Opinion of the Advocate General — ECLI:EU:C:2021:730
Date: 2021-09-09
Language of the case: German
Subject matter: Taxation;Value added tax
Procedure: Reference for a preliminary ruling
Origin: Germany

Translation  C-9/20 — 1 
Case C-9/20 
Request for a preliminary ruling 
Date lodged: 
10 January 2020 
Referring court: 
Finanzgericht Hamburg (Germany) 
Date of the decision to refer: 
10 December 2019 
Applicant: 
Grundstücksgemeinschaft Kollaustraße 136 (Kollaustraße 136 
property community) 
Defendant: 
Finanzamt Hamburg-Oberalster (Hamburg-Oberalster Tax Office) 
  
Finanzgericht Hamburg (Hamburg Finance Court) 
Order 
In the case of 
Kollaustraße 136 property community 
[…] Hamburg 
- Applicant - 
[…] 
v 
Hamburg-Oberalster Tax Office 
[…] 
- Defendant - 
EN 
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concerning turnover tax 2013-2015 
 turnover tax prepayments 2016 
  
the Hamburg Finance Court, […] issued, on 10 December 2019, […] 
[…] [Or. 2] 
the following order: 
I. The following questions are referred to the Court of Justice of the 
European Union for a preliminary ruling under Article 267 of the Treaty on 
the Functioning of the European Union (TFEU): 
1. Does Article 167 of Directive 2006/112/EC of 28 November 2006 on the 
common system of valued added tax preclude a provision of national law 
according to which the right of input tax deduction already arises at the time 
the transaction is performed, even if, under national law, the tax claim 
against the supplier or service provider arises only when the remuneration is 
received and the remuneration has not yet been paid? 
2. If the first question is answered in the negative: Does Article 167 of 
Directive 2006/112/EC of 28 November 2006 on the common system of 
valued added tax preclude a provision of national law according to which the 
right of input tax deduction cannot be asserted for the tax period in which 
the remuneration has been paid if the tax claim against the supplier or 
service provider  arises only when the remuneration is received, the service 
has already been provided in an earlier tax period and,  under national law, 
due to the matter being time-barred, it is no longer possible to assert the 
input tax claim for that earlier tax period? 
II. The proceedings are stayed until the Court of Justice of the European 
Union has given a ruling. [Or. 3] 
NOTICE RELATING TO APPEALS 
[…] [Or. 4] 
A. Facts and subject matter of the dispute 
1 The parties concerned are in dispute as to whether the service recipient’s input tax 
deduction claim under point 1 of the first sentence of Paragraph 15(1) of the 
German Umsatzsteuergesetz (Turnover Tax Law; UStG) already arises with the 
performance of the service or only with the payment of the remuneration, if the 
service provider calculates the turnover tax on the basis of remuneration received 
(known as ‘Ist-Versteuerer’, actual tax payer). 
2 The applicant, a company constituted under civil law, generated turnover by 
leasing a commercial property in the years at issue. The applicant had for its part 
GRUNDSTÜCKSGEMEINSCHAFT KOLLAUSTRAßE 136 
 
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rented that property. Both the applicant and its lessor had effectively waived the 
tax exemption for such rental turnover and therefore opted to pay turnover tax. 
Both had been authorised by the fiscal authority pursuant to Paragraph 20 of the 
UStG to calculate the tax on the basis of the remuneration received rather than on 
the basis of remuneration agreed. With the rental contract, the applicant had a 
proper continuing invoice. 
3 From 2004, the applicant’s rental payments were partly deferred. That meant that 
the applicant made payments for the property lease in 2009 to 2012 in the years at 
issue, 2013 to 2016. Specifically, the payments can be assigned as follows: 
2013: € 22 382.00 
€ 16 898.00 
€ 39 280.00 
for rental period 2009 
for rental period 2010 
 
2014: 
 
€ 14 075.98 
€ 25 204.02 
€ 39 280.00 
for rental period 2010 
for rental period 2011 
2015: € 5 769.30 
€ 1 370.70 
€ 7 140.00  
for rental period 2011 
for rental period 2012 
2016: € 7 140.00 
€ 7 140.00 
for rental period 2012  
 
