Austrian Supreme Administrative Court (VwGH) on cumulative acquisition taxation and tax liability by invoicing

In its decision dated 22 April 2026, Ra 2023/15/0003, the Austrian Supreme Administrative Court (VwGH) confirmed that a cumulative intra-Community acquisition exists in the country of departure (Austria) even if the underlying supply qualifies as a tax-exempt intra-Community supply of goods, but the supplier has charged Austrian VAT on the invoice. Consequently, the acquirer in Austria incurs a cumulative intra-Community acquisition without the right to deduct input VAT, as well as VAT liability by invoicing without the right to deduct input VAT. 

Underlying case

Austrian entrepreneurs delivered goods from Austria to an Austrian acquirer in other EU Member States. The Austrian acquirer presented its Austrian VAT identification number to the suppliers. The suppliers invoiced these transactions with Austrian VAT. The acquirer intended to claim input VAT on these invoices and did not declare a cumulative intra-Community acquisition pursuant to Article 3 para. 8 second sentence UStG (Austrian Value-Added Tax Act) in Austria.

The tax office assessed the acquisition VAT and denied the input VAT deduction both on the cumulative intra-Community acquisition and on the invoices incorrectly issued with Austrian VAT. The Austrian Federal Fiscal Court (BFG), in subsequent proceedings and with reference to the case law of the ECJ in case C-696/20, Dyrektor Izby Skarbowej w W., found no additional intra-Community acquisition in Austria. Following this, the VwGH referred the case to the General Court for a preliminary ruling. 

VwGH decision

Referring to case T-638/24, Finanzamt Österreich, the VwGH ruled that when a VAT identification number other than that of the destination state is used (in this case, the Austrian VAT ID), the intra-Community acquisition pursuant to Article 3 para. 8 second sentence UStG is deemed to be effected in Austria until the acquirer proves that the acquisition was taxed in the destination Member state. The decisive factor was that the acquirer used its Austrian VAT ID and failed to provide evidence of taxation in the destination state.

Furthermore, the VwGH decided that the mere tax liability of the supplier resulting from the incorrect VAT shown on the invoice does not exclude this additional acquisition VAT in Austria. According to the VwGH, the acquisition VAT owed in Austria cannot be deducted as input VAT, nor can the Austrian VAT wrongly charged by the suppliers on their invoices. Consequently, for the recipient, both a cumulative intra-Community acquisition without the right to deduct input VAT and VAT by invoicing without the right to deduct input VAT arise in Austria for the same transaction. 

Notes in practice

The ruling intensifies the focus on the correct use of VAT identification numbers in cross-border movements of goods within the EU, including for periods prior to the entry into force of the “Quick Fixes”. Using an Austrian VAT ID for acquisitions when the goods are delivered to another Member State generally triggers a cumulative intra-Community acquisition in Austria until proof of taxation in the destination state is provided. An incorrect Austrian VAT charge on the invoice does not protect against this additional acquisition VAT; on the contrary, it leads to an additional burden because neither the VAT charged by invoicing nor the acquisition VAT can be claimed as input VAT.