Opinion of the Advocate General — ECLI:EU:C:2023:893
Date: 2023-11-16
Language of the case: Polish
Subject matter: Taxation;Value added tax
Procedure: Reference for a preliminary ruling
Origin: Poland

Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
20 September 2022 
Referring court: 
Naczelny Sąd Administracyjny (Poland) 
Date of the decision to refer: 
23 June 2022 
Appellant on a point of law: 
Dyrektor Izby Administracji Skarbowej w Bydgoszczy 
Respondent in the appeal on a point of law: 
B. sp. j. 
  
Subject matter of the main proceedings 
The possibility of adjusting the VAT taxable amount if sales of goods and services 
to consumers at an inflated rate of VAT were registered using a cash register and 
evidenced by cash register receipts only, with the price remaining unchanged. 
Subject matter and legal basis of the request 
The VAT Directive; Article 267 TFEU 
Question referred for a preliminary ruling 
Must Articles 1(2) and 73 of Council Directive 2006/112/EC of 28 November 
2006 on the common system of value added tax (OJ 2006 L 347 p. 1, as amended) 
and the principles of neutrality, proportionality and equal treatment be interpreted 
as precluding a practice on the part of the national tax authorities, in so far as that 
practice does not allow – on the grounds of lack of a domestic legal basis and 
unjust enrichment – an adjustment of the VAT taxable amount and output tax if 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-606/22 
 
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sales of goods and services to consumers at an inflated rate of VAT were 
registered using a cash register and evidenced by cash register receipts rather than 
by VAT invoices, with the price (gross sales value) remaining unchanged as a 
result of that adjustment? 
Provisions of EU law relied on 
Council Directive 2006/112/EC of 28 November 2006 on the common system of 
value added tax (‘the VAT Directive’): Article 1(2), Article 73 and Article 78 
Provisions of national law relied on 
1. Ustawa z dnia 11 marca 2004 r. o podatku od towarów i usług (Law of 
11 March 2004 on the Tax on Goods and Services, Dziennik Ustaw (Journal of 
Laws) 2016, item 710, as amended; ‘the Law on VAT’): 
Position in law up to 31 December 2013 
Article 29(4a) 
Where the taxable amount is subject to reduction in relation to the amount 
specified in the issued invoice, the taxable person may reduce the taxable amount 
on condition that he or she holds, before the passing of the time limit for filing a 
tax return for the tax period in which the purchaser of the goods or services 
received the correcting invoice, acknowledgement of receipt of the correcting 
invoice by the purchaser of the goods or services to whom the invoice was issued. 
Where the taxable person receives acknowledgement of receipt, by the purchaser 
of the goods or services, of the correcting invoice after the passing of the time 
limit for filing a tax return for the tax period concerned, he or she may take 
account of the correcting invoice in relation to the tax period in which he or she 
obtained that acknowledgement. 
Article 29(4c) 
Paragraph 4a shall apply mutatis mutandis in the case where a mistake is found in 
the amount of tax shown on the invoice, and where an invoice correcting an 
invoice showing an amount of tax greater than the amount due is issued. 
Position in law since 1 January 2014 
Article 29a(10) 
The taxable amount, subject to paragraph 13, shall be reduced by: 
(1) the amounts of discounts and rebates granted after the sale; 
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(2) the value of the returned goods and packaging, subject to paragraphs 11 and 
12; 
(3) all or part of the payment received before the sale and returned to the 
purchaser, if the sale did not take place; 
(4) the value of the returned amounts of subsidies, subventions and other similar 
amounts referred to in paragraph 1. 
Article 29a(13) 
In the cases referred to in paragraph 10(1) to (3), the reduction of the taxable 
amount, in relation to the taxable amount specified in the invoice issued with the 
tax shown, shall be conditional upon the taxable person holding an 
acknowledgement, obtained before the passing of the time limit for filing a tax 
return for the tax period in which the purchaser of goods or recipient of services 
received the correcting invoice, of receipt of the correcting invoice by the 
purchaser of goods or recipient of services to whom the invoice was issued. 
Where the taxable person receives acknowledgement of receipt, by the purchaser 
of goods or recipient of services, of the correcting invoice after the time limit for 
filing a tax return for the tax period concerned, he or she may take account of the 
correcting invoice in relation to the tax period in which he or she obtained that 
acknowledgement. 
Article 29a(14) 
Paragraph 13 shall apply mutatis mutandis in the case where a mistake is found in 
the amount of tax shown on the invoice, and where an invoice correcting an 
invoice showing an amount of tax greater than the amount due is issued. 
