CJEU confirms its position on supply of goods to specific recipient
In a recent case submitted by Czech courts, the CJEU commented on an intra-community supply of goods to a specific recipient (C 676/22 B2 Energy). According to the CJEU, a VAT exemption could not be granted because the goods were not delivered to a recipient with the status of a taxable person in another member state. The CJEU thus confirmed its opinion previously expressed in C 154/20 Kemwater ProChemie.
The Czech tax administrator refused to grant a taxpayer an exemption for intra-community supply. They did not dispute that the goods were actually delivered from one member state to another - the taxpayer had provided robust documentation supporting that. The reason for not granting an exemption was that the taxpayer had failed to prove that the goods had been supplied to the person named on the tax documents, or to a person registered for VAT in another member state (Poland).
In an earlier judgment in the Kemwater ProChemie case, the CJEU held that if the identity of the supplier is not established, the conditions for claiming a VAT deduction are met if the tax authorities have the necessary information to verify that the supplier had the status of a VAT payer.
In the present case, a Czech court referred a preliminary question to the CJEU: can the tax administrator deny an exemption if the supplier fails to prove that the recipient indicated in the tax documents acted as a taxable person, and even though the tax administrator has data available to verify that the actual recipient in another member state did indeed have that status?
The CJEU summarised the substantive legal conditions for granting an exemption:
- The goods must be physically delivered from one member state to another.
- The purchaser must act as a taxable person (which does not mean that the goods must be delivered to the specific recipient indicated in the tax document).
The CJEU concluded that the right to an exemption can be denied only where the supplier failed to prove that they have supplied the goods to a recipient with taxable-person status in another member state and where in the light of the facts and information provided by the supplier it cannot be ascertained whether the recipient had such status.
However, the question remains whether this judgment will have any practical application after the implementation of the Quick Fixes: the 2020 amendment added a condition for the exemption of an intra-community supply of goods, requiring the supplier to obtain the VAT number of the buyer from another member state and to report this number correctly in the EC sales list.