© 2025 by Michael Firth KC, Gray's Inn Tax Chambers
Contact: michael.firth@taxbar.com
XX​
​
- VAT may not be collected on an amount exceeding the tax the taxable person received
"[32] Next, it must also be recalled that Article 90(1) of the VAT Directive, which relates to cases of cancellation, refusal or total or partial non-payment, or where the price is reduced after the supply takes place, requires the Member States to reduce the taxable amount and, consequently, the amount of VAT payable by the taxable person whenever, after a transaction has been concluded, part or all of the consideration has not been received by the taxable person. That provision embodies one of the fundamental principles of the VAT Directive, according to which the taxable amount is the consideration actually received and the corollary of which is that the tax authorities may not collect an amount of VAT exceeding the tax which the taxable person received (judgment of 15 May 2014, Almos Agrárkülkereskedelmi, C‑337/13, EU:C:2014:328, paragraph 22 and the case-law cited)." (Boehringer C-462/16)
​
- Unnecessary for there to be a contractual change: any failure to receive the whole consideration
"[39] In the second place, it is clear from the case-law of the Court that Article 90(1) of the VAT Directive does not presuppose such a subsequent modification of the contractual relations in order for it to be applicable. In principle, it requires the Member States to reduce the taxable amount whenever, after a transaction has been concluded, part or all of the consideration has not been received by the taxable person. Moreover, there is no indication that in its judgment of 24 October 1996, Elida Gibbs (C‑317/94, EU:C:1996:400), the Court wished to restrict the scope of application of Article 11C(1) of the Sixth Directive which corresponds to Article 90 of the VAT Directive. On the contrary, it is apparent from the facts of the Elida Gibbs case that there had been no modification of the contractual relations. Nevertheless, the Court held that Article 11C(1) of the Sixth Directive was applicable (see, to that effect, the judgment of 29 May 2001, Freemans, C‑86/99, EU:C:2001:291, paragraph 33)." (Boehringer C-462/16)
​
- No non-payment where debt insurer reimburses taxable person (and insurer cannot claim adjustment)
"[40] In that context, it appears that the part of the debts for which the applicant in the main proceedings received compensation was indeed received by the taxable customers as consideration for the taxable transactions at issue, with the result that it cannot be regarded as being the subject of a ‘non-payment’ within the meaning of Article 90(1) of the VAT Directive.
[41] It follows that that part of the debts, even if it was received by way of compensation, cannot give rise to any right to a reduction of the taxable amount of VAT for the taxable customers.
[42] Furthermore, it cannot be held that, in the light of EU VAT law and irrespective of the national rules that may govern assignments of debts under civil law, an insurer such as the applicant in the main proceedings may be identified as being the taxable person entitled, as regards the part of the debts that have been the subject of compensation and assignment, to a reduction of the taxable amount for VAT purposes under Article 90(1) of the VAT Directive.
[43] To recognise such an insurer as having that status would be tantamount to disregarding the principle of fiscal neutrality, since the VAT paid to the tax authorities would not be exactly proportional to the price actually received by the taxable customers who carried out the taxable transactions in question." (Euler Hermes C-482/21 - insurer was trying to claim reduction in VAT based on debt assigned to it by customer)
​
Rebate/discount paid to person other than recipient of supply​
​
- Supplier required to make payment to insurers who funded supply to insured: discount is reduction
"[34] In the present case, the order for reference states that the pharmaceutical company is required, under national legislation, to grant to private health insurance companies, in respect of prescription only medicinal products the cost of which the latter have reimbursed the insured persons in part or in full, discounts according to the sharing of the costs in the same proportions as provided for statutory health insurance companies. The tax authority does not regard this discount as a reduction of the taxable amount.
[35] Thus, as a result of that legislation, Boehringer Ingelheim Pharma could dispose of a sum corresponding to the price of the sale of those products to pharmacies, reduced by that discount. It would not therefore be in conformity with the VAT Directive for the taxable amount used to calculate the VAT chargeable to the pharmaceutical company, as a taxable person, to exceed the sum finally received by him. If that were the case, the principle of neutrality of VAT vis-à-vis taxable persons, of whom the pharmaceutical company is one, would not be complied with (see, to that effect, the judgment of 24 October 1996, Elida Gibbs, C‑317/94, EU:C:1996:400, paragraph 28)." (Boehringer C-462/16)
​
- Insurer reimbursing the final consumer means insurer has provided third party consideration
"[41] As the Advocate General observed in points 44 and 45 of his opinion, the payments made at the point of purchase of the medicinal products must be regarded as consideration provided by a third party within the meaning of Article 73 of the VAT Directive when those third parties, namely insured persons, requested reimbursement by the private health insurance companies and the latter obtained, in accordance with the national law, the discount owed to them by the pharmaceutical company. Therefore, having regard to the facts at issue in the main proceedings, the private health insurance companies must be regarded as being the final consumer of a supply made by a pharmaceutical company, which is a taxable person for the purposes of VAT, such that the amount payable to the tax authority may not exceed that paid by the final consumer (see, to that effect, the judgment of 24 October 1996, Elida Gibbs, C‑317/94, EU:C:1996:400, paragraph 24)." (Boehringer C-462/16)
​
- Medicine supplier required to make payment to government body: payment is reduction
"[103] HMRC also contended that, even if the DHSC was or could be regarded as the final consumer, there was not a sufficient link between the payments under the Schemes and the supplies of the health service medicines. HMRC's submission was that there must be a direct link between the consideration received and the goods supplied which was absent in this case. As I have already stated at [53] above, there is no requirement for the rebate to be linked to specific items purchased by consumers. It is clear from Boehringer 1, Boehringer 2 and Novo Nordisk that the fact that the DHSC was not a participant in the contractual chain of supply and was not the purchaser or direct beneficiary of the medicines does not prevent the DHSC from being a final consumer. Those are not the links that are required. What is required is that the payments under the Schemes reduce the consideration received by BIL for the supply of the health service medicines. That the payments reduced the consideration in this case is established by the following facts:
(1) one of the purposes of the Schemes under Section 261 of the NHS Act was to limit the prices charged for the supply of health service medicines by a manufacturer such as BIL;
(2) the prices were limited by requiring BIL to pay the DHSC amounts calculated by reference to sales of the health service medicines by BIL;
(3) BIL submitted quarterly returns of its UK-wide sales and made payments to the DHSC in accordance with the returns; and
(4) the payments under the Schemes were booked as a discount against the 'sales' line in BIL's accounts." (Boehringer Ingelheim Limited v. HMRC [2024] UKFTT 948 (TC), Judge Sinfield)
​