The Revenue Agency has published the response to ruling no. 205 of 21 April 2022 on the sale of goods facilitated by electronic interfaces and VAT refund.
The new regulation introduced by Legislative Decree no. 83/2021
The legislative decree of 25 May 2021, no. 83, in transposing articles 2 and 3 of directive (EU) 2017/2455 and directive (EU) 2019/1995 of the European Council, brought many innovations into the italian legal system. These include the introduction of article 2-bis in the VAT decree, entitled “Sales of goods facilitated by electronic interfaces“, according to which the following supplies of goods are considered to be made by the taxable person who facilitates them through use of an electronic interface, such as a virtual market, platform, portal or similar means:
- intra-community distance sales of goods referred to in article 38-bis, paragraphs 1 and 3, of the decree-law no. 331, converted, with modifications, by the law 29 October 1993, n. 427, and the transfers of goods with departure and arrival of the shipment or transport in the territory of the same Member State to the destination of non-taxable persons, carried out by taxable persons not established in the European Union;
- distance sales of goods imported from third territories or from third countries, pursuant to article 38-bis, paragraphs 2 and 3, of the decree-law no. 331, converted, with modifications, by the law 29 October 1993, n. 427, in shipments of intrinsic value not exceeding 150 euros.
Therefore, any VAT refunds will be requested according to the general rules of articles 30 and 38-bis of the VAT decree, which have not been affected by the new regulation in question.
In fact, it remains the possibility for each taxpayer to request the reimbursement of the credit surplus resulting from the annual VAT return, if it exceeds 2,582.28 euros, when exercising exclusively or mainly activities that involve the carrying out of taxable transactions with rates lower than those of the tax on purchases and imports.
The active operations to be taken into consideration also include those exempt from tax (normally excluded), if they give the right to deduct and therefore also the operations linked to the fictio iuris desired by the legislator between supplier and facilitator of the sales to final consumers through the ” use of an electronic interface, as emerging from the articles of the VAT decree also modified by the legislative decree n. 83 of 2021.
The position taken by the Revenue Agency
The Agency stated that the sales carried out by a non-EU subject, with a permanent establishment in Italy, which purchases goods in Italy and sells them to consumers residing there or located in the EU, do not fall within the scope of the new regulation. introduced by Legislative Decree n. 83/2021 with article 2-bis paragraph 1 of the VAT decree according to which the “sales of goods facilitated by electronic interfaces” are considered carried out by the taxable person who facilitates them through the use of an electronic interface, such as a virtual market, platform, portal or similar means. In practice, the taxable person is considered to be the transferee and reseller of these goods.
The Agency, also considering the supplementary documentation produced by the applicant, has in fact considered that the conditions required by the aforementioned article 2-bis, paragraph 1 are not met, as the transferor is not a subject established in the EU territory, and the goods, before resale, they are imported from third countries. The Agency argues that the transfers made by the applicant therefore represent “ordinary” indirect sales made in the field of electronic commerce to which the relative regulations apply.
N.B.: The Italian Revenue Agency has recently provided clarifications also on cross-border VAT refunds for non-EU residents.