C-342/87 Genius Holding

Judgment of the Court (Fifth Chamber) of 13 December 1989. - Genius Holding BV v Staatssecretaris van Financiën. - Reference for a preliminary ruling: Hoge Raad - Netherlands. - Value added tax - Sixth directive 77/388/CEE - Right to deduct VAT. - Case C-342/87. European Court reports 1989 Page 04227

Summary Parties Grounds Decision on costs Operative part

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Tax Provisions - Harmonization of laws - Turnover tax - Common system of value-added tax - Deduction of tax already paid - Exercise of the right - Condition - Tax due as a result of a transaction subject to value-added tax - Tax due solely as a result of being mentioned on the invoice - Condition not fulfilled

( Council Directive 77/388, Arts 17(2)(a ) and 21(1)(c ) )

The exercise by a taxable person of the right to deduct value-added tax, provided for in the Sixth Directive ( 77/388 ), in connection with the supply of goods or services by another taxable person may be exercised, by virtue of Article 17(2)(a ) of the directive, only in respect of taxes actually due, that is to say, the taxes corresponding to a transaction subject to value-added tax or paid in so far as they were due . It does not apply to tax which, by virtue of Article 21(1)(c ) of the directive, is due solely because it is mentioned on the invoice .

In Case C-342/87

REFERENCE to the Court under Article 177 of the EEC Treaty by the Hoge Raad der Nederlanden ( Supreme Court of the Netherlands ) for a preliminary ruling in the proceedings pending before that court between

Genius Holding BV

and

Staatssecretaris van Financiën

on the interpretation of a number of provisions of the Sixth Council Directive ( 77/388/EEC ) of 17 May 1977 on the harmonization of the laws of the Member States relating to turnover taxes - Common system of value-added tax : uniform basis of assessment ( Official Journal L 145 ., p . 1 ),

THE COURT ( Fifth Chamber )

composed of : Sir Gordon Slynn, President of Chamber, M . Zuleeg, R . Joliet, J . C . Moitinho de Almeida and G . C . Rodríguez Iglesias, Judges,

Advocate General : J . Mischo

Registrar : J . A . Pompe, Deputy Registrar

after considering the observations submitted on behalf of

the tax entity Genius Holding BV, the defendant in the main proceedings, by P . A . Dijkman Dulkes and J . A . F . van Haaster, authorized agents,

the Netherlands Government, by H . J . Heinemann, Acting Secretary-General of the Ministry of Foreign Affairs, acting as Agent,

the Government of the Federal Republic of Germany, by M . Seidel and H.-J . Horn, acting as Agents,

the Spanish Government, by J . Conde de Saro and R . Garcia-Valdecasas y Fernández, acting as Agents,

the Commission of the European Communities, by J . F . Buhl, a member of its Legal Department, acting as Agent, assisted by M . Mees, of the Hague Bar,

having regard to the Report for the Hearing and after hearing the oral observations of the defendant in the main proceedings, of the Netherlands Government, represented by J . W . de Zwaan, acting as Agent, the Government of the Federal Republic of Germany, represented by J . Kraeusel, acting as Agent, the Spanish Government and the Commission of the European Communities, at the sitting on 15 February 1989,

after hearing the Opinion of the Advocate General delivered at the sitting on 14 March 1989,

gives the following

Judgment

Grounds

1By judgment of 28 October 1987, which was received at the Court on 4 November 1987, the Hoge Raad der Nederlanden ( Supreme Court of the Netherlands ) referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty two questions on the interpretation of several provisions of the Sixth Council Directive ( 77/388/EEC ) of 17 May 1977 on the harmonization of the laws of the Member States relating to turnover taxes - Common system of value-added tax : uniform basis of assessment ( Official Journal L 145, p . 1, hereinafter referred to as "the Sixth Directive ").

2Those questions arose in proceedings between the tax entity Genius Holding BV ( called "Genius BV" at the material time ), whose premises are in IJmuiden and which carries out assembly and machine-tooling work, and the Staatssecretaris van Financiën ( Secretary of State for Finance ).

3For the period from 1 July to 31 December 1982 inclusive, the amount of tax owed by Genius Holding, which uses subcontractors to fulfil its orders, was adjusted on the ground that, contrary to the legislation in force, it had deducted from the turnover tax due from it value-added tax ( hereinafter referred to as "VAT ") invoiced to Genicon Montage BV by two subcontractors, Vissers Pijpleiding en Montage BV and Montagebedrijf J . van Mierlo .

