The buyer-reseller’s country of departure of goods VAT code does not affect triangulation simplification

20/06/18

In brief

The Court of Justice of the EU (“Court”) recently issued its ruling in case C-580/16 Hans Bühler KG, clarifying the application of the simplification measures for triangular operations.

In detail

In this case, Hans Bühler KG, a company registered for VAT purposes both in Germany and in Austria, purchased goods from suppliers established in Germany, using its Austrian VAT number. The goods were then resold to a customer established in the Czech Republic and transported directly from Germany to the Czech Republic. In this context, the company applied the simplification measures for triangular operations, considering that the Czech customer would be liable to account for VAT for the intra-Community acquisition of goods performed. However, Hans Bühler KG did not declare these triangular transactions in its initial returns and, thus, it subsequently submitted rectifying returns. The Austrian tax authorities considered the intra-Community acquisitions of goods performed to be taxable in Austria, because Hans Bühler had not fulfilled its reporting obligations and had not proved that the final purchase made by the Czech customer had been subject to VAT in the Czech Republic.

The Court held that if the buyer-reseller is registered for VAT purposes in the Member State from which the goods are dispatched, but uses for that intra-Community acquisition of goods its VAT code from another Member State, it is entitled to apply the simplification measures for triangular operations.

The Court also held that the submission of rectifying returns within the legal deadline is a formal requirement and failure to comply cannot, in principle, lead to rejection of the right to apply the simplification measures. The Court reiterated its previous rulings, stating that the application of simplification measures could be denied if:

  • the buyer-seller knowingly participated in fiscal fraud; or
  • failure to comply with the formal requirements makes it impossible for the tax authorities to ascertain whether the substantive requirements of the simplification measures are satisfied (which is for the referring court to determine in the Hans Bühler KG case).
[Source: Judgment of the European Court of Justice in Case C-580/16 Hans Bühler KG, published on Curia.europa.eu on 19 April 2018]

The takeaway

This decision confirms that:

  • simplification measures can be applied for triangular operations regardless of whether the buyer-reseller is registered for VAT purposes in the Member State of departure of the goods; and
  • in order to have the right to apply those measures, only the VAT code used for the intra-Community acquisition of goods in question is relevant.

This decision is important as it reiterates that:

  • the date of supply of operations, not the reporting date, is used in analysing whether the conditions for applying the simplification measures have been fulfilled; and
  • the application of the simplification measures cannot be denied on formal grounds, such as the late submission of returns or the expiration of the validity of VAT codes after the date of supply.

 

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