[Or. 5] 
4 Furthermore, the applicant was released from the remaining debt of EUR 22 
462.62 by the lessor in 2016. 
5 Turnover tax of 19% was included in each of the payments mentioned. Regardless 
of the rental period for which the payments were intended, the applicant always 
asserted its input tax deduction claim in the prepayment period or calendar year in 
which the payment was made. 
6 That action was objected to in the scope of an external turnover tax audit. The 
auditor was of the opinion that the input tax deduction claim had already arisen 
with the performance of the transaction — in this case the monthly leasing of the 
property — and should therefore have been asserted for each corresponding 
period. Corresponding turnover tax notices for the years 2011 to 2015 and 
corresponding turnover tax prepayment notices for 2016 were subsequently issued 
on 15 June 2017. In those notices, the input tax was no longer calculated on the 
basis of the payments made in each year, but on the basis of the rent agreed for 
each year. This had the following tax implications for the years at issue: 
- 2013: less input tax or additional tax of EUR 6 271.60 
- 2014: less input tax or additional tax of EUR 6 271.60 
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- 2015: less input tax or additional tax of EUR 1 140.00 
- 2016: less input tax or additional tax of EUR 4 726.47 
7 For the years 2011 and 2012, the tax was reduced by EUR 2 759.79 and EUR 
2 665.32 respectively, as the rental arrears newly accrued in those years 
respectively exceeded the payments made for the previous years. The notices in 
respect of 2011 and 2012 are therefore not the subject matter of the dispute. 
8 The notices in respect of the years before 2011 were not changed, as claims were 
already time-barred in this respect. Those notices are likewise not the subject 
matter of the dispute. Consequently, this means that the turnover tax included in 
the rental payments from 2013 and 2014 for the rental periods 2009 and 2010 has 
not been taken into consideration as input tax in the case of the applicant. [Or. 6] 
The applicant did not assert this input tax in the years 2009 and 2010. It is not 
recognised by the defendant for the years 2013 and 2014, because the input tax 
deduction claim arose back in 2009 and 2010 and should have been asserted at 
that time. 
9 On 3 July 2017, the applicant filed an objection to the notices of 15 June 2017 on 
turnover tax or turnover tax prepayments for the years 2013 to 2016. The 
objections were rejected on 8 November 2017. The applicant thereupon brought 
an action on 28 November 2017. 
10 The applicant claims that the contested notices infringe Directive 2006/112/EC of 
28 November 2006 on the common system of value added tax (VAT Directive). 
According to that claim, the defendant’s opinion that the input tax deduction right 
always arises with the performance of the transaction is incorrect. If the service 
provider calculates his tax on the basis of remuneration received, the service 
recipient’s input tax claim instead only arises when the service recipient has paid 
the remuneration. The applicant was therefore right to have always only asserted 
its input tax claim in the year of the payment. 
B. Relevant legal provisions 
I. National law 
11 The relevant legal provisions of the German Turnover Tax Law (UStG) read as 
follows: 
Paragraph 13 Chargeability of tax 
(1) Tax shall become chargeable 
1. 
on goods and services 
GRUNDSTÜCKSGEMEINSCHAFT KOLLAUSTRAßE 136 
 
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a) 
in cases where tax is calculated on the basis of remuneration agreed (first sentence 
of Paragraph 16(1)), upon expiry of the prepayment period in which the supplies 
of goods or services were made. This shall also apply to part supplies. These are 
present where it is agreed that certain parts of an economically divisible supply 
are to be paid for separately. Where [Or. 7] the remuneration or part remuneration 
is received before the supply or part supply has been made, tax shall become 
chargeable thereon upon expiry of the prepayment period in which the 
remuneration or part remuneration was received, 
b) 
in cases where tax is calculated on the basis of remuneration received 
(Paragraph 20), upon expiry of the prepayment period in which the remuneration 
was received, […] 
Paragraph 15 Deduction of input tax 
(1) The trader may deduct the following amounts of input tax: 
1. 
the tax lawfully payable on goods and services provided to his business by another 
trader. Deduction of the input tax is subject to the condition that the trader holds 
an invoice drawn up in accordance with Paragraphs 14 and 14a. […] 
Paragraph 16 Tax calculation, tax period and individual taxation 
(1) Where Paragraph 20 does not apply, the tax shall be calculated on the basis of 
remuneration agreed. The tax period shall be the calendar year. […] 
(2) The tax deductible under Paragraph 15 which falls within the tax period shall 
be deducted from the tax calculated in accordance with subparagraph (1). […] 
Paragraph 20 Calculation of tax on the basis of remuneration received 
On application, the Tax Office may allow a trader 
1. 
whose total turnover (Paragraph 19(3)) in the preceding calendar year did not 
exceed EUR 500 000, or 
2. 
who is exempt from the obligation to keep accounts and to draw up annual stock 
inventories under Paragraph 148 of the Abgabenordnung (Tax Code), or 
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3. 
whose turnover derives from an activity as a member of a liberal profession within 
the meaning of point 1 of Paragraph 18(1) of the Einkommensteuergesetz (Law on 
income tax), 
to calculate the tax on the basis of the remuneration received rather than on the 
basis of the remuneration agreed (first sentence of Paragraph 16(1)). […] 
II. EU law 
12 In the opinion of the referring court, the following provisions of the VAT 
Directive are of significance for the main proceedings: [Or. 8] 
Article 63 
The chargeable event shall occur and VAT shall become chargeable when the 
goods or the services are supplied. 
Article 66 
By way of derogation from Articles 63, 64 and 65, Member States may provide 
that VAT is to become chargeable, in respect of certain transactions or certain 
categories of taxable person at one of the following times: 
[…] 
b) no later than the time the payment is received; 
[…] 
Article 167 
A right of deduction shall arise at the time the deductible tax becomes chargeable. 
Article 167a 
Member States may provide within an optional scheme that the right of deduction 
of a taxable person whose VAT solely becomes chargeable in accordance with 
Article 66(b) be postponed until the VAT on the goods or services supplied to him 
has been paid to his supplier. 
[…] 
Article 179 
The taxable person shall make the deduction by subtracting from the total amount 
of VAT due for a given tax period the total amount of VAT in respect of which, 
GRUNDSTÜCKSGEMEINSCHAFT KOLLAUSTRAßE 136 
 
