A company ABC SRL, registered for VAT purposes in Romania and income tax payers, deals with the sale of car parts.
The company issues the parts delivery invoice, with 19% VAT, for a customer from the EU (X), registered for VAT purposes and with a valid VAT code on VIES, who wants to come and personally pick up his goods from the headquarters of ABC SRL, with the company car and their driver. Therefore, no contract of carriage with a third party is concluded.
Is the delivery invoice correctly drawn up, from the point of view of VAT? What documents are needed behind the invoice to justify the fact that the goods have left the territory of Romania?
Solution: According to art. 294 para. (2) lit. a) of the Fiscal Code, are also exempt from tax intra-Community supplies of goods to a taxable person or to a non-taxable legal person acting as such in another Member State than the one in which the dispatch or transport of the goods begins, which communicates to him the supplier a valid registration code for VAT purposes, assigned by the tax authorities of another Member State.
According to the provisions of paragraph (21), substantive condition introduced by Government Ordinance (OG) 6/2020, the exemption provided in paragraph (2), letter a) does not apply in case the supplier has not complied with the obligation provided 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 requested pursuant to art. 325 para. (3), unless the supplier can duly justify the deficiency in a manner considered satisfactory by the competent tax authorities.
We specify that the provisions of the Fiscal Code regarding the conditions for applying the VAT exemption for intra-community supplies are completed with the provisions of Regulation (EU) no. 1912/2018 amending Regulation (EU) no. 282/2011, which introduces two relative presumptions regarding the documents necessary to prove the transport of the goods to another Member State.
According to Regulation 1912/2018, at art.45 a) it is mentioned that the seller is in possession of the following:
(i) a written declaration from the buyer stating that the goods have been shipped or transported by him or a third party 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 person accepting the goods. the name of the buyer;
and
(ii) at least two non-contradictory proofs referred to in paragraph 3 (a), issued by two different parties that are independent of each other and the seller and the buyer, or a single piece of evidence referred to in paragraph (a), 3) point (a) together with a single non-contradictory piece of evidence referred to in paragraph 3 (b) confirming the shipment or transport, which are issued by two different parties which are independent of each other and of the seller and the buyer.
The buyer shall provide the seller with the written declaration referred to in point (b) (i) no later than the tenth day of the month following delivery.