Key takeaways

There are multiple decisions of the CJEU stating that the EU member states must allow for VAT corrections in case of bad debts for the principle of fiscal neutrality to be maintained.

The CJEU also confirmed that the EU member states have a right to state the conditions under which the VAT corrections can be made.

Although the CJEU limits the conditions in certain way, it is necessary to carefully verify the local rules implemented by the particular jurisdiction.

In depth

The need for corrections of paid VAT in case of bad debts has become a topic that companies deal with more often.

The possibility to correct the VAT in cases where suppliers do not receive payments (or receive only partial payments) for their supplies, is given by Article 90 (1) of the VAT Directive:

In the case of cancellation, refusal or total or partial non-payment, or where the price is reduced after the supply takes place, the taxable amount shall be reduced accordingly under conditions which shall be determined by the Member States.

Nevertheless, as Article 90 (2) of the VAT Directive states that "in the case of total or partial non-payment, Member States may derogate from paragraph 1," ambiguities arose around whether this provision gives an option to the member states to refuse a VAT correction in case of bad debts (or, in general, in case of total or partial non-payments of invoices) and under which conditions. One of the member states that took a very strict approach on VAT adjustments in respect of bad debts was the Czech Republic. Its very strict approach was subject to two of the litigations referred to the CJEU (case C-127/18 (A-Pack) and case C-398/20 (Elvospol)).

Can the EU member states refuse the VAT corrections under Article 90 (2) of the VAT Directive?

For the refusal of the VAT corrections in case of bad debts, the CJEU has been very clear and ruled that this is not possible. The member states must allow the taxpayers to correct the VAT in case of bad debts (or, in general, in case of total or partial non-payments for supplies) to guarantee one of the fundamental principles of the VAT Directive — the principle of fiscal neutrality. The provision of Article 90 of the VAT Directive gives member states only the right to set conditions under which such corrections can be made.

The interpretation of the provisions of Article 90 of the VAT Directive can be found, for example, in the following decisions of CJEU:

1. The judgment in case C-482/21 (Euler Hermes) issued by the CJEU in February 2023

Moreover, to accept that it is possible for Member States to exclude, in the event of total or partial non-payment of the transaction price, any reduction of the taxable amount of VAT would run counter to the principle of the neutrality of VAT, which means, inter alia, that the trader, as tax collector on behalf of the State, is entirely to be relieved of the burden of tax due or paid in the course of his or her economic activities, themselves subject to VAT.

2. The order in case C-507/20 (FGSZ) issued by the CJEU in March 2021

Having regard to the wording of Article 90(1) of the VAT Directive, read in conjunction with that of Article 273 thereof, and the principle of fiscal neutrality, the formalities to be complied with by taxable persons in order to exercise, vis-à-vis the tax authorities, the right to reduce the taxable amount for VAT must be limited to those which make it possible to provide proof that, after the transaction has been concluded, part or all of the consideration will definitively not be received.

Second, Article 90(2) of the VAT Directive allows Member States to derogate from the rule referred to in Article 90(1) thereof in situations of total or partial non-payment of the transaction price. In that regard, the Court has had the opportunity to clarify that the exercise of that power to derogate cannot allow Member States to exclude altogether reduction of the taxable amount of VAT in the event of non-payment. That power is only intended to enable the Member States to counteract the uncertainty as to the non-payment of an invoice or the definitive nature of that non-payment, and does not resolve the issue of whether a reduction of the taxable amount might not be carried out in the case of non-payment.

3. The judgment in case C‑335/19 (E. sp. Z o.o. sp. K.) issued by the CJEU in October 2020

Although it is relevant that the Member States may counteract the uncertainty as to the non-payment of an invoice or the definitive nature of that non-payment, such a power of derogation cannot extend beyond that uncertainty, and in particular cannot extend to whether a reduction of the taxable amount may not be carried out in situations of non-payment.

Moreover, to accept that it is possible for Member States to exclude any reduction of the VAT taxable amount would run counter to the principle of the neutrality of VAT.

Conditions for VAT corrections in selected EU member states

As mentioned above, the VAT Directive and EU case law do not allow the member states to exclude the entitlement to correct the VAT in case of bad debts (or, in general, in case of total or partial non-payments for supplies). However, it allows member states to set conditions for such corrections.

