BMF announces its administrative opinion on the new e-invoicing regulations, which will take effect on 1.1.25

We provided an overview of the relevant regulations in this client information.

The final letter now clarifies and supplements certain points. Some aspects of the final administrative opinion deviate from the draft. The following article summarises the most important points:

Domestic status of the recipient

• As stated in the draft, the BMF makes it clear that as long as they exercise the care of a prudent businessman, the issuer of an invoice may rely on the information provided by the recipient as to whether they are a domestic entrepreneur. A new note has been added that the use of the VAT ID number, or – if assigned – the W-ID number can be an indication that the recipient is acting as an entrepreneur.

Situations in which e-invoicing is not mandatory

• The final letter clarifies that in situations where e-invoicing is not mandatory, e-invoices may be created voluntarily. Such cases require the recipient’s consent. This consent does not need to be in a specific form and may be given implicitly.
• A receipt that falls within the meaning of section 17 (4) of the VAT Act (UstG) does not have to be issued as an e-invoice.
• When assessing whether the issuer is not (yet) required to issue an e-invoice under the transitional provisions of Section 27 (38) UStG, the recipient must consider such factors as the prior year’s turnover with the issuer, the known size of the issuer, or knowledge based on affiliated company structures.

Permitted formats

• For the ZUG-FeRD format (from version 2.0.1), the MINIMUM and BASIC-WL profiles have been declared inadmissible.
• FatturaPA (Italy) is no longer listed as an acceptable European electronic invoice format; instead, Factur-X (France) or Peppol-BIS Billing are given as examples. 
• Which authorised format is used is a question of civil law and must be agreed upon between the contracting parties. The same applies to the question of whether an extension is to be used, and if so, which.

Content and transmission of the e-invoice

• The BMF specifies that a qualified electronic signature or an approved EDI procedure may be used to transmit an e-invoice. References to the transfer of e-invoices via physical USB devices have been deleted.  In our opinion, the tax authorities will justify the inadmissibility of using a USB stick on the grounds that this transmission method does not sufficiently guarantee the authenticity of the origin and the integrity of the content.
• The choice of which authorized transmission method to use is a question of civil law, to be decided between the contracting parties.
• Furthermore, the letter emphasises the future significance of e-invoicing platforms. The BMF anticipates that “the technically possible and legally permissible transmission channels [...] will need to be redefined within the reporting system.”
• If the recipient refuses to accept an invoice, the issuer must prove that they have issued an e-invoice and made reasonable efforts to ensure proper transmission. The BMF indicates that such proof can be provided by means of a transmission log, for example.
• For permanent  invoices issued as regular invoices before 1 January 2027, there is no obligation to issue an additional e-invoice, so long as the invoice details do not change. The initial e-invoice requirement also for these cases, which the BMF draft letter still provided for, has not been retained. 
• New challenges regarding final invoices have been addressed, particularly when advance or interim invoices were previously issued: the VAT requirements for a final invoice cannot yet be represented in the structured part of the e-invoice. Until 31 December 2027, there will therefore be no objections if an appendix with the relevant information is included in the e-invoice as an unstructured file.

Input tax deduction

• If a regular invoice is issued despite a requirement to issue an e-invoice, the regular invoice does not entitle the  recipient to input tax deduction. Applying a strict standard, an input tax deduction from the regular invoice may be considered if the tax authority has all the necessary information. According to the final BMF letter, if the regular invoice is substantively correct and complete, the conditions will generally be met, allowing for the input tax deduction despite the lack of an e-invoice.

Conclusion

The amendments regarding permanent  obligations and the deduction of input tax without an e-invoice are very welcome:

The view that an e-invoice must be issued for all permanent  obligations by the end of the transition period has been abandoned. Instead, the regular invoice remains valid for permanent  payment obligations for which the invoice was issued before 1 January 2027.

The view on input tax deduction without an e-invoice is also encouraging. If no e-invoice has been issued despite the requirement, a taxable person can still claim the input tax deduction if the tax authorities have all the necessary information to check the material requirements for said deduction. The fact that this can generally be assumed if the recipient has received another invoice that is substantively correct and complete mitigates the new regulation and makes the transition easier.

The outlook remains exciting for further developments towards timely and transaction-related electronic reporting to the authorities. The newly added marginal note on the future significance of platforms for invoice exchange indicates that there will be further legal requirements in this area.

The BMF letter points out several times that the contracting parties must or should reach an agreement under civil law. Companies should therefore be prepared, and assess the extent to which their contracts and, where applicable, general terms and conditions will need to be adjusted.