C-794/23 Finanzamt Österreich (VAT invoiced in error to final consumers II)

JUDGMENT OF THE COURT (Ninth Chamber)

1 August 2025 ( *1 )

(Reference for a preliminary ruling – Common system of value added tax (VAT) – Directive 2006/112/EC – Article 203 – Incorrect amount of VAT entered on the invoice – Article 238 – Simplified invoicing – Services invoiced to non-taxable persons and to taxable persons who do not have a right to deduct VAT – Obligation to pay the part of the VAT invoiced incorrectly – No risk of loss of tax revenue)

In Case C‑794/23,

REQUEST for a preliminary ruling under Article 267 TFEU from the Verwaltungsgerichtshof (Supreme Administrative Court, Austria), made by decision of 14 December 2023, received at the Court on 21 December 2023, in the proceedings

Finanzamt Österreich

v

P GmbH,

THE COURT (Ninth Chamber),

composed of N. Jääskinen, President of the Chamber, I. Jarukaitis (Rapporteur), President of the Fourth Chamber, and A. Arabadjiev, Judge,

Advocate General: J. Kokott,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

the Austrian Government, by A. Posch, J. Schmoll and F. Koppensteiner, acting as Agents,

the German Government, by J. Möller and P.‑L. Krüger, acting as Agents,

the Portuguese Government, by P. Barros da Costa, C. Bento, R. Laires and A. Rodrigues, acting as Agents,

the European Commission, initially by F. Behre and M. Herold, and subsequently by M. Herold, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 19 December 2024,

gives the following

Judgment

Legal context and the dispute

1This request for a preliminary ruling concerns the interpretation of Articles 203 and 238 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1), as amended by Council Directive (EU) 2018/1695 of 6 November 2018 (OJ 2018 L 282, p. 5, and corrigendum OJ 2018 L 329, p. 53) (‘the VAT Directive’).

2The request has been made in proceedings between the Finanzamt Österreich (Tax Office, Austria; ‘the tax authority’) and P GmbH concerning the tax authority’s refusal of an application to adjust P’s value added tax (VAT) return on the ground that the invoices P issued featured a VAT amount calculated using the incorrect rate.

Legal context

European Union law

3Under Article 193 of the VAT Directive:

‘VAT shall be payable by any taxable person carrying out a taxable supply of goods or services, except where it is payable by another person in the cases referred to in Articles 194 to 199b and Article 202.’

4Article 203 of the VAT Directive provides:

‘VAT shall be payable by any person who enters the VAT on an invoice.’

5Article 220(1) of that directive provides as follows:

‘Every taxable person shall ensure that, in respect of the following, an invoice is issued, either by himself or by his customer or, in his name and on his behalf, by a third party:

supplies of goods or services which he has made to another taxable person or to a non-taxable legal person;

…’

6Article 238 of that directive provides:

‘(1) After consulting the VAT Committee, Member States may, in accordance with conditions which they may lay down, provide that in the following cases only the information required pursuant to Article 226b shall be entered on invoices in respect of supplies of goods or services:

where the amount of the invoice is higher than EUR 100 but not higher than EUR 400, or the equivalent in national currency;

where commercial or administrative practice in the business sector concerned or the technical conditions under which the invoices are issued make it particularly difficult to comply with all the obligations referred to in Article 226 or 230.

3. The simplified arrangements provided for in paragraph 1 shall not be applied where invoices are required to be issued pursuant to points (2) and (3) of Article 220(1) or where the taxable supply of goods or services is carried out by a taxable person who is not established in the Member State in which the VAT is due or whose establishment in that Member State does not intervene in the supply within the meaning of Article 192a and the person liable for the payment of VAT is the person to whom the goods or services are supplied.’

Austrian law

7Paragraph 11(1), (6) and (12) of the Umsatzsteuergesetz 1994 (Law on turnover tax 1994, BGBl. 663/1994), in the version applicable to the dispute in the main proceedings (‘the UStG 1994’), provides as follows:

1Where the trader effects transactions within the meaning of point 1 of Paragraph 1(1), he or she shall be entitled to issue invoices. Furthermore, if he or she effects the transactions to another trader for the latter’s undertaking or to a legal person where the latter is not a trader, he or she shall be obliged to issue invoices. If the trader makes a taxable supply of work or services connected with immovable property to a non-trader, he or she shall be obliged to issue an invoice. The trader must comply with his or her obligation to issue an invoice within six months of the date on which the transaction was effected.

…

(6) Invoices the total amount of which does not exceed EUR 400 shall include, in addition to the date of issue, the following information:

1The name and address of the trader who supplied the goods or services;

2The quantity and the usual commercial description of the goods or the nature and extent of the services supplied;

3The date of the supply of the goods or service or the period over which the service extends;

4The consideration and the tax on the supply of the goods or service in a single sum; and

5The rate of tax.

…

(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 correct 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.’

8Paragraph 16(1) of the UStG 1994 provides that:

‘When the basis of assessment of a taxable transaction for the purposes of points 1 and 2 of Paragraph 1(1) has changed,

1. the trader who effected that transaction shall correct correspondingly the amount of tax payable in that regard, and

2. the trader receiving the supply must correct correspondingly the deduction made in that regard. Corrections shall be made in respect of the taxable period in which the consideration has been altered.’

9Paragraph 239a of the Bundesabgabenordnung (Federal Tax Code), in the version applicable to the dispute in the main proceedings, provides:

‘In so far as a charge, which, in accordance with the purpose of the provision establishing the charge, is to be borne economically by a person other than the taxable person, has been borne economically by a person other than the taxable person, the following must not take place:

1crediting of the tax account;

2repayment, rebooking or transfer of credit balances; and

3use for the repayment of tax debts;

where this would lead to the unjust enrichment of the taxable person.’

The dispute in the main proceedings and the questions referred for a preliminary ruling

10P is a limited liability company governed by Austrian law. P operates an indoor playground. In 2019, P applied VAT at the rate of 20% to the admission fees to that indoor playground. Upon payment of the admission fees, P issued its customers with till receipts, drawn up, on account of their low value, in accordance with the simplified invoicing rules laid down in Paragraph 11(6) of the UStG 1994. P stated the corresponding tax on its VAT return for 2019, but subsequently corrected it on the ground that the admission fees ought to be subject to the reduced rate of VAT of 13%.

11By decision of 18 January 2021, the tax authority determined the VAT payable by P for 2019 without taking account of that correction. In its decision, the tax authority stated that P had applied VAT at the rate of 20% on revenue derived from admission fees to the indoor playground and that P had entered the amount of that tax on its till receipts. The tax authority refused to correct the rate of VAT after the event, on the grounds, first, that it was not possible to amend the invoices or to send to the customers credit notes corresponding to the difference between the VAT at the rate of 20% and the VAT at the reduced rate and, second, that such a correction, where P’s customers had borne VAT at the rate of 20%, would result in the unjust enrichment of P.

