Scomparsi lungo la strada. Diritto applicabile e regime iva delle cessioni intracomunitarie di beni
Il complesso equilibrio tra il regime IVA delle cessioni intracomunitarie, da una parte, e l’ulteriore impegno sinergico richiesto alle amministrazioni fiscali nazionali per il controllo delle stesse crea una situazione di difficoltà per coloro che operano in questo settore, generando elevati costi di adeguamento e spesso un inaccettabile alto grado di incertezza giuridica. Lo scritto analizza un caso di IVA nel settore delle cessioni di beni tra Stati membri che si rivela chiaramente appesantito da tale situazione. Appare difficile per operatori di buona fede applicare correttamente il regime IVA delle transazioni intracomunitarie in un settore del commercio che vede un incremento di frodi e attività criminali transnazionali. Tale situazione conduce ad un diniego del diritto di esenzione IVA per gli operatori di buona fede che acquistano beni e compromette, attraverso un effetto domino, altri diritti connessi all’IVA come quello del rimborso per persone non stabilite.
The complex balance of the VAT regime for intra-EU trade on one hand and the additional synergistic work required of national tax administration to control intra-EU transactions on the other created a difficult situation for taxable persons working in the area, producing “high compliance costs” and more often than not “an unacceptably high level of legal uncertainty”. The paper discusses a VAT case in the area of intra-EU supply of goods which is clearly burdened with this situation. It seems to be difficult for good faith business operators to apply the correct VAT regime to intra-EU transactions in an area of trade that sees an increase of frauds and transnational criminal activities. This situation leads to a denial of the right of exemption for good faith EU taxable persons acquiring goods and compromises through a domino effect other VAT rights such as the right to a refund for non-established persons.
Keywords: VAT, intra-Community supplies of goods, compliance costs, good faith, tax frauds
The European Economic Community  introduced the VAT system in 1968 , with the final long term aim of abolishing custom border controls and eliminating internal fiscal barriers. Fiscal borders for the trade of goods were definitely abolished within the EU in 1993 , with EU exports and imports becoming intra-EU supplies and intra-EU acquisitions of goods  and the adoption of a zero rate on intra-EU supplies of goods and application of VAT on intra-EU acquisitions of goods . These transitional arrangements for intra-EU trade were introduced with Directive 91/680/EEC   and current rules are part of the recast of the VAT Directive .
These measures had the essential aim of facilitating the free movement of goods within the EU. Specifically, the principle of taxation in the country of destination has been introduced for intra-EU supply of goods between taxable persons. Therefore, these operations are exempt from taxation in the country of origin and taxed in the country of destination . Nevertheless, the applicability of the exemption regime is subject to the fulfillment of a number of formal conditions including the taxable persons involved producing the necessary documentation in support of the transactions .
The complex balance of the VAT regime for intra-EU trade on one hand and the additional synergistic work required of national tax administration to control intra-EU transactions on the other created a difficult situation for taxable persons working in the area, producing “high compliance costs” and more often than not “an unacceptably high level of legal uncertainty” .
In this paper, I discuss a VAT case in the area of intra-EU supply of goods which is clearly burdened with this “unacceptably high level of legal uncertainty”. I will provide both a “Law in Books” – detailing what is the applicable VAT treatment for the specific case – and a “Law in Action” – what are the consequences when said statutory law is applied to the empirical data – approach , under the lens of VAT law.
I will try to evaluate how difficult it is for good faith business operators to apply the correct VAT regime to intra-EU transactions in an area of trade that sees an increase of frauds and transnational criminal activities , and document how this “unacceptably high level of legal uncertainty” not only often results in a denial of the right of exemption for good faith EU taxable person acquiring goods, or in a tax audit for good faith EU taxable persons selling the goods and failing to invoice properly, but also compromises through a domino effect other VAT rights such as that the right to a refund for non-established persons .
2. Case study: a supply of movable goods between EU Member states
The case deals with an ordinary transaction occurring between two EU-taxable persons established in two EU Member states: an Italian company (A) established in Italy, and a German company (B) established in Germany. Goods were located where the Italian company is established, and they had to be transported from Italy to Germany and delivered on the offices of the German company. Transportation was arranged by a contractor on behalf of the German company. Then, the carrier subcontracted the transportation to an another subcontractor.
The goods never arrived to Germany: they disappeared together with the fraudulent subcontractor and the tracker themselves. The event occurred during transportation in an unknown location and in unknown territory.
The transaction as such entirely fulfills the theoretical conditions for the exemption regimes for intra-EU supplies of goods, currently disciplined by art. 138 of the VAT Directive . Nevertheless, company A charged Italian VAT and invoiced company B accordingly, since they considered the transaction a domestic supply and not an intra-EU supply of goods. Company B countered that no supply of goods occurred at all, because of the disappearance of goods and courier, and therefore Italian VAT was charged incorrectly.
I intend to investigate whether the transaction, after the fortuitous event that lead to the disappearance of the goods, is still a supply of goods relevant for VAT purposes and whether subsequently said supply could be still qualified as an exempt intra-EU supply of goods, with the goal of understanding what the applicable VAT treatment to this transaction is.
The paper is organized as follows: I first define the concept of transfer of ownership according to both the German BGB and the Italian Civil Code, outlining the differences between the two legal systems; then I illustrate the concept of time for passing the title for movables, and for movables that are transported, according to Italian civil law, which is the relevant legislation as the goods were originally located in Italy.
Then I define what a supply of goods and an intra-EU supply of goods are according to Italian VAT law. This analysis may also help understand whether Italian civil law is crucial in solving the case, or if civil law may confirm or contrast the results coming from Italian VAT law.
Next, I investigate whether the conditions for a supply of goods between company A and company B are met. I will also examine whether the requirements for an exempt intra-EU supply of goods between the two economic operators are fulfilled.