Below, we provide you with an overview of the conditions under which the VAT can be claimed back in case of bad debts in selected EU countries.

Belgium

In Belgium, a taxpayer is generally entitled to reclaim any VAT already paid to the tax authorities in respect of bad debts or partially paid debts.

A claim for VAT bad debt relief will generally be accepted in the following instances:

1. The debt is written off in the profit & loss (P&L) account
2. A supplier can prove, by any means, that it has taken all possible steps to recover it
3. A credit note is issued with the mention "VAT to be repaid to the state to the extent to which it was originally deducted" 

More specific rules apply to insolvency proceedings. In case of bankruptcy, the supplier can request reimbursement of VAT as of the date the customer is declared bankrupt (date of the judgment). In this case, no credit note needs to be issued. When a debtor becomes solvent again and pays (a part of) the claim that was deemed to be irrecoverable, the supplier will have to pay back the VAT to the authorities corresponding to the amount recovered.

Czech Republic

The Czech VAT law allows creditors to correct the tax base in the case of bad debts under the following conditions:

1. The debt is being enforced in enforcement proceedings and at least two years have elapsed since the first enforcement order was issued
2. The debt has been subject to enforcement proceedings that have been terminated due to a lack of assets of the debtor
3. The debtor is in insolvency proceedings and bankruptcy has been decided/insolvency arrangement has been approved/insolvency proceedings have been suspended and it is obvious that the debt will not be paid
4. The debtor has died.

The Czech VAT law also excludes corrections if, for example, any of the following situations apply:

1. The creditor and the debtor were capital related parties
2. The debtor was an unreliable VAT payer
3. The debtor is not sufficiently known to the creditor.

In 2019, there were significant changes in the Czech VAT law regarding the VAT corrections in case of bad debts because of the decision of the CJEU (judgment in Czech case C-127/18 (A-Pack)). In this decision, the CJEU confirmed that the Czech authorities cannot refuse the VAT correction as the debtor is no longer the VAT payer at the time the creditor claims the VAT refund.

Another Czech case that was decided in favour of taxpayers was case C-398/20 (Elvospol). In this case, the CJEU ruled that it is contrary to the VAT Directive if the ability to correct the tax base is only available if the debt was incurred no later than six months before a court decision declaring insolvency of the debtor.

Italy

In Italy, bad debt relief is generally available. According to Italian VAT law, the tax base in case of bad debts can be corrected by the VAT payers under the following conditions:

1. If the customer is subject to a bankruptcy procedure, the period is calculated from the date on which the procedure began
2. The debt has not been recovered in enforcement proceedings that have been unsuccessfully terminated.

If the above criteria are met, the supplier (creditor) is entitled to recover the output VAT paid through its deduction.

Netherlands

In the Netherlands, in case of bad debts or other instances of non-payment, the VAT taxable amount should be reduced according to the amount of the non-payment. The creditor becomes eligible for a refund of the output VAT originally remitted to the Dutch tax authorities (DTA), corresponding to the amount of the non-payment. This refund right arises when the non-payment is established. According to Dutch legislation, for VAT purposes, non-payment is deemed to ultimately occur where the payment is not fulfilled one year after it became due.

This one-year period also applies on the side of the debtor responsible for the non-payment, who may have previously claimed input VAT recovery on the payment obligation under the debt. Thus, this person becomes liable to pay back to the DTA the amount of input VAT originally claimed, if no payment was made one year after it became due. The above-mentioned refund right of the creditor does not depend on whether the debtor actually remits this VAT to the DTA.

If, after this one-year period and the corresponding correction in VAT recovery, the debtor makes the payment, the VAT charged on this payment can be reclaimed again as input VAT by the debtor. This follows the regular VAT recovery rules and should be done in the period when the payment was eventually made. Logically, the VAT on the payments also becomes due by the creditor receiving the payment.

A special rule in Dutch VAT legislation is the "substitution" rule, which means that when a debt is transferred to another taxable party, that party replaces the original creditor regarding the Dutch implementation of Article 90 of the VAT Directive. Consequently, the new creditor receives the right to a refund as if they were the original creditor of the debt. This includes the one-year period as mentioned above.