12P brought an action against that decision, claiming that the services had been supplied ‘almost exclusively’ to individuals who do not have a right to deduct input VAT, with the result that the risk of loss of tax revenue was ruled out and that a correction of the invoices was not necessary.

13By order of 21 June 2021, the Bundesfinanzgericht (Federal Finance Court, Austria), before which the dispute had been brought, made a request for a preliminary ruling to the Court of Justice in order to ascertain whether Article 203 of the VAT Directive could be applied in that dispute, even though there was no risk of loss of tax revenue.

14In its judgment of 8 December 2022, Finanzamt Österreich (VAT invoiced incorrectly to final consumers) (C‑378/21, EU:C:2022:968), the Court held that Article 203 of the VAT Directive must be interpreted as meaning that a taxable person who has supplied a service and who has stated on the invoice an amount of VAT calculated on the basis of an incorrect rate is not liable, under that provision, for the part of the VAT invoiced incorrectly if there is no risk of loss of tax revenue on the ground that the recipients of that service are exclusively final consumers who do not have a right to deduct input VAT.

15Following that judgment, the Bundesfinanzgericht (Federal Finance Court), by judgment of 27 January 2023, amended the VAT assessment payable by P for 2019.

16That court started from the premiss that it was ‘(almost) exclusively’ final consumers, without a right to deduct input VAT, who used the services of P. However, since it could not be ruled out that the customers had, rightly or wrongly, deducted the VAT invoiced by P, that court held that it was necessary to estimate the invoices which were likely to give rise to a VAT debt under Article 203 of the VAT Directive. That court based its assessment on the hypothesis that there was a risk of loss of tax revenue in respect of an estimated 0.5% share of the total turnover of the indoor playground, that is to say, approximately 112 of the 22557 invoices issued in total by P.

17The tax authority brought an appeal on a point of law (Revision) against the judgment of 27 January 2023 before the Verwaltungsgerichtshof (Supreme Administrative Court, Austria). According to the tax authority, that judgment departs from the judgment of 8 December 2022, Finanzamt Österreich (VAT invoiced incorrectly to final consumers) (C‑378/21, EU:C:2022:968). The tax authority maintains that it cannot be inferred from that judgment, by which the Court examined the questions submitted to it in the light of the premiss that the service at issue in the main proceedings was supplied exclusively to final consumers who did not have a right to deduct input VAT, that the VAT due could be assessed on the basis of a split by way of an estimate between, on the one hand, final consumers and, on the other, taxable persons who are entitled to deduct input tax.

18According to the referring court, since the risk of loss of tax revenue was not, in the absence of correction of the invoices, completely eliminated in good time, P could be regarded as wholly liable for the amounts of VAT which were referred to on all the invoices.

19If, however, the risk of loss of tax revenue ought to be assessed, as suggested by the Advocate General in her Opinion in Finanzamt Österreich (VAT invoiced incorrectly to final consumers) (C‑378/21, EU:C:2022:657), at the level of each incorrect invoice, the referring court asks what criteria should be used to determine, as the case may be by means of an estimate, which invoices feature among those in respect of which such a risk of loss exists.

20The referring court states that, in that context, it is not clear how the concept of ‘final consumers who do not have a right to deduct input VAT’, within the meaning of the judgment of 8 December 2022, Finanzamt Österreich (VAT invoiced incorrectly to final consumers) (C‑378/21, EU:C:2022:968), is to be understood.

21In those circumstances, the Verwaltungsgerichtshof (Supreme Administrative Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

Is Article 203 of [the VAT Directive] to be interpreted as meaning that a taxable person who has supplied a service and mentioned in his [or her] invoice a VAT amount calculated on the basis of an incorrect tax rate is not liable, under that provision, for the part of the VAT invoiced incorrectly if the service mentioned on the specific invoice in question was supplied to a non-taxable person, even if the taxable person has supplied similar services to other taxable persons?

Is “final consumer who does not have a right to deduct input VAT” within the meaning of the judgment of [8 December 2022, Finanzamt Österreich (VAT invoiced incorrectly to final consumers) (C‑378/21, EU:C:2022:968)] to be understood as referring only to a non-taxable person or also to a taxable person using the specific service only for private purposes (or for other purposes not conferring the right to deduct input VAT) and therefore lacking the right to deduct input VAT?

In the event of simplified invoicing in accordance with Article 238 of [the VAT Directive], what criteria are to be used to assess (possibly by way of an estimate) for which invoices the taxable person is not liable for the incorrectly invoiced amount because there is no risk of loss of tax revenue?’

Consideration of the questions referred

The first question

22By its first question, the referring court asks, in essence, whether Article 203 of the VAT Directive must be interpreted as meaning that a taxable person who has supplied a service and who has stated on the invoice an amount of VAT calculated using an incorrect rate is liable for the part of the VAT which was incorrectly invoiced to a non-taxable person, even if that taxable person has also supplied similar services to other taxable persons.

23In that regard, Article 203 of the VAT Directive provides that VAT is to be payable by any person who enters the VAT on an invoice. In accordance with the Court’s case-law, the VAT indicated on an invoice is payable by the issuer of the invoice even in the absence of an actual taxable transaction (judgment of 8 December 2022, Finanzamt Österreich (VAT invoiced incorrectly to final consumers), C‑378/21, EU:C:2022:968, paragraph 19 and the case-law cited).

24It is also clear from the Court’s case-law that Article 203 of the VAT Directive seeks to eliminate the risk of loss of tax revenue which the right of deduction provided for in that directive might entail. Article 203 therefore applies where VAT has been invoiced incorrectly and there is a risk of loss of tax revenue on account of the fact that the recipient of the invoice in question has a right to deduct such VAT (judgment of 8 December 2022, Finanzamt Österreich (VAT invoiced incorrectly to final consumers), C‑378/21, EU:C:2022:968, paragraphs 20 and 21 and the case-law cited).

25The Court has also held that in a situation in which part of the VAT invoiced was incorrectly invoiced, Article 203 of that directive applies only to the amount of VAT exceeding that which was duly invoiced. In the latter case, there is a risk of loss of tax revenue, since a taxable person who is the recipient of such an invoice might be led to exercise his or her right to deduct VAT without the competent tax authorities being in a position to determine whether the conditions for exercising that right are satisfied (judgment of 8 December 2022, Finanzamt Österreich (VAT invoiced incorrectly to final consumers), C‑378/21, EU:C:2022:968, paragraph 23).

26It follows that Article 203 of the VAT Directive is applicable only where there is a risk of loss of tax revenue, which must be assessed on the basis of a specific invoice and which cannot depend on whether the services at issue of the taxable person concerned were supplied not only to non-taxable persons for VAT purposes, but also to other taxable persons subject to that tax. Accordingly, for the purpose of assessing the existence of such a risk, it is necessary to determine whether the recipient of the given invoice is in fact a taxable person for the purposes of VAT and could, consequently, assert the right to deduct the input tax.

27In the light of the reasons given, the answer to the first question is that Article 203 of the VAT Directive must be interpreted as meaning that a taxable person who has supplied a service and who has stated on the invoice an amount of VAT calculated using the incorrect rate is not liable for the part of the VAT which was incorrectly invoiced to a non-taxable person, even if that taxable person has also supplied similar services to other taxable persons.

