Proof of intra-community supply from 01.01.2020

30.11.2019
in Laws
by Cristian Meneghetti

Reading Time: 4 min

The new EU Implementing Regulation 2018/1912, which will apply as of 01.01.2020 in all member states, has introducedArticle 45-bis into EU Regulation 282/2011, concerning precisely the exemption regime related to intra-Community transactions.

New Article 45-bis establishes, for the purpose of applying the “exemption” from the tax for intra-Community supplies, what must be the evidence by which it may be presumed that the goods are transported or dispatched from the Territory of a Member State to a destination outside its territory but in the Community, distinguishing the case in which the transport is carried out directly by the supplier or by a third party on his behalf from the case in which the transport is carried out by the purchaser (or by a third party on his behalf).

Specifically, in paragraph 3 of Article 45-bis, two distinct groups of evidence are provided, which are accepted as evidence of shipment or transportation.

Evidence under (a):

document or a CMR letter bearing the signature (this is considered to refer to the signature of the carrier who took charge of the goods);
bill of lading;
air freightbill;
Invoice issued by the freight forwarder.

Evidence under (b):

Insurance policy related to the shipment or transportation of goods or bank documents evidencing payment for the shipment or transportation of goods;
official documents issued by a public authority, such as a notary public, confirming the arrival of the goods in the member state of destination;
Receipt issued by a depository in the member state of destination confirming the deposit of the goods in that member state.

As anticipated, Article 43a of the Regulations stipulates that different evidence must be provided depending on who is transporting, namely:

goods are shipped or transported by seller or a third party on his behalf;
the goods are shipped or transported by thebuyer or a third party on the buyer’s behalf.

Specifically, where the goods have been transported by the seller or a third party on his behalf, in order to prove the actual physical transfer of the goods the transferor must be in possession:

Of at least two pieces of evidence in group (a) issued by two different parties independent of each other, or alternatively;
of any of the pieces of evidence in Group (a) in combination with any of the individual pieces of evidence in Group (b) confirming shipment or transportation, issued by two different parties independent of each other.

In cases where the goods have been transported or shipped by the buyer or a third party on his or her behalf, it is first necessary for a statement to be issued by the transferee certifying that the goods have arrived in the country of destination.

This statement should state:

the release date;
The name and address of the purchaser;
The quantity and nature of the goods;
The date and place of arrival;
In the case of transfer of means of transport, the identification number of the means of transport;
The identification of the person accepting the goods on behalf of the buyer.

This declaration, which must be provided to the seller by the tenth day of the month following the transfer, is a necessary but not yet sufficient piece of evidence, as the seller will need to be possession of, in addition to the described declaration:

Of at least two of the items of evidence in group (a), issued by two different parties independent of each other or;
of any of the individual items in group (a) in combination with any of the individual items of evidence in group (b) confirming shipment or transportation, issued by two parties independent of each other.

It seems clear that it is not possible to produce the evidence prescribed by the Regulation in cases where the transport is carried out directly by the transferor or the transferee with their own means, or how it may be very difficult to obtain such documents in cases where the transport is carried out by a carrier commissioned by the transferee. Therefore, official clarifications on the scope of the new features introduced by the EU Regulation are awaited, especially in cases where this Regulation is in fact not applicable.

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