2. Ustawa z dnia 29 sierpnia 1997 r. – Ordynacja podatkowa (Law of 
29 August 1997 – the Tax Code) (Dziennik Ustaw (Journal of Laws) 2017, item 
201, as amended; ‘the Tax Code’): 
Article 72 § 1 
The following amounts shall be regarded as constituting overpayment: 
(1) tax which is overpaid or unduly paid; … 
Article 81 
§ 1. Unless separate regulations provide otherwise, taxable persons, payers and 
collectors may amend a tax return filed previously. 
§ 2. A return shall be amended by filing an amended return. 
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3. Rozporządzenie Ministra Finansów z dnia 14 marca 2013 r. w sprawie kas 
rejestrujących (Regulation of the Minister for Finance of 14 March 2013 on cash 
registers) (Dziennik Ustaw (Journal of Laws) 2013, item 363; ‘the Regulation’): 
§ 3 
5. If there is an obvious mistake in the records, the taxable person shall correct it 
without delay by including in a separate record: 
(1) the incorrectly recorded sales (gross sales value and output tax value); 
(2) a brief description of the reason for the mistake and the circumstances under 
which it was made, attaching the original cash register receipt documenting the 
sale with respect to which the obvious mistake occurred. 
6. In the case referred to in paragraph 5, the taxable person shall record the sales 
in the correct amount using the cash register. 
Succinct presentation of the facts and procedure in the main proceedings and 
the essential arguments of the parties 
1 On 27 January 2016, B. sp. j. (‘the applicant’) filed amended VAT returns for tax 
periods corresponding to certain months in the period 2012-2014 due to the 
application of the 8% tax rate to the sale of recreational services (related to 
admission to gym premises and free use of gym facilities) instead of the standard 
23% rate previously applied. 
2 By decision dated 22 June 2017, the Naczelnik Drugiego Urzędu Skarbowego 
(Head of the Second Tax Office, Poland) refused to recognise that the applicant 
had overpaid tax for the aforementioned tax periods. 
3 By decision dated 24 November 2017, the Dyrektor Izby Administracji Skarbowej 
(Director of the Tax Administration Chamber) in Bydgoszcz, Poland, (‘the 
DTAC’) upheld the aforementioned decision. 
4 The DTAC found that, in the amended VAT returns, retail sales, as evidenced by 
cash register receipts for the sale of gym passes and previously taxed at the 23% 
rate, were recorded at the 8% rate, resulting in a reduction of the output tax 
amount. 
5 The DTAC pointed out that the provisions of the Law on VAT provide for the 
possibility of adjusting the taxable amount only if the transaction is evidenced by 
a VAT invoice. In his opinion, there are no regulations that would resolve the 
question of whether the taxable amount and output tax can be adjusted in the case 
of uninvoiced sales. That is because the applicant cannot issue correcting invoices 
if there are no original invoices to be corrected. 
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6 At the same time, in the DTAC’s view, the provisions of the Regulation provide 
for the possibility of amending a return in strictly defined cases, and there is no 
provision stipulating that it is possible (or impossible) to amend a return where a 
taxable person, selling goods and services to individuals who do not engage in 
business activity and recording those sales using cash registers, applies an 
incorrect VAT rate. 
7 The DTAC accordingly concluded that, since the applicant had collected tax from 
final consumers at 23% instead of at 8%, it should consequently pay the entire 
amount collected, after taking the deductions into account, as tax due to the 
Treasury. He also pointed out that the VAT on the services provided was borne by 
the final consumers, that is to say, those individuals from whom that tax had been 
collected in the price for the service. Any refund of the VAT paid to the applicant 
would result in the applicant receiving an unjustified benefit from the Treasury. In 
the case at issue, the refund was due to those who incurred the loss, namely the 
aforementioned individuals. 
8 The applicant appealed against the DTAC’s decision. By judgment of 7 March 
2018, the Wojewódzki Sąd Administracyjny (Regional Administrative Court, ‘the 
RAC’) in Bydgoszcz set aside the DTAC’s decision. 
9 According to the RAC, a taxable person has the right to adjust the taxable amount 
and the output tax on sales that are evidenced by means of receipts. The 
provisions of the Regulation do not list exhaustively all events which may 
constitute a reason for adjustment, but that does not mean that no such adjustment 
should take place in other cases. That is because the possibility, or even the 
necessity, of such adjustment follows directly from the provisions of the Law on 
VAT defining the taxable amount and the amount of tax. Adjustment is not 
prevented by the absence of the original cash register receipt issued to the 
purchaser, which receipt is required for adjustments caused by ‘obvious mistakes’ 
pursuant to paragraph 3(5) of the Regulation. In the case of errors and mistakes, it 
is not necessary to have proof in the form of the original receipt in order to make a 
legitimate adjustment. Thus, demonstrating that an error has been made on the 
basis of other documents is not incompatible with the applicable laws. The court 
stressed that the cash register allows the data stored to be read multiple times, 
which makes retrieving the contents of its memory a reliable procedure for 
obtaining the evidence to be corrected due to an error made by a taxable person. 
