Prepared by Davide Accorsi, Stefano Luigi Airaghi and Giacomo Merenda
With the reply to ruling no. 272/2023, published on 3 April 2023, the Italian tax authorities provided clarifications on the possibility to use the information transmitted via an EDI system (i.e., Exchange Data Interchange) for the statement mentioned by Article 45a(1)(b)(i), Regulation EU no. 282/2011.
In particular, the applicant is a taxable person established in an EU Member State which, during the course of its business activity, carries out, inter alia, purchases of products, with INCOTERM clause ex-works, from different Italian suppliers which carry out intra-EU sales exempt from VAT with right to deduct according to Article 41, Law Decree no. 331/1993. The applicant arranges the transport of the goods from Italy to its EU Country of establishment “with its own means or using freight agents appointed by the latter”.
In such circumstances, the applicant intends to set up an automatic system for the exchange with its suppliers of the documentation required by Article 45a(1)(b)(i), Regulation EU no. 282/2011, for the application of the presumption of execution of the transport, necessary to exempt intra-EU sales with transport arranged by the acquirer.
After recalling the provisions contained in Article 45a, Regulation EU no. 282/2011, introduced with effects from 1 January 2020 by Regulation EU no. 2018/1912, and that the discipline under comment has already been object of clarifications with Circular letter No. 12/E of 2020, released taking into consideration also the clarifications provided by the European Commission with the explanatory notes (“Quick Fixes 2020”), the Italian tax authorities initially reaffirmed that “the application of the presumption that the goods have been transported or shipped in another Member State set forth by Article 45a when the transport or shipment is arranged by the vendor or the acquirer with own means, is excluded if it occurs without the intervention of other parties like, for example, the freight forwarder or carrier” and that “in all the cases in which the presumption set forth by Article 45a is not applicable, the national guidance can find application, even if issued before the enter into force of the same article, with reference to the proof of intra-EU transport”.
For what concerns the suitability of the communications produced through the EDI system as “written statement” to prove an intra-EU sale, disregarding the mode of transport adopted by the applicant, the Italian tax authorities recall the Explanatory notes “Quick Fixes 2020”, in which, at paragraphs 5.3.6 and 5.3.7 respectively clarify that “Any document that contains all the elements mentioned in point (b)(i) of Article 45a(1) IR is to be considered a “written statement” for the purposes of that provision” and that “There are no specific rules in the IR regarding the format in which the documents to be accepted as evidence of dispatch or transport mentioned in Article 45a(3) IR are to be provided. It would be reasonable to expect that Member States would be flexible in this respect and would not impose strict limitations e.g. only paper-based documents, but would also accept an electronic version of such documents”.
Some electronic formats can, therefore, be allowed for the purpose of the presumption set forth by Article 45a, Regulation EU no. 282/2011, to the extent that they provides the same guarantees of a written statement and, in particular, in addition to grant the completeness of the information, that it would be possible to checked their: integrity; authenticity; truthfulness and inalterability of the contents; certainty and definiteness of the date; paternity of data and declarations.
In case of checks from the Italian tax authorities, in fact, it is necessary for the latter to be able to read files and operate data extractions, detect any tampering that compromises their originality, ascertain their reliability and attributability to the various subjects through the use of recognized standards, determine their date through generally accepted tools that guarantee certainty and immutability (such as, for example, time stamps).
Furthermore, insofar as in the documents exchanged within the supply chain that are referred to in the request of ruling (i.e., the order note of the applicant, the supplier’s invoice and the claimant’s acknowledgement of receipt of the goods) are quoted with the original order number, it would appear that the process to be adopted also combines EDI with the guarantees of a management control (so-called “business control”) such as to create a reliable “audit trail” reliable between the invoice and the corresponding supply of goods (see paragraph 1, Article 233 of Directive 2006/112/EC).
In light of the above considerations, the Italian tax authorities concluded that even systems such as the EDI system may, in principle, be accepted as a “written statement” useful to satisfy the presumption set out in Article 45a of Regulation No. 282/2011, i.e., to allow proof of an intra-Community supply according to national practice. This admissibility is obviously subject to the fulfilment of all the aforementioned guarantees that allow for a full equivalence, in evidentiary terms, between the electronic format and the paper format.
On this point, reference is also made to the clarifications provided in the above-mentioned Circular No. 12/E of 2020, where it is stated that the suitability of documents, for the purposes of proving that an intra-Community transport has taken place, “is in any case subject to assessment, on a case-by-case basis, by the tax authorities (see Explanatory Notes, par. 5.3.3.)”:
 Which establishes that, in case the intra-EU transport is carried out by the acquirer, the latter should provide the vendor, within the tenth day of the month following to the supply, a written statement that certifies that the goods have been transported or shipped (by the acquirer itself or third parties on its behalf) and indicates the EU Country of arrival of the goods, the date of issuance, the name and address of the acquirer, the quantity and nature of the goods supplied, the date and place of arrival, the identification of the person that accepted the goods on behalf of the acquirer and, in case of means of transports, the id number of the mean.
In addition to such a statement, the vendor should collect at least two documents related to the transport of the goods, mentioned in letter a) of paragraph 3 of Article 45a of Regulation EU no. 282/2011, released by two different independent parties, one from the other, from the vendor and the purchaser, or of a transport document mentioned in the same letter a) and a document related to the other means of proof indicated in letter b) of the same paragraph 3.
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PwC TLS Avvocati e Commercialisti
PwC TLS Avvocati e Commercialisti