Finally, I draw conclusions and offer some reflections.
3. Legal frameworks
The case has to be discussed in accordance and in the context of the following legal frameworks: the German Civil Code, Bugerliches Gesetzbuch (BGB) ; the Italian Civil Code (Codice civile) ; the Italian Value Added Tax (Imposta sul Valore Aggiunto), hereinafter Italian VAT Act ; the Italian Law Decree 331/93  (converted into Law No. 427/1993 ), which specifically governs VAT on intra-EU acquisitions and supply of goods.
Then, on December 11, 2012, Law Decree no. 216/2012 was published in the Official Gazette no. 288. The Decree entered into force on December 11, 2012, amending Presidential Decree no. 633 of 26 October 1972 and Law Decree no. 331 of 30 August 1993. The main amendments affect taxable transactions carried out after January 1, 2013. From January 1, 2013, Law no. 228/2012 repealed art. 39 of the Law Decree no. 331 of 30 August 1993. I will examine the case in the light of the regulations in place both before and after the year 2013. It is worthy of note that although the two subsequent frameworks lead to the same concrete results, the changes clearly increase the complexity of VAT legislation.
Additionally, Law no. 218 of 31 May 1995 on the Reform of the Italian System of Private International Law  will provide secondary framing together with the following praxis: Circolare no. 13, February 23th, 1994, Ministero delle Finanze, Dipartimento delle Entrate Direzione Centrale: Affari Giuridici e Contenzioso Tributario; Risoluzione dell’Agenzia delle Entrate Direzione Centrale Normativa e Contenzioso no. 345/E, November 28th, 2007; Risoluzione dell’Agenzia delle Entrate Direzione Centrale Normativa e Contenzioso no. 477/E, December 15th, 2008; Risoluzione dell’Agenzia delle Entrate Direzione Centrale Normativa e Contenzioso no. 123/E, May 6th, 2009; and Risoluzione dell’Agenzia delle Entrate Direzione Centrale Normativa e Contenzioso no. 19/E, March 25th, 2013.
4. Transfer of ownership in civil law and applicable law
According to the German §929 BGB , to successfully transfer ownership of a moveable the owner must deliver the object being transacted to the buyer and both parties must be in agreement that ownership shall pass: that is, both physical delivery of the object and consent between transferor and transferee as to the passing of ownership are necessary .
Italian law on the other hand, and specifically art. 1376 of the Civil Code, upholds that the completion of an agreement is sufficient, as a rule, for title and other property rights to be passed on. A completed agreement, that is to say consent, is the cause or the fundamental underlying reason for the transfer . As a consequence, in Italian law the transfer of ownership occurs regardless of the transfer of possession of the object and of any payment of consideration , if not otherwise agreed by the parties. Therefore, the two legal systems work quite differently.
Table 1: Transfer of ownership between Germany and Italy according to their national Civil Code
German Civil Code, BGB
Section 929 – Agreement and delivery
Italian Civil Code, Art. 1376
Contracts transferring ownership
For the transfer of the ownership of a movable thing, it is necessary that the ownerdelivers the thing to the acquirer and both agree that ownership is to pass. If the acquirer is in possession of the thing, agreement on the transfer of the ownership suffices .
In the contracts having as their object transfer of ownership of a specified thing, the constitution or transfer of a right in rem or the transfer of another right, such ownership, or right, is transferred and acquired by the lawfully expressed agreement of the parties.
Nevertheless, if a movable is transported by a carrier, art. 1510 (2) of the Italian Civil Code also applies, upholding that if a movable has to be transported, the seller is freed from delivery liability when the goods have been handed over to the carrier, with all transport risks passing on to the buyer.
The Italian Supreme Court, in their judgments no. 10770, July 2003, and no. 11585, May 2005 , consistently upholds that in such cases the time of the transfer of the title coincides with the delivery of the objects being transacted to the carrier. This is also the time when, generally, risks of losses are passed on to the acquirer.
Finally, if the sale concerns fungible goods (cose di genere), the relevant moment for the transfer of ownerships is when goods are identified, according to art. 1378 of the Italian Civil Code . Moreover, in case that fungible goods have to be transported, their identification may occur also at the time of delivery to the carrier. This principle has been maintained throughout by the Italian Supreme Court, and as recently as judgment no. 27125, December 2006 .
The parties may agree that the time of risk of losses will pass at a different moment, in respect of the passing of the title of ownership, as it occurs usually with Incoterms : this is exactly what the parties in the case at hand agreed upon. But this negotiation does not affect the time of the passing of the ownerships as such, according to both the Italian Civil Code and doctrine . Moreover, a similar interpretation can be found in German doctrine .
The United Nations Convention on Contracts for the International Sale of Goods, the Vienna Convention , maintains under art. 4(b) the inapplicability of the Convention in deciding matters of international transfer of ownership, explicitly stipulating its being unconcerned with «the effect which the contract may have on the property in the goods sold». Consistently, the Italian Supreme Court, judgment no. 15389, November 2002, stated that the Vienna Convention only deals with the delivery of the goods and not with the transfer of ownership, which is regulated by the country in which the sale was made .
In other words, the modus adquirendi, which is «(t)he way the property is transferred, is governed by the lex rei sitae» . This principle also finds confirmation in Law no. 218 of 31 May 1995 on the Reform of the Italian System of Private International Law, a piece of legislation governing issues of private international law. Art. 51 upholds that «the possession, ownership and other real rights over movable and immovable property are governed by the law of the State where the property is located». In case that an argument arises in Italy in respect to an international sale of goods, the applicable law for the classification of the transfer of ownership and related conditions to do so is in general terms the “lex rei sitae”, or the law applicable to where the property is situated .
