The Process for Reimbursement as a Result of VAT Unduly Paid

Abstract

If a VAT charge is incompatible with EU law, it results in a claim for reimbursement of the VAT unduly paid to whom the VAT has been passed on. It is the Member States domestic legal system that lay down the conditions for the reimbursement. These conditions shall be in observance with the EU-principles. The purpose of this project is to clarify how the Danish legal system handles the claim for reimbursement of VAT and if the process is in compatibility with the EU-legislation regarding the EU-principles. The project is mainly a legal study about the Danish reimbursement process. In the Danish legal system, there is limited legislation about the reimbursement, which makes the taxable persons and the purchasers’ legal position uncertain. This is against the principle of legal certainty. After Danish administrative practice the taxable person and the purchaser can bring their claim for reimbursement directly against the tax authority. Nevertheless, the parties do not have the same opportunity to do this, because the taxable person’s claim is limited to 10 years while the purchaser’s claim is limited to only 3 years. Therefore, the project estimates that there is a discrimination, which cannot be accepted based on the principle of equal treatment. The project concludes that the Danish reimbursement process is not virtually impossible or excessively difficult and therefor in accordance with the principle of effectiveness. Afterwards a comparative study is presented, which analyses the Swedish administrative practice that uses a different solution. After Swedish praxis, the tax authority repays the full amount to the taxable person. Thereafter the purchaser has a claim against the taxable person and secondary against the tax authority. It is assessed that this process is not in observance with the EU-principle of effectiveness. The last part of the project is a study of legal policy considerations about legislative initiatives. The Danish tax minister, the national court, and business advisers agree that there is a need for a general law about the reimbursement of VAT unduly paid. The project concludes that it will be more appropriate because it resolves in a higher legal certainty and a more effective process.