On February 17, 2016 on the website of the Court of Justice of the European Union the opinion of Advocate General Bot in Case C‑518/14 Senatex GmbH versus Finanzamt Hannover-Nord was published (ECLI:EU:C:2016:91).
· Is the ex nunc effect of the first issue of an invoice, as established by the Court of Justice in the judgment in Terra Baubedarf-Handel (C‑152/02, EU:C:2004:268), qualified by the judgments of the Court of Justice in Pannon Gép Centrum (C‑368/09, EU:C:2010:441) and Petroma Transports and Others(C‑271/12, EU:C:2013:297) as regards cases, such as the present, in which an incomplete invoice is completed, so that the Court of Justice ultimately intended to permit retrospective effect in such cases?
· What are the minimum requirements for an invoice to be capable of correction with retrospective effect? Is it necessary that the original invoice bears a tax number or a VAT identification number, or can these be added later with the consequence that the right of deduction is retained on the basis of the original invoice?
· Is a correction to an invoice timely if it is only made in the course of objection proceedings against the decision (amendment notice) of the tax authority?
The facts in the main proceedings and the questions referred for a preliminary ruling
· Senatex GmbH (‘Senatex’) carries on a wholesale textile business. For the years 2008-2011 it showed in its tax returns an input tax deduction on the basis of commission statements issued by it to its sales representatives and on the basis of invoices from a commercial designer (together ‘the invoices at issue’).
· Between 11 February and 17 May 2013, Senatex was subject to an inspection by the Finanzamt Hannover-Nord (Hannover-Nord Tax Office) in relation to the years 2008-2011. In the course of the inspection, it was found that the invoices at issue submitted for the purposes of input tax deduction were not proper invoices within the meaning of Paragraphs 15(1) and 14(4) of the UStG. Neither the invoices themselves nor the annexed documents contained the tax number or the VAT identification number of the sales representatives concerned or commercial designer.
· On 2 May 2013, during the inspection period, Senatex corrected the commission statements, for the years 2009-2011 only, by adding the details of the tax number or the VAT identification number of each sales representative concerned. The invoices of the commercial designer were similarly rectified for the years 2009-2011.
· Notwithstanding those corrections, on 2 July 2013 the Finanzamt Hannover-Nord issued amended notices of tax assessment for the years 2008-2011 in which it stated that the input tax deductions in respect of the invoices at issue could not be made for the years 2009-2011 on the ground that the requirements for those deductions were met only when the corrections were made, namely in 2013, and not in the years 2009-2011.
· Senatex therefore lodged an objection against those amended notices of tax assessment. In addition, during those objection proceedings, it discovered that it had not issued corrections for the invoices at issue for 2008. On 11 February 2014, it accordingly corrected the commission statements for 2008 by adding the details of the tax number or the VAT identification number of the sales representatives concerned. The invoices of the commercial designer were similarly rectified for the year 2008.
· By decision of 3 March 2014, the Finanzamt Hannover-Nord maintained its view that the requirements for input tax deductions in respect of the invoices at issue were not met until those invoices had been corrected in 2013 and 2014. In its view, it is not possible for the correction of an invoice to be given retroactive effect to the time the supply was made, thus conferring an ex tunc effect.
· On 5 March 2014, Senatex brought an action against that decision at the referring court. It takes the view that the corrections made to the invoices have retroactive effect, namely for the years 2008-2011, as those corrections were made before the final administrative decision, namely the decision of 3 March 2014. It thus claims that the referring court should annul the amended notices of tax assessment issued by the Finanzamt Hannover-Nord for the years 2008-2011.
· As the Niedersächsisches Finanzgericht (Finance Court of Lower Saxony) has doubts as to the interpretation of the Court’s judgments and of the provisions of the VAT directive, it decided to stay its proceedings and to refer the following questions for a preliminary ruling:
1. Is the ex nunc effect of the first issue of an invoice, as established by the Court of Justice in the judgment in Terra Baubedarf-Handel (C‑152/02, EU:C:2004:268), qualified by the judgments of the Court of Justice in Pannon Gép Centrum (C‑368/09, EU:C:2010:441) and Petroma Transports and Others(C‑271/12, EU:C:2013:297) as regards cases, such as the present, in which an incomplete invoice is completed, so that the Court of Justice ultimately intended to permit retrospective effect in such cases?
2. What are the minimum requirements for an invoice to be capable of correction with retrospective effect? Is it necessary that the original invoice bears a tax number or a VAT identification number, or can these be added later with the consequence that the right of deduction is retained on the basis of the original invoice?
3. Is a correction to an invoice timely if it is only made in the course of objection proceedings against the decision (amendment notice) of the tax authority?
Conclusion
In the light of the above considerations, the Advocate General proposes that the Court answer the questions referred by the Niedersächsisches Finanzgericht as follows:
Articles 167, 178(a), 179 and 226(3) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as precluding national legislation such as that at issue in the main proceedings under which the correction of an invoice in relation to certain required details, namely the VAT identification number, does not have retroactive effect, with the result that the right to deduct VAT may be exercised only for the year when the initial invoice was corrected and not for the year when that invoice was drawn up.
In this regard, the Member States may adopt measures to penalise failure to provide the required details, as long as they comply with the principle of proportionality, and also measures placing a temporal restriction on the possibility of correcting an incorrect or incomplete invoice, provided they apply in the same way to similar rights in tax matters based on domestic law and to such rights based on EU law (principle of equivalence) and do not render impossible in practice or excessively difficult the exercise of the right of deduction (principle of effectiveness).
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