Therefore, if the movable is situated in Italy, the applicable law will be Italian law, and specifically the principles explained above governing the transfer of property will be in effect, so that an agreement is enough to have the transfer of ownership, with the delivery itself not being an essential or qualifying element.
5. Definitions of supply and intra-EU supply of goods and time of taxation
According to art. 2 of the Italian VAT Act, supplies of goods are transactions for consideration which bring about a change in ownership or the creation or transfer of beneficial rights over goods of any kind. The article also clarifies that all tangible movable and immovable property qualifies as goods for VAT purposes .
The Italian Supreme Court, judgment no. 23329, October 2013, interprets the wording «change in ownership or creation or transfer of beneficial rights over goods of any kind» by recalling the principles established by the ECJ in the Safe case , stating that for VAT purposes it is not necessary to have neither the transfer of the real juridical property of the goods themselves, nor to look into the applicable national law for the concept of change in ownership:
(i)t is clear from the wording of this provision that “supply of goods” does not refer to the transfer of ownership in accordance with the procedures prescribed by the applicable national law but covers any transfer of tangible property by one party which empowers the other party actually to dispose of it as if he were the owner of the property .
On the other hand, the general definition of intra-EU supply of goods is contained in art. 41 of Law Decree no. 331/1993, which defines it as a supply of goods for consideration, transported or shipped to a territory of another Member state, by the seller, the buyer, or a third party on their behalf, toward purchasers that are VAT subjects .
In respect to assessing the time of supply, rules for intra-EU supplies of goods are the same as those for domestic supplies, since Law Decree 331/1993 contains no specific provisions. Therefore, for movable goods, the general rule is that the time of supply is when goods are placed at the disposal of the acquirer. If goods are being transported, this moment is when transport begins, as per the Italian VAT Act . In this case, it is possible to apply an ordinary disposition of the Italian VAT Act, art. 6, on intra-EU supply of goods because of the general reference provision contained in art. 56 of Law Decree n. 331/1993.
On January 1, 2013, Law no. 228/2012 replaced art. 39 of Law Decree no. 331/1993, establishing in its first paragraph that the time of supply for both intra-EU supplies and acquisitions of goods  coincides with the moment when transportation of goods begins in respect to the acquirer or a third party on their behalf: that means Italy for intra-EU supplies, and the Member state of origin for intra-EU acquisitions. The Italian regulation concerning the passing of the title of ownership for intra-EU supplies of goods before and after this change to art. 39 were and remain quite restrictive. It is possible to note that the Italian VAT Act and the Italian Civil Code operate slightly differently in respect to the time of the passing of the title for objects. For the VAT Act, the passing of the title usually occurs at an even earlier stage preceding the agreement or the consent of the parties. This is in order to avoid abusive practices or fraudulent aims in tax law . For the Civil Code, the passing of the title occurs only when the consent to the agreement is expressed by the parties. When movables are transported, the time is when transportation begins (VAT), or when the goods are delivered to the carrier (Civil law).
6. Zero-rate VAT intra-EU supplies
Italian VAT is not chargeable on intra-EU supplies of goods, according to art. 41 of Law Decree no. 331/1993. However, to qualify for zero-rate VAT, intra-EU supplies must :
- be supplies for consideration;
- be supplies of goods transferring property rights or equivalent rights;
- be supplies between taxable persons registered for VAT purposes;
- have the supplier, the acquirer, or a third party acting on their behalf dispatch or transport the goods from Italy to a territory of another Member state, carrying out an effective handling of the goods.
All these conditions need to be fulfilled, meaning that the zero-rate is not an automatic regime to be applied generically to every intra-EU transaction. If one or more conditions are not satisfied, the supply is not an intra-EU supply of goods but a domestic supply of goods, and hence taxable for VAT purposes according to the Italian VAT Act .
The Italian Tax Administration, Risoluzione no. 19/E March 25 2013 concerning proof of intra-EU supply, specifically recalls the ECJ Albert Collée case and accordingly states that proofs can be also be provided at a later time, provided that the objective criteria are satisfied:
(i)t is important to allow amendments to the categorisation of an intra-Community supply which are made after the transaction has taken place to be reflected in the accounts of those taxable; in some cases such adjustments can become necessary as a result of circumstances outside their control. Therefore, the intra-Community nature of a supply must be recognised if the accounts are subsequently adjusted, provided that the objective criteria underlying the terms which define that transaction are satisfied .
Nevertheless, the Italian Tax Administration stresses that all evidences of an intra-EU transaction have to be acquired by the supplier “as soon as possible”, and they have to be stored by them in accordance with art. 57 of the Italian VAT Act, which prescribes the obligation to retain the documentation pertaining to all exchanges up until December 31 of the 4th year following the one in which the annual tax return for the year of the exchange has been filed or, in the case of a missed annual return, until December 31 of the 5th year when that same return should have been submitted .
The lack or the dubious existence of one of these requirements may lead the Italian Tax Administration to recover VAT and related sanctions from the Italian supplier, if they wrongly considered a supply as an intra-EU supply.
The case study does not raise controversy concerning conditions number 1 (supply for consideration) and number 3 (supply between taxable persons registered for VAT purposes) above. Condition number 2 is on the other hand unclear in this case, since it is not known whether the transfer of property rights (or equivalent rights), and hence an effective supply of goods, occurred. Company B assumes a supply as such never occurred, since the company was never in a position to dispose of the goods “as owner”.
The fulfillment of condition number 4, requiring the effective handling of the goods, is also matter of debate since, according to art. 41 of Law Decree no. 331/1993, goods need to be dispatched or transported from Italy by the supplier, the acquirer, or by a third party acting on their behalf to the territory of another Member states. The goods were never confirmed to arrive in Germany: the disappearance occurred in unknown territory, with the Italian supplier unable to state if this occurred before or after the goods passed the Italian borders. While the incident itself is certain, as it was notified to the Italian Public Authority one or two days after the beginning of transportation, its location is not.
