This is the conclusion reached by the Court of Appeal in ‘s-Hertogenbosch in a VAT issue.
The case concerns a private limited company (BV) that receives invoices from two companies belonging to the same group. The invoices include, amongst other things, rent and fees. The private limited company deducts the VAT included in those invoices as input tax. The company records the invoices in its current account with the companies that issued them.
A provision in the law
The Turnover Tax Act contains a provision stating that VAT deducted as input tax becomes payable by operation of law if (and to the extent that) the amount due on the invoice is not paid. Conversely, the trader who issued the invoice and paid the VAT is, in principle, entitled to a refund of that VAT.
Settle = pay
The Tax and Customs Administration is reclaiming the VAT deducted by the private limited company on the grounds that the invoices have not been paid (and will not be paid either). The Tax and Customs Administration does, however, agree with the private limited company that the invoices were based on genuine services rendered.
Unlike the District Court, the Court of Appeal agrees with the private limited company that the inclusion of the invoice amounts in the current account means that the invoices have been paid (and therefore sets aside the additional tax assessment imposed by the Tax and Customs Administration). The parties agree that the amounts have been recorded in the current account. The claim against the company that issued the invoice has been reduced as a result of this recording. And there is no reason to doubt that the parties did not agree amongst themselves to settle the debt by offsetting it against the current account.
It goes without saying that payment is also made on the other side. This is not at issue in the case before the court, but the private limited company that issued the invoice cannot claim a refund of the VAT paid to it because the invoice was settled by offsetting against the current account.