10 The DTAC lodged an appeal against the RAC judgment in its entirety. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
11 An important legal issue has arisen that requires an interpretation of the VAT 
Directive: whether, pursuant to its provisions and the rules arising from them, a 
taxable person is entitled to adjust the taxable amount and output tax in the case 
where that person’s sales to consumers, with an inflated VAT rate, were registered 
using a cash register and evidenced by cash register receipts rather than VAT 
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invoices, with the price (gross value) remaining unchanged as a result of that 
adjustment. 
12 The practice of the national tax authorities is not to allow adjustments in such 
circumstances. For sales evidenced by invoices, the tax authorities do not 
challenge the right to issue corrections to those invoices, pointing out that the 
basis for those corrections is provided by the provisions of Article 29a(13) to (16) 
of the Law on VAT. In the present case, the authorities invoke two arguments to 
justify their refusal to accept the correction: 
(1) there is no national legislation that would resolve whether it is possible to 
amend the return and recover overpaid tax in the case of sales of goods and 
services that are not evidenced by invoices (just by receipts); 
(2) refunding the overpaid tax to the taxable person in the case of sales of goods 
and services that are not evidenced by invoices (just by receipts) would result in 
unjust enrichment. 
13 As regards the first argument, the referring court notes that it follows from 
Article 1(2) and Article 73 of the VAT Directive that the principle of the common 
system of VAT entails the application to goods and services of a general tax on 
consumption exactly proportional to their price and that the taxable amount 
includes everything which constitutes consideration obtained or to be obtained by 
the supplier of goods or services for transactions with the purchaser, customer or a 
third party. 
14 It follows from the circumstances of the present case that, due to the application of 
an inflated VAT rate (23% instead of 8%), the taxable person filed amended 
returns in which – while the gross value (price) of the sales of services 
documented by cash register receipts issued to consumers remained unchanged – 
he increased (rather than decreased) the net value of sales (the taxable amount) to 
which he applied the reduced VAT rate. 
15 In fact, in Articles 29 and 29a of the VAT Law, respectively, the national 
legislature did not account at all for an adjustment in a situation where a rate 
higher than the correct one is erroneously applied to customer sales recorded using 
cash registers, but this does not appear to mean that such adjustment is impossible. 
Indeed, if a taxable person who makes sales to consumers is required to record 
those sales using cash registers and document them with cash register receipts, 
then preventing the erroneously applied rate from being corrected raises doubts as 
to whether in such a situation: 
– a tax disproportionate to the price is not applied, contrary to Article 1(2) and 
Article 73 of the VAT Directive, without the ability to correct that error 
(according to the second sentence of Article 1(2), VAT should be calculated on 
the price of the goods or services at the rate applicable to such goods or 
services rather than at any other tax rate); 
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– the principles of VAT neutrality and proportionality are not infringed, as the 
taxable person loses part of the margin he would have obtained if the price 
charged to consumers had been calculated at gross value with a reduced VAT 
rate and a lower amount of tax compared with the amount of tax calculated on 
the basis of the inflated rate and subsequently paid to the Treasury; 
– the principle of equal treatment is not infringed when, in the case of sales to 
taxable persons evidenced by VAT invoices, it is possible to adjust the taxable 
amount where a rate higher than the correct rate was applied, whereas such 
adjustment is prevented in the case of sales recorded using cash registers; 
where the amount of tax is overstated compared with the tax due, making such 
adjustment conditional solely on the form in which sales are evidenced may be 
considered discrimination against taxable persons who, while selling the same 
or similar goods or services, record their sales with the use of cash registers, 
issuing cash register receipts rather than invoices; in particular, the principle of 
neutrality (and therefore equal treatment) precludes treating similar goods (and 
therefore also services), which are thus in competition with each other, 
differently for VAT purposes (judgments of the Court of Justice of 10 April 
2008, M., C-309/06, paragraph 47, and of 11 June 1998, F., C-283/95, 
paragraphs 21 and 27). 
