Situation: What are the documents required to justify the VAT exemption, intra-Community delivery, starting with January 1, 2020, if the delivery condition is EXW, the transport is the responsibility of the buyer, carried out by transport companies, independent of both the Romanian and Romanian companies. EU buyer (company with valid VAT code, VIES reporting)?
Solution: According to the provisions of article 294 paragraph (2) letter a) of the Fiscal Code, intra-Community supplies of goods are exempt from VAT to a taxable person or to a non-taxable legal person who acts as such in another Member State than the one 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.
We mention that the exemption provided does not apply if the supplier has not complied with the obligation stipulated in art.325 paragraph (1) to submit a recapitulative statement or the recapitulative statement submitted by him does not contain the correct information regarding this delivery, as is required under art. 325 para. (3), unless the supplier can properly justify the deficiency in a manner considered satisfactory by the competent fiscal authorities.
For the delivery of goods, the tax exemption is justified with the documents provided in the Instructions approved by Regulation of the Ministry of Public Finance (OMFP) no. 103/2016.
There is a draft law published on 20.02.2020 on the website, which modifies this order, so that the documents justifying the exemption are:
- a) the invoice in which the registration code for VAT purposes attributed to the buyer in another Member State must be mentioned
- b) the documents attesting that the goods were transported from Romania to another Member Stat
In addition, Article 45a of the Council Implementing Regulation (EU) no. 282/2011 of March 15, 2011 laying down measures for the implementation of Directive 2006/112 / EC on the common system of value added tax, as amended by Council Implementing Regulation (EU) 2018/1912 of 4 December 2018 amending Implementing Regulation (EU) no. 282/2011 regarding certain exemptions for intra-Community operations, hereinafter referred to as Regulation 282/2011, provides that in the situation in which the conditions of paragraph (1) letter are met. a) and b) of this article, it is assumed that the goods were sent or transported from a Member State to a destination outside its territory, but within the Community
In this case, the documents attesting that the goods were transported from Romania to another Member State are those provided in para. (1) and (3) of art. 45a of Regulation 282/2011.
Taking into account the fact that the transport responsibility rests with the buyer, documents are required:
– a written statement from the buyer, attesting that the respective goods have been shipped or transported by him or by a third party on behalf of the buyer and mentioning the Member State of destination of the goods; this written statement 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
– at least two non-contradictory evidence referred to in paragraph 3 (a), issued by two different parties that are independent of each other, as well as of the seller and the buyer, or a single proof of those mentioned in the paragraph (3) point (a) together with a single proof that is not contradictory mentioned in paragraph 3 (b) confirming the shipment or transport.