# C_2023205EN.01002501.xml

| 12.6.2023 | EN | Official Journal of the European Union | C 205/25 |
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12.6.2023

EN

Official Journal of the European Union

C 205/25

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Request for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 15 February 2023 — H GmbH v Tax office of M

(Case C-83/23, H GmbH)

(2023/C 205/28)

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Applicant: H GmbH

Defendant: Tax office of M

Questions referred

Questions referred for a preliminary ruling on the interpretation of Directive 2006/112/EC: (1)

| 1. | Does the recipient of a service, who is domiciled in the national territory, have a so-called direct claim against the national tax administration by virtue of the judgment of the Court of 15 March 2007, Reemtsma Cigarettenfabriken — C-35/05 (EU:C:2007:167) if:






  (a) | the service provider, who is also domiciled within the national territory, issues the service recipient with an invoice that shows the tax incurred at a national level and the service recipient pays the invoice, with the provider then duly paying the tax shown in the invoice, |
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1.

Does the recipient of a service, who is domiciled in the national territory, have a so-called direct claim against the national tax administration by virtue of the judgment of the Court of 15 March 2007, Reemtsma Cigarettenfabriken — C-35/05 (EU:C:2007:167) if:

(a)

the service provider, who is also domiciled within the national territory, issues the service recipient with an invoice that shows the tax incurred at a national level and the service recipient pays the invoice, with the provider then duly paying the tax shown in the invoice,

| (b) | the invoiced service is provided in another Member State, |
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(b)

the invoiced service is provided in another Member State,

| (c) | the service recipient is therefore denied an input VAT deduction in its country of domicile because no tax is owed under the laws of that country, |
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(c)

the service recipient is therefore denied an input VAT deduction in its country of domicile because no tax is owed under the laws of that country,

| (d) | the provider then corrects the invoice by removing any reference to the tax incurred at a national level, thereby reducing the invoice amount by the amount of the tax, |
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(d)

the provider then corrects the invoice by removing any reference to the tax incurred at a national level, thereby reducing the invoice amount by the amount of the tax,

| (e) | the service recipient proves unable to assert any payment claims against the provider because insolvency proceedings were opened in respect of the provider’s assets, and |
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(e)

the service recipient proves unable to assert any payment claims against the provider because insolvency proceedings were opened in respect of the provider’s assets, and

| (f) | the provider, who is not yet registered in the other Member State, has the option to register for VAT purposes in that Member State in order to be able to issue the service recipient with an invoice bearing the relevant tax number in that Member State and showing the tax payable in said Member State, which would entitle the service recipient to an input VAT deduction in said Member State under the special procedure set out in Directive 2008/9/EC (2) of 12 February 2008? |
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(f)

the provider, who is not yet registered in the other Member State, has the option to register for VAT purposes in that Member State in order to be able to issue the service recipient with an invoice bearing the relevant tax number in that Member State and showing the tax payable in said Member State, which would entitle the service recipient to an input VAT deduction in said Member State under the special procedure set out in Directive 2008/9/EC (2) of 12 February 2008?

| 2. | Does the answer to that question depend on whether the national tax administration has refunded the tax paid to the provider merely by virtue of the corrected invoice, even though the provider did not repay anything to the service recipient following the opening of insolvency proceedings? |
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2.

Does the answer to that question depend on whether the national tax administration has refunded the tax paid to the provider merely by virtue of the corrected invoice, even though the provider did not repay anything to the service recipient following the opening of insolvency proceedings?

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(1)  Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).

(2)  Council Directive 2008/9/EC of 12 February 2008 laying down detailed rules for the refund of value added tax, provided for in Directive 2006/112/EC, to taxable persons not established in the Member State of refund but established in another Member State (OJ 2008 L 44, p. 23).

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