Opinion of the Advocate General — ECLI:EU:T:2025:1003
Date: 2025-10-29
Language of the case: German

Translation T-638/24 - 1 
Case T-638/24 
Request for a preliminary ruling 
Date lodged: 
22 November 2024 
Referring court:  
Verwaltungsgerichtshof (Austria) 
Date of the decision to refer: 
23 October 2024 
Appellant on a point of law:  
Finanzamt Österreich 
Interested party: 
D GmbH 
Court whose judgment is subject to appeal: 
Bundesfinanzgericht 
      
[…] 
The Verwaltungsgerichtshof (Supreme Administrative Court, Austria), […] 
adjudicating on the appeal on a point of law lodged by the Finanzamt Österreich 
(Tax Office, Austria) […] against the judgment of the Bundesfinanzgericht 
(Federal Finance Court, Austria) of 18 October 2022, […] RV/2100556/2022, 
regarding value added tax for the years 2011 to 2015 (interested party: D GmbH 
in W. […]), has made the following  
Order: 
The following questions are referred to the Court of Justice of the European Union 
for a preliminary ruling pursuant to Article 267 TFEU: 
1. Do Articles 40, 41 and 203 of Council Directive 2006/112/EC of 
28 November 2006 on the common system of value added tax (‘the VAT 
Directive’) as well as the principles of proportionality and neutrality 
preclude the application of a national provision (second sentence of 
EN 
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Article 3(8) of the [Annex (Internal Market) to the] Umsatzsteuergesetz 
(Law on turnover tax)) whereby an acquisition is deemed to have been 
effected in the territory of the Member State whose VAT identification 
number was used by the person acquiring the goods until the person 
acquiring the goods establishes that the acquisition was taxed in the Member 
State in which the goods are located at the end of the transport or dispatch in 
those cases where the intra-Community acquisition is accompanied by an 
intra-Community supply which was treated in Austria as an exempt supply 
but where, because Austrian VAT is entered on the invoice, there is a tax 
liability for that supply on the basis of the invoice issued? 
2. If Question 1 is answered in the affirmative, does the removal, as a result of 
a subsequent adjustment of the invoice by the issuer, of the VAT wrongly 
entered on the invoice relating to the exempt intra-Community supply give 
rise to an intra-Community acquisition within the meaning of Article 41 of 
the VAT Directive and, if so, at what point in time is that intra-Community 
acquisition made? 
Grounds: 
A. Facts and proceedings to date 
1 On the basis of a voluntary statement and the subsequent audit conducted by the 
tax authorities, the VAT procedures in respect of the interested party for the years 
2011 to 2015 were reopened and new assessment notices were issued. 
2 One of the reasons given for that action was that goods had been supplied by 
traders from Austria to the interested party in another Member State, and that the 
interested party was using its Austrian VAT identification number. The interested 
party allegedly deducted the VAT from the invoice issued by the Austrian trader 
for that supply. No declaration was made in respect of an intra-Community 
acquisition characterised by the use of a VAT identification number of a country 
other than the country of destination, as described in the second sentence of 
Article 3(8) of the [Annex (Internal Market) to the] Umsatzsteuergesetz (‘the 
UStG 1994’). The Tax Office subsequently assessed the VAT due on that intra-
Community acquisition and refused to allow that tax to be deducted. 
3 The complaint lodged against that decision was dismissed by the Federal Finance 
Court on the ground that, in the case at issue, because of the use of an Austrian 
VAT identification number, an intra-Community acquisition was likewise effected 
in Austria, even though an intra-Community acquisition occurred simultaneously 
in the country of destination. For that reason, the court held, tax on the acquisition 
was due in both the other Member State and Austria. Domestic tax on 
acquisitions, it stated, was not deductible as an input tax. Since the supply in 
Austria constituted an exempt intra-Community transaction, the court found, 
Austrian VAT had been wrongly entered on the invoice and did not entitle the 
interested party to deduct it as an input tax. 
FINANZAMT ÖSTERREICH 
 
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4 The Supreme Administrative Court set aside that decision of the Federal Finance 
Court on account of substantive unlawfulness, citing the Court of Justice judgment 
of 19 April 2018, C-580/16, Firma Hans Bühler KG, paragraph 36, and legal 
academic writing, in a judgment of 29 June 2022, Case Ro 2021/15/0002, that is 
to say before the Court of Justice delivered its judgment of 7 July 2022 in Case 
C-696/20, B. v Dyrektor Izby Skarbowej w W. 