4Since the Inspecteur der Omzetbelasting ( Turnover Tax Inspector ) rejected Genius Holding' s objection to the abovementioned adjustment, that company brought an action before the Gerechtshof Amsterdam ( Regional Court of Appeal, Amsterdam ), which upheld the contested decision .

5On appeal, the Hoge Raad considered that according to the rules of Netherlands law deduction was permitted only when the tax mentioned in the invoice was actually due . However, in accordance with the transfer rules applicable in the Netherlands to the activities in question by virtue of an authorization issued by the Council under Article 27 of the Sixth Directive, a subcontractor was not liable to pay VAT in respect of services rendered to a principal contractor, the tax being due only from the latter on the amount which he invoiced to the person who had placed the order . It followed that the appellant in the main proceedings could not deduct VAT on the basis that it was invoiced to the appellant by subcontractors contrary to the abovementioned rules .

6Since it had doubts as to the compatibility of such rules with the Sixth Directive, the Hoge Raad stayed the proceedings and referred the following two questions to the Court for a preliminary ruling :

"( 1)Does the right to deduct provided for in the Sixth Directive apply to the tax which is due solely because it is mentioned on the invoice?

( 2)If so, does the directive still allow the Member States to exclude - either entirely or in certain special cases - the right to deduct such tax by laying down requirements regarding the invoice?"

7Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the course of the procedure and the written observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court .

8For the purpose of the answer to be given to the first question, it should be pointed out that according to Article 17(2)(a ) of the Sixth Directive, the taxable person is to be entitled to deduct from the tax which he is liable to pay

"value-added tax due or paid in respect of goods or services supplied or to be supplied to him by another taxable person ".

9The appellant in the main proceedings and the Commission maintains that that provision must be interpreted as meaning that any tax mentioned in the invoice may be deducted .

10They consider that the interpretation to the effect that only taxes corresponding to the supply of goods or services may be deducted is contrary to the purpose of the system of deductions, which is designed to ensure, as the Court pointed out in its judgment of 14 February 1985 in Case 268/83 Rompelman v Minister van Financiën (( 1985 )) ECR 655, complete neutrality in regard to the fiscal burden borne by all economic activities, regardless of their purpose or results, on condition that those activities are themselves subject to VAT . Since, under Article 21(1)(c ) of the Sixth Directive, any person who mentions VAT on an invoice or other document serving as invoice is liable to pay that tax even if it is not legally due, the exclusion in such cases of the right to deduct implies the taxation of an activity in a manner contrary to the principle of the neutrality of VAT .

11Furthermore, that interpretation would lead to traders being required to check whether the VAT being invoiced is legally due, which requires an assessment of the rate of tax chosen and a knowledge of the exemptions granted . It would therefore be an obstacle to the efficient conduct of commercial relations .

12In that regard, it should be pointed out, first of all, that in drafting Article 17(2)(a ), the Council departed both from the wording of Article 11(1)(a ) of the Second Council Directive of 11 April 1967 ( Official Journal, English Special Edition 1967, p . 16 ) and from that of Article 17(2)(a ) of the Commission' s proposal for a Sixth Directive ( Official Journal C 80, 5.10.1973, p . 1 ), provisions under which the taxable person was entitled to deduct any tax invoiced to him in respect of goods or of services supplied to him .

13It must be inferred from the changes made to the abovementioned provisions that the right to deduct may be exercised only in respect of taxes actually due, that is to say, the taxes corresponding to a transaction subject to VAT or paid in so far as they were due .

14That interpretation of Article 17(2)(a ) is confirmed by the other provisions of the Sixth Directive .

15According to Article 18(1)(a ), to exercise his right to deduct, the taxable person must hold an invoice, drawn up in accordance with Article 22(3)(b ), which requires the invoice to state clearly the price exclusive of tax and the corresponding tax at each rate as well as any exemptions . In accordance with that provision, mention of the tax corresponding to the supply of goods and services is an element in the invoice on which the exercise of the right to deduct depends . It follows that that right cannot be exercised in respect of tax which does not correspond to a given transaction, either because that tax is higher than that legally due or because the transaction in question is not subject to VAT .

