Intra-Community distance sales made from Italy and declared through the OSS are relevant for the determination of the requirements for VAT refunds, for quarterly VAT compensation and for the status of usual exporter, but only if the ordinary documentary obligations are met
Prepared by Davide Accorsi and Stefano Luigi Airaghi
Following the reform of the European Union’s VAT rules on distance selling brought with the approval of the so-called “e-commerce package”, the Legislative Decree 83/2021 transposed into national law the provisions of Directives (EU) 2017/2455 and 2019/1995 introducing, inter alia, in Article 38-bis, paragraphs 1 and 3, of Law Decree 331/1993, a new definition of intra-Community distance sales and establishing, in Article 41, paragraph 1, letter b), of the same Law Decree, their exemption with right to deduct.
The new Article 74-sexies of Presidential Decree 633/1972 outlines the rules of the special optional regime of declaration and payment to be adopted by operators carrying out such transactions and provides, through the reference to the new Article 74-quinquies of the same Presidential Decree, that the persons who adhere to the OSS regime so-called EU are “exempt from the obligations referred to in Title II” and “if the invoice is issued, the provisions of Articles 21 and following find application”.
Basically, in order to document the transactions carried out in the context of the special scheme under discussion, there is no need to keep ordinary documentation for VAT purposes, nor is invoicing compulsory, given the dispensation from the documentary obligations under Title II of Presidential Decree 633/1972. The OSS special scheme implies a specific obligation to keep appropriate documentation to support the sales made. Such documentation is listed in Article 369k of Directive 2006/112/EC. In addition, the above-mentioned regime implies the submission of the specific quarterly return referred to in Articles 369f and g of Directive 2006/112/EC.
With the Reply to ruling 802 of 9 December 2021, the Italian Tax Authorities confirmed that, since Article 41, paragraph 4, of Law Decree 331/1993 continues to define the transactions referred to in paragraphs 1 and 2 of the same Article as exempt with right to deduct, also the intra-Community distance sales referred to in Article 41, paragraph 1, letter b), of the same Law Decree, are considered as exempt with right to deduct intra-Community supplies and, therefore, transactions eligible both to be included in the calculation of the plafond for the so-called “usual exporters”, pursuant to Article 8, paragraph 2 of Presidential Decree 633/1972, and for the calculation of the requirements provided for by Article 30 paragraph 2, letter b), of Presidential Decree 633/1972, in order to obtain annual refunds and quarterly refunds and compensations pursuant to Article 38bis, paragraph 2 of the same Presidential Decree.
However, on the basis of the aforementioned interpretation of the Italian tax authorities, the dispensation from ordinary compliance for persons making use of the special scheme relates exclusively to the declarative and documentary dynamics of the special scheme itself and cannot apply also in the context of the adoption, albeit concomitantly, of instruments defined at national level and characterized by different control requirements.
Therefore, persons making intra-Community distance sales from Italy, having opted for the so-called OSS EU regime, in order to be able to take advantage of the possibility of adding the above-mentioned sales to the amount of the ceiling for the purposes of the benefit granted to the so-called “usual exporters” pursuant to Article 8, paragraph 1, letter c), of Presidential Decree 633/1972, as well as to add the above-mentioned sales to the amount of the ceiling for the purpose of meeting the requirements to obtain refunds and quarterly compensation pursuant to Articles 30 and 38bis of the same Presidential Decree, must (in addition to the documentation to be kept according to the rules provided for under the special EU regime) continue to adopt the invoicing and accounting procedures for distance sales established by the ordinary national rules (see Article 2, paragraph 2 of Law 28/1997 and the Customs Agency Circular 8/D of 27 February 2003).
They will therefore have to invoice the intra-Community distance sales made from Italy (to other EU Member States) pursuant to Article 46 of Presidential Decree 331/1993, to register the same transactions in the registers referred to in Articles 23 and 24 of Presidential Decree 633/1972, to submit an annual VAT return by reporting the transactions among those referred to in Section VE, Line VE30, field 3 for the purposes of the plafond and, in the case of filling of the TR form, by entering the mentioned transactions in lines TA30 and TD2 for the purposes of quarterly refunds/compensations.
Finally, it should be noted that the Reply ruling under discussion does not make any reference to the completion of Intrastat forms, which, following the changes introduced by the so-called “quick fixes”, are now a necessary requirement in order to apply the exemption with right to deduct of intra-Community transactions.
On this point, the provisions of Article 50, paragraph 6, of Law Decree 331/1993, establish that the Intrastat listings are due only for intra-Community transactions carried out against counterparties that are taxable persons for VAT. Therefore, missing clarifications from the tax authorities, it could be considered that the Intrastat listings are not mandatory in the case of intra-Community distance sales made from Italy to private individuals with movement of goods to other EU countries.
 The “e-commerce package” consists of several pieces of legislation, the most significant of which are Directive (EU) 2017/2455, Directive (EU) 2019/1995, Regulation (EU) 2017/2454, Regulation (EU) 2019/2026 and Regulation (EU) 2020/194, which mainly amended Directive 2006/112/EC and Regulation (EU) 282/2011.
 Which states: “For the purposes of the second paragraph of Articles 8, 8-bis and 9 of Presidential Decree No. 633 of 26 October 1972, the supplies referred to in paragraphs 1 and 2 above shall be taken into account for the purposes of determining the percentage and the limits referred to therein“.
 In particular, according to the new Article 138(1a) of Directive 2006/112/EC, the exemption with right to deduct of intra-Community supplies “shall not apply where the supplier has not complied with the obligation provided for in Articles 262 and 263 to submit a recapitulative statement or the recapitulative statement submitted by him does not set out the correct information concerning this supply as required under Article 264, unless the supplier can duly justify his shortcoming to the satisfaction of the competent authorities“.
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PwC TLS Avvocati e Commercialisti