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during the same period, the right of deduction has arisen and is exercised in 
accordance with Article 178. 
[…] 
Article 180 
Member States may authorise a taxable person to make a deduction which he has 
not made in accordance with Articles 178 and 179. 
Article 226 
Without prejudice to the particular provisions laid down in this Directive, only the 
following details are required for VAT purposes on invoices issued pursuant to 
Articles 220 and 221: 
[…] 
7a. where the VAT becomes chargeable at the time when [Or. 9] the payment is 
received in accordance with Article 66(b) and the right of deduction arises at the 
time the deductible tax becomes chargeable, the mention ‘Cash accounting’; 
[…] 
C. Grounds of the questions referred 
I. First question referred 
13 The first question serves for clarification as to whether the right of input tax 
deduction pursuant to Article 167 of the VAT Directive always arises without 
exception only at the time the deductible tax becomes chargeable, or whether — 
as the defendant believes — Member States may derogate from this principle if 
national law uses the optional scheme in Article 66(b) of the VAT Directive and 
the tax claim against the service provider under national law therefore arises only 
at the time the remuneration is received. 
1. Legal assessment under national law 
14 Under national law, the defendant’s opinion proves to be correct. Pursuant to 
point 1 of the first sentence of Paragraph 15(1) of the UStG, the right of input tax 
deduction arises when the goods or services have been provided. 
15 In this regard, it is irrelevant when the tax claim against the service provider 
arises. It is in particular unimportant whether the service provider calculates the 
turnover tax pursuant to the first sentence of Paragraph 16(1) of the UStG on the 
basis of remuneration agreed (‘Soll-Versteuerer’, target tax payer) or pursuant to 
Paragraph 20 of the UStG on the basis of remuneration received (actual tax 
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payer). Although the tax claim against the service provider in the cases of 
Paragraph 20 of the UStG (actual tax payer) pursuant to Paragraph 13(1)(b) of the 
UStG arises only when the service provider receives the remuneration, 
Paragraph 20 of the UStG has no impact on the time of the service recipient’s 
input tax deduction […] [Or. 10] […]. 
16 Nothing different emerges from the fact that the right of input tax deduction under 
point 1 of the first sentence of Paragraph 15(1) of the UStG only relates to the ‘tax 
lawfully payable’. This does not mean that the input tax claim is subject to the 
condition that the tax claim against the service provider must have already arisen. 
This feature essentially makes it clear that a transaction that is taxable and liable 
to tax under the UStG must exist and an incorrectly presented tax does not provide 
entitlement to the input tax deduction […]. 
17 In respect of the service recipient’s input tax deduction, it is also irrelevant 
whether he himself is taxed on the basis of remuneration agreed or remuneration 
received. The German legislature did not make use of the possibility, provided for 
in Article 167a of the VAT Directive, of making the input tax deduction for actual 
tax payers dependent on the payment of the remuneration. 
18 Under national law, the service recipient’s input tax claim therefore already arises 
with the performance of the transaction even if the service provider is an actual 
tax payer and has not yet received the remuneration. The service recipient then 
acquires an input tax claim, even though the service provider does not yet owe the 
corresponding turnover tax. 
2. Uncertainties regarding the interpretation of EU law 
19 A different assessment could emerge from Article 167 of the VAT Directive. 
According to that article, the service recipient’s input tax claim arises only at the 
time the deductible tax becomes chargeable. 
20 a) Under Article 66(b) of the VAT Directive, Member States may provide 
that VAT is to become chargeable in respect of certain taxable persons only with 
the receipt [Or. 11] of the remuneration. The national legislature made use of this 
possibility in Paragraph 13(1)(b) of the UStG. However, even in these cases, the 
input tax claim under national law already arises when the goods or services have 
been provided. If strictly applied, Article 167 of the VAT Directive therefore 
contradicts national law, as the connection between tax claim and input tax claim 
governed in Article 167 of the VAT Directive is removed […]. As far as is 
apparent, the Court of Justice has not yet commented on this problem (left open in 
its judgment of 16 May 2013, TNT Express Worldwide (Poland), C-169/12, 
EU:C:2013:314, paragraphs 33 et seq.). 
21 In addition to the clear wording of the provision, a consistent application of 
Article 167 of the VAT Directive could also be supported by the new point 7a of 
Article 226 of the VAT Directive, which was introduced by Directive 2010/45/EU 
GRUNDSTÜCKSGEMEINSCHAFT KOLLAUSTRAßE 136 
 