5 When the proceedings were resumed before the Federal Finance Court, it upheld 
the complaint of the interested party and, referring to the judgment of the Court of 
Justice of 7 July 2022 in Case C-696/20, ruled that there had been no intra-
Community acquisition by the interested party on account of its having used its 
Austrian VAT identification number. 
6 From the findings of the Federal Finance Court at first and second instance, the 
uncontested submissions presented in the appeal on a point of law and the 
information provided by the interested party in its voluntary statement, the facts 
set out below emerge. 
7 Austrian traders supplied goods across borders to the interested party from Austria 
to other EU Member States, primarily the Czech Republic and Germany. In its 
dealings with its suppliers, the interested party did not use a foreign VAT 
identification number but its Austrian number. The suppliers issued their invoices 
inclusive of Austrian VAT. The interested party wished to deduct the VAT paid 
on those invoices as input tax, but the Tax Office did not permit it to do so. In its 
VAT return, the interested party did not declare an intra-Community acquisition 
characterised by the use of a VAT identification number different from the 
country of destination, as described in the second sentence of Article 3(8) of the 
[Annex (Internal Market) to the] UStG 1994. 
8 The Tax Office and the Federal Finance Court have always treated transactions 
effected by the interested party as exempt intra-Community supplies. Those were 
not chains of transactions but only supplies from traders to the interested party. 
Because of the incorrect invoicing with Austrian VAT included, the issuer of the 
invoice was liable for the VAT amount entered, but that did not entitle the 
interested party to deduct VAT as input tax. 
9 It is against that decision of the Federal Finance Court that the appeal on a point of 
law pending before the referring court was lodged by the Tax Office. In its appeal, 
it submits that, in the present case, unlike in the factual situation in Case 
C-696/20, B. v Dyrektor Izby Skarbowej w W., the transactions have not been 
reclassified by the fiscal administration, nor have the supplies been treated as 
taxable in Austria. On the contrary, it contends that the supplies have always been 
recognised and treated by the tax authorities as exempt intra-Community supplies. 
It states, however, that the supplier is liable for the VAT wrongly entered as 
chargeable to the interested party on the invoice for the intra-Community supply. 
For that reason, it concludes, the operative part of that judgment is not applicable 
to the present case. 
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B. Relevant provisions of national and EU law 
10 Article 3(8) of the [Annex (Internal Market) to the] 1994 Law on turnover tax 
(UStG 1994) reads as follows: 
‘(8) The intra-Community acquisition is made in the territory of the Member 
State in which the goods are located when their dispatch or transport ends. If the 
acquirer uses, in its dealings with the supplier, a VAT identification number 
issued to it by another Member State, the acquisition shall be deemed to have been 
made in the territory of that Member State, unless and until the acquirer proves 
that the acquisition has been taxed by the Member State designated in the first 
sentence. In the event of proof, Paragraph 16 shall apply mutatis mutandis.’ 
11 Paragraph 11(12) of the UStG 1994 as applicable prior to the 
Abgabenänderungsgesetz 2023 (Tax Amendment Law of 2023, Bundesgesetzblatt 
(Federal Law Gazette) I, No 2023/110) reads as follows: 
‘(12) Where the trader has, in an invoice for a supply of goods or services, 
separately stated an amount of tax for which he or she is not liable under this 
federal law as regards the transaction, he or she shall be liable for the amount 
stated in the invoice if he or she does not adjust that invoice accordingly in respect 
of the recipient of the supply of goods or services. In the case of adjustment, 
Paragraph 16(1) shall apply mutatis mutandis.’ 
12 Articles 40 and 41 of the VAT Directive read as follows: 
‘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.’ 
13 Article 203 of the VAT Directive reads as follows: 
‘Article 203 VAT shall be payable by any person who enters the VAT on an 
invoice.’ 
C. Explanation of the questions referred 
FINANZAMT ÖSTERREICH 
 
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14 The Court of Justice has already explained, in its judgment of 22 April 2010, X 
and fiscal eenheid Facet-Facet Trading BV, C-536/08 and C-539/08, that, in the 
case of an intra-Community acquisition within the meaning of Article 41 of the 
VAT Directive, the person acquiring the goods has no right to deduct. The Court 
based this finding in particular on the fact that the granting of a right to deduct in 
such a case would risk undermining the effectiveness of Article 28b(A)(2) of the 
Sixth Directive (now Article 40 of the VAT Directive) in view of the fact that the 
taxable person, having had the right to deduct in the Member State which issued 
the identification number, would no longer have any incentive to establish that the 
intra-Community acquisition in question had been taxed in the Member State of 
arrival of the dispatch or transport. Such a solution could ultimately jeopardise the 
application of the basic rule that, in the case of an intra-Community acquisition, 
the place of taxation is deemed to be the Member State of arrival of the dispatch 
or transport, that is to say, the Member State of final consumption, which is the 
purpose of the transitional arrangements (see paragraph 44 of the judgment). 
