Clarifications provided by the Excise, Customs and Monopolies authorities
Prepared by Davide Accorsi, Lorenzo Ontano and Stefano Luigi Airaghi
With circular letter no. 40 of 14 December 2021, the Italian Excise, Customs and Monopolies authorities has reiterated that an economic subject not established in the European Union (hereinafter also “EU”) cannot submit an import customs declaration independently but must necessarily use an indirect customs representative for this purpose.
Moreover, the importer must be identified for customs purposes, through the attribution of an EORI code. In this regard, the aforementioned circular letter clarifies that the EORI code “must be linked to the VAT number issued to the importer following a direct VAT registration in the EU Member State or to that of the VAT representative appointed in the EU Member State in which he carries out customs operations”.
This wording has led some local offices of the Italian Excise, Customs and Monopolies authorities to consider that an economic subject not established in the European Union cannot import into Italy unless he identifies himself for VAT purposes in the territory of the Italian State.
However, this assumption does not seem to be in line with the text of the circular in question, which clarifies that “the figure of the tax representative for VAT purposes is of purely fiscal value. The sole purpose of a VAT representative is to allow the appointed representative to comply, solely for the purposes of value added tax, with the tax obligations connected to the activity of a person not established in Italy and does not give the holder of the corresponding VAT number any legitimacy to operate, in place of the non-established person, in legal contexts other than VAT itself”.
Moreover, the same circular letter summarises the functions of the importer, the customs representative and the fiscal representative, clarifying that:
- the importer is the person able to provide all the information required for the application of the provisions governing the customs procedure for which the customs declaration is submitted. This position can be held by the economic subject not established in the European Union, with identification by means of an EORI code;
- the customs declaration may be submitted by a person not established in the European Union, but, for this purpose, the person must make use of a customs representative established in the European Union, who acts as an indirect representative, thus assuming the role of declarant;
- the VAT representative (but also the person directly identified for this tax), since he is only relevant for VAT purposes, is not entitled to submit a customs declaration on behalf of a non-established person; however, the VAT number issued to the tax representative must appear in field 44 of the customs declaration exclusively for the purpose of fulfilling the obligations required by the rule on value added tax.
In view of the above, it is reasonable to believe that a non-resident economic subject may act as an importer in the European Union, provided that he is identified by means of an EORI code and that the customs declaration is made by an indirect customs representative established in the European Union, regardless of the possible existence of a fiscal representative or direct identification for VAT purposes of the non-resident subject.
Considering that some local offices of the Italian Excise, Customs and Monopolies authorities, following the publication of the circular letter in question, believe that it is not possible for a non-resident in the European Union to import into Italy in the absence of an identification for VAT purposes in Italy of that person, it would be appropriate for the same authorities to provide further official clarification on the issue that could settle any possible doubt in this regard.
Let’s Talk
For a deeper discussion, please contact:
PwC TLS Avvocati e Commercialisti
Director
PwC TLS Avvocati e Commercialisti
Director
PwC TLS Avvocati e Commercialisti
Senior Manager