Italian Revenue Agency’s ruling reply n. 359/2021
Prepared by Davide Accorsi and Giorgio Beretta
With ruling reply no. 359 of 20 May 2021, the Italian Revenue Agency has allowed taxable persons not resident in Italy but in another Member State of the European Union (EU), which have appointed a tax representative in Italy or are directly registered for VAT purposes therein, the right to make use of the so-called “direct” refund procedure of input VAT laid down in Article 38-bis2 of Presidential Decree no. 633/1972.
Article 38-bis2 of Presidential Decree no. 633/1972 contains a simplified procedure for refund of the VAT paid in Italy, providing a possibility for taxable persons established in an EU Member State other than Italy to request a refund of their input VAT through a dedicated online portal.
This procedure, which builds upon the one contained in Council Directive 2008/9/EC (which has replaced the previous Eighth Directive 79/1072/EEC, also concerning VAT refunds), cannot however be used by taxable persons resident in another EU Member State who have a fixed establishment in Italy.
The said procedure is also not applicable in case the taxable person resident in another EU Member State has made, during the relevant tax period, supplies of goods or services located for VAT purposes in Italy, except for:
- the supply of goods or services to a person who is liable for payment of VAT;
- the supply of exempt transport services and ancillary operations;
- the supply of telecommunications, broadcasting and electronic services declared under the so-called “Mini One Stop Shop”.
In the ruling reply at comment, the non-resident taxable person had made domestic and intra-Community acquisitions of goods in Italy during the relevant tax period. In addition, the taxable person had provided services to persons who were liable for payment of Italian VAT.
Given this background, the Italian Revenue Agency has allowed the non-resident taxable person to apply for a refund of VAT relating to Italian purchase invoices through the procedure referred to in the aforementioned Article 38-bis2 of Presidential Decree no. 633/1972, provided that the purchase invoices (or customs bills, in the case of imports):
- mention the VAT identification number of the non-resident taxable person;
- are not included in the periodic payments and the annual VAT return submitted by the tax representative.
According to the Italian Revenue Agency, the input VAT relating to purchase invoices in which the Italian VAT identification number is mentioned cannot be requested through the online portal.
The Italian Revenue Agency has also clarified that, if the non-resident taxable person applies, through the annual VAT return, for a refund of VAT relating to purchase invoices in which the VAT identification number of the non-resident taxable person is used, the tax representative must keep these transactions distinct from those carried out using the Italian VAT identification number, report them separately in the VAT registers and use a specific form in the annual VAT return, as similarly occurs with regard to the transactions made by the foreign head office that are indicated in the VAT accounting of its fixed establishment.
 See, slightly differently from Italian VAT law, Daimler and Widex, C-318/11, para. 37, where the CJEU held that the “direct” VAT refund procedure is not impeded by the mere existence of a fixed establishment of a non-resident taxable person in the territory of another EU Member State, but it is required that the fixed establishment also carries out taxable transactions.
 With the ruling reply at comment, the Italian Revenue Agency overruled its position contained in reply no. 40 of the FAQ of 12 July 2010, published on its website in the section dedicated to VAT refunds. In that reply, the Italian Revenue Agency had excluded the possibility of using the “direct” refund procedure not only for non-resident taxable persons who have a fixed establishment in Italy, but also for non-resident taxable persons who are registered for VAT purposes in Italy.
Indeed, the same Court of Justice of the European Union (CJEU), in its judgment of 6 February 2014, Case C-323/12 (E.ON Global Commodities, para. 45, cited in the ruling reply at comment), held that “the fact that a taxable person established in a Member State has a tax representative who is identified for VAT purposes in another Member State cannot be the equivalent of acquiring an establishment in that Member State”, so as to make the “direct” refund procedure described above inapplicable. Furthermore, the CJEU had similar findings in its decision of 11 June 2020, case C-242/19 (CHEP Equipment Pooling, para. 57), concerning an EU taxable person who was not resident but only directly registered for VAT purposes in another EU Member State.
The Italian Supreme Court has recently lined up with the CJEU’s findings (see decision no. 21684 of 8 October 2020), since it has established that the right to an input VAT refund for a taxable person resident in another EU Member State could not be denied only because that person has appointed a tax representative in Italy.
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