Judgment of the Court (Seventh Chamber) of 21 March 2024 (request for a preliminary ruling from the Naczelny Sąd Administracyjny – Poland) – Dyrektor Izby Administracji Skarbowej w Bydgoszczy v B. sp. z o.o., formerly B. sp.j.

(Case C-606/22, ¹ Dyrektor Izby Administracji Sjarbowej w Bydgoszczy (Possibility of adjustment in the case of incorrect rate))

(Reference for a preliminary ruling – Taxation – Value added tax (VAT) – Directive 2006/112/EC – Provision of recreational services and services to improve physical fitness – Sale of passes giving access to services whose existence is evidenced by a cash register and by cash register receipts – Taxable amount – Error in the tax rate – Principle of fiscal neutrality – Adjustment of the tax debt as a result of a change in the taxable amount – National practice that does not permit, in the absence of an invoice, a correction of the VAT and a refund of the overpaid VAT – No risk of loss of tax revenue – Plea of unjust enrichment)

Language of the case: Polish

Referring court

Naczelny Sąd Administracyjny

Parties to the main proceedings

Appellant on a point of law: Dyrektor Izby Administracji Skarbowej w Bydgoszczy

Respondent in the appeal on a point of law: B. sp. z o.o., formerly B. sp.j.

Interested party: Rzecznik Małych i Średnich Przedsiębiorców

Operative part of the judgment

Article 1(2) and Article 73 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, as amended by Council Directive 2010/45/EU of 13 July 2010, read in conjunction with Article 78(a) thereof,

must be interpreted, in the light of the principles of fiscal neutrality, effectiveness and equal treatment, as precluding a practice on the part of the tax authorities of a Member State pursuant to which an adjustment of VAT due, made by way of a tax return, is prohibited where goods and services have been supplied subject to a VAT rate that is too high, on the ground that cash register receipts rather than invoices were issued in respect of those transactions. Even in those circumstances, a taxable person that erred in applying a VAT rate that is too high is entitled to submit an application for a refund to the tax authorities of the Member State concerned, since those authorities may rely on unjust enrichment on the part of that taxable person only if they have established, following an economic analysis which takes account of all the relevant circumstances, that the economic burden that the tax levied though not due imposed on that taxable person has been completely neutralised.

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¹ OJ C 7, 9.1.2023.