Poland

In Poland, taxpayers may correct the taxable base and output tax with respect to B2B transactions if the receivable has not been received (or sold in any form) within 90 days from the date of its payment specified in the contract or invoice and if the following conditions are additionally met:

1. On the day preceding the date of submission of the tax return in which the correction is made, the taxpayer is registered as an "active" (i.e., non-VAT exempt) VAT payer
2. From the date of issue of the invoice documenting the claim, three years have not passed, counting from the end of the year in which it was issued.

Furthermore, with respect to B2C transactions, an adjustment may be made in any of the following cases:

1. The claim has been confirmed by a final court decision and directed to enforcement proceedings
2. The claim has been entered in the debt register kept at the national level
3. The debtor was declared bankrupt based on separate regulations.

In the past, the Polish regulations were much more restrictive. Nevertheless, they were liberalized following the judgment of the CJEU, ref. no. C-335/19 issued in the Polish case. In that judgment, the court ruled that the EU VAT law:

… must be interpreted as precluding national legislation which makes the reduction of the taxable amount for the purposes value added tax (VAT) subject to the condition that, on the day of delivery of the goods or provision of the services and on the day preceding that on which the adjusted tax return seeking that reduction is filed, the debtor is registered as a taxable person for the purposes of VAT and is not the subject of insolvency or winding-up proceedings, and that, on the day preceding the date of filing of the adjusted tax return, the creditor is itself still registered as a taxable person for the purposes of VAT.

At the same time, the Polish VAT law provides — on the purchaser side — that if the amount due under the invoice documenting the supply of goods or the provision of services is not paid within 90 days from the date of expiry of the payment deadline specified in the contract or on the invoice, the debtor is obliged to correct the deducted input VAT resulting from this invoice, in the settlement for the period on which 90 days have elapsed from the date of expiry of the payment deadline specified in the contract or on the invoice. The above obligation does not apply if the debtor has paid the amount due no later than on the last day of the settlement period (month/quarter) in which the 90th day from the date of expiry of the payment deadline for this amount has elapsed.

Spain

In Spain, bad debt relief may generally be claimed if the recipient has not performed the payment and it qualifies as totally or partially uncollectable.

The payment will qualify as uncollectable in the following circumstances:

1. At least a year has passed since the VAT tax point without the payment from the customer being collected; or after six months, if the annual turnover of the taxpayer does not exceed the large taxpayer threshold
2. The invoices must be included in the VAT books of the issuer of the invoices
3. The taxpayer must have sought collection by legal claim, notarial request or other means that irrefutably accredits the claim for collection (a burofax is enough)
4. The debt amount must exceed EUR 50.

Bad debt relief must be claimed within six months following the end of the one-year or six-month non-collection period set above. Within the six-month period, the issuer of the invoice must do the following:

1. Issue an amending invoice, with a specific series, and send it to the recipient of the transactions, amending or cancelling the amount of VAT charged.
2. Register such amending invoice in the VAT books.
3. Submit a communication via the webpage of the Spanish Tax Authorities informing about the issuance of the amending invoice and identifying the original uncollected invoice that is amended. With such communication, the following documents must be attached:
   1. Copy of the amending invoice and document that justifies that the recipient has received the amending invoice
   2. Copy of the document that justifies that the company has sought the collection by legal claim, notarial request or other means accepted (burofax)

Note that Law 31/2022 on the General State Budget amended, with effect from 1 January 2023, Article 80 of the VAT Law, specifically, the bad debt relief procedure for uncollected VAT by providing more "flexible" requirements to apply the VAT bad debt relief, as follows:

• As of 2023, the bad debt relief is allowed on uncollectible claims due to insolvency proceedings declared by a court in another member state. Before 2023, bad debt relief for the uncollectable debts of non-Spanish based entities was not allowed.
• As of 2023, the minimum amount of the taxable amount of the transaction is reduced from EUR 300 to EUR 50.
• As of 2023, there is the possibility to substitute the judicial or notarial prior notice to the debtor with any other means that reliably accredits the claim for collection from the debtor (for example, by means of a burofax). Before 2023, only the notarial or judicial claim was accepted to justify the collection claim.
• As of 2023, the period for requesting the bad debt relief has been extended from three to six months from the time the claim is declared uncollectible.

Contributors to this article: Olivier Van Baelen, Counsel (Belgium);  Piotr Tatara, Senior Associate (Poland); Thijs van Luijt, Associate (Amsterdam) and Albert Arenas, Associate (Barcelona)