16Furthermore, according to Article 20(1)(a ), "the initial deduction shall be adjusted according to the procedures laid down by the Member States, in particular ... where that deduction was higher or lower than that to which the taxable person was entitled ". It follows from that provision that where the deduction initially carried out does not correspond to the amount of the tax legally due, it has to be adjusted, even if it corresponds to the amount of the tax mentioned on the invoice or other document serving as invoice .

17That interpretation of Article 17(2)(a ) is the one which is best adapted to prevent tax evasion, which would be made easier if any tax invoiced could be deducted .

18Finally, with regard to the argument put forward by the appellant in the main proceedings and the Commission to the effect that the fact of limiting the exercise of the right to deduct to taxes corresponding to the supply of goods and services calls into question the neutrality of VAT, it should be pointed out that, in order to ensure the application of that principle, it is for the Member States to provide in their internal legal systems for the possibility of correcting any tax improperly invoiced where the person who issued the invoice shows that he acted in good faith .

19The answer to the first question should therefore be that the right to deduct provided for in the Sixth Council Directive, 77/388/EEC, of 17 May 1977 does not apply to tax which is due solely because it is mentioned on the invoice .

20Having regard to the answer to the first question, there is no need to answer the second question referred to the Court .

Costs

Costs

21The costs incurred by the Netherlands Government, the Spanish Government, the Government of the Federal Republic of Germany and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable . Since these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the proceedings pending before the national court, the decision on costs is a matter for that court .

Operative part

On those grounds,

THE COURT ( Fifth Chamber ),

in answer to the questions submitted to it by the Hoge Raad der Nederlanden, by judgment of 28 October 1987, hereby rules :

The right to deduct provided for in the Sixth Council Directive, 77/388/EEC, of 17 May 1977, does not apply to tax which is due solely because it is mentioned on the invoice .

OPINION OF MR ADVOCATE GENERAL MISCHO delivered on 14 March 1989 * Mr President, Members of the Court

An adjustment of the taxable amount for the purposes of turnover tax was imposed on Genius Holding BV, the plaintiff in the main proceedings (called 'Genius BV' at the material time), by the Inspector of Taxes for the period from 1 July to 31 December 1982. Later confirmed by a judgment of 28 May 1985 of the Gerechtshof Amsterdam (Regional Court of Appeal, Amsterdam), that decision was adopted on the ground that the plaintiff wrongly deducted tax invoiced to it by one of its subcontractors because the tax in question had been charged in error and could not therefore be deducted. The plaintiff in the main proceedings therefore brought an appeal before the Hoge Raad der Nederlanden (Supreme Court of the Netherlands), which concluded that the appeal raised questions the answer to which required an interpretation of the opening words of Articles 17(2), 17(2)(a), 18(1), 21(1) and 22(3) and (8) of the Sixth Council Directive of 17 May 1977 on the harmonization of the laws of the Member States relating to turnover taxes — Common system of value-added tax: uniform basis of assessment (Directive 77/388/EEC, Official Journal L 145, 13.6.1977, p. 1, hereinafter referred to as 'the Sixth Directive').

* Original language: French.

4234 First question

Introduction

2The Hoge Raad formulated its first question in the following terms:

'Does the right to deduct provided for in the Sixth Directive apply to the tax which is due solely because it is mentioned on the invoice?'

3According to Article 21(1)(c) of the Sixth Directive,

'any person who mentions the value-added tax on an invoice or other document serving as invoice'

is liable to pay value-added tax.

4The German and Spanish Governments argue essentially that Article 21(1)(c) was inserted only in order to prevent fraud. Even if any amount appearing on an invoice had to be paid to the Treasury by the person who drew up the invoice, that amount would not give rise to a right to deduct unless it corresponded to tax actually due under the legislation.

5The German Government argues in particular that a deduction made by reason of undue payment of turnover tax is incompatible with Article 17(2)(a). That provision reads as follows:

'In so far as the goods and services are used for the purposes of his taxable transactions, the taxable person shall be entitled to deduct from the tax which he is liable to pay

(a) value-added tax due or paid in respect of goods or services supplied or to be supplied to him by another taxable person.'

6The expression 'tax due' thus refers, according to the German Government, exclusively to the tax which must be paid to the collecting authority on the basis of a correct application of the legislation and not that due only because it is mentioned on the invoice.

7At the hearing, the German Government emphasized in particular the changes that the Council had made to the proposal for a directive submitted by the Commission. Article 17(2)(a) of that proposal provided that the taxable person was to be entitled to deduct from the tax which he was liable to pay

'value-added tax invoiced to him ... in respect of goods or of services supplied to him'.

