The national law receiving the EU Directive nr. 2010/45 has extended the obligation of invoicing to exchanges not subject to VAT for lack of the territorial principle. Those exchanges concur to form the annual VAT total revenues. With this tax update we analyse the effects produced by these new rules on extraterritorial (out of the EU) exchanges for national operators.
2. RULES' EVOLUTION
In order to harmonize the way VAT is applied within Countries of the European Union, the Directive 2010/45/EU, enforced in Italy by the Law 228/2012, has introduced new rules for invoices, effective for all exchanges made starting from January 1st 2013.
Among those, one relevant new rule is the compulsory invoicing of exchanges not subject to VAT for lack or territorial principle.
Until December 31st 2012, the compulsory invoice was limited to the following:
- General services rendered to customers subject to within the EU;
- Sales of goods in transit within the Italian territory;
- Sales of goods stored in places under customs' surveillance.
While, starting from January 1st 2013, the new paragraph 6-bis of article 21 of the Republic Presidential Decree nr. 633/1972, obliges to issue an invoice for most of the operations lacking of the territorial principle.
The so called "territorial prerequisite", ruled by article from 7 to 7-septies of the RPD 633/1972, establishes the application of VAT only to exchanges within the Italian territory.
At the same time the widening of the exchanges subject to invoicing, has been modified by article 6, paragraph 2 of the Legislative Decree nr. 471/1997, that is the rule enforcing penalties for missed documentation, registration and identification of exchanges not taxable and exempted, introducing the reference to exchanges not subject to VAT.
3. NEW MANDATORY INVOICING
Article 21, paragraph 6 of the RPD 633/1972, enforcing article 219-bis of the EU Directive 2006/112, states that an invoice is mandatory for the following sales, lacking of the territorial requisite:
- Sales of goods in transit within the Italian State (goods to be delivered in other Members States) and sales of goods stored in places under the customs' surveillance (free-shipping deposits, custom deposits), non subject to VAT under article 7-bis, paragraph 1 of the RPD 633/1972;
- Sales of goods and services, different from the ones foreseen at article 10, paragraph 1, nr. from 1) to 4) and 9) of the RPD 633/1972, non subject to VAT under articles from 7 to 7-septies of the RPD 633/1972, made to a customer VAT subject in another Member State;
- Sales of goods and services not subject to VAT under articles from 7 to 7-septies of the RPD 633/1972, made to customers outside the EU.
Article 10, paragraph 1 from 1) to 4 and 9) of the RPD 633/1972, states the exemption from VAT for exchanges made within credit, financial and insurance sectors and for related mandates, brokerage and intermediation.
With regard to sales of goods and service non subject to VAT under article from 7 to 7-septies of the RPD 633/1972, the law clearly rules the compulsory invoicing with relation to the place where the good is sold or the service is performed.
Under article 7-bis of the RPD 633/1972, are considered as extraterritorial the sales of those goods that are placed, at the moment of the sale, in a foreign Country (within or outside the EU) or in peculiar territories considered as outside of customs (such as the cities of Livigno and Campione d'Italia).
Exchanges made within the EU requires the issuing of an invoice only of different from those that are exempted from VAT under article 10, paragraphs from 1) to 4) and 9 of RPD 633/1972, and only when they are made to VAT subject debtor of the same tax in another Member State.
Therefore the obligation to issue an invoice doesn't recur when the receiver of the goods or of the service is an individual (not acting as a business) or a VAT subject incorporated in the EU country where the exchange is territorially relevant (in this last case VAT has to be paid by the seller through a VAT direct identification or a Fiscal Representative).
Exchanges made outside the EU are always subject to invoicing, despite the nature of the purchaser (VAT subject or individual) and despite its place of business (Italy, EU or outside EU).
Sale of goods placed in France to a German customer without moving them in Europe. Under article 7-bis, paragraph 1 of the RPD 633/1972, the exchange is territorially relevant in France (place where the goods is available at the time of the sale), but the debtor of VAT is the Italian supplier, called to identify itself for VAT in France whit the VAT applicable.
Transportation of goods from Italy to Germany, made on behalf of a German company.
The sale is territorially relevant in German, place of business of the purchaser who has to pay VAT under the "reverse-charge" mechanism.
The Italian courier has to issue an invoice "outside the scope of VAT" (and file and submit the Intrastat form 1-quarter).
Transportation of goods from Tunisia to Morocco, made on behalf of an individual resident in Italy.
Under article 7-sexies, paragraph 1, letter b) of the RPD 633/1972, the exchange is not territorially relevant in Italy, but the Italian courier has to issue an invoice "outside the scope of VAT".
It is still unclear if invoicing is compulsory also when the exchange is not taxable or exempted in the country of business of EU customer (on this the recent Circular message of the Italian Tax Agency 12/E/2013 doesn't provide any clarification).
The discipline of EC lists doesn't foresee the obligation of filing INTRASTAT forme for services not subject to VAT in the country of the purchaser (since they are there considered exempted or not taxable).
4. MANDATORY ELEMENTS OF THE INVOICE
Regarding the contents of the invoice, article 21, paragraph 6-bis, letters a) and b) of the RPD 633/1972, requires that, in addition the internal or European law's reference, also information on the nature of the exchange made.
Type of exchange
Information on the invoice
Sales of goods and services to VAT subjects debtors of VAT in another Member State
Sales of goods and services outside of the EU
Exchange Not Subject to VAT
Sales related to goods in transit or stored in places subject to custom's surveillance
Exchange Not Subject to VAT
5. TERMS AND CONDITIONS FOR THE INVOICES
Terms and conditions of invoices related to extraterritorial sales of goods and services under article 21, paragraph 6-bis of the RPD 633/1972, depend from the type of exchange made.
