(Reference for a preliminary ruling– Taxation– Value added tax (VAT)– Directive 2006/112

European Union law

3Recital24 of the VAT Directive states as follows:

‘The concepts of chargeable event and of the chargeability of VAT should be harmonised if the introduction of the common system of VAT and of any subsequent amendments thereto are to take effect at the same time in all Member States.’

4Recital4 of Directive 2010/45 provides:

‘To help small and medium-sized enterprises that encounter difficulties in paying VAT to the competent authority before they have received payment from their customers, Member States should have the option of allowing VAT to be accounted using a cash accounting scheme which allows the supplier to pay VAT to the competent authority when he receives payment for a supply and which establishes his right of deduction when he pays for a supply. This should allow Member States to introduce an optional cash accounting scheme that does not have a negative effect on cash flow relating to their VATreceipts.’

5Title VI of the VAT Directive, entitled ‘Chargeable event and chargeability of VAT’, contains four chapters. In Chapter 2 of that title, entitled ‘Supply of goods or services’, Article63 of that directive provides:

‘The chargeable event shall occur and VAT shall become chargeable when the goods or the services are supplied.’

6Article66 of that directive states:

‘By way of derogation from Articles63, 64 and 65, Member States may provide that VAT is to become chargeable, in respect of certain transactions or certain categories of taxable person at one of the following times:

…

(b)no later than the time the payment is received;

…’

7Title X of the VAT Directive, entitled ‘Deductions’, contains five chapters. Chapter 1 of that title, entitled ‘Origin and scope of the right of deduction’, includes, inter alia, Articles167, 167a and 168 of that directive.

8Article167 of the VAT Directive states:

‘A right of deduction shall arise at the time the deductible tax becomes chargeable.’

9Under Article167a of that directive:

‘Member States may provide within an optional scheme that the right of deduction of a taxable person whose VAT solely becomes chargeable in accordance with Article66(b) be postponed until the VAT on the goods or services supplied to him has been paid to his supplier.

…’

10Article168 of that directive states:

‘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;

…’

11Chapter 4 of Title X of the VAT Directive, entitled ‘Rules governing exercise of the right of deduction’, includes, inter alia, Articles178 and 179 of that directive.

12Article178(a) of the VAT Directive states:

‘In order to exercise the right of deduction, a taxable person must meet the following conditions:

(a)for the purposes of deductions pursuant to Article168(a), in respect of the supply of goods or services, he must hold an invoice drawn up in accordance with Sections 3 to 6 of Chapter 3 of Title XI.’

13Under Article179 of that directive:

‘The taxable person shall make the deduction by subtracting from the total amount of VAT due for a given tax period the total amount of VAT in respect of which, during the same period, the right of deduction has arisen and is exercised in accordance with Article178.

…’

14Title XI of that directive, entitled ‘Obligations of taxable persons and certain non-taxable persons’, contains eight chapters, including Chapter 3, entitled ‘Invoicing’. In Section 4 of that chapter, entitled ‘Content of invoices’, Article226 of that directive states:

‘Without prejudice to the particular provisions laid down in this Directive, only the following details are required for VAT purposes on invoices issued pursuant to Articles220 and 221:

…

(7a)where the VAT becomes chargeable at the time when the payment is received in accordance with Article66(b) and the right of deduction arises at the time the deductible tax becomes chargeable, the mention “Cash accounting”;

…’

German law

15The Umsatzsteuergesetz (Law on Turnover Tax), of 21February 2005 (BGBl.2005I, p.386), in the version applicable to the dispute in the main proceedings (‘the UStG’), provides, in Paragraph13, headed ‘Chargeability of tax’:

‘(1)Tax shall become chargeable:

1.on goods and services:

(a)in cases where tax is calculated on the basis of remuneration agreed (first sentence of Paragraph16(1)), upon expiry of the prepayment period in which the supplies of goods or services were made. This shall also apply to part supplies. These are present where it is agreed that certain parts of an economically divisible supply are to be paid for separately. Where the remuneration or part remuneration is received before the supply or part supply has been made, tax shall become chargeable thereon upon expiry of the prepayment period in which the remuneration or part remuneration was received,

(b)in cases where tax is calculated on the basis of remuneration received (Paragraph20), upon expiry of the prepayment period in which the remuneration was received,

…’

16Paragraph15 of that law, entitled ‘Deduction of input tax’, provides:

‘(1)The trader may deduct the following amounts by way of input tax:

1.the tax lawfully payable on goods and services provided to his business by another trader. Deduction of the input tax is subject to the condition that the trader holds an invoice drawn up in accordance with Paragraphs 14 and 14a.

…’

17Paragraph16 of that law, entitled ‘Tax calculation, tax period and individual taxation’, states:

‘(1)Where Paragraph20 does not apply, the tax shall be calculated on the basis of remuneration agreed. The tax period shall be the calendar year.…

(2)The tax deductible under Paragraph15 which falls within the tax period shall be deducted from the tax calculated in accordance with subparagraph (1).’

18Paragraph20 of the UStG, entitled ‘Calculation of tax on the basis of remuneration received’, states:

‘On application, the Tax Office may allow a trader

1.whose total turnover (Paragraph19(3)) in the preceding calendar year did not exceed EUR500000, or

2.who is exempt from the obligation to keep accounts and to draw up annual stock inventories under Paragraph148 of the Abgabenordnung (Tax Code), or

3.whose turnover derives from an activity as a member of a liberal profession within the meaning of point1 of Paragraph18(1) of the Einkommensteuergesetz (Law on income tax),

to calculate the tax on the basis of the remuneration received rather than on the basis of the remuneration agreed (first sentence of Paragraph16(1)).

…’