Wrongly invoiced VAT:
a new line of defence

Article 283, 3 of the French Tax Code lays down the following rule: "any person who mentions VAT on an invoice is liable for the tax by the mere fact of invoicing it". This rule seeks to prevent the circulation of false deductible-VAT invoices. As a result, a supplier who has mistakenly mentioned VAT on an invoice (where the operation was not subject to VAT) remains liable for that VAT, even though it is not legally due, unless it can rely on a regularisation.

Two situations must be distinguished, following the framework set out by the Conseil d'État (22 July 2025, no. 494230, published in the Lebon reports): (1) the supplier has eliminated the risk of loss of tax revenue, for example by issuing a corrective invoice, in which case regularisation is available as of right, without any condition of good faith; (2) the risk has not been eliminated, in which case regularisation requires both the supplier's good faith and the issue of a corrective invoice addressed to the customer. Those last two conditions are cumulative, not alternative. The procedure runs through a corrective return and a refund claim.

Eliminating the risk requires that the customer was unable (or will not be able) to deduct the VAT initially invoiced. The means available are: (a) a corrective invoice cancelling or reducing the VAT, sent to the customer; (b) proof that the customer is not a taxable person or not entitled to deduct the VAT; (c) proof that the customer has itself corrected its deduction. Once that elimination is demonstrated, regularisation is available as of right for the supplier.

No longer, since 8 January 2025, where the risk of loss of tax revenue is eliminated. But good faith remains a central criterion in situations where the risk has not been eliminated, that is, for as long as the customer remains in a position to deduct the tax: the supplier must then both establish its good faith and send a corrective invoice to its customer, those two conditions being cumulative. The Conseil d'État (22 July 2025, no. 494230) confirmed the importance of this criterion and the role of the court in assessing it.

A penalising case. Where the operation should have benefited from the exemption under article 257 bis (transfer of a going concern between two taxable persons, an operation outside the scope of VAT) but the transferor nonetheless invoiced VAT, the acquirer cannot recover that VAT. The transferor remains liable under art. 283, 3. In practice, regularisation runs through the issue of a corrective invoice and a rebalancing of the price between the parties, often at the cost of renegotiating the contract. Where the tax authorities have definitively refused the deduction to the acquirer, the transferor may nonetheless argue that the risk of loss of tax revenue is eliminated and that regularisation is available to it without any prior correction of the invoice (CE, 22 July 2025, no. 494230).

The claim period under article R*196-1 of the Book of Tax Procedures applies: until 31 December of the 2^nd year following the year in which the tax was paid, where it was declared and paid voluntarily, or following the year in which the recovery notice (avis de mise en recouvrement) was notified, where the tax was reassessed. Beyond that point, the claim is in principle no longer admissible. One qualification, however: if the tax authorities challenge the deduction made by the customer, that event opens a fresh claim period for the supplier, until 31 December of the second year following the year of that challenge (BOI-TVA-DECLA-30-20-20-30, § 410). A time limit that appears to have expired may therefore revive. Particular care as to time limits is required.