Correction of invoices in case of already statute-barred VAT debts

The Administrative Court (VwGH) recently confirmed that due to the explicit legal ex nunc effect of an invoice correction, it is irrelevant whether the statute of limitations has already expired for the original tax assessment. An adjustment of the invoice can therefore be made despite the statute of limitations.

In the case to be judged by the Administrative Court (VwGH), it was disputed whether a tax-effective correction of invoices is also possible if the original VAT liability is already time-barred.

In the opinion of the tax office appealing the appeal, an invoice correction could only have an effect under VAT law as long as the year of assessment in which such an invoice had its origin or root (performance period) was not yet time-barred.

The VwGH disagreed with this view and confirmed in its decision of 15 December 2022, Ro 2019/13/0034, that due to the expressly stipulated effect of the invoice adjustment “ex-nunc” (from now on) in section 16 (1) UStG, it is irrelevant whether the statute of limitations has already occurred for the original tax assessment.

According to section 11 (12) leg cit, the Value Added Tax Act does not provide for a time limit for the invoice adjustment. Nor did the general limitation provisions of the Federal Fiscal Code (section 207 (2) BAO) provide for a time limit on the correction of invoices, as the correction of invoices had no retroactive effect.

In the case of an invoice adjustment pursuant to section 11 (12) UStG, the provisions of section 16 (1) UStG (change of the VAT assessment basis) are to be applied by analogy in view of the legal reference. This results in changes with regard to the VAT amount owed as well as the input tax deduction claimed.

Since the original tax assessment remains unaffected due to the expressly ordered “ex nunc” effect of an invoice adjustment, an adjustment can or must be made even if the original tax assessment has already become statute-barred.

If, in the course of an adjustment, the remuneration is increased, the recipient may only adjust the input tax deduction (in his favour) if the formal requirements according to section 12 (1) UStG are fulfilled, i.e. the corrected invoice is available.