The second question

28By its second question, the referring court asks, in essence, whether the VAT Directive must be interpreted as meaning that it is appropriate to classify as ‘final consumers who do not have a right to deduct input VAT’, within the meaning of the judgment of 8 December 2022, Finanzamt Österreich (VAT invoiced incorrectly to final consumers) (C‑378/21, EU:C:2022:968), not only non-taxable persons, but also taxable persons who, in a given situation, do not have a right to deduct input VAT.

29It should be borne in mind that, in that regard, the Court held, in paragraph 25 of the judgment of 8 December 2022, Finanzamt Österreich (VAT invoiced incorrectly to final consumers) (C‑378/21, EU:C:2022:968), that Article 203 of the VAT Directive must be interpreted as meaning that a taxable person who has supplied a service and who has stated on the invoice an amount of VAT calculated on the basis of an incorrect rate is not liable, under that provision, for the part of the VAT invoiced incorrectly if there is no risk of loss of tax revenue on the ground that the recipients of that service are exclusively final consumers who do not have a right to deduct input VAT.

30It is also apparent from the Court’s case-law that, as has been recalled in paragraph 24 above, the risk of loss of tax revenue which the obligation laid down in Article 203 of the VAT Directive seeks to eliminate is not, in principle, completely removed as long as the recipient of an invoice incorrectly showing VAT could still use it for the purpose of exercising his or her right of deduction (see, to that effect, judgment of 31 January 2013, Stroy trans, C‑642/11, EU:C:2013:54, paragraphs 30 to 32), since it is conceivable that complex circumstances and legal relations could prevent the tax authorities from identifying, in sufficient time, the grounds which preclude the exercise of a right to deduct (see, to that effect, judgment of 18 June 2009, Stadeco, C‑566/07, EU:C:2009:380, paragraph 30).

31It is therefore necessary to interpret strictly the concept of ‘final consumers who do not have a right to deduct input VAT’ and to consider that such a risk exists where the recipient of an incorrect invoice is a taxable person, including in the event that that person could have used the supply concerned for private purposes or for other purposes in respect of which VAT is not deductible.

32In the light of the foregoing, the answer to the second question is that the VAT Directive must be interpreted as meaning that it is appropriate to classify as ‘final consumers who do not have a right to deduct input VAT’, within the meaning of the judgment of 8 December 2022, Finanzamt Österreich (VAT invoiced incorrectly to final consumers) (C‑378/21, EU:C:2022:968), only non-taxable persons. Thus, taxable persons who, in a given situation, do not have a right to deduct input VAT are not covered by that concept.

The third question

33By its third question, the referring court asks, in essence, whether the VAT Directive must be interpreted as precluding, in the case of simplified invoicing under Article 238 of that directive, a tax authority or a national court from using an estimate in order to determine the proportion of the invoices in respect of which a taxable person who has incorrectly invoiced VAT is liable for that tax under Article 203 of that directive.

34It is clear from the documents before the Court that the case in the main proceedings relates to a situation in which the volume of invoices issued by the taxable person concerned is very significant, the issue of those invoices having been made in the context of mass market commerce, without the identity of the recipients of those invoices being known.

35It is therefore necessary to determine the way in which, in such a situation, for the purpose of adjusting the VAT improperly invoiced, invoices for low value in respect of which the taxable person is liable for VAT under Article 203 of the VAT Directive are identified, where the recipients of the supplies and the invoices are both final consumers and taxable persons who have a right to deduct input VAT.

36As is clear, in essence, from point 33 of the Advocate General’s Opinion, the VAT Directive does not govern that question or the question of the burden of proof concerning that identification. Accordingly, it is for the domestic legal system of each Member State to lay down the criteria according to which it is necessary to determine the cases in which a taxable person is liable for an amount of VAT invoiced incorrectly. That procedural autonomy of the Member States is, however, circumscribed by the principles of equivalence and effectiveness, that is to say, that the abovementioned criteria must not be less favourable than those concerning similar claims based on provisions of national law or arranged in such a way as to make the exercise of rights conferred by the EU legal order practically impossible (see, to that effect, judgment of 13 October 2022, HUMDA, C‑397/21, EU:C:2022:790, paragraphs 33 and 39).

37Since the principle of equivalence is not concerned in the present case, it must be borne in mind, as regards the principle of effectiveness, that that principle requires that the national rules relating in particular to the determination of the part of the invoices in respect of which the taxable person concerned, having incorrectly invoiced VAT, is liable for the VAT thus invoiced, do not result in the taxable person being deprived of the possibility of adjusting or refunding the amount of VAT paid in error, since Member States are under an obligation in accordance with EU law if, in particular, there is no risk of a loss of tax revenue for the Member State concerned. It is for the referring court to establish, having regard to all the circumstances of the case in the main proceedings, whether that is so in the present case (see, to that effect, judgment of 13 October 2022, HUMDA, C‑397/21, EU:C:2022:790, paragraphs 36 and 40).

38In that regard, as has been observed in paragraph 26 above, the existence of a risk of loss of tax revenue within the meaning of Article 203 of the VAT Directive must be assessed on the basis of each specific invoice, determining whether the recipient of that given invoice is in fact a taxable person for the purposes of VAT.

39In addition, it is necessary to take into account, in order to ascertain, among the invoices showing the incorrect amount of VAT, the proportion of the invoices issued in respect of other taxable persons, all the relevant circumstances, such as the nature of the service provided, the manner in which that service is supplied and invoiced, and any statistical information concerning the recipients of that service that are available to the supplier. In that regard, the fact that, in the present case, the customers of the taxable person concerned are not often other taxable persons is of particular importance.

40It should be observed that, as the Advocate General stated, in essence, in points 42 and 43 of her Opinion, EU law does not preclude the possibility of using an estimate to identify the proportion of the invoices incorrectly issued to other taxable persons, in principle, provided that, in the context of such an estimate, the principles of fiscal neutrality and proportionality are observed (see, to that effect, judgment of 21 November 2018, Fontana, C‑648/16, EU:C:2018:932, paragraphs 36 and 37).

41As regards, in the first place, the principle of fiscal neutrality, it must be pointed out that the common system of VAT ensures the neutrality of taxation of all economic activities, whatever their purpose or results, provided that they are themselves, in principle, subject to VAT. The tax authorities of a Member State would disproportionately breach the principle of VAT neutrality by leaving the taxable person liable to pay the VAT in respect of which he or she is entitled to obtain a refund, whereas the common system of VAT is intended to relieve the operator entirely of the burden of the VAT due or paid in the course of all his or her economic activities (judgment of 21 March 2024, Dyrektor Izby Administracji Skarbowej w Bydgoszczy (Possibility of adjustment in the case of incorrect rate), C‑606/22, EU:C:2024:255, paragraphs 23 and 24).