In order to be able to state conclusively whether an intra-EU supply of goods occurred in this case, it is necessary to investigate whether conditions number 2 and 4 are fulfilled. If both requirements are met, we have an intra-EU supply of goods. If condition number 4 is not met but condition number 2 is, we have a domestic supply; if condition number 2 is not met, implying number 4 is not as well, there is no supply of goods to speak of.
7.1. The transfer of property rights or equivalent rights
Condition number 2 on the transfer of property rights or equivalent rights needs to be framed slightly differently if the situation occurred before the year 2013, or after January 1, 2013, albeit for the specific case the conclusions for the applicability of territoriality rules are identical.
Before 2013 and according to Italian praxis, if goods are lost, destroyed, or stolen in the middle of an intra-EU transaction and while they are transported or shipped from Italy to the member state of destination, as in the case under discussion, the Circolare Ministeriale of February 23, 1994, no. 13, issued by the Ministero delle Finanze, Dipartimento delle Entrate Direzione Centrale Affari Giuridici e Contenzioso Tributario, is applicable. The Ministry maintains there that the VAT treatment of any sale depends on the time of the supply, and on how the mode of transportation has been arranged.
The Circolare recalls how art. 6 of the Italian VAT Act prescribes that for intra-EU supplies of goods where goods are transported, the time of supply is when transport begins. Furthermore, if goods disappear during transportation and this is arranged by the buyer through their own means or by a carrier on behalf of the buyer or of the supplier, the transaction is always to be considered completed, since the condition in favor of the acquirer, “the transfer of the right to dispose of the tangible property”, has been fulfilled. Moreover, the Circolare specifies that the arrangement of the specific mode of transportation of said goods plays an additional role in determining whether a supply is either a domestic or an intra-EU supply:
- if the disappearance of the goods occurs in Italy, the operation is a domestic supply liable to VAT according to the national VAT rate of the supplied goods;
- if the disappearance of the goods occurs in the territory of another Member state, the transaction results in an intra-EU supply not taxable in Italy pursuant art. 41 of Law Decree 331/1993, since the goods have left the national territory of Italy.
After January 1, 2013, following the amendment of art. 39 of Law Decree 331/1993, the time of the supply coincides with the beginning of the transportation for both intra-EU supplies and for intra-EU acquisitions. It follows that if the goods disappear in another Member state, supplies are to be deemed in any case intra-EU supplies regardless of whether transport is arranged by the supplier, the acquirer, or a carrier working on behalf of one of the two operators. On the other hand, if goods disappear in Italy, the transaction is a domestic supply since items did not leave Italian territory. Therefore, according to art. 6 of the Italian VAT Act for domestic supplies, applicable when the operation does not have intra-EU nature, and to the Circolare Ministeriale of February 23, 1994, no. 13, it is possible to deduce that if the transport is carried out or arranged by the supplier the condition is not fulfilled and no VAT liability arises. Conversely, if the transportation is arranged by the acquirer or by a carrier on behalf of the acquirer, the transaction has to be qualified as an internal supply liable to national, in this case Italian, VAT . Hence, it is possible to conclude that condition number 2 concerning the transfer of the right to dispose of tangible property as the owner is fulfilled both before and after January 1, 2013.
According to the Circolare Ministeriale of February 23, 1994, no. 13, and the renewed art. 39 of Law Decree 331/93, that specific supply of goods certainly occurred, since company B acquired the right to dispose of the tangible property as the owner, uti domino, because of the shipment by the carrier on their behalf, even if the carrier, in turn, delegated this task to a subcontractor. The supply of goods, and the accompanying transfer of tangible property from one party to another, occurred in favor of company B.
This conclusion is also consistent with the Italian civil law doctrine explained earlier, and the principle “lex rei sitae” is applicable. As a consequence, the relevant law is the Italian Civil Code, and then simple consensus is enough to conclude a contract. If the sale concerns fungible goods, the relevant moment for the transfer of ownerships is when goods are identified, with delivery to the carrier here to be considered as identification. Again, in the event of goods being transported by a carrier, the passing of the title of ownership happens at delivery of the objects to the carrier. This is also when risks of losses are passed on to the acquirer.
According to the hypothesis, in this case the title of ownership was passed on. Therefore, under Italian civil law, the title successfully passed on to company B since movables have been delivered to the carrier.
Nevertheless, civil law conclusions are only a fortiori argument since, as I explained earlier, according to the Italian Supreme Court, judgment no. 23329, October 2013, to configure a supply of goods for VAT purposes it is not necessary to have a transfer of the real juridical property of the goods themselves or an applicable national law for the concept of change in ownership: the VAT concept of the right to dispose of the tangible property as the owner is sufficient condition.
7.2. The effective handling of the goods
Verifying if condition number 4 was fulfilled requires to ascertain whether what occurred was a domestic or an intra-EU supply of goods. If the former, company A correctly charged and invoiced VAT to company B. If the latter, company A wrongly charged and invoiced VAT to company B, since the transaction configured an exempt intra-EU supply of goods.
The above legal framework does not contemplate the possibility that an event may occur, as in this case, and that the goods might disappear in unknown territory. It does prescribe only two different hypothesis in connection to territoriality: a fortuitous event happening in the place of origin, or a fortuitous event in another EU Member state. Principles can be derived nonetheless from case laws.
