Prepared by Luca Ghelli e Beatrice Pelo
The Italian Tax Authority, with the ruling reply no. 1/2021, dated January 4th, 2021, with reference to a case submitted by a taxpayer, commented on the possibility of recognizing the status of usual exporter and, consequently, the right to use the VAT plafond, for a non-established taxable person, but registered in Italy for VAT purposes.
Article 8(1)(c), of Presidential Decree no. 633/1972 rules the VAT regime applicable to the usual exporters. These subjects, specifically, are those taxable persons who carry out VAT exempt transactions with right to deduction, such as exports and intra-Community supplies. Based on this relief, they may exempt local purchases within the thresholds of the qualified transactions carried out during the preceding calendar year, or in the previous twelve months.
In this regard, it should be noted that, based on the strict wording of the law, paragraph 2, of article 8, of Presidential Decree no. 633 of 1972, states that the relief can be applied for by “subjects indicated in letter a), if resident”.
This is a statement which, if literally interpreted, could unjustifiably lead to discrimination between taxable persons established in Italy and not established taxable persons. This would imply an unreasonable scenario where the non-established taxable person may be prevented from the right to acquire the status of usual exporter and, therefore, the right to accrue the VAT plafond.
On this point, in order to avoid the risk of an unequal treatment for VAT purposes between resident and non-resident taxable persons, in the past, the Italian Tax Authority intervened with the Resolution letter no. 80 dated August 4th, 2011, where it has been clarified that a non-established Company identified in Italy for VAT purposes “carries out a relevant transaction for VAT purposes, whose consideration (…) entitles him to make purchases without VAT, when he carries out: a.1) exports”.
With this statement, the Italian tax authorities has confirmed a previous interpretation provided through the Resolution no. 102 dated June 21st, 1999, which expressly acknowledged the right for a non-established taxable person, registered in Italy for VAT purposes, to apply for the usual exporter regime (if all the relevant conditions were met).
In this regard, the rationale underlying the conclusions reached by the Tax Authority is the one which underlie the usual exporter regime itself, as it has been implemented to facilitate the VAT cash flow for those entities in a permanent receivable position as the “usual exporters”.
In the light of the above, the applicant has asked the Italian Tax Authority whether a company (i) having its registered office abroad and registered for VAT purposes in Italy, (ii) which acts as an undisclosed agent and carries out exports; (iii) whereby the exported goods remain in the ownership of the principal up to the final delivery to the final customers, may benefit from the usual exporter regime.
In the case referred to the Italian Tax Authority, which is only briefly described in the published version, the taxpayer believes that such option should be granted.
First, the applicant pointed out that, in its quality of commissionaire/undisclosed agent, it carried out “deemed” supplies (pursuant to article 2, paragraph 2, no. 3, of Presidential Decree no. 633 of 1972), qualifying as export of goods, pursuant to article 8, paragraph 1, of Presidential Decree no. 633 of 1972.
For this reason, the applicant deemed that it could benefit from the usual exporter regime, irrespective of the fact that it performed exports within an undisclosed agency scheme and of its status of not established taxable person.
The Italian tax authorities confirmed the applicant’s solution, consistently with the above mentioned previous guidelines, also in a case where the qualified transactions have been carried out in execution of a commissionaire/undisclosed agency scheme.
Similar conclusions have been achieved also in a case of triangular export transaction, as described in the ruling reply no. 580, dated December 10th, 2020.
In that case there was a three-parties chain transaction. In particular, the first supplier (a taxable person not established but registered for VAT purposes in Italy) supplied certain goods to a middleman (Italian established taxable person), in order for the latter to supply the same goods to a non-EU customer. The transport was arranged by the first supplier, based on a FOB term.
In this regard, the Italian tax authority, consistently with past and more recent clarifications, confirmed the possibility to accrue the plafond for usual exporters, both for the first supplier (so-called free plafond), and for the second supplier, i.e. the middleman (so-called restricted plafond).
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