Rules of documenting intra-Community supply of goods from January 1, 2020
On January 1, 2020, the new provisions of the Council Implementing Regulation (EU) 2018/1912 of December 4, 2018 establishing new requirements for documenting intra-Community supplies of goods (hereinafter: ICS) will enter into force. Given the fact that EU regulations are directly applicable in all Member States, they do not require implementation into national legal systems. It means that the amendments will come into force at the beginning of 2020 without the need to amend the VAT Act.
The regulation introduces a catalog of documents constituting evidence of intra-Community supplies and allowing a presumption that goods have actually been exported from one Member State to another. The first group consists of documents related to the dispatch or transport of goods, such as:
- signed CMR (Consignment Note)
- bill of lading,
- invoice for cargo air transport or
- invoice from the carrier.
The second group comprises the following documents:
- an insurance policy with respect to the dispatch or transport of goods or bank documents confirming payment for the dispatch or transport of goods;
- official documents issued by a public authority, e.g. a notary, confirming the arrival of goods to the Member State of destination;
- the receipt issued by the warehouse keeper in the Member State of destination confirming the storage of goods in that Member State.
Pursuant to the Regulation, if shipment or transport is carried out by the seller or a third party acting on his behalf , the 0% rate can be applied provided that the seller has stated that the goods have been sent by him or by a third party and has in his possession:
- at least two – non-contradictory documents issued by two different parties, independent of each other, as well as independent of the seller and the buyer - documents from the first group; or
- at least one document from the first group and at least one document from the second group which does not conflict with other evidence.
Where the shipment or transport is conducted by the buyer or a third party acting on his behalf, the seller should additionally have a written declaration of the buyer confirming that the goods have been sent or transported by the buyer or such third party and indicating the Member State of destination of the goods.
It is worth noting that a lack of the above-mentioned documents does not automatically deprive one of the right to apply the 0% VAT rate. In such a situation, the taxpayer will be able to confirm the ICS in another way (in accordance with the Polish VAT Act), with the burden of demonstrating the right being on his side - hence he will not benefit from the presumption provided for in the regulation. The above position was also adopted by the Ministry of Finance in the statement of reasons for the draft amendment to the VAT Act (UC158) in respect of Quick fixes.
It should also be remembered that new EU regulations do not replace the conditions set out in the Polish VAT Act. Thus, in order to apply the 0% VAT rate it will be sufficient to document an ICS in accordance with the existing national regulations. The presumption under the Regulation will be of greater practical importance in those EU countries where the rules for documenting deliveries under ICS are vague or more restrictive.
The above interpretation of the provisions is also indicated by the draft Explanatory Notes on the ‘2020 Quick Fixes’ prepared by the VAT expert group at the European Commission. Its analysis justifies the assumption that the taxpayer has the option of using the EU presumption (i.e. it is his right) or the national regulations. Although the notes have no binding force, they will certainly provide an important guideline when interpreting the new regulations.
Anna Skórska, Tax Consultant, ATA Tax Sp. z o.o.
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