Opinion of the Advocate General — ECLI:EU:C:2022:657
Date: 2022-09-08
Language of the case: German
Subject matter: Taxation;Value added tax
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary  C-378/21 – 1 
Case C-378/21 
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: 
21 June 2021 
Referring court: 
Bundesfinanzgericht (Austria) 
Date of the decision to refer: 
21 June 2021 
Appellant: 
P GmbH 
Respondent: 
Finanzamt Austria 
  
Subject matter of the main proceedings 
Value added tax – Payment of VAT by final consumers – Invoice correction – 
Unidentifiable final consumer – Enrichment 
Subject matter and legal basis of the request 
Interpretation of EU law; Article 267 TFEU 
Questions referred for a preliminary ruling 
1. Is VAT payable by the issuer of the invoice under Article 203 of the VAT 
Directive if, as in the present case, there may be no risk of loss of tax revenue, 
because the recipients of the services are final consumers who are not entitled to 
the right of deduction? 
2. If the first question is answered in the affirmative and VAT is payable by the 
issuer of an invoice under Article 203 of the VAT Directive: 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-378/21 
 
2  
a. Can the correction of invoices in respect of the recipients of services be 
precluded if, on the one hand, a risk of loss of tax revenue is excluded and, on the 
other, the correction of invoices is effectively impossible? 
b. Does the fact that final consumers have borne the tax as part of the 
consideration, thereby enriching the taxable person by correcting the VAT, 
preclude the correction of the VAT? 
Provisions of European Union law relied on 
Council Directive 2006/112/EC of 28 November 2006 on the common system of 
value added tax (‘the VAT Directive’) 
Provisions of national law and case-law relied on 
Bundesgesetz über die Besteuerung der Umsätze (Umsatzsteuergesetz 1994 –
UStG 1994) (Federal law on turnover tax (Turnover tax 1994 – UStG 1994; 
‘UStG 1994’)) Paragraphs 11(1), (4), (5), (6) and (12) and Paragraph 16(1) 
Paragraph 11(6) provides:  
‘Invoices the total amount of which does not exceed EUR 400 shall include, in 
addition to the date of issue, the following information: 
1. The name and address of the supplier; 
2. The quantity and the usual commercial description of the goods or the nature 
and extent of the services supplied; 
3. The date of the supply of the goods or service or the period over which the 
service extends; 
4. The consideration and the tax on the supply of the goods or service in a 
single sum and 
5. The rate of tax. 
…’ 
Paragraph 11(12) provides: 
‘If the trader has, in an invoice for a supply of goods or services, stated separately 
an amount of tax for which he is not liable under this federal law for the 
transaction, he shall be liable for the amount stated in the invoice if he does not 
adjust that invoice accordingly in respect of the recipient of the supply of goods or 
services. In the case of correction, Paragraph 16(1) shall apply mutatis mutandis.’ 
FINANZAMT AUSTRIA 
 
3 
Bundesgesetz über allgemeine Bestimmungen und das Verfahren für die von den 
Abgabenbehörden des Bundes, der Länder und Gemeinden verwalteten Abgaben 
(Bundesabgabenordnung – BAO) (Federal Act on General Provisions and the 
Procedure for Taxes Administered by the Federal, Land and Local Tax Authorities 
(Federal Tax Code)), Paragraph 239a 
Bundesgesetz, mit dem Bestimmungen über Preise für Sachgüter und Leistungen 
getroffen werden (Preisgesetz 1992) (Federal Act Making Provisions on Prices for 
Goods and Services (Prices Act 1992)), Paragraph 7. 
Succinct presentation of the facts and procedure in the main proceedings 
1 P GmbH is a limited liability company under Austrian law which operates an 
indoor playground.  
2 The 20% standard rate of VAT was charged for the admission fees to the indoor 
playground in 2019. Cash register receipts were issued in each case, which are 
small-value invoices under Paragraph 11(6) of the Austrian law on turnover tax. 
In fact, however, a 13% reduced rate of tax should have been applied. 
3 The customers of P GmbH are exclusively final consumers, who do not have a 
right of deduction.  
4 P GmbH corrected its annual VAT return for the year 2019 in order to be credited 
for the overpaid VAT. That credit was refused by the Finanzamt (‘the Tax 
Office’) because the higher VAT is payable as a result of accounting for the 
individual invoices without correction and because P GmbH would enrich itself 
with a correction as the customers had paid the VAT.  
Succinct presentation of the reasoning in the request for a preliminary ruling 
5 It is clear that the tickets issued by P GmbH for the payment of the admission fees 
are invoices within the meaning of the VAT Directive. They are simplified 
invoices under Article 238 read in conjunction with Article 226b of the directive. 
They give rise to a liability for payment of VAT under accounting rules under 
Paragraph 11(12) of UStG 1994.  
6 The customers of P GmbH are exclusively final consumers without a right of 
deduction. The question therefore arises whether Article 203 of the VAT Directive 
can be applied, as in this case there cannot be a threat to tax revenue due to the 
deduction of input tax by the recipient of the supply.  
7 A correction of invoices is, in principle, possible in Austria, but the corrected 
invoices must be sent to the person to whom the supply is made. That is not 
possible in the present case, as the final consumers are no longer identifiable. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-378/21 
 
4  
8 In Austria, the view has been taken that a change in VAT, especially if there is no 
danger to tax revenue and an invoice correction is technically or factually 
impracticable, should also be possible without an invoice correction. However, 
this is countered by the argument that taxable persons are not obliged to issue 
invoices in transactions with consumers. If this had not been done, the invoices 
would not now have to be corrected.  
9 The question also arises whether, in a case such as that described, the invoice 
correction can be precluded in relation to the recipients of the services.  
10 In the present case, the VAT for the admission fees was ultimately paid by the 
customers, not by P GmbH. If P GmbH were to receive money back from the state 
by correcting the VAT, that would constitute an enrichment of P GmbH.  
11 Austrian national law provides that, where taxes and duties are omitted, the prices 
are to be reduced by those amounts.  
12 The Tax Office also based its refusal of VAT correction on the consequent 
enrichment of P GmbH. The case-law of the Court of Justice in Cases C-191/12 
and C-309/06 also appears to support that interpretation. 
13 The question thus arises as to whether a VAT correction is precluded where the 
final consumers have borne the tax as part of the consideration and so enriching 
the trader by the correction of the VAT.