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of 13 July 2010 amending Directive 2006/112/EC on the common system of value 
added tax as regards the rules on invoicing (OJ L 189, 1 — known as the 
Invoicing Directive). According thereto, an invoice must contain the mention 
‘Cash accounting’ where the VAT becomes chargeable in accordance with 
Article 66(b) of the VAT Directive and the right of deduction arises at the time the 
deductible tax becomes chargeable. Through this additional invoice indication, the 
recipient is informed that the service provider is taxed on the basis of 
remuneration received, and can take the necessary steps with regard to the input 
tax deduction. Legal commentators argue that point 7a of Article 226 of the VAT 
Directive means that the connection between tax claim and input tax claim 
regulated in Article 167 of the VAT Directive is now mandatory […]. 
22 Directive 2010/45/EU was to have been transposed into national law by 
31 December 2012; nevertheless, the German legislature did not transpose 
point 7a of Article 226 of the VAT Directive. Against the background of the 
domestic legal situation, this appears logically consistent; according thereto, the 
invoice recipient does not require any information as to whether the invoicing 
party is taxed on the basis of remuneration received, as the input tax deduction is 
not affected thereby. [Or. 12] 
23 b) The position under national law is, however, compatible with Article 167 of the 
VAT Directive if Article 167 of the VAT Directive is not a mandatory 
specification, but merely a ‘guiding idea’ […]. 
24 The fact that Article 167 of the VAT Directive is merely a guiding idea could 
emerge from the statement in the minutes of the Council and of the Commission 
on Article 17(1) of the Sixth Council Directive 77/388/EEC of 17 May 1977 on 
the harmonisation of the laws of the Member States relating to turnover taxes (OJ 
L 145, 1) […]. Article 17(1) of Directive 77/388/EEC is the identically worded 
predecessor provision to Article 167 of the VAT Directive. According to that 
statement, Member States can derogate from the principle provided for in 
Article 17(1) of the Directive if the supplier or provider of services is taxed on the 
basis of his income […]. 
25 It appears questionable, however, whether that statement may be used for 
interpreting the VAT Directive. Although such statements may fundamentally be 
relied on for interpreting legal acts of the European Union (see, for example, 
judgment of 19 June 2008, Commission v Luxembourg, EU:C:2008:350, 
C-319/06, paragraph 32), according to the case-law of the Court of Justice of the 
European Union, this does not apply where no reference is made to the content of 
the statement in the wording of the provision in question (judgment of 
23 February 1988, Commission v Italy, C-429/85, EU:C:1988:83, paragraph 9; 
judgment of 26 February 1991, Antonissen, C-292/89, EU:C:1991:80, 
paragraph 18; judgment of 29 May 1997, VAG Sverige, C-329/95, 
EU:C:1997:256, paragraph 23; judgment of 3 December 1998, Generics (UK) and 
Others, C-368/96, EU:C:1998:583, paragraph 26). 
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26 It accordingly depends on whether the content of the statement has found its way 
into the provisions of the VAT Directive. The wording of Article 167 of the VAT 
Directive does not provide for a restriction, as can be gathered from the statement. 
However, the statement could have found expression in the [Or. 13] new 
provision in point 7a of Article 226 of the VAT Directive. According to its 
wording, the applicability of that provision depends on two conditions. Firstly, the 
tax must become chargeable at the time when the payment is received in 
accordance with Article 66(b) of the VAT Directive. Secondly, the right to deduct 
must arise at the time when the deductible tax becomes chargeable. The wording 
of Article 167 of the VAT Directive is therefore repeated with the second 
condition. If Article 167 of the VAT Directive were to have to be applied strictly 
and without exception, that second condition would be completely superfluous. 
Accordingly, systematic reasons which arise from the interaction of Article 167 of 
the VAT Directive and point 7a of Article 226 of that directive suggest that 
Article 167 of the VAT Directive is not a strict specification, but a guiding idea 
from which Member States can derogate. 
3. Relevance to the decision 
27 The question referred is relevant to the decision. […] [amplification] 
II. Second question referred 
28 The second question arises only if Member States may derogate from the 
provision of Article 167 of the VAT Directive as described above. It serves for 
clarification as to whether the trader may in any case also assert the input tax 
deduction right in such cases in the tax period in which the input tax deduction 
right would have arisen in strict compliance with Article 167 of the VAT 
Directive [Or. 14] when assertion in the earlier tax period applicable under 
national law is no longer possible. 
1. Legal assessment under national law 
29 If the trader has not made the input tax deduction, it is not possible under national 
law to assert the input tax deduction right for a later tax period. If retroactive 
assertion of the input tax is no longer possible, as in the case in the main 
proceedings due to the matter being time-barred, the right can no longer be 
exercised. 
30 Pursuant to the first sentence of Paragraph 16(2) of the UStG, input tax amounts 
must be deducted in the tax period in which they fall. According thereto, the input 
tax amounts are to be deducted in the tax period in which the claim conditions 
apply […]. The input tax deduction can no longer be carried out in a later tax 
period […]. If the trader does not make the input tax deduction in the correct tax 
period, he can only catch up on the input tax deduction if the tax assessment for 
GRUNDSTÜCKSGEMEINSCHAFT KOLLAUSTRAßE 136 
 
