The Legislative Decree 175/2014 (called "Simplifications") has been published on the Italian Official Gazette nr. n. 277/2014, bringing the first important fiscal simplifications foreseen by the Law 23/2014 (called "Tax Proxy").
Here below we analyse the simplifications regarding the international taxation, considering also the first clarifications issued by the Italian Tax Agency.
2. THE NEW DECLARATION OF INTENT
The letter of intent is the communication that an ordinary exporter (every economic operator with exportations exceed the 20% of its annual turnover) can send to its customers asking them to exempt from VAT amounts charged in their sales invoices.
Until the modifications introduced by article 20 of the Legislative Decree 175/2014, the Italian supplier needed to file a communication to the Tax Agency with information included in the Letter of Intents received from its customers (ordinary exporters). The missed filing caused the joint liability of the supplier and the client for any VAT potentially exempted without the needed requirements.
Now, this fulfilment, has been charged to the ordinary exporter (the customer) and not on the supplier.
The new discipline, in particular, foresees that the ordinary exporter:
- pre-emptively submits information of the Letter of Intent to be issued, to the Italian Tax Agency, using the form "MOD. DI", approved by the Agency on December 12th 2014;
- delivers the Letter of Intent, together with the confirmation of receiving released by the Agency mentioned at point 1 above, to its supplier or to the Custom office where the importation is completed.
Within the 11th of April 2015 the Italian Tax Agency will make available to the all Custom Offices the database of the Letter of Intent received by the tax payers.
Starting from that date, therefore, the ordinary exporter will be dispensed from delivering the Letters of Intent to the Custom office and receipts of their submission to the Tax Agency.
2.1. FULFILMENTS FOR THE SUPPLIER OF THE ORDINARY EXPORTER
Once received the Letter of Intent, the supplier of the ordinary exporter has to verify its correct submission to the Italian Tax Agency, using a specific free utility available on the internet website of the Agency.
As soon as technical measures will be implemented, the Italian tax payer owning credential to access the online database of the Tax Agency (know also as "Fiscal Drawer"), should be able to verify the correct submission of the Letters of Intent.
Only after the confirmation that the Letter of Intent has been duly submitted to the Agency, the supplier of the ordinary exporter will be legitimated to issue its invoice without charging the VAT, recalling protocol number assigned to the Letter of Intent and specifying the law under which the amount can be VAT exempted (that is "article 8, paragraph 1, letter c, of the Italian Republic Presidential Decree nr. 633/1972).
WARNING!: the supplier who issues its invoice without charging VAT before receiving the Letter of Intent from its Client and before obtaining the receipt of its correct submission to the Italian Tax Agency, thorough its check on the Agency website, is punished with the administrative fine set by article 7, paragraph 4-bis, of the Legislative Decree nr. 471/1997, that is from 100% to 200% of the VAT not charged in the sale invoice.
i.e.: taxable amount Euro 1.000,00 = VAT chargeable Euro 220,00. The Agency can require to the supplier the payment of the VAT for Euro 220,00 plus a variable amount from Euro 220,00 to Euro 440,00, therefore a total amount variable from Euro 440,00 to Euro 660,00.
- The supplier of the ordinary exporter is moreover obliged, within 15 days from the receiving of the Letter of Intent, to write it in a specific register or in the VAT register for sales.
- In addition, the supplier has to summarise, in its Annual VAT Return, all Letters of Intent received during the calendar year.
2.2. INTERIM PERIOD
Within the measure dated December 12th 2014, approving the new form "MOD. DI", the Tax Agency has set also the timeline to be followed in applying the new rules, introducing an interim period during which the old and new rules can coexist.
The new procedures, in particular, have to be observed starting from February 12th 2015; nevertheless, as also specified by the Tax Agency with the Message nr. 31/E/2014, the same rules can also be applied starting from December 22nd 2014.
Until the 11th of February 2015 the ordinary exporter preserve the chance to deliver or send their Letters of Intent to their supplier following the old rules (without the need for the supplier to verify their correct submission to the Agency).
However, information included in the Letters of Intent submitted during the year 2014 and after the 1st of January 2015, with reference to exchanges that will be made starting from February 12th 2015, will need to be compulsory electronically submitted to the Italian Tax Agency following the new rules.
