Every entrepreneur who issues invoices to foreign service recipients is familiar with the regulation of § 13 b UStG and in particular paragraphs 1 and 2. Difficulties arise if entrepreneurs erroneously assume their requirements. Then the supplier has to pay the sales tax plus any interest to the tax office. For the recipient of the service, it was previously the case that he could only claim the input tax upon receipt of a proper invoice and this without reimbursement interest. In the case of supposedly intra-Community deliveries according to § 13 b Paragraph 1, the BMF even denied a retroactive invoice supplement and only affirmed this in cases of § 13 b Paragraph 1 UStG. The Lower Saxony FG has now contradicted this with two decisions (11 K 323/19 and 11 K 324/19).
With the decision of the ECJ in the Senatex case, the retrospective correction of invoices was permitted under European law and the BFH therefore abandoned its opinion to the contrary. But no unadulterated joy, of course there were narrow limits in Germany. The retroactive correction should only be observed if the corrected invoice names the issuer, service recipient, the service description, the fee and contains a tax ID.
Contrary to the BFH, the tax authorities are now assuming that a tax ID is not required for a retroactive invoice correction if the parties were wrong about the tax liability of the service recipient (BMF letter dated September 18, 2020). However, this only applies to the cases of Section 13 b (2) UStG and if reference has been made to the alleged tax liability of the service recipient.
In the above two judgments, the Lower Saxony Finance Court has now affirmed the retroactive effect of the invoice supplement even in cases under Section 13 (1) UStG.
The minimum requirements required by the BFH with regard to the invoice to be supplemented are permissible, but the minimum requirement of the tax ID does not have to be provided if the parties involved erred about the tax liability of the service recipient. One judgment is final, an appeal against the second is pending at the BFH.
If the opinion of the Lower Saxony FG prevails, this can be a great and noticeable relief for those involved in simple cases with large input tax amounts. In the case of more complicated questions (insolvency, legal succession, different postings with offsetting), the additional bureaucratic effort should at least compensate for the interest.
For individual questions, advice or extrajudicial and judicial assertion of claims against the tax office or the defense in criminal tax matters, lawyer Andreas Junge is happy to assist you. He is a specialist lawyer for criminal law and a certified consultant in criminal tax law. So he has the knowledge and practical experience to help you optimal to advise.
Lawyer Andreas Junge is active nationwide and has defended in so-called large-scale proceedings in almost all German federal states or advised medium-sized companies on tax matters.
Just send your questions by e-mail or call Andreas Junge’s office. Short-term contact is also possible via mobile phone: 01792346907. Telegram, TelegrammX, Signal and WhatsApp are available as messengers.
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