Edited by Davide Accorsi, Stefano Luigi Airaghi and Tommaso Costa
In their reply No. 253/2023, dated March 17, 2023, the Italian tax authorities provided feedback to a ruling request submitted by a company established in the European Union (hereinafter, “EU”), which, in the 2016-2021 tax period, carried out, among others, electronic services ex Article 7 of Council Implementing Regulation (EU) No. 282/2011, to non-taxable customers, by erroneously charging VAT on such transactions in its Country of establishment instead of in the place where the customer is established or has his permanent address or habitual residence, as prescribed by Article 58 of Directive 2006/112/EC.
Reporting that it opted for the One Stop Shop (so-called “OSS”) scheme since January 1, 2022, the applicant company sought permission to pay the VAT due for the 2016-2021 period through the first useful OSS declaration, avoiding a registration in Italy.
In their response, the Italian tax authorities observe how the Italian legislator transposed Directive 2008/8/EC in Italy with Legislative Decree No. 42/2015 and that, with the same decree, the special Mini One Stop Shop regime (so-called “MOSS”), which offered, to entities providing telecommunication, broadcasting, and electronic services (hereinafter also “TTE”) to final consumers (B2C) domiciled within the EU, the possibility to identify themselves in a single member State to fulfill the obligations related to the payment of VAT for services supplied in each member State.
Subsequently, with Legislative Decree No. 83/2021, the dispositions introduced by Directive 2017/2455/EU and Directive 1995/2019/EU regarding the VAT rules applicable to B2C cross-border e-commerce were transposed in Italy as well, implying the extension of the MOSS (initially operating limitedly to “TTE” supplies of services) also to the following transactions:
- Intra-Community distance sales of goods;
- distance sales of goods imported from non-EU territories or Countries;
- domestic supplies of goods facilitated by platforms;
- supplies of services by taxable persons not established within the EU or by taxable persons established in the EU but not in the member State of consumption.
Through the new one-stop portal, which includes the so-called “OSS” and “iOSS” (i.e., import One Stop Shop) schemes, it is therefore possible to declare and pay VAT on intra-EU sales of goods and services only in the member State of registration.
However, pursuant to Article 57(d), paragraph 1, of Implementing Regulation (EU) No. 282/2011, the adhesion to the scheme has effect only starting from the beginning of the quarter following the registration on the portal. The only exception concerns the first transaction relevant for the purposes of the scheme under consideration, for which an ”anticipated” (rectius, from the moment of its execution) use of the special scheme is permitted ” provided the taxable person informs the Member State of identification of the commencement of his activities to be covered by the scheme no later than the tenth day of the month following that first supply“.
Likewise, Directive 2006/112/EC, in ruling the terms and content of VAT returns (Articles 364 et seq.), refers only to supplies, covered by the special regimes, made during the tax period. Accordingly, Article 74-sexies of Presidential Decree No. 633/1972 states that the declarations submitted by the entities adhering to the special regimes must report the amount of transactions “carried out during the reference period“.
For the reasons just described, the Italian tax authorities considered that the solution proposed by the applicant company to regularize the VAT debt related to electronic services rendered in the period 2016-2021 to private consumers established in Italy using the OSS regime is not viable.
In addition, the Italian tax authorities clarify that the general provisions on administrative penalties for violations of tax rules contained in Legislative Decree No. 472/1997 apply, insofar as they are compatible, to violations committed under the MOSS special scheme.
In this regard, in Circular letter No. 22/E of May 26, 2016, the Italian tax authorities already clarified that “the non-resident taxable entity, with reference to transactions carried out in the national territory, may rectify the omitted or late submission of the quarterly return, as well as the omitted or late payment of VAT by availing itself of the institute of the voluntary disclosure under Article 13 of Legislative Decree No. 472 of 1997. It is intended that, for the purpose of regularizing the violation committed, the non-resident taxable entity will have to pay the VAT to the State of identification, while the reduced interest and penalties calculated on the part of the VAT due for transactions carried out in the territory of the State directly to Italy, as the Member State of consumption“.
Therefore, the applicant company should verify with its State of identification the possibility of a late registration in the MOSS, aimed at regularizing the tax due in Italy, within the limits allowed by Article 13 of Legislative Decree No. 472/1997.
If a late registration is possible, the applicant company would be able to pay the VAT in its State of establishment, through (M)OSS, and pay interests and reduced penalties in Italy through F24 Form, after acquiring an Italian tax code (without identification for VAT purposes).
If, on the other hand, the late registration option is not feasible, to carry out the aforementioned obligations, accounting and payment, the applicant company will have to register for VAT purposes in Italy in accordance with the provisions of Articles 17(3) and 35-ter of Presidential Decree No. 633/1972.
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