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As a rule, VAT (input tax deduction) is incurred at the end of the advance return period in which the service was performed (so-called debit taxation, cf. Section 13 (1) no. 1 letter a UStG).
If the recipient of the service is an entrepreneur, he can deduct the VAT as input tax (input tax deduction) if the service was provided for his company and an invoice with separate VAT statement is available (Section 15 (1) No. 1 UStG).
In the case of down payments or advance payments, sales tax is already incurred when the payment is received. In a mirror image, the customer can claim input tax if he has made the payment and has an invoice with a separate VAT statement. If the agreed service is not performed, the customer normally receives the down payment back and the entrepreneurs involved adjust the declared VAT or the claimed input tax accordingly (cf. Section 17 UStG).
It was unclear whether an input tax adjustment is also to be made if an agreed service is not provided and the advance payment made is not repaid, e.g. due to insolvency.
The Federal Fiscal Court
has clarified, following a ruling of the European Court of Justice, that the input tax deduction from a “lost” advance payment made is not to be denied if the customer neither knew nor “should reasonably have known” at the time of his payment that the performance of the agreed service was uncertain.
In case of dispute
was about a fraudulent “Ponzi scheme” with combined heat and power plants. The entrepreneur concerned did not have to repay the claimed input tax amount because he did not get back the advance payment made and at the time of the advance payment there were no doubts about the subsequent delivery of the cogeneration unit.
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Neumann & Walczak – tax consulting company GmbH – Robert-Bosch-Strasse 1 – 59439 Holzwickede
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