42
The first paragraph of Article 41 shall not apply and VAT shall be deemed to have been applied to the intra-Community acquisition of goods in accordance with
Article 40 where the following conditions are met:

(a) the person acquiring the goods establishes that he has made the intraCommunity acquisition for the purposes of a subsequent supply, within the territory of the Member State identified in accordance with Article 40, for which the person to whom the supply is made has been designated in accordance with Article 197 as liable for payment of VAT;
(b) the person acquiring the goods has satisfied the obligations laid down in Article 265 relating to submission of the recapitulative statement.

Article 141
Each Member State shall take specific measures to ensure that VAT is not charged on the intra-Community acquisition of goods within its territory, made in
accordance with Article 40, where the following conditions are met:

(a) the acquisition of goods is made by a taxable person who is not established in the Member State concerned but is identified for VAT purposes in another
Member State;
(b) the acquisition of goods is made for the purposes of the subsequent supply of those goods, in the Member State concerned, by the taxable person
referred to in point (a);
(c) the goods thus acquired by the taxable person referred to in point (a) are directly dispatched or transported, from a Member State other than that in which he is identified for VAT purposes, to the person for whom he is to carry out the subsequent supply;
(d) the person to whom the subsequent supply is to be made is another taxable person, or a non-taxable legal person, who is identified for VAT purposes in the Member State concerned;
(e) the person referred to in point (d) has been designated in accordance with Article 197 as liable for payment of the VAT due on the supply carried out by the taxable person who is not established in the Member State in which the tax is due.

Article 197

1. VAT shall be payable by the person to whom the goods are supplied when the following conditions are met:

(a) the taxable transaction is a supply of goods carried out in accordance with the conditions laid down in Article 141;
(b) the person to whom the goods are supplied is another taxable person, or a non-taxable legal person, identified for VAT purposes in the Member State
in which the supply is carried out;
(c) the invoice issued by the taxable person not established in the Member State of the person to whom the goods are supplied is drawn up in accordance
with Sections 3 to 5 of Chapter 3.

2. Where a tax representative is appointed as the person liable for payment of VAT pursuant to Article 204, Member States may provide for a derogation from
paragraph 1 of this Article.

Facts & Background

An external audit from 2010 to 2012 and an inspection from January 2013 to September 2014 revealed that the interested party failed to indicate triangular transactions on invoices, leading the tax authority to classify their activities as cumulative intra-Community acquisitions in Austria and disallow input tax deductions.
The interested party engaged in cross-border transactions with traders from Sweden and Denmark, treating these as intra-Community supplies and acquisitions, but did not properly document the triangular transaction process, resulting in tax complications.
The interested party later corrected invoices to indicate the existence of a triangular transaction and claimed that this adjustment met the necessary conditions for the simplification scheme under Austrian tax law, but the tax authority rejected these adjustments.
The Federal Finance Court ruled in favor of the interested party for the tax year 2015, asserting that the corrected invoices were effectively delivered to customers, despite previous shortcomings, but noted that the adjustments could only take effect from the date of correction, not retroactively.
The tax authority appealed, arguing that allowing retrospective corrections undermines the purpose of the triangular transaction scheme and complicates tax liability verification for transactions that occurred years prior, while the interested party contended that the adjustments should be recognized under the principle of fiscal neutrality.

Questions

1. Must Article 42(a) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax as amended by Council Directive 2010/45/EU of 13 July 2010 be interpreted as meaning that the first issuance of an invoice that is necessary for the application of the derogation for triangular
transactions but which is issued only some years after the supply was effected triggers the legal consequences of the administrative simplification scheme ex nunc?
2. If Question 1 is answered in the affirmative, does the ex nunc effectiveness of the first issuance of such an invoice depend on the person issuing the invoice having ensured taxation in accordance with the general conditions in the Member State of destination for the period of time preceding the issuance of that invoice?
3. If Question 1 is answered in the affirmative, in what form must the intermediary provide proof that the necessary invoice issued for the first time was in fact received by the end customer

Source