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that tax period can still be changed […]. However, it is in any case no longer 
permissible to change the assessment when matters for that period are already 
time-barred. 
2. Uncertainties regarding the interpretation of EU law 
31 Article 167 of the VAT Directive could require a different assessment in cases in 
which the national law shifts the time at which the input tax deduction right arises, 
by way of derogation from Article 167 of the VAT Directive, to an earlier tax 
period, the claim has not been asserted in that tax period [Or. 15] and subsequent 
assertion — as in the circumstances of the case in the main proceedings — is 
excluded under national law. 
32 Following settled case-law of the Court of Justice, the input tax deduction right is 
a fundamental principle of the common system of VAT, which is intended to 
guarantee value added tax neutrality. The right of input tax deduction is an 
integral part of the value added tax mechanism and in principle may not be limited 
(judgment of 15 September 2016, Barlis 06 – Investimentos Imobiliários e 
Turísticos, EU:C:2016:690, C-516/14, paragraphs 37 et seq.; judgment of 
21 March 2018, Volkswagen, C-533/16, EU:C:2018:204, paragraphs 37 et seq.; 
and judgment of 21 November 2018, Vădan, C-664/16, EU:C:2018:933, 
paragraphs 37 and 38). 
33 Pursuant to Article 179 of the VAT Directive, the input tax deduction right is also, 
under EU law, fundamentally to be exercised for the tax period in which it has 
arisen (judgment of 8 May 2008, Ecotrade, EU:C:2008:267, C-95/07, 
paragraphs 40 et seq.). Although Member States may, pursuant to Article 180 of 
the VAT Directive, allow an input tax deduction which has not been carried out 
under Article 179 of the VAT Directive, the German legislature did not make use 
of that possibility. 
34 Nevertheless, the fundamental significance of the input tax deduction right could 
make it necessary to give the trader the opportunity, in circumstances such as 
those in the case in the main proceedings, to assert the input tax for the tax period 
resulting under Article 167 of the VAT Directive even if national law derogates 
from Article 167 of the VAT Directive. This could in any case be necessary when 
the assertion in the tax period applicable under national law is no longer possible, 
in order to ensure the neutrality of the system of value added tax also in this case. 
This is because the derogation from Article 167 of the VAT Directive, which is in 
itself advantageous to the trader, is detrimental to that trader in this situation. 
3. Relevance to the decision 
35 The second question referred is relevant to the decision if the first question is 
answered in the negative and Member States may derogate from Article 167 of the 
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VAT Directive in the cases of Article 66(b) of the VAT Directive as [Or. 16] 
described. […] [amplification] 
D. Procedural questions of national law 
36 […] 
37 […] 
38 […] [Or. 17] […] 
39 […]