Situation:
A company X (VAT payer from Romania), delivers the goods directly to company Z, fiscally registered and VAT payer in an EU member state (SM2), but issues the invoice to company Y, fiscally registered in the EU (SM3), which in turn it issues the invoice to company Z – the final customer. What fiscal treatment will company X in Romania apply in the conditions in which the transport is organized by it? What tax regime will the bill have from Y to Z? If the transport were organized by C?
Solution:
According to Article 270 para.9 of the Tax Code, intra-Community delivery is defined as the delivery of goods, which are dispatched or transported from one Member State to another Member State by the supplier or by the person to whom the delivery is made or otherwise the person on their behalf.
Intra-Community supplies of goods may be exempt from VAT under the conditions of Article 294 (2) of the Fiscal Code, respectively the following are exempt from tax:
a) intra-Community supplies of goods to a taxable person or to a non-taxable legal person acting as such in a Member State other than that in which the dispatch or transport of goods begins, which communicates to the supplier a valid VAT registration code assigned by the tax authorities of another Member State, except:
- intra-community deliveries made by a small enterprise, other than intra-community deliveries of new means of transport;
- intra-community deliveries that have been subject to the special regime for second-hand goods, works of art, collectors’ items, and antiques, according to the provisions of article 312.
Please note that the exemption does not apply if the supplier has not complied with the obligation under Article 325 (para.1) to submit a recapitulative statement or the recapitulative statement submitted by him does not contain the correct information regarding this delivery, as required under Article 325 (para. 3), unless the supplier can duly justify the deficiency in a manner deemed satisfactory by the competent tax authorities.
Documents certifying that the goods have been transported from Romania to another Member State are provided in paragraph (a) letter a) goods transported by the seller or another person in his account, or letter b) if the goods are transported by the buyer or another person in the account or (3) of Article 45a of Regulation 282/2011 as follows:
If the goods are shipped or transported by the seller or by a third party on his behalf, the seller must own:
- two documents related to the shipment or transport of goods such as a signed CMR document or a signed consignment note, a bill of lading, and air freight invoice or an invoice from the carrier of goods – issued by two different parties that are independent of each other. the other, as well as by the seller and the comparator;
or
- one of the documents mentioned above together with proof that is not contradictory from documents such as an insurance policy corresponding to the shipment or transport of the goods or bank documents attesting the payment for the shipment or transport of the goods; official documents issued by a public authority, such as a notary, certifying the arrival of the goods in the Member State of destination; a receipt issued by a warehouse keeper in the Member State of destination attesting to the storage of the goods in that Member State – issued by two different parties which are independent of each other as well as of the seller and the buyer.
The conditions under which the goods are shipped or transported by the buyer or by a third party on behalf of the buyer, the seller must own:
- at least two non-contradictory proofs referred to in point 1 letter a) or a single piece of evidence referred to in point 1 letter (a) together with a single non-contradictory proof mentioned in point (b) confirming the shipment or the shipment, which are issued by two different parties who are independent of each other and of the seller and the buyer and a written statement from the buyer stating that the goods have been shipped or transported by him or by a third party part on behalf of the buyer and mentioning the Member State of destination of the goods; this written declaration specifies the date of issue, the name, and address of the buyer, as well as the quantity and nature of the goods, the date and place of arrival of the goods and, in case of delivery of means of transport, the identification number of the means of transport and the identification of the person accepting the goods. buyer’s name.
If the exemption cannot be justified by these documents provided for in Article 45a of Council Implementing Regulation (EU) No 282/2011 of 15 March 2011 laying down measures for the implementation of Directive 2006/112 / EC on the common law of VAT, as amended by Implementing Regulation (EU) 2018/1912, the transport of goods from Romania to another Member State is justified by the documents provided for in Article 10 paragraph (11) of the instructions approved by OMFP no. 103/2016, as amended by OMFP no. 2148/2020, respectively (in the case of goods other than excisable products that circulate under a suspensive regime of excise duties and means of transport that travel alone):
- transport documents, such as a signed CMR document or a signed consignment note, a bill of lading, the specific air freight document (Air Waybill);
and
- one of the following documents: an insurance policy corresponding to the dispatch or transport of the goods, bank documents attesting payment for the dispatch or transport of the goods, official documents issued by a public authority, such as a notary, attesting the arrival of the goods in the Member State of destination, a document certifying receipt of the goods, issued by a depositary in the Member State of destination other than the buyer of the goods, a written declaration from the buyer stating that the goods have been dispatched or transported to the Member State of destination and containing: date of issue, name, and address of the buyer, as well as the quantity and nature of the goods, date, and place of arrival of the goods, identification of the person who accepts the goods on behalf of the buyer.
Therefore, if the goods are transported by X or Y from Romania to Member State 2, the operation represents for the Romanian company an intra-Community delivery (goods transported from Romania to another Member State by another person on behalf of the seller or on behalf of the buyer) for which the VAT exemption provided for in Article 294 paragraph (2) letter a) of the Fiscal Code applies if the Romanian company proves the transport in the Member State 2.
In order to apply for the exemption, the buyer is not obliged to submit a VAT code from the destination state but must submit a VAT code from a Member State other than Romania.
Company Y will either apply the simplification measures for triangular operations in its State or will declare an intra-Community acquisition in Member State 2, if it is registered for VAT purposes in that State, followed by a local delivery in that State.
Given that the transport is performed by Z (or another person on his account), the delivery made by X to Y is delivery without transport. The place of this delivery is considered to be in Romania according to article 275 paragraph (1) letter c) of the Fiscal Code.
This is not an intra-community delivery, as the goods are not transported from Romania to another Member State by either the seller (X) or the buyer (Y). In this case, X will issue the VAT invoice to Y as the delivery is taxable in Romania, being fulfilled the conditions from article 268 paragraph (1) of the Fiscal Code. B makes an intra-community delivery from Romania for which he has the obligation to register for VAT purposes according to article 316 paragraph (6) of the Fiscal Code and will issue the invoice to Z, either with VAT or with the application of the VAT exemption provided in article 294 paragraph (2) of the Fiscal Code, if the conditions of this article are met and may duly justify the transport of goods from Romania to another Member State.
Legal basis:
– EU Regulation 282/15-Mar-2011 laying down measures for the implementation of Directive 2006/112 / EC on the common system of value-added tax (republished);
– Fiscal Code (approved by Law no. 227/2015, published in the Official Gazette no. 688 of 10.09.2015), with subsequent amendments and completions;
– Fiscal Procedure Code (approved by Law no. 207/2015, published in the Official Gazette no. 547 of 23.07.2015), with subsequent amendments and completions;
– Methodological Norms for the application of the Fiscal Code (approved by HG no. 1/2016).