The Council replaced the expression 'tax invoiced' by 'tax due or paid' and added at the end the words 'by another taxable person'. By doing so, it wanted to exclude cases in which the tax is due solely because it is mentioned on the invoice.

8There can obviously be no question of my contesting that such was the Council's intention, or at least, that of some of its members, but the fact remains that according to Article 21 any person who mentions the value-added tax on an invoice is to be liable to pay that tax. However, Article 17(2)(a) refers to tax due or paid and I consider that it is for the Court to interpret the directive on the basis of the terms in which it is worded and not in accordance with what one or other of the Member States believes to have been the real intention of the Council.

9The Spanish Government argues that according to Article 17(1), the right to deduct arises as soon as the deductible tax becomes chargeable. It concludes that taxes which are not chargeable to the taxable person who passes them on cannot give rise to deduction. Taxable persons in that situation are liable to pay only the amounts due in accordance with the applicable law.

10Article 21 of the directive is entitled 'Persons liable to pay tax to the authorities' and Article 21(1)(c) provides that any person who mentions the value-added tax on an invoice is liable to pay it. A taxable person who so mentions it must therefore be liable to pay it whether or not it is legally due.

11Moreover, according to Article 10(1),

'(a) "chargeable event" shall mean the occurrence by virtue of which the legal conditions necessary for tax to become chargeable are fulfilled;

(b) the tax becomes "chargeable" when the tax authority becomes entitled under the law at a given moment to claim the tax from the person liable to pay ...'.

According to Article 10(2),

'the chargeable event shall occur and the tax shall become chargeable when the goods are delivered or the services are performed.

12Any tax mentioned on an invoice, even if it is not legally due, thus becomes chargeable once the transaction to which it relates has been carried out.

13The governments which have submitted written observations also refer to Article 18(1)(a) which provides that to exercise his right to deduct, the taxable person must hold an invoice, drawn up in accordance with Article 22(3). Subparagraph (b) of that provision provides that

4236 'the invoice shall state clearly the price exclusive of tax and the corresponding tax at each rate as well as any exemptions'.

14In my opinion, that provision lays down a from which the in lex generalis lex specialis Article 21(1)(c) derogates. In principle, every invoice must mention the exact amount of tax applicable to the goods or services to which it refers. However, when that rule is not observed and an amount not legally due, or which is erroneous, appears on the invoice, the person who drew up the invoice is none the less liable, by virtue of Article 21(1)(c), to pay the amount actually mentioned, and that amount may later be deducted by the taxable person to whom the goods were delivered or for whom the service was performed.

15The Netherlands Government, although it, too, considers that only tax 'in fact due' may be deducted, adopts a position which is less radical than that of the other governments by referring to the practice developed in the Netherlands. In accordance with that practice, 'the tax authorities at first look to the person who improperly mentioned the tax on the invoice. It is only if that step appears to have no chance of producing a result that, under certain conditions, for example, in the absence of good faith on the part of the person who received the invoice, the tax deducted is later also charged to the latter. That course of conduct is based on the principles of sound administration ... '.

16The Netherlands Government thus indicates to the Court the path it ought to follow in order to resolve the problem. Since it is clear from Article 21(1)(c) that all tax mentioned on an invoice is due to the authorities, it is logical to claim it in the first place from the person who drew up the invoice. If the amount thus due can be recovered, there is no longer any reason to claim it a second time from the person to whom the goods were delivered or to whom the service was rendered (hereinafter referred to as 'the second taxable person').

17If the tax was not automatically paid by the first taxable person or cannot be recovered from him, the following distinction must, to my mind, be drawn:

(a) if the second taxable person has also not paid the tax to the supplier, there is a strong presumption of fraudulent collusion and the administration is then fully justified in claiming payment from the second taxable person, thus rendering ineffective the deduction made by him;

(b) if, on the other hand, it transpires that the second taxable person has actually paid the amount in question to the first, it should not be possible for the authorities to claim that amount from the second taxable person.

18To treat, in such a situation, both taxable persons as jointly and severally liable to pay the tax, and to do so in the absence of any provision prescribing such liability, would not be in accordance with the principles of justice and equity. Article 21(1)(a) and (b) permits the Member States to impose joint and several liability where the taxable transaction is carried out by a taxable person resident abroad but Article 21(1)(c) makes no such provision.

