With a recent interpretation the Italian Tax Agency has disclosed its approach on the elements that sellers have available to prove the actual physical transfer of goods to the member state of the purchaser.
2. THE PRINCIPLE OF TAXATION IN THE COUNTRY OF DESTINATION
The temporary regimen for EU exchanges has been enforced starting from 1993 by the Directive 91/680/CE for the achievement of the an internal market and the removal of customs.
The adopted measures aim essentially to facilitate the free circulation of goods with the European Community.
In particular, for exchanges of goods within the Union between VAT subjects, it has been enforced the principle of taxation in the country of their destination, therefore those exchanges are exempted from taxation in the country of origin.
Failing those formalities and fulfilments with custom characteristics, the correct application of the exemption principle is transferred to specific formalities (verification of the VAT number of the European customer within the VIES archive, invoice’s VAT exemption with inclusion of the identifying code of the foreign counterpart, submission of INTRASTAT forms and arrangement of proper documentation by operators involved in the exchange).
Article 138, paragraph 1 of the Directive 2006/112/CE states that: “Member States exempt sales of goods shipped or transported out of the domestic territory but within the European Community, from the seller to the purchaser or on their behalf, in favour of another VAT subject, or a non VAT subject, which acts in a Member State different form the one of delivery or goods’ transportation”.
The European rules has been enforced in Italy with article 41, letter c. 1) of the Law Decree nr. 331/1993, under which are considered EU exchanges: “the costly sales of goods, transported or shipped to the territory of another Member State, by the seller or by the purchaser, or by third parties on their behalf, toward purchasers VAT subject or not subject, associations and other organizations not subject to VAT.”
The EU law cross-refers to the other Member States the recognition of those conditions legitimating the application of the taxation at destination, although foreseeing that the same can’t enforce more restrictive and less favourable measures of those foreseen for export exchanges.
The national discipline does not prescribe any specific fulfilment for the national seller to prove the goods’ transportation or shipment toward the destination’s Member State. This is justified by the intent of the EU legislator to achieve one of the fundamental principle of the EU treaty, that is the free circulation of goods within the territory of the Union.
However it must be considered that in order to have an exchange within the Union not taxable for VAT, all the below mentioned requisites must be respected:
the exchange of mobile goods must be “on payment”;
the purchaser must acquire the ownership of goods exchanged;
actual movement of goods from Italy to another Member State;
both the seller and the purchaser must be economic operators.
The registration to VIES archive can be verified on the website of the Italian Tax Agency at the following address: http://www1.agenziaentrate.gov.it/servizi/vies/vies.htm .
With judgement for the Cause nr. C-409/04 dated 27.9.2007, the European Court of Justice has specified that the exemption foreseen for exchanges within the EU is applicable when the power to own the goods has been transferred to the purchaser and when the supplier proves that goods have been shipped or transported in another Member State and that, following the shipment or the transportation, it has physically left the territory of the Member State of the seller. Those conditions have to be respected together and the lack of one of them implies the recovery of VAT in the country of the supplier.
Under the EU and national laws it is irrelevant that the transportation of goods is made by or on behalf of the seller or the purchaser. It is also irrelevant the circumstance that the transport or the shipment of goods is made toward the country of destination within a specific period of time.
Some countries, among which Poland and United Kingdom, foresee a term within which the seller is obliged to file the documentation proving the effective transfer of goods in another Member State.
3. THE GUIDANCE OF THE EUROPEAN COURT OF JUSTICE
The European jurisprudence has defined the common rules for proofs that have to be given for exchanges within the Union, with judgements for the causes Teleos (C-409/04), Collée (C-146/05) and Twoh International (C-184/05), all issued on 27.9.2007 following the conclusions of the General Attorney.
It has firstly outlined that, in order to apply the VAT exemption, the supplier is liable for the transport of the goods, also in the event that it loose the control on the same for their delivery to the purchaser or its carrier.
This means therefore that in the event of sale with clauses EXW (or CIF and FOB), the supplier bares the risk to qualify the exchange as taxable for VAT.
In fact, if the purchaser, contrary to the contractual agreements, doesn’t transport the goods into another Member State, the exchange is not considered as an exempted EC exchange, but as an “internal” exchange subject to VAT.
It has also been clarified that when the supplier entrusts the purchaser for goods’ transportation in another Member State, the “best” proof of the exit of the goods from the Member State of sale is the waybill CMR, signed by the seller/sender, by the courier and the purchaser/receiver.
However, this doesn’t exclude that the proof of the transportation or of the shipment can be give also with other means “where this does not imply a heavier obstacle to the trans-frontier circulation of goods with respect to the requisites in force before the fall on internal frontiers”.
The EU judges have also underlined that the proof for goods’ transfer can be acquired every time, not only at the moment of the sale, but also afterwards.
The Court of Justice has finally observed that, under an audit involving the documentation to prove EU exchanges by the seller, the “good faith” has to be recognised to the same when he will demonstrate to have behaved according to the normal diligence required to a commercial operator that is to have verified with the diligence of the professional operator, the good standing and the reliability of the counterpart.
In this view, the produced elements will need to be verified case by case, taking in consideration any document given by the purchaser confirming the transfer of goods to their destination.
