FISCAL NEUTRALITY AND EXCEPTIONAL REMEDIES IN VAT MATTERS: DIRECT RECOVERY OF NOT DUE VAT FROM THE TAX AUTHORITY IN THE CONTEXT OF CJEU CASE LAW
FISCAL NEUTRALITY AND EXCEPTIONAL REMEDIES IN VAT MATTERS: DIRECT RECOVERY OF NOT DUE VAT FROM THE TAX AUTHORITY IN THE CONTEXT OF CJEU CASE LAW

Summary/Abstract: The legal issue analyzed refers to the situation of the taxpayer (beneficiary) who mistakenly pays VAT to his supplier for an operation that was exempt or excluded from the scope of VAT, but who finds himself unable to recover this amount through the traditional route (recourse action against the supplier), due to the latter's bankruptcy or prescription. The article explores EU law—in particular the principles of legal certainty, fiscal neutrality and effectiveness —which underpins the idea that, in such situations, Member States are obliged to provide an exceptional remedy, allowing the bona fide beneficiary torequest the refund of the unjustified VAT paid directly from the tax authority. The CJEU jurisprudence in the SC Fatorie SRL case (C-424/12), in which, although the right to deduct in the reverse charge mechanism was denied, it opened the way for the procedure for the refund of the undue payment. The beneficiary's possibility to obtain the refund directly from the tax administration was confirmed andconsolidated by the judgment C-640/23, Greentech SA, which established that the possibility of exercising this right, based on the principle of effectiveness, to the extent that recovery from the issuer of the invoiceis "impossible or excessively difficult".

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