At this stage, therefore, it is still not clear if the Communications for Letters of Intent submitted to the Agency within February 11th 2015, with reference to exchanges made within the same date, have to be submitted by the supplier of the ordinary exporter. Waiting for an official clarification, we strongly suggest to submit those communication.
3. THE NEW COMMUNICATION FOR EXCHANGES MADE WITH BLACK LISTED COUNTRIES
The article 21 of the Legislative Decree 175/2014 brought also some modifications to the existing Communication for exchanges (sales and purchases) incurred with customers or suppliers placed in the so called "Black Listed" Countries, changing the limits for exemptions and their periodical submission deadlines.
Starting from December 13th 2014, the said communication has to be filed and submitted for a total annual amount of exchanges over Euro 10.000,00 (the former limit was Euro 500,00 but connected to every single exchange). So now we need to consider all the annual exchanges and their total amount instead of considering every exchange.
Moreover the monthly and quarterly submission have been cancelled, leaving just one submission a year (probably within April 10th of the following year for tax payers calculating VAT due on a monthly basis, and within April 20th of the following year for tax payers calculating VAT due on quarterly and annual basis – these deadlines have still to be confirmed by Authorities).
These modifications are enforced also for the year 2014 and, therefore, affect all exchanges relevant for this communication incurred in 2014 (including the ones already filed in previous communications with old rules). With a press release issued on December 19th 2014, the Italian Tax Agency has clarified the procedures to pass from the old to the new regimen.
The Tax Agency, in particular, recognises to the tax payers the chance to keep on submitting the last communications on a monthly and quarterly basis for the year 2014 according to the old rules (therefore considering all single exchanges with an amount exceeding the limit of Euro 500,00 each).
With the Message 31/E/2014 already mentioned above, the Tax Agency has also clarified that the chance to use the old rules for communications related to the year 2014, allows the tax payer to avoid the submission for exchanges lower than Euro 500,00 each, even if incurred or received from the effective date of the new Decree until December 31st 2014. This means that, even if the new limit of Euro 10.000,00 has been exceeded but the exchanges, considered singularly, don't exceed the limit of Euro 500,00 each, the communication has not to be submitted.
Those communications will be considered as fully valid even also according the new rules and, therefore, the annual communication for the year 2014 will not need to be filed and submitted in 2015.
The tax payers that will not submit the communications left for 2014 (November and December for monthly VAT subjects and the 4th Quarter for quarterly VAT subjects) will have, on the contrary, to submit the annual communication for the year 2014, in 2015.
3.1. THE NEW LIMIT
The Message nr. 31/E/2014 already mentioned, as also made some clarification on the new limit of Euro 10.000,00, stating that it has to be calculated as the total amount of the exchanges, sales and purchases, incurred during the entire year with counterparts having their legal or residence address or their domicile in a Black Listed countries.
Therefore the obligation to submit the communication occurs just when and if the new limit has been reached with the total amount of the exchanges.
If within the year 2015 a company has 15 exchanges for Euro 600,00 each, the communication has not to be file neither submitted (the total exchanges will be for Euro 9.000,00, therefore lower than the new limit). If on the contrary the same company has 30 exchanges during the year for Euro 400,00 each, the communication has to be submitted since the total amount of the exchanges (Euro 12.000,00) exceed the limit.
The Message mentioned above has also clarified that violations made during the enforcement of the old rules, that for the effect of the new ones are no more considered as violations, are not chargeable with penalties, saved the notification of a payment notice already received by the tax payer.
4. VIES SYSTEM – NEW PROCEDURES TO APPLY
You can have more information on the VIES System and how it works, following this link
Article 22 of the Legislative Decree nr. 175/2014 has modified some procedures needed to apply for the inclusion of the VAT subject in the VIES system, that can be summarised as the online database of those operators allowed to make intra-community exchanges in Europe.
With the change of the paragraphs 7-bis, 7-ter, 15-bis and 15-quarter of the article 35 of the Republic Presidential Decree nr. 633/1972 (Italian VAT Law), starting from December 13th 2014 the registration of the VAT subjects in the VIES System is automatic:
- When the tax payer applies for a VAT number for a new business;
- When the tax payer already owning a VAT number is notified by the Italian Tax Agency.
The tax payer is therefore no more obliged to wait 30 day from the application for a VAT number of VIES System to make intercommunity exchanges, as happened in the past.
In particular, within the Measure dated December 15th 2014, the Tax Agency has underlined how the intention to put in place intra-community exchanges has to be flagged in the application form submitted to start a new business.
