"NEWS May 18, 2016-Reverse charge for bills to only non-resident?"

Posted by on May 18, 2016

The IRS, with resolution No. 21 of February 20, 2015, said "the document issued with Italian VAT fiscal representative of a taxable person resident abroad in the EU (or outside the EU), for an assignment to a taxable person resident in Italy, is considered not relevant as an invoice for VAT purposes and should be requested in its place the invoice directly from the foreign supplier".

The case examined by the Agency is to a taxable person established in Italy that buys goods already present in the national territory by a non-resident supplier with Italian fiscal representative.

The operation does not give rise to a taxable intra-Community acquisition, pursuant to art. 38 DL # 331/1993, in the absence of material transfer of goods from other Member State bound for Italy. The present operation, which does not have to be declared for INTRASTAT, assume "internal" nature, in keeping with the territorial rule established, for the supply of goods, art. 7-bis, paragraph 1, of the P.r.decree # 633/1972.

Following the generalization of the reverse charge mechanism provided for by art. 17, paragraph 2, of the P.r.decree # 633/1972, placed in recepimento della Faculty referred to in art. 194 of Directive No. 2006/112/EC, the relevant territory operations in Italy tax must be paid by the transferee/purchaser nationally, though "taxable person established" ex art. 7, paragraph 1, lett. d D.P.R). # 633/1972. To that end, the procedure of incorporation of articles. 46 and 47 of Decree # 331/1993, if the seller/provider is established in another Member State and the billing procedure, if the seller/supplier is established outside the EU.

Already resolution No. 89 of August 25, 2010 had clarified that the reverse charge is required even if the non-resident operator is identified for VAT in Italy directly, pursuant to art. 35-ter of P.r.decree # 633/1972, namely by means of a tax representative. In the aforementioned document, was allowed to practice that, in respect of a supply, the fiscal representative will-for your needs-issue to the customer a document resident not applicable for VAT purposes, with an indication of the fact that tax on the transaction will be paid by the customer (for example, to overcome the presumption of assignment).

As anticipated, resolution No. 21/E/2015 considers, similarly, "not relevant as an invoice for VAT" even "a document issued with Italian VAT tax of a taxable person representative abroad", so that – the transferee must day 15 national reverse charge "issue of the third month following that of the transaction-in case of non-receipt of invoice of the supplier community within the second month following the date of the transaction-and write it down within the period of issuance and re preceding month (articles 46, paragraph 5, and 47, paragraph 1, second sentence, of Decree No. 331 of 1993) ".

It would be desirable for the IRS to clarify if the Bill that also contains an indication of the VAT number attributed by the Member State of establishment of the originator/lender as well so that the Italian VAT status is high enough to allow the national operator to proceed with the integration provided for by art. 46 and 47 of Decree # 331/1993. The doubt arises because the R.M. September 15, 1993, no. VII/15/7 stated that, for the purposes of delivery of operations through the fiscal representative "both invoices issued that purchase invoices received by the representative shall be 52, that is, they must contain details of the representative (and quality) and of model"; so it would seem, unless otherwise indicated financial administration, that integration requires receiving an invoice only to the VAT number of the non-resident entity, in the case of operations that cannot be conveyed by means of the Italian VAT status are based directly effected by the foreign entity.

Such a formalism, although in line with art. 219-bis, paragraph 2), lit. a), of Directive 2006/112/EC, according to which "the invoicing shall be subject to the rules applicable in the Member State where the supplier has established his business (…) When (…) the supplier is not established in the Member State in which it considers to be made the goods or the provision of services (…) and the person liable for payment of VAT is the acquirer of goods or the recipient of services ', can be overcome by invoking the position of Community case-law (case C‑273/11, Mecsek-Gabona and case C-438/09, Dankowski), which considers the number of VAT as a "formal" element not liable to affect obligations "substantial", especially when the tax authorities can be traced back to the VAT number of the foreign entity from that to the same assigned to his tax representative. In this sense, it can be considered that the IRS has the "necessary information" to show that the substantive obligation was fulfilled and, therefore, should be regarded as validly made integration even if the invoice is issued solely to the Italian VAT of foreign operator.


by Paolo Centore and Marco Peirolo