42In the case of invoices incorrectly showing an excessive amount of VAT, that principle is complied with by the opportunity, to be provided for by the Member States, of correcting any tax incorrectly invoiced, where the issuer of the invoice has, in sufficient time, wholly eliminated the risk of any loss of tax revenue (see, to that effect, judgment of 2 July 2020, Terracult, C‑835/18, EU:C:2020:520, paragraph 28).

43As regards, in the second place, the principle of proportionality, that principle requires, inter alia, that the data used to estimate the number of incorrect invoices issued to taxable persons must be correct, reliable and up to date. Such an estimate can, moreover, give rise only to a rebuttable presumption, which may be rebutted by the taxable person issuing those invoices, on the basis of evidence to the contrary (see, to that effect, judgment of 21 November 2018, Fontana, C‑648/16, EU:C:2018:932, paragraph 42).

44In that regard, observance of the taxable person’s rights of defence means in particular that, before adopting a measure which will adversely affect a taxable person, he or she must be placed in a position in which he or she can effectively make known his or her views as regards the information on which the authorities intend to base their decision, in particular to challenge the accuracy of the estimate at issue and to explain why the circumstances justify that challenge. The principle of proportionality requires, in addition, that the necessary standard of proof is not excessively high (see, to that effect, judgment of 21 November 2018, Fontana, C‑648/16, EU:C:2018:932, paragraphs 43 and 44).

45In the light of the foregoing considerations, the answer to the third question is that the VAT Directive must be interpreted as not precluding, in the case of simplified invoicing under Article 238 of that directive, a tax authority or a national court from using an estimate in order to determine the proportion of the invoices in respect of which a taxable person who has incorrectly invoiced VAT is liable for that tax under Article 203 of that directive, provided that for the purposes of such an estimate, all the relevant circumstances are taken into account, and a taxable person, in compliance with the principles of fiscal neutrality and proportionality and the rights of the defence, from calling into question the results obtained by that method.

Costs

46Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

Operative part

On those grounds, the Court (Ninth Chamber) hereby rules:

Article 203 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, as amended by Council Directive (EU) 2018/1695 of 6 November 2018,

must be interpreted as meaning that a taxable person who has supplied a service and who has stated on the invoice an amount of value added tax (VAT) calculated using the incorrect rate is not liable for the part of the VAT which was incorrectly invoiced to a non-taxable person, even if that taxable person has also supplied similar services to other taxable persons.

Signatures

Directive 2006/112, as amended by Directive 2018/1695,

must be interpreted as meaning that it is appropriate to classify as ‘final consumers who do not have a right to deduct input VAT’, within the meaning of the judgment of 8 December 2022, Finanzamt Österreich (VAT invoiced incorrectly to final consumers) (C‑378/21, EU:C:2022:968), only non-taxable persons. Thus, taxable persons who, in a given situation, do not have a right to deduct input VAT are not covered by that concept.

Directive 2006/112, as amended by Directive 2018/1695,

must be interpreted as not precluding, in the case of simplified invoicing under Article 238 of Directive 2006/112, as amended, a tax authority or a national court from using an estimate in order to determine the proportion of the invoices in respect of which a taxable person who has incorrectly invoiced VAT is liable for that tax under Article 203 of Directive 2006/112, as amended, provided that for the purposes of such an estimate, all the relevant circumstances are taken into account, and a taxable person, in compliance with the principles of fiscal neutrality and proportionality and the rights of the defence, from calling into question the results obtained by that method.

[Signatures]

( *1 ) Language of the case: German.

Provisional text

OPINION OF ADVOCATE GENERAL

KOKOTT

of 19 December 2024 (1)

Case C‑794/23

Finanzamt Österreich

v

P GmbH

(Request for a preliminary ruling from the Verwaltungsgerichtshof (Supreme Administrative Court, Austria))

( Request for a preliminary ruling – Value added tax (VAT) – Services – Incorrect, overstated VAT mentioned on invoices – Invoices issued to non-taxable persons who do not have a right to deduct input tax – Liability for the risk of loss of tax revenue – Identification of invoices posing a risk of loss of tax revenue – Procedural autonomy of the Member States – Burden of proof – Power of financial authorities to make estimates – Criteria for an appropriate estimate )

I. Introduction

1These proceedings demonstrate that it is sometimes preferable, in the interests of procedural economy, for the Court of Justice to go beyond answering the question expressly asked and attempt to resolve the apparent underlying problem, even if the referring court has not expressly raised it.

2Following an initial reference for a preliminary ruling, the Court ruled that an invoice for a visit to an indoor playground issued to a final consumer does not give rise to a tax liability if the invoice shows an amount of VAT that is incorrect and too high. (2) In such a case, there was no risk of a loss of tax revenue from an unjustified deduction of input VAT by those customers. However, since the possibility cannot be ruled out that the large number of visitors to the playground might have included a taxable person (entrepreneur) – which means that there could in fact be a risk of loss of tax revenue – the question arises as to how to distinguish between those two situations. That question is all the more apposite given that service-providing undertakings generally do not record the identities of customers – of whom there are more than 20 000 in the present case – in the course of everyday mass trade.

3However, since that issue was addressed only in the Opinion, (3) but not in the judgment, the Court is now being asked by the court of next instance in the same national proceedings, how and according to what criteria the two situations are to be distinguished.

II. Legislative framework

A. European Union law

4The EU legislative framework is laid down in Directive 2006/112/EC on the common system of value added tax (‘the VAT directive’). (4)

5Article 193 of the VAT Directive defines who is liable for that tax:

‘VAT shall be payable by any taxable person carrying out a taxable supply of goods or services, except where it is payable by another person in the cases referred to in Articles 194 to 199b and Article 202.’

6Article 168 of the VAT Directive concerns the scope of the right of deduction and reads as follows:

‘In so far as the goods and services are used for the purposes of the taxed transactions of a taxable person, the taxable person shall be entitled, in the Member State in which he carries out these transactions, to deduct the following from the VAT which he is liable to pay:

(a) the VAT due or paid in that Member State in respect of supplies to him of goods or services, carried out or to be carried out by another taxable person; …’.

7Article 203 of the VAT Directive governs the tax liability resulting from the entering of VAT on an invoice.

‘VAT shall be payable by any person who enters the VAT on an invoice.’

8Article 220(1) of the VAT Directive governs the obligation to issue invoices:

‘Every taxable person shall ensure that, in respect of the following, an invoice is issued, either by himself or by his customer or, in his name and on his behalf, by a third party:

(1) supplies of goods or services which he has made to another taxable person or to a non-taxable legal person;

…’.

B. Austrian law

9Point 1 of Paragraph 11(1) of the Bundesgesetzes über die Besteuerung der Umsätze (Umsatzsteuergesetz 1994 (1994 Federal law on turnover tax); ‘the UStG 1994’) governs the obligation to issue invoices:

‘Where the trader effects transactions within the meaning of point 1 of Paragraph 1(1), he or she shall be entitled to issue invoices. Furthermore, if he or she effects the transactions to another trader for the latter’s undertaking or to a legal person where the latter is not a trader, he or she shall be obliged to issue invoices. If the trader makes a taxable supply of work or services connected with immovable property to a non-trader, he or she shall be obliged to issue an invoice. The trader must comply with his or her obligation to issue an invoice within six months of the date on which the transaction was effected.’

