Request for a preliminary ruling from the Verwaltungsgerichtshof (Austria) lodged on 21 December 2023 – Finanzamt Österreich v P GmbH

(Case C-794/23, Finanzamt Österreich)

Language of the case: German

Referring court

Verwaltungsgerichtshof

Parties to the main proceedings

Appellant on a point of law: Finanzamt Österreich

Interested party: P GmbH

Questions referred

Is Article 203 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax ¹ to be interpreted as meaning that a taxable person who has supplied a service and mentioned in his invoice a VAT amount calculated on the basis of an incorrect tax rate is not liable, under that provision, for the part of the VAT invoiced incorrectly if the service mentioned on the specific invoice in question was supplied to a non-taxable person, even if the taxable person has supplied similar services to other taxable persons?

Is ‘final consumer who does not have a right to deduct input VAT’ within the meaning of the judgment of the Court of Justice of the European Union of 8 December 2022 in Case C-378/21 ¹ to be understood as referring only to a non-taxable person or also to a taxable person using the specific service only for private purposes (or for other purposes not conferring the right to deduct input VAT) and therefore lacking the right to deduct input VAT?

In the event of simplified invoicing in accordance with Article 238 of Directive 2006/112/EC, what criteria are to be used to assess (possibly by way of an estimate) for which invoices the taxable person is not liable for the incorrectly invoiced amount because there is no risk of loss of tax revenue?

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¹ OJ 2006 L 347, p. 1.

¹ Judgment of 8 December 2022, C-378/21, ECLI:EU:C:2022:968.