Late 'Autoliquidation' invoices cannot trigger triangular VAT simplification

An intermediate acquirer that omits the "Autoliquidation" mention from its invoices cannot switch triangular supplies into the VAT simplification scheme years later by issuing new invoices. The General Court (second chamber, five judges) refused any ex nunc effect: the simplification consequences are not triggered for those supplies, and the corresponding VAT adjustment cannot be declared for the current or a future tax period.

The dispute concerned F GmbH, an Austrian workwear wholesaler. From 2011 to 2014 it ordered goods from Swedish and Danish suppliers using its Austrian VAT identification number, and the goods were shipped directly from Sweden or Denmark to F's customers in other Member States, which used the VAT numbers of the States of destination. F invoiced its customers without VAT and without any indication of a triangular transaction or of a transfer of the VAT liability, and it declared the transactions as intra-Community supplies.

On audit, the Austrian tax administration treated the transactions as failed triangular transactions ("opérations triangulaires inabouties") subject to the general chain-transaction rules: cumulative intra-Community acquisitions in Austria, with refusal of the input VAT paid upstream. In 2015 F added a triangular-transaction and liability-transfer mention to the invoices, corrected its recapitulative statements for 2011 to 2014, and claimed the cumulative upstream VAT as an adjustment in its March 2015 advance return. The Bundesfinanzgericht accepted that the corrected invoices had reached the customers but denied them retroactive effect, while allowing the adjustment with ex nunc effect in 2015. The tax administration appealed to the Verwaltungsgerichtshof, which referred three questions on Articles 42(a) and 197(1)(c) of the VAT directive.

The mention required by Article 226(11bis) of Directive 2006/112/CE is a substantive condition of the scheme, not a formal one that can be corrected afterwardsEuropa. Relying on Luxury Trust Automobil (C-247/21), the Tribunal recalled that fulfilling afterwards a mandatory condition for transferring VAT liability to the recipient is not a correction but the first issue of the required invoice, which cannot have retroactive effectEuropa. Although Article 42(a) sets no express time limit, its context and objectives decide the point.

The scheme formed by Articles 42 and 141 exists to spare the intermediate acquirer identification and declaration duties in the Member State of destination, while Articles 41 and 42 secure taxation of the acquisition at the final customer and avoid double taxation. Between the supplies and the new invoices, the Article 40/41 regime applied and the Article 41 acquisition debt with its identification, declaration and taxation duties in the destination State had already arisen; none of that disappears retroactively, so the administrative simplification can no longer be achieved afterwards. A late application could also compromise correct taxation in the destination State, for example where the final customer has since disappeared, and checking good faith or guaranteed taxation transaction by transaction would itself defeat the simplification purpose. The "Autoliquidation" mention exists precisely so the final recipient knows it is liable, which invoices issued years after the supplies manifestly fail to ensure. Fiscal neutrality as developed in Rusedespred (C-138/12) for wrongly invoiced tax is not transposable, because the tax had been correctly claimed by the administration. Finally, declaring the adjustment only for the current period does not remove the retroactive effectEuropa: the regime applicable to the past transactions and the final customer's legal position would still be altered afterwards. The second and third questions therefore needed no answer, and costs fall to the referring court.

Legal basis: Articles 40, 41, 42(a), 141, 197(1)(c), 226(11bis) and 265 of Directive 2006/112/CE; Luxury Trust Automobil (C-247/21); MS KLJUČAROVCI (T-646/24); Firma Hans Bühler (C-580/16); Rusedespred (C-138/12).