10Paragraph 11(6) of the UStG concerns small-value invoices and provides as follows:

‘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 trader who supplied the goods or services;

(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.’

11Paragraph 11(12) of the UStG 1994 concerns tax liability in cases where the tax mentioned on the invoice cannot be justified; that provision reads as follows:

‘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.’

III. Facts and preliminary ruling procedure

12P GmbH is a limited liability company incorporated under Austrian law. It operates an indoor playground. In the year at issue, 2019, P GmbH applied the Austrian standard rate of VAT of 20% to the consideration paid for its services (admission fees to the indoor playground). However, in the year at issue, 2019, those services of P GmbH were subject to the reduced rate of tax of 13% (one of the reduced rates – as provided for in Article 98(1) of the VAT Directive – applicable in Austria in the year at issue).

13P GmbH issued cash register receipts to its customers when they paid the consideration, which are small-value invoices under Paragraph 11(6) of the UStG 1994 (simplified invoices under Article 238 of the VAT Directive, read in conjunction with Article 226b thereof). P GmbH issued a total of 22 557 invoices in the year at issue, 2019. P GmbH corrected its annual VAT return for the year 2019 in order to be credited for the overpaid VAT by the Finanzamt (‘the Tax Office’). The Tax Office refused to issue a refund on the grounds that P GmbH had not corrected the invoices and, furthermore, would have been unjustly enriched by a refund of tax that was not legally due.

14P GmbH brought an action against that decision. The Bundesfinanzgericht (Federal Finance Court, Austria), seised of the action, referred the two questions to the Court of Justice for a preliminary ruling pursuant to Article 267 TFEU. In that respect, the Court answered only the first question, holding that Article 203 of the VAT Directive must be interpreted as meaning that a taxable person who has supplied a service and who has stated on the invoice an amount of VAT calculated on the basis of an incorrect rate is not liable, under that provision, for the part of the VAT invoiced incorrectly if there is no risk of loss of tax revenue on the ground that the recipients of that service are exclusively final consumers who do not have a right to deduct input VAT. (5)

15By the decision now being contested before the Verwaltungsgerichtshof (Supreme Administrative Court, Austria), the Bundesfinanzgericht (Federal Finance Court) amended the 2019 VAT assessment. The Bundesfinanzgericht (Federal Finance Court) held that the services of P GmbH had been used ‘(almost) exclusively’ by customers who, as final consumers, could not exercise a right to deduct input VAT. However, as it could not be completely ruled out that customers of P GmbH may have (rightly or wrongly) deducted input VAT on the invoices, the Bundesfinanzgericht (Federal Finance Court) held that an estimate had to be made. Due to the overwhelming probability that the services supplied by P GmbH were for customers’ private use, the Bundesfinanzgericht (Federal Finance Court) estimated the tax liability that existed by virtue of invoicing at 0.5% of the total turnover. That, it stated, equated to approximately 112 invoices on which (rightly or wrongly) input VAT had been deducted (among a total of 22 557 invoices issued).

16The Tax Office lodged an appeal on a point of law (Revision) against that decision. It submits that the judgment under appeal deviates from the Court’s case-law. It cannot be inferred from the Court’s judgment that there has been a split by way of an estimate into final consumers and taxable persons entitled to deduct input VAT.

17Given that the Court’s response in the previous preliminary ruling procedure was expressly based on all of P GmbH’s customers being final consumers not entitled to deduct input VAT, there are, in the opinion of the referring court, doubts as to what should apply if even a small proportion of P GmbH’s customers were taxable persons. The risk of a loss of tax revenue is therefore not ruled out (in any event not entirely).

18In those circumstances, the Verwaltungsgerichtshof (Supreme Administrative Court) decided to stay the proceedings and to refer the following questions to the Court of Justice under Article 267 TFEU:

‘(1) Is Article 203 of the VAT Directive to be interpreted as meaning that a taxable person who has supplied a service and mentioned in his invoice a VAT amount calculated on the basis of an incorrect tax rate is not liable, under that provision, for the part of the VAT invoiced incorrectly if the service mentioned on the specific invoice in question was supplied to a non-taxable person, even if the taxable person has supplied similar services to other taxable persons?

(2) Is ‘final consumer who does not have a right to deduct input VAT’ within the meaning of the judgment of the Court of Justice of the European Union of 8 December 2022 in Case C‑378/21 to be understood as referring only to a non-taxable person or also to a taxable person using the specific service only for private purposes (or for other purposes not conferring the right to deduct input VAT) and therefore lacking the right to deduct input VAT?

(3) In the event of simplified invoicing in accordance with Article 238 of [the VAT Directive], what criteria are to be used to assess (possibly by way of an estimate) for which invoices the taxable person is not liable for the incorrectly invoiced amount because there is no risk of loss of tax revenue?’

19In the proceedings before the Court of Justice, the Republic of Austria, the Federal Republic of Germany, Portugal and the European Commission submitted written observations. In accordance with Article 76(2) of the Rules of Procedure of the Court of Justice, the Court did not consider it necessary to hold a hearing.

IV. Legal assessment

A. The questions referred for a preliminary ruling and the course of the investigation

20The first two questions essentially concern the interpretation of Article 203 of the VAT Directive and the existence of a tax liability resulting from an incorrectly drawn up invoice (mentioning a VAT amount that is too high) and can be answered quite simply (see B. below).

21The third question relates to the issue that is decisive in practice: How should a large number of incorrect invoices (in the present case, a total of 22 557) be dealt with in cases where it can be assumed, based on the type of service, that the vast majority were issued to non-taxable final consumers? Since only invoices issued to taxable persons can pose a risk of loss of tax revenue, it is therefore necessary to clarify the criteria for identifying such invoices. It is only in those circumstances that tax liability may arise under Article 203 of the VAT Directive.

22Whereas the first request for a preliminary ruling was still based on an assumption that the customers were exclusively final consumers, the second request for a preliminary ruling is based on the fact that a proportion of the invoices were, in any event, also issued to taxable persons who may, on the basis of those invoices, have claimed an input tax deduction that was too high. Following its request for a preliminary ruling, the court of first instance – possibly on the basis of my Opinion (6) – estimated that proportion (0.5%) and established that there was a tax liability under Article 203 of the VAT Directive for approximately 112 of the 22 557 invoices. The referring court is now seeking to ascertain the criteria to be applied under EU law for the purposes of making such an estimate (see C below).