The tax payers already owning a VAT number, on the contrary, have to apply for their inclusion in the VIES database only electronically using the facilities made available on the Tax Agency website.
4.1. TEMPORARY MEASURES
In order to consider all the tax payer in the same way, the Tax Agency foresee the immediate inclusion in the VIES database even of those subjects that have applied starting from November 15th 2014, given that before December 15th 2014 they have not received a deny communication. The effective date of their inclusion will be therefore December 15th 2014.
4.2. DEREGISTRATION FROM VIES DATABASE
As per the old rules, subject included in the VIES database cam withdraw their registration submitting a specific form.
The withdrawal can also be disposed by the Tax Agency following an adverse audit on the correctness and completeness of the information submitted, or in case of absence of INTRASTAT (EC Lists) communications for the last for consecutive quarters.
The withdrawal from the VIES database following the adverse audit mentioned, implies also the cancellation of the VAT number of the audited tax payer.
The new procedure, in particular, states the exclusion of those subjects that have not submitted EC Lists for 4 consecutive quarters. In that case, in fact, the Tax Agency assumes that the tax payer is nt intended to make further intra-community exchanges.
Before withdrawing the tax payer, the Agency has to notify the subject wit h a specific communication. The withdrawal is effective starting from the 60th day following the release of the communication and, therefore in the said period, the tax payer can ask the Agency to maintain its registration.
To this aim the tax payer has to deliver to the Office all the documents supporting the intra-community exchanges made during the last 4 quarters (although being exposed to the administrative fines foreseen for the omission of the EC Lists) or any other equivalent document related to the exchanges in due course or that will be made in the future.
Subjects withdrawn under the new provision are in any case legitimated to apply again for their inclusion in the VIES database.
The Message 314/E72014 has clarified that the check on the 4 consecutive quarters of missed submission of EC Lists has to be done starting from December 13th 2014, being therefore irrelevant the quarter preceding the enforcement of the Decree.
Therefore the Agency will withdraw from the VIES database only tax payers listed starting from 2015.
4.3. VIOLATIONS INCURRED WITH THE OLD RULES
With the same Message mentioned above, the Agency has underlined that exchanges incurred under the old discipline are subject to the "favour rei" principle.
Therefore VAT subjects that within December 31st 2014 have made intra-community exchanges before the expiration of the 30 days within whom the Office could have issue the deny communication for its registration to the VIES database, are no more chargeable with penalties (given that the infringement communication issued by the Office has still not become an-claimable by the tax payer).
5. NEW EC LISTS - INTRASTAT – FOR SERVICES
Article 23 of the Decree 175/2014 foresees that with a separate measure of the Italian Custom Agency, in agreement with the Italian Tax Agency and the Authority for Statistics – ISTAT – to be issued within March 12th 2015, substantial modifications will be made to the contents of the EC Lists – INTRASTAT forms – for services sold and purchased.
Amendments, in particular, will tend to reduce the number of information required in the following forms: INTA 1-quarter (services sold in the period), INTRA 1 – quinques (amendments of services sold in former periods), INTRA 2 – quarter (services purchased in the period), INTRA 2 – quinques (amendments to services purchased in previous periods).
Following those amendments elements required by the lists will be reduced to the following information:
- VAT number of the counterpart;
- Total value of the transaction;
- Identification code of the exchange given or received;
- Country of payment.
Therefore all other information required at the moment, such as number and date of the invoice, payment or collection method, and method of supply of the service, will be no more required.
The new requirements will be applicable starting from the date included in the measure that will apprve the new forms' template.
5.1 FINES ON STATISTIC INFORMATION IN EC LISTS
Modifications made to paragraph 5 of the article 34 of the Law Decree 41/1995 by article 25 of the Legislative Decree nr. 175/2014 include important amendments to administrative fines connected to the missed or untruth communication of statistic information in EC Lists for goods' exchanges.
It is in fact foreseen that the fine from Euro 516,00 to Euro 5.164,00 set by article 11 of the Leg.Decree nr. 322/1989 is applicable only to those enterprises that during the relevant month of the year 2014 had exchanges equal or over Euro 750.000,00.
In addition the fine is applicable just one time for every monthly list incomplete or inexact, without making reference to the number of exchanges not included or wrongly included in the list.
Those fines have to be paid with the F23 form, specifying the tax code nr. "741T".
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.