Failed triangular transactions – VwGH submitted questions to the ECJ again

With resolution dated 7 October 2025, the Austrian Supreme Administrative Court (VwGH) submitted key interpretative questions regarding the simplification rule for triangular transactions to the ECJ. The focus is on whether an invoice correction related to failed triangular transactions is possible and whether the invoice correction has ex nunc effect.

VwGH 7 October 2025, Ro 2024/15/0007

An Austrian intermediary purchased goods from suppliers based in Sweden and Denmark and the goods were delivered directly to customers in other Member States. The intermediary’s outgoing invoices to the end customers lacked references to the triangular transaction and the transfer of tax liability (reverse charge).

The tax authority classified the cases as “failed triangular transactions”, denied the application of the simplification rule for triangular transactions and assessed VAT on the cumulative acquisitions made in Austria for the years 2011 to 2014.

In 2015, the intermediary added the required references to the invoices for the first time and corrected the recapitulatory statements. Furthermore, the intermediary requested the correction of the cumulative intra-EU acquisitions.

The Austrian Federal Fiscal Court (BFG) confirmed an ex nunc effect of the for the first time correctly issued invoices, without retroactive effect on the original years and accepted the correction amount.

The tax authority filed an appeal with the VwGH. The VwGH suspended the decision and requested clarification on the following questions:

• Is Article 42(a) of the VAT Directive to be interpreted such that the initial (albeit late) issuance of an invoice required for applying the triangular transaction simplification triggers legal effects ex nunc?
• If yes: Does the ex nunc effect depend on whether the intermediary has already declared and paid VAT on the intra-EU acquisitions for the past periods in the Member State of destination according to the general rules?
• In what form must proof be provided that the for the first time correctly issued invoice has actually been received by the end purchaser?

In its reasoning of the referral questions, the VwGH also addresses whether an invoice correction, which has ex nunc effect, can achieve the objectives of:

• • Article 41 of the VAT Directive, which aims to ensure the taxation of the intra-EU acquisition in the Member State where the goods are consumed, and
  • Article 42(a) of the VAT Directive, which under certain conditions enables a simplification, namely the avoidance of VAT registration obligations in the Member State of destination.

Furthermore, the VwGH questions whether, if the issuance of a correct invoice is permissible, the ex nunc effect of the invoice depends on whether any amendments to the VAT assessments of the recipients in the Member States of destination for the years in which the deliveries were made are still possible. The decision of the ECJ is eagerly awaited, as it may have far-reaching consequences for practice.