B. The first and second questions (tax liability under Article 203 of the VAT Directive)

23The fact that the tax liability under Article 203 of the VAT Directive relates also to VAT which has been separately stated incorrectly (in an excessive amount) on small-value invoices does not appear to be in dispute. That is in line with the Court of Justice’s case-law concerning the purpose of Article 203 of the VAT Directive. The purpose of that article is to eliminate the risk of loss of tax revenue which might be entailed by an unjustified deduction being claimed by the recipient of an invoice on the basis of that invoice. (7)

24It is true that the right to deduct may be exercised only in respect of taxes corresponding to a transaction subject to VAT. (8) However, there is a risk of loss of tax revenue as long as the addressee of an invoice incorrectly mentioning VAT could still use it to exercise the right of deduction under Article 168 of the VAT Directive. (9) That is because it cannot be ruled out that the tax authorities will not be able to determine in good time whether or not substantive considerations preclude the exercise of the formally existing right of deduction.

25Thus, in cases where VAT is stated incorrectly (in an excessive amount), Article 203 of the VAT Directive seeks a comparable parallelism between the deduction by the recipient of the invoice and the tax liability of the issuer of the invoice, as would normally exist in the case of a correct invoice between the supplier and the recipient of the supply. (10) According to the wording of Article 203 of the VAT Directive, it is not necessary that a deduction has been made by the recipient of the invoice. It is sufficient that there is a risk of such a deduction being made. Whether the deduction is justified or not is in principle irrelevant.

26In that regard, Article 203 establishes a strict liability offence. Hence, invoices (including small-value invoices) are covered only if they are issued to a taxable person. This is because, as is apparent from Article 168 of the VAT Directive, it is only taxable persons who have a formal (potential) entitlement to deduct input VAT.

27However, the specific extent to which a taxable person is entitled to deduct input VAT is, by contrast, a substantive question and depends, for example, on the use of the purchased service. Nonetheless, the type of use does not affect the (abstract) possibility of input VAT deduction and hence also the strict liability under Article 203 of the VAT Directive.

28Thus, as the Commission asserts, and contrary to the views expressed by Germany and Austria in their written observations, Article 203 of the VAT Directive also covers invoices issued to taxable persons who are not substantively entitled to deduct input VAT on account of the fact that the services are used for private purposes. The same applies to services rendered to taxable persons who, by reason of their tax-exempt output transactions, are not substantively entitled to deduct input VAT.

29That interpretation is consistent in so far as it relates solely to the status of the invoice recipient (taxable person or non-taxable person). Moreover, it takes into account the nature of Article 203 of the VAT Directive as a strict liability offence. In both cases, as the Court has already pointed out, (11) it cannot be ruled out that the tax authorities will not be able to determine in good time whether there are substantive considerations which preclude a taxable person from exercising the formal right of deduction.

30I have already explained in detail (12) that – as Germany also argues in contrast to Austria – it is not possible to infer any ‘infection effect’ from one invoice to another from Article 203 of the VAT Directive. Even if a certain risk cannot be ruled out in individual cases – because the invoice could also have been issued to a taxable person (13) – that does not mean that the tax liability under Article 203 of the VAT Directive then extends to all (in the present case 22 557) invoices.

31Such a concept of ‘infection’ is alien to VAT law. The tax liability under Article 203 of the VAT Directive relates – as the Commission also rightly emphasises – to incorrect individual invoices. Moreover, such an ‘infection effect’ would also be problematic in the light of the principle of proportionality.

32The first and second questions can therefore be answered as follows. A person (in this case P GmbH) is not liable for VAT under Article 203 of the VAT Directive in respect of the incorrect invoices it has issued to non-taxable persons, even if it has issued further incorrect invoices to other taxable persons (irrespective of whether they are substantively entitled to deduct input VAT in full, in part or not at all) in relation to which it is then liable for the tax under Article 203 of the VAT Directive.

C. Tax liability under Article 203 of the VAT Directive where a risk of loss of tax revenue cannot be ruled out (third question)

1. General remarks

33As previously explained, the tax liability under Article 203 of the VAT Directive relates to individual, incorrect invoices issued to taxable persons. The question now concerns ‘only’ how those invoices are to be identified among a large number of invoices, especially if – as in the present case involving a mass business – the identities of the recipients of the invoices are unknown. Ultimately, it is a question of the burden of allegation and proof in tax proceedings. There are no specific provisions addressing that issue in the VAT Directive. Even Article 273 of the VAT Directive (the power of the Member States to introduce further obligations to ensure correct collection and prevent evasion) does not – contrary to what Portugal appears to suggest in its written observations – allow for the inference of any requirements in that regard.

34However, a closer examination of the VAT Directive reveals that, in particular cases, the directive does allow certain trivial matters to be disregarded. By way of example, under Article 173(2)(e) of the VAT Directive, for the purpose of determining the appropriate input tax deduction apportionment (proportional deduction), insignificant amounts can be treated as nil. Even if that provision is not relevant to the present case, it nevertheless demonstrates that the VAT Directive adopts an assumption that insignificant amounts can potentially be treated as nil when questions arise as to how large numbers of transactions are to be divided into various subtypes. It is likely that assumption also has its basis in the principle of proportionality.

2. Procedural autonomy of the Member States

35Ultimately, the precise method for identifying invoices posing a risk of loss of tax revenue and those for which such a risk is ruled out remains, however, a question of the burden of allegation and proof under the tax procedure of the respective Member State.

36In the absence of a corresponding provision in the VAT Directive, the framing of the rules governing the burden of presenting the facts of the claim and the burden of proof falls – as both Germany and the Commission emphasise – within the competence of the Member States (principle of procedural autonomy). (14) However, the specific details of the rules governing the burden of presenting the facts of the claim and the burden of proof must not be less favourable than those in similar domestic situations (principle of equivalence). There are no indications suggesting that that is the case, even though, unfortunately, Austria did not comment on that point in its observations.

37Furthermore, the detailed rules must not be framed in such a way as to make it impossible in practice or excessively difficult to exercise rights conferred by EU law (principle of effectiveness). (15) Within the scope of application of the VAT Directive, the latter also means that the Member States are obliged, when exercising that power to frame the rules governing the burden of presenting the facts of the claim and the burden of proof, to comply with EU law and its general principles and, in particular, the principles of proportionality and fiscal neutrality. (16)

38Administrative procedure under public law (which includes tax law) is usually characterised by the inquisitorial principle. That means that, in principle, the tax authorities carry out an ex officio investigation of the facts. In tax law, that is generally supplemented by various duties of cooperation on the part of the taxable person. The less the taxable person complies with its duties of cooperation, the more limited the scope of the Tax Office’s duty to investigate. However, there is nothing in (either of) the requests for a preliminary ruling that suggests that P GmbH could be accused of having failed, in any way, to fulfil its duties in the present case, which means, in principle, that it is the responsibility of the tax authorities to investigate the facts.

39If the facts of a case cannot be clarified with sufficient certainty, the rules on the objective burden of proof apply. According to those rules, the Tax Office will normally bear the objective burden of proving facts justifying taxation or an increase in taxation, provided that the taxable person has fulfilled its duties of cooperation, whereas the inability to prove facts justifying a reduced level of taxation operates to the detriment of the taxable person.