According to the Italian Supreme Court, judgment no. 3603, 2009, the proof of the physical handling of goods from Italy to another Member state, the condition justifying the non-application of VAT, falls in full on the transferor, the entity which also bears the risk of an Italian tax audit . Therefore, the burden of proving the existence of an intra-EU supply is the responsibility of the Italian supplier only, the general principle being that the burden of proving facts to justify an exception to the normal regime of taxation is borne by those who invoke derogation. This interpretative trend has been confirmed recently by the Italian Supreme Court, judgment no. 13458, July 27 2012: burden of proof lies on the national supplier as they are the ones who might ask for the exemption or non-taxability of an operation. The obligation to prove the transfer of goods into another Member state is governed by the general principle set by art. 2697 of the Italian Civil Code, upholding that proof for VAT exemption in derogation to a general principle is the task of the subject invoking said derogation: “one who asserts a right in judicial proceedings must prove the facts on which the right is based” .
Italian legislation does not provide specific rules for proving that an intra-EU supply of goods occurred: nevertheless, praxis from the Italian Tax Administration  describes numerous types of what is valid evidence suppliers may use in order to prove they are applying the proper applicable regime of an exempt intra-EU supply of goods. In the Risoluzione dell’Agenzia delle Entrate Direzione Centrale Normativa e Contenzioso no. 345/E, November 28 2007 , the Tax Authority recognized as valid, if produced together, the following:
- sale invoice issued in accordance with art. 41 of Decree 331/1993;
- Intrastat models concerning the supply;
- CMR document (Convention des Marchandises par Route);
- buyer’s bank statement concerning the payment of the goods.
In the Risoluzione dell’Agenzia delle Entrate Direzione Centrale Normativa e Contenzioso no. 477/E, December 15 2008, the Authority stipulated that for ex-works transportation when the supplier does not have a CMR, the physical handling of the goods can be proven if evidence can be effectively given that the goods were transported to another Member state.
In the Risoluzione dell’Agenzia delle Entrate Direzione Centrale Normativa e Contenzioso no. 123/E, May 6 2009 , we read that a waybill can also be valid evidence if it contains information stating Italian territory as the country of departure of the goods and another Member state as the country of destination.
In the Risoluzione dell’Agenzia delle Entrate Direzione Centrale Normativa e Contenzioso no. 19/E, March 25 2013 , the Authority states that transportation can be proven with documents other than a CMR in paper format, for example with an electronic version of the CMR, if these contain the necessary information attesting that the goods left the national territory. By the same token, a set of documents from which is possible to gather that same information, signature of the seller, the carrier, and the purchaser, also constitutes an equivalent proof to the printed CMR.
Similarly, information from the computer systems of the carrier can be used, provided it shows that goods have left Italian territory and reached the territory of another Member state.
The authority specifies that both the electronic CRM and any piece of information stored in a computer system cannot be qualified as a full-fledged electronic document, as they lack the electronic signature and the time reference. Therefore, in order to have legal validity, these documents need to be materialized on a physical support to be acceptable for tax law purposes.
Retention and storage of these documents has to follow the guidelines laid out by art 4 of Ministerial Decree January 23 2009 and Risoluzione no. 158/E of 2009. This latter prescribes that retention is done via optical supports and has to adhere to specific legal requirements, including carrying the signature of the person in charge of storage and who certifies the validity of the entire process .
In all, these documents are valid if they prove that the effective physical handling of the goods occurred. Goods have to reach another Member state. The documents need to be stored together with the bill of sale, the buyer’s bank statement concerning the payment of goods, the Intrastat models concerning the supply, and the documentations concerning the duty obligations derived from the contract. According to praxis, and specifically to Risoluzione no. 19/E 2013, the Italian Tax Authority has acknowledged a list of alternative proofs. With praxis no. 477, December 15 2008, the Tax Authority specified that, in case of ex-works transportation, it is possible to offer proof through any other documents suitable to prove that the goods were transported to another Member state.
Then, Risoluzione no. 19/E 2013 mentions physical handling of the goods as a condicio sine qua non in order to have an intra-EU supply of goods. Therefore, evidence as such does not have to prove an abstract or hypothetical physical movement of the goods, but an actual physical change of location of the goods from Italy to another Member state. If said physical movement exists, evidences can be “any other documents suitable to prove that movement” .
Evaluation of this evidence is done case-by-case, considering also the bona fide of the taxpayer . Moreover, the Agenzia delle Entrate Direzione Centrale Normativa e Contenzioso, Risoluzione no. 477/E December 2008, recalls the ECJ Teleos and Others case , where the Court confirms the requirements of the physical handling of goods and the need for these to have physically left the territory of the Member state in order to have an intra-EU supply of goods:
(t)he exemption of the intra-Community supply of goods becomes applicable only (…) when the supplier establishes that those goods have been dispatched or transported to another Member State and that, as a result of that dispatch or that transport, they have physically left the territory of the Member State of supply.
8. Physical relocation of the goods
An analysis must now be carried out to assess the circumstance of the physical movement of the goods, which have to reach another Member state to configure an intra-EU supply. This condition is also mentioned in the Italian Tax Authority’s own Circolare Ministeriale of February 23 1994 n. 13 I recalled earlier. The Circolare maintains that the need to ascertain whether the goods left the national territory in case of an intra-EU supply of goods is a compulsory element.
This notion is also included in the Italian legislative definition of intra-EU supply of goods given in art. 41 Law Decree no. 331/1993, which requires the goods to be dispatched or transported by the supplier, or the acquirer, or by a third party acting on their behalf, into a territory of another Member state. This wording is interpreted as physical movement of the goods, which must effectively reach another Member state.
In this specific case, it is not matter of dispute by the parties that the goods disappeared in unknown territory. As a consequence, it is not matter of dispute either that it is not possible for the supplier to prove the circumstances required by Italian legislation and by the Italian Tax Administration in respect to the physical movement of the goods from Italy to another Member state. Hence, since it cannot be proven that the goods ever left Italy, their place of origin, the transaction between company A and company B configures a domestic supply.
