The European Commission has approved the proposal of Regulation of 4 October 2017 (COM (2017) 568) issued by the Council to amend the Regulation No. 282/2011 concerning the "VAT exemptions" relating to intra-Community transactions of goods. In the proposal of Regulation of 4 October 2017 (COM (2017) 568), a specific discipline is laid down for the trade of intra-Community goods executed by "certified VAT subject". The discipline is based on the predetermination of evidence, which can be disputed by the Tax Authorities only if the Tax Authorities have the evidence of misconduct by the seller or buyer. The proposal of Regulation of 4 October 2017 (COM (2017) 568), will amend the Regulation 282/2011, and will enter into force as of 1 January 2019.
The Art 41 of Legislative Decree no. 331/1993 (Italian VAT law) and the Art. 131 of Directive 2006/112/EC do not define the means of proof of transport/shipment in the territory of another Member State, creating a considerable number of difficulties between the economic operators. Indeed in the present VAT legislation, the seller must prove that the goods have been sent to the Member State of destination but, in the absence of specific provisions on the necessary documentation, It is unavoidable the emersion of differences of interpretation between the operators and the tax offices. The European Commission's intervention is therefore appreciable because directed to ensure legal certainty (in this case the right to non-taxation in intra-Community transactions).
The proposal of Regulation of 4 October 2017 (COM (2017) 568) foresees, for the purposes of applying the VAT exemption indicated in the Art. 138 par. 1 of Directive 112/2006 (transposed in the Italian Law in the Art. 41 of Legislative Decree 331/1993), that goods are shipped or transported to another EU country, provided that at least one of the following conditions is present:
a) the seller is a “certified subject” which certifies that the goods are transported or shipped by the same or by a third party on his behalf and owning at least 2 of the non-contradictory evidence confirming the transport or shipment;
b) the buyer is a “certified subject” and the seller is in possession of:
i) a written statement from the purchaser certifying that the goods have been consigned or transported by the same or by a third party on his behalf and which mention the Community State of arrival of the goods;
ii) two of the non-contradictory evidences which confirm the transport.
For the case mentioned in point b), the buyer must provide the seller with the written declaration within the 10th day of the month following the sale.
Certified subject: the objective of the Regulation proposal is to provide a legal basis for integrating the status of taxable certified subject in the VIES system (VAT information exchange system). In fact, the taxable subjects should have the opportunity, under certain conditions, to obtain the status of taxable certified subject. The status itself will certify that a certain firm can be considered as a reliable tax payer.
The evidences of non-contradictory proof of delivery or shipping:
a) documents signed by the purchaser or a person authorized to act on his behalf, certifying the arrival of the goods in the Member State of destination;
b) documents relating to the carriage or shipment of the goods, such as a document or a “CMR” letter bearing the signature, a bill of loading, an air transport bill, an invoice issued by the carrier, an insurance policy relating to the carriage of goods or bank documents attesting the payment of the transport or shipment of the goods;
c) official documents issued by a public authority, such as a notary, confirming the arrival of the goods in the Member State;
d) a receipt issued in the Member State of destination confirming the storage of the goods in that Member State;
e) a certificate issued in the Member State of destination by a professional unit of the same Member State, such as a chamber of commerce or industry confirming the destination of the goods;
f) a contract between the seller and the buyer or a purchase order in which the destination of the goods is indicated;
g) the correspondence between the parties involved in the transaction in which the destination of the goods is mentioned;
h) the VAT declaration of the buyer indicating the intra-Community acquisition of the goods.
The intra-Community supply in practice:
The solution identified by the proposal of Regulation of 4 October 2017 (COM (2017) 568) amending the Regulation 282/2011 therefore consists in the introduction of a presumption of VAT exemption of intra-Community trades in two specific cases:
Case 1: the goods were shipped/transported by the seller, directly or through third parties acting on his behalf, and the same seller has the status of “certified subject”. In this case, the VAT exemption is guaranteed if the seller owns two of the non-contradictory documents, among the eight abovementioned.
Case 2: the buyer is a “certified subject” and the goods were transported/shipped by the same buyer or by third parties acting on his behalf. In this case, the VAT exemption is guaranteed if the seller is in possession of:
- a written declaration from the buyer certifying that the goods have been transported by the same or on his behalf and the Member State of arrival of the goods is included in this declaration (without, however, indicating the exact destination for reasons of commercial confidentiality), and;
- two non-contradictory documents, among the eight abovementioned, certifying the transport.
In both cases, the tax authorities may dispute the VAT exemption only if in possession of sufficient evidences to demonstrate that the goods have not been transported from the Member State of departure to the Member State of arrival.
For the situations not covered by such presumptions - for example, because the operators concerned do not have the status of certified subject - the rules in force will continue to apply, according to the interpretations provided by the Court of Justice.