19Moreover, if recognition of a right to deduct were refused in such a case, the selfsame right could just as well be denied every time the first taxable person failed to pay to the authorities an amount legally due and correctly calculated.

20Furthermore, if such joint and several liability were to be laid down, it would impose a wholly excessive duty of care on all traders; can it be imagined that all firms could verify whether each amount of VAT mentioned on the countless invoices which they receive each year from their suppliers is correct?

21Like the Commission and the appellant in the main proceedings, I also consider that it would be contrary to the scheme and purpose of the Sixth Directive to refuse to permit a deduction to be made in the circumstances of this case. The purpose of the VAT system is to ensure neutrality of taxation so as, in particular, not to distort the conditions of competition. The essential factor is, therefore, to avoid double taxation of the same 'added value'. It follows that the right to deduct must be acquired each time that the tax has to be paid, which is the case if it appears, even incorrectly, on an invoice.

22Moreover, the Court has pointed out the importance of the above considerations in its case-law in holding that 'the deduction system is meant to relieve the trader entirely of the burden of the VAT payable or paid in the course of all his economic activities. The common system of value-added tax therefore ensures that all economic activities, whatever their purpose or results, provided that they are themselves subject to VAT, are taxed in a wholly neutral way'. 1

23I think the judgment in Schul I 2is even more instructive inasmuch as it is there stated that

'value-added tax is chargeable on each transaction only after deduction of the amount of value-added tax borne directly by the cost of the various price components'.

24It follows that what matters is whether the second taxable person actually paid the VAT to the first. If so, he may deduct it even if it was incorrectly claimed from him.

25In its judgment of 21 September 1988 in Case 50/87 Commission v France [1988] ECR 4797, the Court was also led to point out that

'in the absence of any provision empowering the Member States to limit the right of deduction granted to taxable persons, that right must be exercised immediately in respect of all the taxes charged on transactions relating to inputs. Such limitations on the right of deduction have an impact on the level of the tax burden and must be applied in a similar manner in all the Member States. Consequently, derogations are permitted only in the cases expressly provided for in the directive' (paragraphs 16 and 17).

However, there is no provision in the directive providing that an amount due solely because it is mentioned on the invoice does not give rise to a right to deduct.

26Finally, with regard to the need to prevent fraud, the Court stated in paragraph 22 of the same judgment that that need cannot justify measures derogating from the directive otherwise than under the procedure which is provided for in Article 27.

27I therefore consider that the objections raised by the governments are not convincing and that the right to deduct provided for in the Sixth Directive extends to tax due solely because it is mentioned on the invoice, except where it is shown that the amount in question was not paid to the taxable person who drew up the invoice.

Second question

28In the event that the first question is answered in the affirmative, the Hoge Raad also asks the Court whether the directive allows the Member States to exclude — either entirely or in certain special 4238 laying down requirements regarding the invoice.

29It can be seen from Anicie 18(1)(a) that to exercise his right to deduct, the taxable person must hold an invoice drawn up in accordance with Article 22(3). According to Article 22(3)(b), the invoice is to state clearly the price exclusive of tax and the corresponding tax at each rate as well as any exemptions.

30In its judgment of 14 July 1988 3 in Jeunehomme, the Court held that although the directive does no more than require an invoice containing certain information, Member States may provide for the inclusion of additional information. Article 22(8) provides that

'Member States may impose other obligations which they deem necessary for the correct levying and collection of the tax and for the prevention of fraud'.

31In the operative part of the abovementioned judgment, the Court ruled that

'Articles 18(1)(a) and 22(3)(a) and (b) of the Sixth Council Directive (77/388/EEC) of 17 May 1977 allow Member States to make the exercise of the right to deduction subject to the holding of an invoice which must contain certain particulars which are necessary in order to ensure the levying of value-added tax and permit supervision by the tax authorities. Such particulars must not, by reason of their number or technical nature, render the exercise of the right to deduction practically impossible or excessively difficult'.

32In the main proceedings, it is not, properly speaking, additional information which is in question but the following requirements.

33According to Article 35(1)(g) of the Netherlands Turnover Tax Law of 1968, the invoice which a trader must issue to another trader in respect of goods or services he supplies to the other trader must mention clearly

'the amount of the tax due in respect of the goods or services supplied. A different amount of tax may not he stated.

34Secondly, Article 24b of the Turnover Tax Implementation Order 1968 provides that, where there is subcontracting, VAT is charged not to the subcontractor who performs the service but to the (principal) contractor who purchases it. The subcontractor should not mention any amount in respect of VAT on his invoice but should insert in its place the words 'value-added tax transferred'.

