The parties are in dispute as to whether the applicant, an entrepreneur based in Poland, has submitted a formally valid application for input VAT refund. The plaintiff submitted an application for a refund of German input VAT within the deadline in the electronic portal provided by the Polish tax authorities. In this application, the plaintiff summarised all 121 invoices in one position of the claim and submitted an additional overview in the appendix showing the individual invoice numbers, invoice dates, net amounts and VAT amounts in tabular form. The German Federal Central Tax Office rejected the application with the justification that the scanned original invoices were not submitted and that the application had not been submitted in the correct form due to the invoices being summarised in one position. The plaintiff lodged an appeal against this decision and sent the scanned invoices to the BZSt by e-mail. The appeal was rejected by the BZSt with the justification that the application was not submitted in the proper form because the invoices had been combined into a single position. A resubmitted application for input VAT refund, which now contained all individual invoices in the application itself, was rejected by the BZSt with the justification that the deadline for submitting the input VAT refund has expired in the meantime.
German law requires that, in order for an input VAT reclaim to be formally valid, it must be submitted ‘via the [...] electronic portal in accordance with the officially prescribed data record’. EU law, on the other hand, only requires an ‘electronic refund application’ and the inclusion of all the required information for each invoice in the application. Against this background, the Fiscal Court Cologne referred the questions to the GC for a preliminary ruling in order to clarify whether the German regulations requiring applications to be submitted in accordance with the officially prescribed data record are compatible with EU law. It is also questionable whether the EU law requirement for electronic applications is fulfilled by an overview in the appendix submitted separately by e-mail.
It remains to be seen how the GC will rule on the matter and whether the strict formal requirements for German input VAT reclaims will be softened in this regard. In addition, the facts of the case illustrate that particular attention should be paid to compliance with the strict (formal) requirements in the (German) input VAT reclaim procedure. Due to inconsistent interpretations of EU law across Europe, country-specific specialities must also be taken into account. The questions referred for a preliminary ruling may also provide a basis for argumentation for entrepreneurs whose applications for input VAT reclaims have been rejected on formal grounds.
This article was written in collaboration with Dr. Mario Wagner.