15 In the operative part of its judgment of 7 July 2022, Case C-696/20, B. v Dyrektor 
Izby Skarbowej w W., the Court of Justice held that Article 41 of the VAT 
Directive is to be interpreted as not precluding legislation of a Member State 
under which an intra-Community acquisition of goods is regarded as having been 
made in the territory of that Member State, where that acquisition, which 
constitutes the first stage of a chain of successive transactions, was wrongly 
classified as a domestic transaction by the taxable persons involved, which 
indicated for that purpose their value added tax (VAT) identification number 
allocated by that Member State, and VAT was applied to the subsequent 
transaction, which was wrongly classified as an intra-Community transaction, as 
an intra-Community acquisition of goods by the persons acquiring the goods in 
the Member State in which the transport of the goods ended. That provision, read 
in the light of the principles of proportionality and fiscal neutrality, nevertheless 
precludes such legislation of a Member State where the intra-Community 
acquisition of goods which is regarded as being realised within the territory of that 
Member State results from an intra-Community supply of goods which has not 
been treated as an exempt transaction in that Member State. 
16 The Federal Finance Court based its decision on the operative part of that 
judgment and ruled, in the case to which the appeal on a point of law relates, that 
there had been no intra-Community acquisition within the meaning of the second 
sentence of Article 3(8) of the [Annex (Internal Market) to the] UStG 1994, 
characterised by the use of the Austrian VAT identification number, on the ground 
that Austrian VAT had been levied on the supply in Austria. 
17 On the basis of the judgment in Case C-696/20, the Supreme Administrative Court 
proceeds on the understanding that Article 41 of the VAT Directive and 
Article 3(8) of the [Annex (Internal Market) to the] UStG 1994, which transposes 
that provision of the VAT Directive, apply to the case to which the appeal on a 
point of law relates because, although the goods were supplied into a Member 
State other than Austria, the recipient of the supply did not use a VAT 
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identification number issued by the country of destination of the goods but an 
Austrian one. The intra-Community acquisition is therefore taxable, in principle, 
in both Member States. 
18 In the particular circumstances at issue in the present proceedings, which differs 
significantly from the factual situation on which the Court of Justice ruled in Case 
C-696/20, B. v Dyrektor Izby Skarbowej w W., the Supreme Administrative Court 
has doubts as to the interpretation of Article 41 of the VAT Directive in view of 
the exception established in previous cases in the light of the principles of 
proportionality and fiscal neutrality. 
19 Those differences are to be found in the following points: 
1. According to the findings of the Federal Finance Court, there are no chains 
of successive transactions in the case to which the present appeal on a point of law 
relates. It concerns supplies from an Austrian trader to the interested party, as part 
of which the goods were supplied from Austria into another Member State. The 
Tax Office only became aware of these facts through a voluntary statement made 
by the interested party. The fiscal administration did not subsequently reclassify 
the transactions. The Tax Office and the Federal Finance Court have always 
regarded those transactions as exempt intra-Community supplies. By contrast, the 
operative part of the judgment of the Court of Justice in Case C-696/20 expressly 
refers to the fact that the transactions were not treated by the Polish tax authorities 
as an exempt transaction. 
2. In the case to which the appeal on a point of law relates, tax liability under 
Paragraph 11(12) of the UStG 1994 arose because Austrian VAT had been – 
wrongly – entered on invoices. The reason why that tax is payable is not because 
the transaction in question was not classified as exempt but because the issuer, 
though having effected an exempt supply, incorrectly entered Austrian VAT on 
the invoice for that supply. The situation was different in Case C-696/20, where, 
according to the Advocate General’s observations, there was a Polish legislative 
provision which provided – evidently as a fraud prevention measure – that, if the 
person acquiring the supplied goods used a Polish VAT identification number, the 
supply – even though it actually constituted an exempt intra-Community supply – 
must continue to be treated as a taxable domestic supply, in respect of which no 
right of deduction could be claimed (see point 80 of the Opinion). 
3. In the case to which the appeal on a point of law relates, the interested party 
has not provided proof that the intra-Community acquisition was taxed in another 
Member State. What subsequently happened to the goods has not been established 
and is not ascertainable from the proceedings to date. 
