Opinion of the Advocate General — ECLI:EU:C:2016:91
Date: 2016-02-17
Language of the case: German
Subject matter: Taxation;Value added tax
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - decision unnecessary
Origin: Germany

Summary — Judgment of the Court (Fourth Chamber), 15 September 2016 1. Harmonisation of fiscal legislation — Common system of value added tax — Deduction of input tax — Conditions of exercise of the right of deduction — Temporal effect of the correction of an invoice — National legislation denying retroactive effect to the correction of an invoice in relation to a detail which must be mentioned — Right to deduction exercisable only for the year in which the original invoice was corrected and not for the year in which it was drawn up — Not permissible (Council Directive 2006/112, Arts 167, 178(a), 179 and 226(3)) 2. Harmonisation of fiscal legislation — Common system of value added tax — Obligations of persons liable for the tax — Penalties for failure to comply with the formal conditions for the exercise of the right of deduction — Postponement of the right of deduction until the year in which an incorrect invoice is corrected, entailing the application of interest for late payment — Not permissible (Council Directive 2006/112, Art. 273) 1. Article 167, Article 178(a), Article 179 and Article 226(3) of Directive 2006/112 on the common system of value added tax must be interpreted as precluding national legislation under which the correction of an invoice in relation to a detail which must be mentioned, namely the value added tax (VAT) identification number, does not have retroactive effect, so that the right to deduct VAT exercised on the basis of the corrected invoice relates not to the year in which the invoice was originally drawn up but to the year in which it was corrected. In accordance with the first paragraph of Article 179 of Directive 2006/112, the deduction is to be made by subtracting from the total amount of VAT due for a given tax period the total amount of VAT ‘in respect of which, during the same period, the right of deduction has arisen and is exercised in accordance with Article 178’. It follows that the right to deduct VAT must in principle be exercised in respect of the period during which, first, the right has arisen and, secondly, the taxable person is in possession of an invoice. The right to deduction of VAT provided for in Article 167 et seq. of Directive 2006/112 is an integral part of the VAT scheme and in principle may not be limited. The right is exercisable immediately in respect of all the taxes charged on transactions relating to inputs. Moreover, the fundamental principle of the neutrality of VAT requires deduction of input VAT to be allowed if the substantive requirements are satisfied, even if the taxable persons have failed to comply with some formal conditions. In this context, holding an invoice showing the details mentioned in Article 226 of Directive 2006/112 is a formal condition, not a substantive condition, of the right to deduct VAT. (see paras 35, 37, 38, 43, operative part) 2. See the text of the decision. (see paras 41, 42)