Even if evidence on the hypothetical movement of the goods from the origin state to the destination state existed, this would not be decisive in solving the case, since proof of effective physical transportation that Italian law, the praxis, and case laws require cannot be proved for certain. The event occurred in unknown territory, and this is the only certain occurrence. According to the Italian Supreme Court, judgment no. 1670, January 2013, the principle of good faith should governs the behavior of the Italian supplier involved in intra-EU transactions. The Court maintains that the seller does not have to carry out investigations on the movement of goods after they have been delivered to the carrier. However, the supplier has to asses with professional care the reliability of their counterpart. The evidences must leave no doubt about the effectiveness of physical handling of goods.
In the case at hand, this implies that company A should not try to use suggestive evidence of any kind to represent an event that is in reality unknown.
I discussed the case to assess first whether condition no. 2, the existence of a supply as such, occurred, and then whether the conditions for a transfer of property rights in favor of company B have been fulfilled. As documented, the answer is positive.
I then proceeded to ascertain whether condition no. 4 on the effective handling of goods from Italy to Germany or to another Member state has been fulfilled as well, configuring an intra-EU supply of goods. As documented, the answer here is negative.
Following these assessments, it is then possible to conclude that while a domestic supply of goods definitely occurred, an intra-EU supply of goods did not. The four cumulative conditions prescribed by art. 41 Law Decree no. 331/1993 are not met. This conclusion leads to conclude that company A correctly charged and invoiced Italian VAT to company B. As company A could not confirm that the requirements for an exempt intra-EU supply of goods according to art. 46 (2) Law Decree no. 331/1993 were met, they correctly identified the supply as a domestic supply of goods. In detail:
- as it was not possible for company A to prove that an intra-EU supply of goods occurred, it was therefore not possible for them to apply art. 46 (2) DL 331/93. Under this provision, the supplier can issue an invoice without charging VAT to the acquirer by declaring that the operation is an exempt intra-EU supply of goods, in accordance with art. 50 (1) Law Decree 331/93. Company A could not declare that the transaction was an intra-EU supply of goods because condition no. 4, which is necessary, was not fulfilled;
- since in accordance with Italian regulations the transaction configures a domestic supply, company Acould only ordinarily apply art. 21 of the Italian VAT Act and issue an invoice and charge VAT to company B.
Consequently, as company A correctly charged and invoiced Italian VAT to company B, art. 4 (a) Directive 2008/9/EC  is not applicable in the specific case, as it prescribes the inapplicability of the Directive and the possibility of a refund in the event that VAT has been incorrectly invoiced. Furthermore, company B was entitled to an input VAT refund based on Directive 2008/9/EC, since the impediment laid down by art. 4 (a) of the Directive 2008/8/EC has not been fulfilled.
The above conclusions are surely correct from a strict legal point of view, as a “Law in Books” interpretation. It can not be disputed for the case at hand that the absence of factual handling of the goods from one EU Member state to another is a sufficient conditions to deny the applicability of the exemption regime, and conversely apply to the acquirer point-of-origin national VAT.
From a legal standpoint, intra-EU operations present a fragmented landscape, in which business operators have to assess which VAT regime is applicable to a specific transaction and navigate the legal frameworks of the two Member states involved in the intra-EU trade . In this case, the transaction was anyway tainted by elements of uncertainty related to transportation of the goods. Company B bears an objective responsibility for the payment of Italian VAT. This is because the EU VAT system places joint responsibility on operators involved in a transaction .
Nevertheless, reflections under the lens of “Law in Action” would suggest that the increase in complexity of the intra-EU regime is creating a confusing situation that is fertile ground for errors and makes it difficult to distinguish between plain frauds and good faith mishandling, begging the question of whether better legal protection should be introduced to avoid that bona fide operators suffer the consequences of someone else’s fraudulent conduct.
It seems feasible to suggest that the procedures laid out in Directive 2008/9/EC concerning the refund of VAT to taxable persons not established in the Member state of refund, but established in another Member State, and the time limit therein could be improved. Especially the strict time limits make filing an application for a VAT refund a rather impossible task to be accomplished in what is already a difficult situation for economic operators burdened by the many formalities of the process.
In the specific case, company B was indeed entitled to ask for a VAT refund for their payment of Italian VAT, as they are not established in Italy  and fulfill all other conditions  the Directive prescribes in order to be eligible. Nevertheless, according to art. 15 of the same Directive all refund applications have to be submitted to the Member state of establishment at the latest on September 30 in the calendar year following the refund period, a nine month window. This time limit has been interpreted by the ECJ as a mandatory time limit . If this could be deemed as acceptable in ordinary situations, it is questionable whether it still could be in pathological situations such as the one described in this case, where territoriality rules are unclear and consequently even the originating invoicing of VAT was also initially doubtful, but a company still has to file their application within this nine months period.
This need for corrective measures also applies to place of supply rules because of the shortcoming of the current regulations. The EU Commission, in their Green Paper on the future of VAT , has proposed to change the territoriality rules for intra-EU supplies to make identifiability of the place of supply simpler:
(i)n B2B transactions, the supplier often does not know the specific destination of the goods that he has sold because transport is organised by the customer and also because of commercial reasons. However, he always knows the identity, the location and the VAT identification number of the customer to whom he has transferred ownership of the goods (…) it could be stipulated, as a general rule, that the place of supply of goods to taxable persons is where the customer has established his business or has his fixed establishment to which the goods have been provided. A follow-on supply with no additional dispatch would be either a domestic supply, if the goods have arrived in the Member State where the customer is established, or another intra-EU supply, if the goods were previously transported to another Member State or subject to a distance sale in the case of supply to a non-taxable person .
The current transitional VAT arrangements for intra-EU B2B transactions are already based on taxation at destination. However, given the shortcomings described under point 2, most stakeholders are against making them the definitive regime. In their current form, they are not in line with the fundamental objective that crossborder transactions should not be treated differently from domestic transactions. Businesses stakeholders and the European Parliament have called for the concept of taxation at the place of establishment of the customer to be explored further .
