The absence of an invoice cannot deprive you of the right to deduct VAT
A taxpayer cannot be deprived of the right to deduct VAT on the grounds that he does not have a document entitled 'VAT invoice'. A taxpayer who has not received an invoice from the seller may deduct VAT on the basis of an agreement, according to the ruling of the WSA in Warsaw of 8 December 2023, case ref. III SA/Wa 1473/23.
In a case decided by the WSA, which originated in a request for an individual interpretation, a company in the construction industry purchased several properties on the basis of a notarised contract and paid the amount due, including VAT, but did not receive an invoice from the seller. The company had doubts as to whether, due to the lack of an invoice, it could deduct VAT under the real estate purchase agreement. In the opinion of the Director of the KIS, an agreement cannot replace an invoice and, consequently, the company will not deduct VAT.
Important elements of the document
In turn, the WSA pointed out that a VAT invoice may be any document, named in any way, if this document contains the features indicated in the VAT Act and is drawn up in two copies (for the paper form) and entered into legal circulation.
Taxation of the event
At the same time, according to the court, the company is entitled to deduct VAT on the basis of the contract, as there has been a real, VAT-taxable economic event as a result of which the company has paid the price of the goods and acquired the right to dispose of them. Moreover, the company is exercising this right in the context of its VAT-taxed business activity. The contract concerning the sale of the real estate was concluded in the form of a notarial deed and signed by the seller, and a copy of it was placed on the legal market and in the hands of the company. Moreover, it showed the elements necessary for an invoice within the meaning of the VAT Act (including the VAT amount). The court also took into account the fact that in the case there was no dispute between the contracting parties as to the content or performance of the agreement, and that the failure to issue the invoice was the result of the sellers’ unreliability and was not the company’s fault.
– In view of the above, the WSA in Warsaw held that in view of the seller’s actual inability to cause an invoice to be issued, input VAT in an uncontested contract could be deducted, notes Natalia Zborowska of Thedy & Partners.