The ECJ has confirmed that incorrectly charged VAT may also be reclaimed if the sales were documented by a receipt
C‑606/22. – B. sp. z o.o. | In case of sales documented by a receipt, incorrectly charged VAT can also be reclaimed if it has not otherwise been reimbursed to the seller.
The plaintiff in the case is a Polish company operating a fitness center. In previous Polish tax authority practice, the general 23% VAT rate had to be applied to admission to sports facilities, but later the tax authority changed its position and deemed the reduced 8% tax rate applicable to this type of service.
As a result, the plaintiff reclaimed the difference between the previously incorrectly charged 23% VAT and the 8% VAT in their tax return. The tax authority denied the refund, citing the condition that the invoice must be modified and sent to the buyer, which is not possible in the case of sales documented by a receipt. The plaintiff’s situation was complicated by the fact that Polish regulations on cash register documentation do not contain provisions as to whether it is allowed to modify a receipt if an error occurred in the applied VAT rate.
In judgment C-606/22, the European Court of Justice stated that, in line with the principles of tax neutrality, effectiveness, and equal treatment, the refund of incorrectly charged VAT must also be possible for sales documented by cash register receipts, regardless of whether the incorrect VAT rate can affect the price paid by the final consumer. The tax authority can only invoke unjust enrichment of the seller in one case: if the incorrectly paid VAT has otherwise been reimbursed to the seller.
In Hungary, there would be no obstacle to VAT refund in similar cases if the seller modifies the cash register receipt containing the incorrect VAT rate; however, it would need to ensure that the decrease in tax to be paid is accounted for through self-revision in the original reporting period, not in the current reporting period.
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