35It follows moreover from the Netherlands legislation that when a principal contractor receives an invoice which infringes one of the provisions summarized above, he is not entitled to deduct the amount incorrectly mentioned on the invoice because it is not drawn up in the prescribed manner, notwithstanding the fact that the person who mentioned that amount on the invoice is also liable to pay it to the authorities.

36Let me now consider the general rules and the 'transfer' rules.

37(a) I would like to make the following observations concerning the prohibition of mentioning on an invoice an amount of VAT other than that legally due.

38I consider that even if that obligation is not complied with, a Member State cannot be permitted to deprive a (principal) contractor of his right to deduct on the basis of an argument of form to the effect that the invoice does not correspond to the provisions of national law on the drawing up of invoices.

39In my opinion, the obligation not to mention an amount of VAT other than that legally due does not constitute one of the 'other obligations' which the Member States may impose under Article 22(8) for the correct levying and collection of VAT. On the contrary, it is an obligation which, although not provided for expressly in the directive, is none the less implicit therein.

40Moreover, the directive has already laid down a sanction if that obligation is not fulfilled (Article 21(1)(c)): any person who mentions (even incorrectly) a tax on an invoice or other document serving as an invoice is liable to pay it.

4240

41Furthermore, I pointed out in connection with the answer to be given to the first question that the right to deduct applies to tax which is due solely because it is mentioned on the invoice.

42It is also therefore inconceivable that the Member States may derogate from so fundamental a principle of the Sixth Directive as the right to make deductions on the basis of a provision of their national law requiring that an invoice mention the exact amount of VAT legally due, to the exclusion of any other amount.

43(b) Let me now turn my attention to the transfer rules. Those rules were brought into effect in the Netherlands only by virtue of a derogation from the Sixth Directive granted by the Council 4under Article 27.

44Article 27(1) commences as follows:

'The Council, acting unanimously on a proposal from the Commission, may authorize any Member State to introduce special measures for derogation from the provisions of this directive, in order to simplify the procedure for charging the tax or to prevent certain types of tax evasion or avoidance.'

45The basic provision of the VAT transfer rules derogates from one of the fundamental principles of the Sixth Directive, namely the principle that the invoice must state clearly the price exclusive of tax and the corresponding tax at each rate as well as would have to supervise the activities of any exemptions. In this case, there is no each of his subcontractors and accept from exemption from but a transfer of VAT, with them only invoices bearing the words the effect that there is undoubtedly a dero'value-added tax transferred'. The gation from that principle.

prohibition of deducting tax incorrectly mentioned on such an invoice is intended to

46However, I consider that rules derogating from the Sixth Directive, authorized make the principal contractor exercise care. The prohibition is therefore an essential by the Council, must necessarily be element of those special rules. This second regarded as a body. The VAT transfer rules are intended to prevent certain types of tax derogation from the principles of the directive must also therefore be regarded as evasion. In order for the rules to achieve covered by the Council's authorization. those objectives, the principal contractor

Conclusion

Conclusion

47On the basis of the foregoing considerations, I would propose that the Court should answer the Hoge Raad's questions as follows:

'(1) The right to make the deduction provided for in the Sixth VAT Directive applies to the tax which is due solely because it is mentioned on the invoice except in cases in which it can be established that the amount in question was not paid to the taxable person who drew up the invoice.

(2) The Sixth Directive does not allow the Member States to exclude the right to deduct VAT by laying down a requirement that the invoice mention the exact amount of VAT legally due, to the exclusion of any other amount.'

The situation is different where a Member State has been authorized by the Council under Article 27 of the directive to apply rules derogating from the directive, and prohibiting the mention of an amount of VAT on the invoice and excluding the right to deduct if that prohibition is not complied with.

Notes

(1) Case 268/83 Rompelman v Minister van Financien [1985] cases — the right to deduct such tax by ECR 655, paragraph 19.

(2) Case 15/81 Schul v Inspecteur der Invoerrechten en Accijnzen [1982] ECR 1409, paragraph 10.

(3) Joined Cases 123 and 330/87 Jeunehomme and Others v Belgian State [ 1988 ]ECR4517

(4) OJC 197, 317.1982, p. 1. GENIUS HOLDING v STAATSSECRETARIS VAN FINANCIEN