Invoices related to generic services under article 7-ter of the RPD 633/1972, sold to VAT subjects without a place of business in Italy, are generally to be issued within the 15th day of the month following the on of the sale (completion of the service or payment).
The invoice has to be processed in the VAT register of sales within the same term but with reference to the month of the sale(i.e.: an invoice for a service completed on May 22nd can be processed within June 15th but with reference to May).
Invoices related to generic services sold to customer with a their place of business in another Member State have to be included in the EC Lists (INTRASTAT forms).
Invoices related to "specific" services under articles 7-quarter or 7-quinquies of the RPD 633/1972 have to be issued at the moment of their payment. The document has to be processed in the VAT register of sales within 15 days from its issuing, always with reference to the date of their issuing.
6. EFFECTS ON THE GENERAL VAT AMOUNT OF THE YEAR
Being now subject to processing, the extraterritorial exchanegs under article 21, paragraph 6-bis of the RPD 633/1972, concur to the calculation of the General VAT amount for the year (in Italian "Volume d'Affari).
Sales of depreciable assets under article 2424 of the Italian Civil Code, items B.I.3) and B.I.4) of the Balance Sheet and internal exchanges, are excluded from the calculation of the General VAT amount.
The increase of exchanges that concur to form the General VAT amount, has several consequences:
from the facilitated regimens, that are subject to a maximum General VAT for each year (quarterly or monthly calculation of the VAT due), to the calculation of the percentage of VAT deductibility (in fact the base on which measure exempted operations increases).
7. ANNUAL OR QUARTERLY VAT REFUND
The inclusion of extraterritorial exchanges to the General VAT annual amount should facilitate the access to the annual VAT refund under article 30, paragraph 3, letter d) of the RPD 633/1972, for the subjects which have mainly exchanges not subject to VAT under articles from 7 to 7-septies of the RPD 633/1972.
On the contrary the access to VAT annual or quarterly refund under article 30, paragraph 3, letter b) and 38-bis, paragraph 2 of the RPD 633/1972, seems to be disadvantaged for those operators having exchanges not taxable under articles 8, 8-bis and 9 of the RPD 633/1972, exceeding the 25% of exchanges made.
8. ORDINARY EXPORTERS
In order not to disadvantage operators having a prevalence of exchanges with foreign countries, some rules have been enforced in order to sterilise the effects of the inclusion of said exchanges in the annual VAT General Amount.
In particular for the verification of the status of "ordinary exporter" the VAT Annual General Amount has to be calculated without considering sales of goods in transit or stored in places under customs surveillance and without extraterritorial exchanges.
Therefore, extraterritorial exchanges haven't to be considered for the calculation of the General VAT Annual Amount verifying that not taxable sales of goods and services, processed within the former calendar year, or within the 12 former months, exceed the 10% of the same General VAT Annual Amount.
Those exchanges are not relevant also for the qualification of "ordinary exporter" and for the calculation of the annual amount of purchases of goods and service that can be made without VAT (so called "plafond").
9. CONTRIBUTION TO COMPULSORY PENSION AUTHORITIES
Regulations of Registered Professionals' Italian pension authorities foresee that the registered professionals are obliged to charge an extra percentage on all fees included in the VAT Annual General Amount, to be then paid the Authorities on payment.
Therefore, the fee invoiced by a Registered Professional, even if not subject to VAT, has to be increased, for integrative contribution, in the measure foreseen by the Authority itself.
The extension of the compulsory invoicing foreseen by article 21, paragraph 6-bis of the RPD 633/1972, implies now that the pension contribution due to the specific authority is due also on sales not territorially relevant in Italy.
The integrative contribution is not due if the extraterritorial exchange is not included in the VAT Annual General Amount because excluded from the compulsory invoicing.
Legal assistance given by an Italian Lawyer to an Non-EU individual, sale not territorially relevant in Italy under article 7-sexied, paragraph 1, letter b) of the RPD 633/1972, is subject to invoicing and therefore to the integrative pension contribution.
The appraisal of a building placed in Germany, service territorially relevant in Germany (place where is the building) under article 7-quarter, letter a) of the RPD 633/1972, purchased by a VAT subject with place of business in Spain, is not subject to invoicing (in Italy) and to the integrative pension contribution.
The appraisal of a building placed outside the EU is, on the contrary, subject to invoicing and integrative pension contribution independently from the place where the purchaser has its place of business of from its status (VAT subject or individual).
10. EFFECTS ON BLACK LIST COMMUNICATION
The extension of compulsory invoicing and processing to extraterritorial exchanges affected also the discipline of the so called "Black List" exchanges communication.
We deem in particular that now have to be included in this periodical communication to be made to the Italian Tax Agency, also exchanges not in the scope of VAT for lack of territorial requisite, made to customers with place of business in "black-listed" countries, since they are exchanges subject to compulsory registration/processing.
The communication of generic and specific services sales, made to customers with place of business in tax heavens, was already foreseen by the Ministry Decree dated August 5th 2010.
The extension of compulsory invoicing and processing to extraterritorial exchanges has implied the modification of article 6, paragraph 2 of the Legislative Decree nr. 471/1997, in order to include among violations also fulfilments related to the documentation and processing of extraterritorial exchanges not subject to VAT.
The administrative fine is between the 5% and 10% of amounts not documented or not processed, with a minimum amount of Euro 516; nevertheless, if the violation doesn't not count for the income calculation, an administrative fine between Euro 258 and Euro 2.065 is applied.
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.