"NEWS of the June 27, 2016-fiscal representative entitled to plafond"

Posted by on Jun 27, 2016

Art. 8, paragraph 2, of the P.r.decree # 633/1972 allows those who carry out certain transactions with foreign countries to make purchases of goods/services without VAT charges within the limits of the charges made for carrying out such operations in the preceding calendar year or in the previous twelve months.

Based on explicit prediction of the standard, the right in question is reserved for habitual exporters residing in Italy and, in the light of the reference made by the second paragraph of art. 8-bis and 9 of Decree VAT the provision in question, also performing similar to supplies for export and those who carry out international services or connected to international trade are entitled to avail themselves of the facility if they are habitual exporters residing in Italy.

On the basis of the wording of art. 8, paragraph 2, of the P.r.decree # 633/1972, C.M. November 8, 1973, n. 70/502886 stated that the exemption scheme "can be applied only to those undertakings which have in the residence, domicile or an establishment." Therefore, the subsidy are excluded "residents abroad occasionally performing tasks in the territory of the State which, however, does not have a domicile or an establishment."

The indication provided by the tax authorities led traders to wonder whether the ability to purchase goods/services without VAT may be recognised, where there are all legal requirements, including for foreign entities that have appointed a tax representative in Italy.

Positively expressed the IRS with resolution No. 80 of August 4, 2011, based on an interpretation of the provision in the broader context of the VAT discipline. Art. 17, paragraph 3, of the P.r.decree # 633/1972 provides the tax representative not only the fulfilment of the obligations arising from the application of the charge, but also the exercise of such rights, whereby the tax representative may exercise the right to buy goods and services with the use of the credit limit.

With the aforementioned document of practice was therefore passed the contents of C.M. # 70/502886/1973 and, for that matter, any other interpretation would lead to an unjustified discrimination of non-residents than national ones, given that the subsidy granted to exporters regulars is to eliminate or at least reduce the risk of financial exposures resulting from the application of the VAT system.

This conclusion was confirmed by subsequent resolution No. 80 of August 4, 2011 that can be bought without VAT within the limit of the plafond matured in the previous year or during the 12 months before even when the transactions giving rise to this facility are carried out by foreign entities identified within the State; non-resident tax identification can take place in the absence of its permanent establishment, directly, in accordance with art. 35-ter of P.r.decree # 633/1972, or by a tax representative.

The foreign entity originator, identified in the State, carry out operations relevant to VAT whose fees give entitlement to make purchases free of tax when it establishes:

  • exports;
  • intra-Community supplies;
  • supply of goods and/or services not taxable profits against other non-residents, or individuals.

The ceiling is not raised when the foreign entity originator, identified in the State, gives rise to operations subject to reverse charge by the transferee/purchaser Italian, namely:

  • internal supply of goods in respect of taxable persons established or assimilated;
  • internal services in respect of taxable persons established or assimilated thereto.

In favour of the extension of subsidy to Italian VAT status of foreign operator may further be noted that art. 164 of Directive No. 2006/112/EC refers to the exemption to the taxable person (in this case, the exporter) without referring to his residence, in line with the principle of passive ultraterritorialità of subjectivity encoded by art. 9 of the directive, according to which the taxable person is "whoever exerts, (…) in any place any economic activity (…) ".

by Marco Peirolo