A Law of Counteracting Forces: The Reimbursement of Overcharged, Unduly Paid, Overcollected and Overpaid VAT

Abstract

Occasionally, it transpires that Value Added Tax (VAT) rules have been wrongly interpreted from the very beginning. The consequence of such progressive insight is that - looking back - the taxable person making supplies may have been overcharging VAT on its invoices and that the Member State overcollected VAT from that taxable person. A Member State which overcollected VAT in breach of the rules of EU law is in principle required to repay that VAT. However, it is a rule of VAT law that any person who enters VAT on an invoice shall be liable to pay that VAT. Therefore, a law of counteracting forces seems to apply. Overcollected VAT must be reimbursed, but is simultaneously due because of the mere fact that it was entered on an invoice. This article addresses the question to what extent the tax authorities of a Member State may refuse to grant a repayment of overcollected VAT on the sole ground that the VAT was entered (overcharged) on an invoice.