Territoriality rules for intra-EU supply of goods create a complex web of objective, necessary conditions and responsibilities which are highly dependent on formalistic requirements to be fulfilled that is then intersected with the subjective element brought in by the good faith of the economic operator. The applicability of different domestic legislations adds one further layer of obscurity, with taxable persons having very often to deal with national praxis and case laws written in different national languages and following a different ratio. Finally and specifically, the time limit imposed to file a VAT refund application only proves to be an unmotivated obstacle for good faith taxable operators who find themselves in difficult situations.
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 First Council Directive 67/227/EEC of 11 April 1967 on the harmonisation of legislation of Member States concerning turnover taxes. OJ 071, 14 April 1967. OJ 71, 14.4.1967. Second Council Directive 67/228/EEC of 11 April 1967 on the harmonisation of legislation of Member States concerning turnover taxes – Structure and procedures for application of the common system of value added tax. OJ 71, 14 April 1967. For an historical perspective, see also Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonization of the laws of the Member states relating to turnover taxes – Common system of value added tax: uniform basis of assessment. OJ L 145, 13 June 1977.
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 AMAND-BOUCQUEZ, A new defence for victims of EU missing-trader fraud? International VAT monitor, Vol. 22, no. 4, 2011, pp. 234-241. This mechanism prescribes the taxation in the country of destination and the exemption in the country of origin.
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 Council Directive 2008/9/EC of 12 February 2008 laying down detailed rules for the refund of value added tax, provided for in Directive 2006/112/EC, to taxable persons not established in the Member State of refund but established in another Member State (OJ L 044, 20 February 2008, p. 23).
 Council Directive 2006/112/EC, art. 138: «(M)ember States shall exempt the supply of goods dispatched or transported to a destination outside their respective territory but within the Community, by or on behalf of the vendor or the person acquiring the goods, for another taxable person, or for a non-taxable legal person acting as such in a Member State other than that in which dispatch or transport of the goods began».
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 German Civil Code English Language, Federal Ministry of Justice and Juris GmbH. http://www.rechthaber.com/wp-content/uploads/2011/07/German_Civil_Code_in_English_
 NADDEO-MUSIO, La compravendita, Padova, 2008, pp. 585-586.
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 See also Italian Supreme Court judgment no. 4344 March 2001.
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 United Nations Convention on Contracts for the International Sale of Goods, Vienna, April 11 1980, Treaty Document Number 98-9 (1984), UN Document Number A/CONF 97/19, 1489 UNTS 3.
 See also LOMBARDI, La risoluzione per impossibilità sopravvenuta, Milano, 2007, p. 246.
 ZUNARELLI, Transfer of Ownership through Bills of Lading or other Transport Documents, Italy, cit., p. 246.
 GALGANO-MARRELLA, op. cit., pp. 437-438.
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 Case C-320/88, Staatssecretaris van Financiën v Shipping and Forwarding Enterprise Safe BV,  ECR I-285. Para. 7. See also SCHENK-THURONYI-CUI, Value Added Tax, Cambridge, 2015, p. 413. FILIPPI, Profili oggettivi del presupposto dell’IVA, in Dir. prat. trib., no. 6, 2009, p. 11199. SIRRI-ZAVATTA, Campo di applicazione dell’IVA per le cessioni di beni nella proposta di rifusione, in Corr. trib., no. 27, 2004, p. 2115. GIANNELLI-SANTI, Beni ammortizzabili in leasing: il rimborso IVA segue la sostanza economica dell’operazione, in Corr. trib., no. 1, 2016, p. 63.
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 Italian VAT Act, art. 6 (1).
 CENTORE, Il (nuovo) momento impositivo delle operazioni intracomunitarie, in Corr. trib., no. 2, 2013, p. 100. Centore stipulates that the Italian amendment is not consistent with the VAT Directive, as the European legislation regulates the time of taxation only for intra-EU acquisitions of goods (see artt. 68 and 69), but does not prescribe specific rules for the time of taxation for intra-EU supplies of goods. Hence these latter are regulated by the ordinary rules (see art. 63).
 GIUA-CHECH, Le presunzioni di cessione nella disciplina IVA, in Il fisco, no. 48, 2005, p. 7484.
 NATOLI, Prova dell’avvenuta cessione comunitaria, in Il fisco, no. 3, 2011, p. 354. See also PRANDINI, Cessioni intracomunitarie: prova dell’avvenuto trasferimento dei beni, in Fiscalità e Commercio Internazionale, no. 10, 2014, p. 15. AIOLFI-ARTINA, Onere della prova per cessioni intracomunitarie, in L’IVA, no. 5, 2013. IADEVAIA, Italy, Value Added Tax, IBFD database.
 DE RINALDIS, La cessione intracomunitaria può anche essere imponibile IVA, in L’IVA, no. 7, 2013, pp. 53-59.
 Case C-146/05, Albert Collée v Finanzamt Limburg an der Lahn  ECR I-7861. Para. 28-33. See also PEIROLO, La prova delle cessioni intracomunitarie ai fini della non imponibilità IVA, in Fiscalità e commercio internazionale, no. 5, 2013.
 SAOTTINI, The proof for exchanges within the EU: Tax Update, 2013, http://www.mondaq.com/x/235132/sales+taxes+VAT+GST/The+Proof+For+Exchanges+Within+The+EU.
 PEIROLO, La perdita dei beni oggetto di cessione intracomunitaria, News Euroconference, December 2015. http://cdn2.hubspot.net/hubfs/393901/PDFs/02.12.15/2._La_perdita_dei_beni_oggetto_di_cessione_intracomunitaria.pdf?t=1455899069290.
