Finanzamt Dachau v Achim Kollroß and Finanzamt Göppingen v Erich Wirtl.
Date: 2018-05-31
39


However, Article 65 of Directive 2006/112 provides, by way of derogation, that, where a payment is to be made on account before the goods or services are supplied, VAT is to become chargeable on receipt of the payment and on the amount received. As an exception to the rule recalled in the preceding paragraph, that provision must be interpreted strictly (see, to that effect, judgment of 21 February 2006, BUPA Hospitals and Goldsborough Developments, C‑419/02, EU:C:2006:122, paragraph 45).
40


Thus, in order for the VAT to become chargeable in such circumstances, all the relevant information concerning the chargeable event, namely the future supply of goods or services, must already be known and therefore, in particular, when the payment on account is made, the goods or services must be precisely identified (see, to that effect, judgment of 21 February 2006, BUPA Hospitals and Goldsborough Developments, C‑419/02, EU:C:2006:122, paragraph 48).
41


Consequently, Article 65 of Directive 2006/112 cannot apply where, at the time the payment on account is made, it is uncertain whether the supply of goods or services will take place (see, to that effect, judgment of 13 March 2014, FIRIN, C‑107/13, EU:C:2014:151, paragraph 39).
47


In that regard, it should be borne in mind that, although, when payments on account are received prior to the supply of goods or services, receipt of those amounts renders the tax chargeable, this is because the parties to the transaction in this way demonstrate their intention that all the financial consequences of that supply should arise in advance (see, to that effect, judgment of 21 February 2006, BUPA Hospitals and Goldsborough Developments, C‑419/02, EU:C:2006:122, paragraph 49).
54


Regarding the potential impact on the deduction of VAT made by a taxable person of events occurring after that deduction has been made, it is apparent from the case-law of the Court that the use to which the goods or services are put, or are intended to be put, determines the extent of the initial deduction to which the taxable person is entitled and the extent of any adjustments in the course of the following periods (see, to that effect, judgments of 18 October 2012, TETS Haskovo, C‑234/11, EU:C:2012:644, paragraph 29 and the case-law cited, and of 13 March 2014, FIRIN, C‑107/13, EU:C:2014:151, paragraph 49).
55


The adjustment mechanism provided for in Articles 184 to 186 of Directive 2006/112 is an integral part of the VAT deduction scheme established by that directive. It is intended to enhance the precision of deductions so as to ensure the neutrality of VAT, so that transactions effected at an earlier stage continue to give rise to the right to deduct only to the extent that they are used to make supplies subject to VAT. That mechanism thus aims to establish a close and direct relationship between the right to deduct input VAT and the use of the goods or services concerned for taxable output transactions (judgments of 18 October 2012, TETS Haskovo, C‑234/11, EU:C:2012:644, paragraphs 30 and 31, and of 13 March 2014, FIRIN, C‑107/13, EU:C:2014:151, paragraph 50).
56


As regards the coming into existence of an obligation to make an adjustment of an input VAT deduction, Article 185(1) of Directive 2006/112 establishes the principle that such an adjustment is to be made, in particular, where, after the VAT return is made, some change occurs in the factors used to determine the amount to be deducted (judgments of 4 October 2012, PIGI, C‑550/11, EU:C:2012:614, paragraph 26, and of 18 October 2012, TETS Haskovo, C‑234/11, EU:C:2012:644, paragraph 32).
64


However, it must be pointed out that, in the event of adjustment of the right to deduct in a situation where a payment on account has not been refunded, compliance with the principle of fiscal neutrality is ensured by the possibility, provision for which must be made by the Member States in their legislation, for a buyer to obtain from his supplier repayment of a payment made on account for a supply of goods which has not, ultimately, taken place (see, by analogy, judgments of 31 January 2013, LVK, C‑643/11, EU:C:2013:55, paragraph 48, and of 13 March 2014, FIRIN, C‑107/13, EU:C:2014:151, paragraph 55).
66


Concerning cases where VAT has been unduly invoiced because of the lack of a taxable transaction, the Court has held that it is true that the principles of neutrality and effectiveness do not, as a rule, preclude national legislation according to which only the supplier may seek a refund from the competent tax authorities of the sums he has paid them in error by way of VAT, it being the responsibility of the buyer of the goods to bring an action against that supplier in order that he may, in turn, obtain a refund of those sums from that supplier. However, the Court has also held that, if such an action becomes impossible or excessively difficult, in particular in the case of the insolvency of the supplier, those principles may require that the buyer be able to address his request for a refund to the tax authorities directly (see, to that effect, judgment of 15 March 2007, Reemtsma Cigarettenfabriken, C‑35/05, EU:C:2007:167, paragraphs 39, 41 and 42).