Prepared by Davide Accorsi, Stefano Luigi Airaghi and Paola Bramato
By means of the reply to ruling No. 299, published on 19 April 2023, the Italian tax authorities provided clarifications on how to obtain the refund of VAT wrongly paid in Italy by a foreign taxpayer with respect to intra-Community distance sales made by the latter.
In the case under analysis, the applicant is a U.S. company registered for VAT purposes in Italy through the appointment of a fiscal representative, which, until 1 July 2021, erroneously subjected to Italian VAT all the distance sales of goods made via the web within the territory of the European Union and not only those territorially relevant for VAT purposes in Italy. Following an assessment notified in 2022 by the Danish tax authorities in relation to the transactions territorially relevant in Denmark carried out between 1 October 2018 and 30 June 2021, the applicant, which as from 1 July 2021 avails itself of the One Stop Shop scheme (hereinafter OSS), has, moreover, started to pay the VAT also in that State, by means of payment in instalments.
Given the non-duplicability of the VAT, the applicant asks whether it is possible to recover the VAT erroneously paid in Italy for the same transactions by submitting a claim for refund pursuant to Article 30-ter, paragraph 1, of Presidential Decree 633/1972, within two years from the notification of the Danish tax assessment notice and, if so, to which office the claim should be submitted and whether it is necessary to provide the guarantee normally required for VAT refunds exceeding €30,000.
Recalling the reply to ruling No. 255 published on 16 April 2021, the Italian tax authorities confirmed the applicability of Article 11-quater, paragraph 2, Legislative Decree 35/2005 and the provisions relating to the so-called “anomalous” refund pursuant to article 21, Legislative Decree 546/1992 (now replaced, for VAT purposes, by the provisions contained in Article 30-ter, Presidential Decree 633/1972) mentioned therein, with regard to the operations carried out prior to the introduction of the OSS regime.
Although, therefore, as a consequence of the entry into force of the OSS regime, the provision of Article 11-quater, paragraph 2, of Decree-Law No. 35/2005 was abolished, with effect from 30 June 2021, by Article 5, Legislative Decree 83/2021, the same, in the case of intra-Community distance sales, may nevertheless be considered still applicable with reference to transactions carried out and errors committed up to 30 June 2021, prior to the introduction of the OSS regime.
The “anomalous” refund claim must be presented to the competent tax authorities office based on the fiscal domicile of the fiscal representative of the applicant, without the need to present guarantees and within the limits of the VAT actually paid to the other member State, being the mere assessment not sufficient.
 Based on which, if the Member State of destination of the goods requires the payment of the VAT applicable there on the consideration of the transaction already subject to VAT in the territory of the State, the taxpayer can request the refund of the tax paid, pursuant to article 21 of the Legislative Decree 31 December 1992, n. 546, within the term of two years, starting from the date of notification of the tax deed by the competent foreign authority. At the taxpayer’s request, the tax refund can also be made through the recognition, with a formal provision by the competent revenue office, of a credit of a corresponding amount that can be used in compensation, pursuant to article 17 of the Legislative Decree of 9 July 1997, no. 241.
 In fact, starting from 1 July 2021, intra-community distance sales carried out by non-EU subjects registered for VAT purposes in Italy through a tax representative also fall within the scope of application of art. 74-sexies of Presidential Decree 633/1972. In case of option for the OSS regime, for these transactions the VAT can therefore be paid in a single Member State of identification, except for the reversal of the same between the various member states based on the actual destination of the goods sold.
 This condition is relevant in the present case, given that the applicant claims to have a plan in place with the Danish tax authorities for the payment in installment of the VAT due.
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