Prepared by Francesco Pizzo, Lorenzo Ontano, Annarita Terrone and Matteo Zovi
In its judgment in the Case C-714/20, filed on May 12, 2022, the European Court of Justice ruled that the indirect customs representative is jointly and severally liable with the declarant only for the customs duties due upon importation and not also for the relevant import VAT, in the absence of national provisions establishing expressly such liability.
The preliminary questions were formulated by the Tax Court of Venice with reference to an Italian case, which originated following the notification of two assessment notices by the Italian Customs Authorities, both to the importing companies and to their indirect customs representative, considered jointly and severally liable for the payment of the import VAT due upon importation.
In the context of their assessment operations, the Italian Customs Authorities considered that the declarations of intent attached to the import declarations were not reliable, since the importing companies did not carry out transactions useful to get VAT plafond.
Therefore, said import transactions could not be considered exempt from VAT and the indirect customs representative was considered co-responsible for the payment of the import VAT.
The Tax Court of Venice decided to refer the case to the European Court of Justice, that stated the following principles:
- article 77 of the Union Customs Code is to be interpreted as meaning that the indirect customs representative is liable only for the customs for the importation of the records and not also for the relevant VAT due;
- article 201 of the VAT Directive must be interpreted as meaning that the liability of the indirect customs representative for the payment of the VAT on importation, jointly with the importer of records, cannot be recognised in the absence of national provisions designating him, expressly and unequivocally, as the person liable for the VAT payment.
In this specific case, the ECJ provides that the national Court in Italy has to verify whether there is a provision in the Italian Law which designates or recognizes the indirect customs representative as the person liable for payment of VAT on importation as well as the person liable for payment of customs duties, jointly with the importer of records.
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