40If, however, incorrect invoices issued to non-taxable persons do not give rise to a tax liability under Article 203 of the VAT Directive, because there is no risk of loss of tax revenue, (17) then it is only incorrect invoices issued to taxable persons that can give rise to a tax liability under Article 203 of the VAT Directive.

41Consequently, in order to conclude that there is a tax liability under Article 203 of the VAT Directive, the tax authorities must, in principle, determine how many invoices were issued to taxable persons for visiting an indoor playground. However, since tax law is characterised by the administration of very large numbers of transactions, taxable persons and administrative acts (referred to as ‘mass procedures’), it is quite common in the Member States (18) for the tax authorities to be authorised to estimate the tax bases in cases where they cannot be determined.

3. Power of the tax authorities to make estimates and EU law

42As the Commission has also rightly emphasised, EU law does not preclude the making of estimates. However, that power to make estimates must be exercised in compliance with the principles of fiscal neutrality and proportionality. (19)

43With regard to an estimate of a taxable person’s turnover, the Court of Justice has held that (20) ‘the VAT Directive and the principles of fiscal neutrality and proportionality must be interpreted as not precluding national legislation …, which authorises tax authorities, in the event of serious differences between declared revenue and revenue estimated on the basis of sector studies, to use extrapolation … in order to determine the amount of turnover achieved by a taxable person’.

44That is nothing more than an estimate of turnover made because the taxable person’s turnover declaration was not credible from the point of view of the tax authority. However, as the Court goes on to explain, that is possible only provided that ‘that legislation and its application enable the taxable person, in compliance with the principles of fiscal neutrality, proportionality and the right of defence, to challenge the results obtained by that method, on the basis of all of the evidence to the contrary available to him’.

45The principle of proportionality prevents the objective (tax collection based on strict liability) from justifying the means (estimation based on an assumption that all invoices were issued to taxable persons).

46In that respect, the entire context of the case – in the present case, the fact that customers of an indoor playground are only rarely taxable persons within the meaning of VAT law – are of decisive importance. As the Court has already stated, an estimate of turnover must be correct, reliable and up to date. (21) The same applies to estimating the proportion of invoices which pose a possible risk of loss. The estimate must reflect the reality of life and general life experience; for that reason, an estimate of 50%, for example, would appear disproportionate in the present case.

47The common system of VAT ensures ‘complete neutrality of taxation of all economic activities, whatever their purpose or results, provided that they are themselves subject to VAT.’ (22) Consequently, the principle of neutrality under VAT law requires that the undertaking – as a tax collector on behalf of the State – must be exempted in principle from the final burden of VAT, (23) provided that the business activity itself serves (in principle) to realise taxable transactions. (24) That is the situation in the present case.

48Where incorrectly drawn up invoices mention a VAT amount that is too high, compliance with the principle of neutrality is ensured by the possibility, to be provided for by the Member States, of correcting any tax improperly invoiced, provided that the issuer of the invoice demonstrates that it acted in good faith or where it has, in sufficient time, wholly eliminated the risk of any loss of tax revenue. (25) However, the foregoing would be undermined by an excessive estimate. In a case such as the present one, where general life experience indicates that there will be relatively few taxable persons among the customers of P GmbH, it therefore follows from the principle of neutrality and the principle of proportionality that the tax authorities must also make cautious estimates only.

49Thus, as the Bundesfinanzgericht (Federal Finance Court) correctly acknowledged in its contested decision – specific criteria for estimating the proportion of invoices that pose a risk of loss of tax revenue can be derived from the type of service and typical customers. In cases involving services that are usually used by taxable persons, a more generous estimate can be made if the issuer of the invoice is unable to provide evidence demonstrating why a certain percentage of the invoices were issued to non-taxable persons. In cases involving services such as those rendered in the present case, which are predominantly provided to non-taxable persons, a more cautious estimate must be made if the tax authorities cannot provide evidence demonstrating why a proportion of the invoices were nevertheless issued to taxable persons.

50It is possible that a subsequently collected random sample – whereby, during the course of a day, all visitors are asked whether they are registered as taxable persons under VAT law – could also serve as evidence to support such an estimate. However, it ultimately amounts to an assessment of the facts and evidence of the specific case, which is a matter for the national court. The assumption made by the Bundesfinanzgericht (Federal Finance Court) in the judgment under appeal, according to which only 0.5% of the services were provided to taxable persons, is, at least in my opinion, not far-fetched and nor does it appear disproportionate.

51It would also be conceivable to apply a ‘safety margin’ (for example 5%) in order to rule out any possible risk of loss of tax revenue. However, that safety margin would then also have to factor in the question of who caused the risk ‘to be safeguarded against’. More specifically, if the error made in drawing up the invoice was based on incorrect statements made by the tax authorities themselves, or if it resulted from an amendment to case-law that was made only subsequently, it therefore follows that the error, and hence the possible risk of loss of tax revenue, did not fall within the invoice issuer’s domain of responsibility. Since the invoice issuer acts only as a collector of a third-party tax on behalf of the State – as the Court correctly describes the situation – it would be inappropriate to apply a safety margin under such circumstances. If, on the other hand, the trader made an error in determining the correct rate of taxation, then the risk of loss of tax revenue could certainly be taken into account by applying a safety margin in the course of making the estimate.

V. Conclusion

52In the light of the foregoing considerations, I propose that the Court of Justice answer the questions referred by the Verwaltungsgerichtshof (Supreme Administrative Court, Austria) as follows:

(1) A person is not liable for VAT under Article 203 of the VAT Directive for the incorrect invoices it has issued to non-taxable persons, even if it has issued further incorrect invoices to other taxable persons, for which it is then liable for the tax under that article. If necessary, the proportion of such invoices is to be determined by means of an estimate.

(2) In that regard, the criteria for estimating the proportion of invoices that pose a risk of loss of tax revenue can be derived from the type of service and typical customers. Similarly, the circumstances giving rise to the error and the way in which the issuer of the invoice was involved in establishing the facts may be relevant criteria in that estimation.

Notes

(1) Original language: German.

(2) Judgment of 8 December 2022, Finanzamt Österreich (Wrongly invoiced VAT to final consumers) (C‑378/21, EU:C:2022:968).

(3) Opinion of Advocate General Kokott in Finanzamt Österreich (Wrongly invoiced VAT to final consumers) (C‑378/21, EU:C:2022:657).

(4) Council Directive of 28 November 2006 (OJ 2006 L 347, p. 1) in the version applicable to the year at issue (2019), as most recently amended in that respect by Council Directive (EU) 2018/2057 of 20 December 2018 (OJ 2018 L 329, p. 3).

(5) Judgment of 8 December 2022, Finanzamt Österreich (Wrongly invoiced VAT to final consumers) (C‑378/21, EU:C:2022:968, paragraph 25).

(6) Opinion of Advocate General Kokott in Finanzamt Österreich (Wrongly invoiced VAT to final consumers) (C‑378/21, EU:C:2022:657, paragraph 41), in which I had already mentioned the possibility of an estimate.

