Input VAT recovery on fueling costs at stake?
Which party is to be considered the buyer of fuel and entitled to a VAT recovery? This question is now to be answered by the European Court of Justice. The answer could have far-reaching consequences for the automotive practice.
A Polish judge has recently asked the European Court of Justice to consider the question of who is to be regarded as the buyer of fuel for VAT-purposes in case of refueling and consequently has the right to a refund of VAT. This is an important question that is often encountered in VAT practice.
The Polish case concerned an Austrian parent company who provided fuel cards to its Polish subsidiary. The Polish subsidiary could use these cards to buy fuel. However, the fuel supplier invoiced to the parent company. The parent company subsequently charged the costs of the fuel (including VAT) to its subsidiary and applied for a VAT-refund from the Polish Tax Authorities. At the moment, the Polish Tax Authorities are questioning the deduction of VAT and they argue that the parent company has not bought and delivered fuel, but instead provided (VAT-exempt) financing. The Polish Tax Authorities refer to the Autolease Holland case, in which the European Court of Justice has followed a similar line of reasoning.
The facts of the case are very similar to the situation in which a card company or a leasing company - like the parent company - incurs and on-charges costs to the actual user of the card (the lessee). It should therefore come as no surprise that the outcome of the Polish case could have important consequences for the VAT practice. We will therefore follow the developments of this case closely and keep you updated.
In our opinion it is not necessary to undertake any actions at this moment.
More information needed? Please do not hesitate to contact your regular Loyens & Loeff advisor.
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