 FIORESE-PAVANELLO, Prova delle cessioni intracomunitarie – Prassi e giurisprudenza recenti, PwC Tax & Legal Services, TLS Newsletter, August 9 2013. See also ROSSI-COALOA, Prova delle cessioni intracomunitarie nel rispetto della libera circolazione delle merci e della buona fede del contribuente, cit., pp. 1-31. FENICI, Vendita a ditta francese con trasporto da parte di terzi: la prova della cessione intra-UE, in Azienda & Fisco, no. 6, 2012, p. 38. PEIROLO, Sostanza e forma a confronto nelle interpretazioni dell’A.F. e della Corte di Giustizia, in L’IVA, no. 12, 2007, p. 17.
 See also BORGOGLIO, Commento a Sentenza n. 13457/2012: Iva comunitaria, Disciplina Iva delle cessioni intracomunitarie fra principio della detrazione e contrasto alle frodi, in Banca dati fisconline. Italian Supreme Court, judgment no. 19750, August 28, 2013; SAOTTINI, The proof for exchanges within the EU: Tax Update, 2013.
 FIORESE-PAVANELLO, PwC Tax & Legal Services, TLS Newsletter, no. 8, 2013. SAOTTINI, The proof for exchanges within the EU: Tax Update, 2013.
 Risoluzione dell’Agenzia delle Entrate Direzione Centrale Normativa e Contenzioso no. 345/E, November 28 2007.
 Agenzia delle Entrate Direzione Centrale Normativa e Contenzioso no. 123/E, May 6 2009. FIORESE-PAVANELLO, PwC Tax & Legal Services, TLS Newsletter, no. 8, 2013. SAOTTINI, The proof for exchanges within the EU: Tax Update, 2013.
 PRANDINI, Cessioni intracomunitarie: prova dell’avvenuto trasferimento dei beni, in Fiscalità e Commercio Internazionale, no. 10, 2014, p. 15. See also COALOA-ROSSI, Cessioni intracomunitarie e onere della prova: i suggerimenti di Assonime, in Il fisco, no. 28, 2013.
 SALVADEO-TEDESCHI, Risoluzione n. 158/E del 15 giugno 2009 – Archiviazione e fatturazione elettronica: novità e chiarimenti, in Il fisco, no. 26, 2009, pp. 4321-4324.
 See also BANCALARI, Oggettività delle operazioni intraunionali e onere della prova, in Il fisco, no. 22, 2013, p. 3349. FIORESE-PAVANELLO, PwC Tax & Legal Services, TLS Newsletter, no. 8, 2013. SAOTTINI, The proof for exchanges within the EU: Tax Update, 2013.
 TULLIO-COALOA-ROSSI, Prova delle cessioni intracomunitarie: nuovi chiarimenti dall’Agenzia delle Entrate, in Il fisco, no. 4, 2013, p. 2151.
 Case C-409/04, The Queen, on the application of Teleos plc and Others v Commissioners of Customs & Excise,  ECR I-7797. Para. 42 and para. 67. See also TRAVERSA, Prevention of evasion, avoidance, and abuse in EU VAT law, in LANG-PISTONE-SCHUCH-STARINGER-STORCK (ed.), ECJ – Recent Developments in Direct Taxation 2014: Schriftenreihe IStR Band 91 (Vol. 91). Linde Verlag GmbH, 2015, p. 49. D’ARDIA, La prova delle cessioni comunitarie, in Azienda & Fisco, no. 2, 2008, p. 44. WOLF, Mecsek-Gabona: the final step of the ECJ’s doctrine on reliance on EU law for abusive or fraudulent ends in the context of intra-community transcations, in International VAT monitor, Vol. 24, no. 5, 2013, pp. 280-286. BALZANELLI-SIRRI, Prova delle cessioni intracomunitarie: la giurisprudenza nazionale si allinea a quella europea, in Corr. trib., no. 17, 2015, p. 1312.
 Directive 2008/9/EC, art. 4.
 CENTORE, Tutela «ampia» dalle frodi nelle operazioni intracomunitarie, in Corr. trib., no. 5, 2011, p. 341.
 MONDINI, Corresponsabilità tributaria per le evasioni Iva commesse da terzi, in Rass. trib., no. 3, May/June 2014, p. 453.
 Directive 2008/9/EC, art. 3.
 Directive 2008/9/EC, art. 6.
 See Case C-294/11, judgment of the Court (Fifth Chamber), June 21 2012. «The six-month time limit laid down in the Directive (…) for the refund of value added tax to taxable persons not established in the territory of the country – for submitting an application for a value added tax refund is a mandatory time limit».
 SEC(2010) 1455 final, Commission staff working document, Accompanying document to the Green Paper on the future of VAT Towards a simpler, more robust and efficient VAT system, COM(2010) 695 final, Brussels, 1 December 2010.
 SEC(2010) 1455 final. Para. 220.127.116.11., pp. 17-18. See also CORSO-MASPES, La prova del trasporto all’estero nelle cessioni intra-UE tra certezza del diritto e nostalgia delle dogane, in Corr. trib., no. 10, 2012, p. 727. Footnotes no. 47 and 48.
 COM(2011) 851 final, Communication from the Commission to the European Parliament, the Council and the European Economic and Social Committee on the future of VAT Towards a simpler, more robust and efficient VAT system tailored to the single market. Brussels, 6 December 2011.
 COM(2011) 851 final, Communication from the Commission to the European Parliament, the Council and the European Economic and Social Committee on the future of VAT Towards a simpler, more robust and efficient VAT system tailored to the single market. Brussels, 6 December 2011.
 COM(2011) 851 final, Para. 5.4, p. 15. CORSO-MASPES, La prova del trasporto all’estero nelle cessioni intra-UE tra certezza del diritto e nostalgia delle dogane, cit., p. 727.