16 Of course, in such a situation it is not possible to amend, as in the case of invoices, 
the sales records generated using cash registers and the cash register receipts 
issued to consumers, but it appears that it is not necessary to amend those records 
with respect to sales not evidenced by invoices (just by receipts) in order for the 
tax return amendment to be effective, since: 
– such sales are made to consumers who are unable to deduct VAT on the basis 
of cash register receipts, and thus there is no need to issue them with receipts 
with only the VAT amount adjusted; 
– the gross sales value (price) for those consumers remains unchanged after the 
adjustment (only the VAT component of the price changes); 
– the adjustment is made by amending the VAT return and consists in 
transferring the value of the sales subject to adjustment from sales at the 
standard rate (23%) to sales at a reduced rate (8%) and, consequently, 
increasing the taxable amount as regards the application of that rate and 
reducing the amount of VAT in relation to that originally shown with the 23% 
rate; it should be noted that, under national law, the possibility of such 
amendment of a VAT return is set out in Article 81 of the Tax Code, which 
provides that, unless otherwise stipulated in separate regulations, taxable 
persons may amend a previously filed return by filing an amended return. 
17 It should be noted that on the basis of Article 203 of the VAT Directive (albeit in 
a case concerning the refund of incorrectly invoiced VAT), the Court of Justice 
ruled that, although the VAT Directive does not contain provisions concerning the 
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adjustment of VAT improperly invoiced by the invoice issuer, in order to ensure 
neutrality of VAT, it is for the Member States to provide, in their domestic legal 
systems, for the possibility of adjusting any tax improperly invoiced where the 
person who issued the invoice shows that he or she acted in good faith (judgments 
of 2 July 2020, T., C-835/18, EU:C:2020:520, paragraph 27 and the case-law 
cited, and of 18 March 2021, P., C-48/20). The latter judgment concerned the 
adjustment of VAT improperly invoiced by a taxable person in good faith, but it 
appears all the more appropriate to provide an opportunity to file an amendment 
for taxable persons who accurately document sales to consumers using cash 
registers and who applied to those sales a VAT rate higher than the rate due 
without any intention to commit abuse or fraud. 
18 In the case in question, the taxable person argued that its application of the 
standard rate (23%) to the services provided was due to the fact that, in their 
advance tax rulings, the tax authorities had indicated that those services should be 
taxed at that rate. It was only when the tax authorities changed their position, 
stating that the services should in fact be taxed at a reduced rate (8%), that the 
taxable person decided to amend its returns with respect to the sales shown. This 
shows that the taxable person concerned should be considered to have acted in 
good faith. 
19 Under those circumstances, in the light of Article 1(2) and Article 73 of the VAT 
Directive and the principles of neutrality, proportionality and equal treatment, 
doubts may be raised as to whether the reasoning of the national tax authorities, 
according to which there is no legal basis for the adjustment, is correct. 
20 With regard to the second argument, the referring court notes that, first of all, it is 
questionable whether the reasoning of the tax authorities – according to which, 
under the circumstances in question, the application of the inflated VAT rate does 
not entitle the taxable person to make the relevant adjustment, as this would mean 
the taxable person receiving an unjustified benefit from the Treasury – is correct, 
as that reasoning ignores the objective fact that, in the situation at hand, it was the 
Treasury which received a VAT amount higher than was due, and therefore it was 
the Treasury which became the beneficiary of the taxable person’s incorrect 
application of the higher VAT rate. 
21 In addition, it appears that, in the situation at hand, consumers do not incur any 
loss when the taxable person makes a tax adjustment while the sale price of the 
service/good agreed with the consumer remains unchanged. As the consumer 
accepted the price offered by the taxable person for the service sold and used the 
service at that price, the fact that the amount of tax included in that price is 
adjusted (reduced) while the price remains unchanged does not indicate that the 
consumer suffered a loss as a result. On the contrary, it appears that in this case 
the taxable person suffered a loss, since it paid to the Treasury a greater part of the 
price received from the sale than was due. It was pointed out by the Court of 
Justice in its judgment of 10 April 2008, M., C-309/06, paragraph 42, that, even 
where the charge is wholly incorporated in the price, the taxable person may 
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suffer as a result of a fall in the volume of his sales (see, to that effect, C., 
paragraphs 29 and 30, and M., paragraphs 34 and 35). 
22 In those circumstances, it is questionable whether the principles of VAT neutrality 
and proportionality are observed if adjustment of overpaid tax is refused in the 
circumstances at issue on the basis that the taxable person would be unjustly 
enriched following its refund. 
23 Refusal to refund VAT to a taxable person is tantamount to imposing a tax burden 
on him and results in the tax authorities collecting a higher amount of tax than that 
which is normally due, since national law does not permit VAT corrections in the 
case of sales recorded by cash registers (see, similarly, the order of the Court of 
Justice of 23 November 2017, G., C-314/17, [not published], EU:C:2017:901, 
paragraph 34). 
24 It should be noted that if the sales adjustment were made, increasing the taxable 
amount and reducing the amount of tax due to the application of the reduced rate, 
the taxable person would incur an income tax liability due to the increase in the 
value of sales shown corresponding to that adjustment. 
25 The above doubts justify referring the question to the Court of Justice for a 
preliminary ruling.