(7) See, expressly, judgments of 8 December 2022, Finanzamt Österreich (Wrongly invoiced VAT to final consumers) (C‑378/21, EU:C:2022:968, paragraph 20); of 18 March 2021, P (fuel cards) (C‑48/20, EU:C:2021:215, paragraph 27); of 8 May 2019, EN.SA. (C‑712/17, EU:C:2019:374, paragraph 32); of 11 April 2013, Rusedespred (C‑138/12, EU:C:2013:233, paragraph 24); of 31 January 2013, Stroy trans (C‑642/11, EU:C:2013:54, paragraph 32); of 31 January 2013, LVK (C‑643/11, EU:C:2013:55, paragraph 35 and 36); and of 18 June 2009, Stadeco (C‑566/07, EU:C:2009:380, paragraphs 28 et seq.).

(8) Judgment of 13 December 1989, Genius (C‑342/87, EU:C:1989:635, paragraph 13).

(9) See, expressly, judgment of 18 June 2009, Stadeco (C‑566/07, EU:C:2009:380, paragraph 28 et seq.), with references to the judgment of 19 September 2000, Schmeink & Cofreth and Strobel (C‑454/98, EU:C:2000:469, paragraph 57). See also Judgment of 8 December 2022, Finanzamt Österreich (Wrongly invoiced VAT to final consumers) (C‑378/21, EU:C:2022:968, paragraph 21).

(10) See also, in that respect, my Opinion in EN.SA. (C‑712/17, EU:C:2019:35, paragraphs 31 et seq.) and in Finanzamt Österreich (Wrongly invoiced VAT to final consumers) (C‑378/21, EU:C:2022:657, paragraph 32).

(11) See, expressly, judgment of 18 June 2009, Stadeco (C‑566/07, EU:C:2009:380, paragraph 29), with references to the judgment of 19 September 2000, Schmeink & Cofreth and Strobel (C‑454/98, EU:C:2000:469, paragraph 57).

(12) My Opinion in Finanzamt Österreich (Wrongly invoiced VAT to final consumers) (C‑378/21, EU:C:2022:657, paragraphs 38 et seq.).

(13) I refer to my example in my Opinion in Finanzamt Österreich (Wrongly invoiced VAT to final consumers) (C‑378/21, EU:C:2022:657, paragraph 39): A self-employed photographer visits that indoor playground with his son to take photographs that he later uses as advertising in his studio.

(14) Judgments of 18 June 2009, Stadeco (C‑566/07, EU:C:2009:380, paragraph 35); of 6 November 2003, Karageorgou and Others (C‑78/02 to C‑80/02, EU:C:2003:604, paragraph 49); of 19 September 2000, Schmeink & Cofreth and Strobel (C‑454/98, EU:C:2000:469, paragraph 49); and of 13 December 1989, Genius (C‑342/87, EU:C:1989:635, paragraph 18), on comparable situations regarding the correction of invoices.

(15) Judgments of 9 September 2021, GE Auto Service Leasing (C‑294/20, EU:C:2021:723, paragraph 59), of 16 July 2020, UR (VAT liability of lawyers) (C‑424/19, EU:C:2020:581, paragraph 25), of 4 March 2020, Telecom Italia (C‑34/19, EU:C:2020:148, paragraph 58); of 10 July 2014, Impresa Pizzarotti (C‑213/13, EU:C:2014:2067, paragraph 54); of 24 October 2013, Rafinăria Steaua Română (C‑431/12, EU:C:2013:686, paragraph 20); of 21 January 2010, Alstom Power Hydro (C‑472/08, EU:C:2010:32, paragraph 17); and of 3 September 2009, Fallimento Olimpiclub (C‑2/08, EU:C:2009:506, paragraph 24).

(16) In that sense, see also: judgments of 16 May 2024, Slovenské Energetické Strojárne (C‑746/22, EU:C:2024:403, paragraphs 51 et seq.); of 29 February 2024, Consortium Remi Group (C‑314/22, EU:C:2024:183, paragraphs 84 et seq.); and of 13 October 2022, HUMDA (C‑397/21, EU:C:2022:790, paragraph 39 et seq.).

(17) Judgment of 8 December 2022, Finanzamt Österreich (Wrongly invoiced VAT to final consumers) (C‑378/21, EU:C:2022:968).

(18) In Germany, Paragraph 162(1) of the Abgabenordnung (Tax Code) expressly confers upon Member States the power to make an estimate. In Italy, Articles 62-sexies (3) and 62-bis of Decreto legge (Legislative Decree) No 331/93, converted into the Law No 427 of 29 October 1993, allows the overall turnover of an undertaking to be determined by extrapolation (that is, by estimation). In Austria, Paragraph 184 of the Bundesabgabenordnung (Federal Tax Code) provides for a corresponding power to make estimates.

(19) Judgment of 21 November 2018, Fontana (C‑648/16, EU:C:2018:932, paragraph 37) citing the judgment of 5 October 2016, Maya Marinova (C‑576/15, EU:C:2016:740, paragraph 44).

(20) Judgment of 21 November 2018, Fontana (C‑648/16, EU:C:2018:932, paragraph 46).

(21) Judgment of 21 November 2018, Fontana (C‑648/16, EU:C:2018:932, paragraph 42 – although the Court of Justice uses the wording ‘calculate that turnover by extrapolation’, that is, in my view, nothing other than a description of an estimate).

(22) Judgments of 28 February 2018, Imofloresmira – Investimentos Imobiliários (C‑672/16, EU:C:2018:134, paragraph 38); of 13 March 2014, Malburg (C‑204/13, EU:C:2014:147, paragraph 41); of 3 March 2005, Fini H (C‑32/03, EU:C:2005:128, paragraph 25 and the case-law cited therein); and of 14 February 1985, Rompelman (268/83, EU:C:1985:74, paragraph 19).

(23) Settled case-law; see, for example, judgments of 13 March 2008, Securenta (C‑437/06, EU:C:2008:166, paragraph 25); and of 1 April 2004, Bockemühl (C‑90/02, EU:C:2004:206, paragraph 39).

(24) See the judgments of 13 March 2014, Malburg (C‑204/13, EU:C:2014:147, paragraph 41); of 15 December 2005, Centralan Property (C‑63/04, EU:C:2005:773, paragraph 51); of 21 April 2005, HE (C‑25/03, EU:C:2005:241, paragraph 57); and my Opinion in Di Maura (C‑246/16, EU:C:2017:440, paragraph 42).

(25) Judgment of 2 July 2020, Terracult (C‑835/18, EU:C:2020:520, paragraph 28); and of 8 May 2019, EN.SA. (C‑712/17, EU:C:2019:374, paragraph 33); of 31 January 2013, LVK (C‑643/11, EU:C:2013:55, paragraph 37); of 18 June 2009, Stadeco (C‑566/07, EU:C:2009:380, paragraph 37); of 6 November 2003, Karageorgou and Others (C‑78/02 to C‑80/02, EU:C:2003:604, paragraph 50); and of 19 September 2000, Schmeink & Cofreth and Strobel (C‑454/98, EU:C:2000:469, paragraph 58).