Recently, the Dutch Supreme Court has ruled that an invoice may also be issued before the agreed taxable supply is carried out. Existing Dutch rules were until now not clear about this timing issue.
A Dutch company traded in immovable property. In October 2008, the Dutch company and a Dutch building contractor agreed to build a new business premises. In this regard, the building contractor issued a document (with date of 20 October 2008) which mentioned the total agreed contract price including VAT. The Dutch company did not pay the document but deducted the input VAT in the fourth quarter of 2008.
The building activities started in December 2008 and the date of completion occurred in May 2009. During the period January 2009 to June 2009, instalment documents were issued by the building contractor to the Dutch company in accordance with the contract price. The Dutch company paid these instalment documents and did not deduct input VAT charged in 2009.
The Dutch Tax Authorities imposed a tax assessment regarding the fourth quarter of 2008 and a tax negligence penalty, considering the fact that the Dutch company deducted input VAT this period. As a result, they refused the Dutch company the right to deduct input VAT and the right to get a VAT refund.
The Supreme Court considered that the Dutch VAT Act contains no provision with regard to a first time when an invoice can be issued to a certain agreed taxable supply. In this respect, an invoice can also be issued before the agreed taxable supply is carried out. This ruling has further consequences which the Dutch VAT Act connects to the issuing of an invoice.
In this case, the building contractor was entitled to issue an invoice in accordance with the Dutch VAT Act, once the building contractor had reached an agreement with the Dutch company with regard to the building of the new business premises. Thus, the Dutch company has the right to deduct input VAT in case the document in scope can be qualify as an invoice for VAT purposes.