20 The additional intra-Community acquisition for which Article 41 of the VAT 
Directive provides is intended to ensure that the intra-Community acquisition is 
taxed in the State in which the transport of the goods ended. In the case to which 
the appeal on a point of law relates, the result of waiving the taxation of that 
FINANZAMT ÖSTERREICH 
 
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additional acquisition in Austria would be that the interested party would no 
longer have an incentive to prove the taxation of the intra-Community acquisition 
in question in the Member State in which the dispatch or transport was completed. 
21 In Case C-696/20, the mandatory and definitive taxation of the supply in Poland, 
which did not allow the person acquiring the goods to deduct input VAT, 
precluded the application of Article 41 of the VAT Directive. By contrast, the 
Austrian supplier may adjust the VAT entered on the invoices in accordance with 
Paragraph 11(12) of the UStG 1994, provided that the general conditions for such 
an adjustment are fulfilled, thereby cancelling the VAT which was owed solely on 
the basis of the invoicing. 
22 According to the case-law of the Supreme Administrative Court, such an 
adjustment of an invoice may be made (ex nunc) for an indefinite period, that is to 
say even if the limitation period has already expired for the year in which the 
invoice was issued (see the Supreme Administrative Court judgment of 
15 December 2022, Case Ro 2019/13/0034, with further references). 
23 The Supreme Administrative Court is therefore faced with the question whether, 
in view of the objective of Article 41 of the VAT Directive, which is to ensure 
taxation of the intra-Community acquisition in the Member State where the goods 
are consumed, an invoice adjustment should take precedence over non-taxation of 
the purchase under the second sentence of Article 3(8) of the [Annex (Internal 
Market) to the] UStG 1994. Another relevant point is that, by contrast with Case 
C-696/20, the Member States of consumption were not informed that the product 
had entered their country. 
24 If one assumes – as the Federal Finance Court did in its decision – that there is no 
intra-Community acquisition in the case to which the appeal on a point of law 
relates because of the use of the Austrian VAT identification number, a 
subsequent adjustment of the invoice by the supplier would mean that, despite the 
applicability of Article 41 of the VAT Directive, there would be no taxation at all 
of an intra-Community acquisition in respect of those supplies. 
25 In the event that the Court of Justice answers the first question referred in the 
affirmative and finds against taxation of the acquisitions in Austria in the present 
case too, the question therefore arises whether, if the VAT due in Austria on the 
basis of the invoice is subsequently cancelled by adjustment of the invoice, the 
intra-Community acquisition should nevertheless be taxed by virtue of the use of 
the Austrian VAT identification number. 
26 If it is assumed that, in such a case, taxation of the acquisition is ‘reinstated’ in 
Austria, the additional question arises as to the point in time at which the assumed 
reinstatement occurs. Where that intra-Community acquisition occurs 
retroactively, a limitation period which has already expired in respect of the year 
of acquisition could preclude adjustment on the part of the person acquiring the 
goods, so that both the supply and the intra-Community acquisition would remain 
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definitively exempt from tax in Austria and therefore, in the absence of taxation of 
the acquisitions in other Member States, the transactions would ultimately remain 
untaxed. Since the case to which the appeal on a point of law relates concerns 
VAT for the years 2011 to 2015, moreover, that is not a merely hypothetical 
question. If, on the other hand, it were to be assumed that, by virtue of the use of 
the Austrian VAT identification number and the adjustment of the invoice by the 
supplier, the intra-Community acquisition must produce legal effects at that point 
in time, in other words the effects must apply ex nunc in both cases, such a risk of 
total non-taxation would not arise. 
27 It is therefore unclear to the Supreme Administrative Court whether, in a 
particular circumstances such as that in the case to which the present appeal on a 
point of law relates, despite the fulfilment of the conditions laid down in 
Article 3(8) of the [Annex (Internal Market) to the] UStG 1994 and in Article 41 
of the VAT Directive, taxation of the acquisition must be waived by reason of the 
tax liability having arisen from the invoicing and, if that were the case, what the 
effect of any adjustment of the invoice by the supplier would be. 
28 Overall, the interpretation of EU law in relation to those questions does not appear 
to be so obvious as to leave no scope for any reasonable doubt (see judgment of 
the Court of Justice of the European Union of 4 October 2018, Commission v 
French Republic, C-416/17, paragraph 110). 
29 The questions are therefore referred to the Court for a preliminary ruling pursuant 
to Article 267 TFEU. 
Vienna, 23 October 2024 
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