4. THE APPROACH OF THE ITALIAN TAX AGENCY
The Italian legislator hasn’t used the chance to rule the proofs to be given by the seller for transportations of shipments of goods in another Member State; the matter has therefore been analyzed with an interpretation by the Italian Tax Agency.
The Supreme Court has underlined several times the obligation to prove the transfer of goods into another Member State under the general principle set by article 2697 of the Italian Civil Code, under which the proof for VAT exemption as a derogation to the general principle is charged to the subject who invoke the derogation itself.
With its Circular Message nr. 345/E/2007 the Italian Tax Agency has specified that the proof of the EU exchange can be given keeping, within the time limits given for the audit activities for VAT under article 57 of the Republic Presidential Decree nr. 633/1972:
the sale invoice issued by the seller under article 41 of the Law Decree 331/1993 (VAT exempted);
the INTRASTAT form filed for the EU exchange;
the waybill CMR signed by the courier and by the receiver of the goods;
the copy of the payment issued by the purchaser.
Article 57 of the Republic Presidential Decree 633/1972, prescribes the obligation to store the documentation pertaining all exchanges until the 31st of December of the 4th year following the one of filing of the annual tax return for the year of the exchange (in case of missed annual return, until the 31st of December of the 5th year when the same return should have been submitted).
With a further clarification the Agency has stated that also the general ledger, the invoices, and letter received, and copies of invoices and letters sent to the purchaser, stored according to obligations set by article 2214 of the Italian Civil Code, can concur to demonstrate the transfer of goods to another Member State.
The subsequent Ministry Resolution nr. 477/2008 has, instead, faced the case of an EU exchange with transportation charged to the EU purchaser.
In particular, the resolution intervened on the proving documentation in case of EU exchanges “ex-works” (where the national seller delivers the goods to the courier charged by the purchaser who barely achieve to obtain by this last one a copy of the transportation document signed by the purchaser itself).
With regard to this case, the Tax Agency has clarified that the proof of the transfer of goods can be given, in addition to the CMR recalled by the Circular Message nr. 345/E/2007, also with any document useful to demonstrate that goods have been transferred to another Member State.
According to ASSONIME ( Italian Association of Companies Listed in the Stock Exchange), the “other documents” that can prove the physical transfer of goods are:
commercial insurance agreement for goods transportation;
the agreement signed with the purchaser;
the purchase order with indication of goods to be shipped or transported in another Member State;
the consignment documentation;
the written confirmation by the purchaser that has received the goods;
copies of sales’ invoices.
Finally, with the Ministry Resolution nr. 123/E/2009, the Italian Tax Agency has recognised that the proof of transportation abroad can be given, among others, with the waybill including the place of departure in the Italian territory and the place of arrival in another Member State, without requiring the confirmation of the purchaser.
We’d like to remind that the CMR (Convention des Marchandises par Route) is the international agreement for transportations on the road from which derived the definition of waybill (“lettre de voiture internationale” in French, “international consignment note” in English and “frachtbrief transportdokument” in German).
5. RECENT CLARIFICATIONS
With its Circular Message nr. 19/E/2013, the Italian Tax Agency has faced the case of an Italian company that makes EU exchanges with clauses “free at destination“ and “ex-works”.
The company asked the Agency to confirm if the electronic CMR can be considered a mean of proof of the EU transportation of goods.
In particular the demanding company has outlined as more often in the commercial uses, the couriers use electronic systems to store transportation documents, providing clients only with electronic receipts, implying that the customer has no chances to obtain those documents signed by the receiver, being able to provide copies just extracted from their IT system.
In other cases, the proof of destination is made just by information collectable from the courier IT system that, linked with the system of the customer, send to this last one information on the transportation’s status (tracking systems).
The Tax Agency has clarified that elements suitable to give proof of the transportations of goods out of the national territory are, if stored together:
invoice VAT exempted under article 41 of the Law Decree nr. 331/1993;
INTRASTAT form filed and submitted to the relevant Custom Authority;
contractual and bank documentation proving the payment of the goods;
electronic CMR signed by the seller, by the courier and by the purchaser and shared on IT platforms in Pdf format;
documents containing the same information of the CMR on paper and signatures of the involved operators, take from the IT system of the courier, proving that goods have left the Italian territory and reached the territory of the other Member State.
The financial Administration has nevertheless outlined that the above mentioned electronic documentation, which can be described, from a lawful point of view, as “analogical documentation” (since it lacks of any time referral and by the electronic signature), has to be materialised on a physical support in order to be considered lawfully relevant for tax aims.
The documentation can be stored under article 4 of the Ministry Decree dated 23.1.2009 and, therefore, as specified by the Ministry Resolution nr. 158/E/2009, it has to be stored on optical supports, with its electronic footprint and the electronic signature of the Chief of storage of corporate documents who has the certify the entire process.
The Agency has finally clarified that all documents have to be acquired “as soon as possible”, that means as soon as available from the counterparts, and stored for the period of time foreseen by art. 57 of the Republic Presidential Decree nr. 633/1972 (as mentioned above).
6. HOW WE CAN HELP.
Our professionals are available to verify if procedures used by your company are compliant with these requirements and, in case, to support you in modifying the same in order to avoid penalties or fines.
They will be more than happy to advise you at your convenience and agree the terms and conditions of our help.