Relevance of Delivery Time when Identical with Invoice Date

The BFH settled a dispute between a butcher and his tax office on the deductibility of the input (VAT) tax in an invoice with the judgment of December 17, 2008 (re XI R 62/07, published on March 4, 2009). The legal question was all about a formality regarding if a delivery date also has to be mentioned in the invoice.

Buddy runs her butcher shop. In November 2005, she received a delivery of a new kitchen for a price of € 28,977.90 plus € 4,636.46 on input tax. The according invoice had the issue date of November 30, 2005. A delivery date or a reference on the delivery notice did not exist. Therefore the tax office denied deduction of the € 4,636.46 input tax. Since contesting there did not help, Buddy went to court to gain redress.

The court held that a business can deduct input tax when the requirements have been met (§15 I 1 no. 1 cl. 1 UStG). This especially implies that such tax payer has an invoice following the mandatory requirements laid down in §§14, 14a UStG. Among other details, the item "time of delivery" must be shown in as far as this date is not identical with the issue date of the invoice. When interpreting the wording of the statute, so the court admitted, it can seem doubtful if the date of delivery has to also be mentioned when it is identical with the date of the invoice.

The BFH came to the conclusion that the date of rendering of service or delivery of merchandise must be added in the invoice. It refers to European law (art. 22 III lit. b paragraph 1.7. of the Directive 77/388/EC). The court further argues that the spirit and purpose of §14 IV 1 no. 6 UStG also point to this interpretation. The details of the invoice must be clearly and easily checkable in order to determine the deductibility of input tax. In this case, the invoice does not show a date of delivery or rendering of service, the tax administrative cannot determine whether the input tax for you and the VAT for the supplier correlate.

In this report, the mentioned invoice does not contain the date of delivery and thus does not qualify for input tax deduction.

Hint:

What to do with paid invoices that do not meet this requirement? Well, you have the legal right to demand a correct invoice but practically everybody, your supplier included, will often be annoyed when you - after payment - come up with this issue. When you have not yet paid, then you have the duty to pay the net sum and the right to retain the VAT amount until you receive a proper invoice. Even when your supplier goes to court with an incorrect invoice for input tax purposes to collect the missing VAT, you will win the case because that amount has not yet matured. Anyhow, change your supplier.