Article 45-bis of the EU Implementing Regulation No. 282/2011 of 15.3.2011, as amended by Implementing Regulation (EU) 2018/1912 of 4.12.2018, lists the documentary burdens to prove the reality of intra-Community supplies of goods.
Further clarifications on this issue were provided by the European Commission with the Explanatory Notes on 'quick fixes 2020', published in December 2019.
In addition, paragraph 1(a) and (b) of the aforementioned Article 45-bis introduced, with effect from 1.1.2020, a rebuttable presumption that goods have been transported within the EU; specifically, this paragraph:
- (a) deals with the case where the goods are dispatched or transported by the seller or by a third party on the seller's behalf;
- under (b), that in which the transport is carried out by the buyer or by a third party on his behalf.
In the case referred to in para. (1), the transferor, in addition to declaring that the goods have been dispatched or transported by him or by a third party on his behalf, must produce at least two documents, not contradictory and coming from different parties (who are independent of both the seller and the buyer), as provided for in paragraph (3)(a) of Article 45-bis, among those listed herein:
- a CMR document or letter, bearing the signature of the carrier;
- a bill of lading;
- an air transport invoice;
- an invoice issued by the forwarding agent.
Alternatively, the seller may submit, in addition to the declaration that the goods have been dispatched or transported by it or by a third party on its behalf, a document referred to in para. 3(a) above and any of the following documents referred to in para. 3(b) of that article
- an insurance policy relating to the shipment or transport of the goods or bank documents proving payment for the shipment or transport of the goods;
- official documents issued by a public authority, e.g. a notary, confirming the arrival of the goods in the Member State of destination;
- a receipt issued by a depositary in the Member State of destination confirming the deposit of the goods in that Member State.
In the case of transport carried out by the purchaser or by a third party on his behalf, the national transferor must request from his EU customer a written declaration containing the following information
- the Member State of destination of the goods;
- the date of release;
- the name and address of the purchaser;
- the quantity and nature of the goods supplied;
- the date and place of their arrival;
- the identification of the person who accepted the goods on behalf of the buyer and, in the case of means of transport:
- the vehicle identification number.
In addition to the declaration referred to above, the transferor must be in possession of at least two of the documents relating to the transport of the goods, referred to above with regard to paragraph 3 (a) of Article 45-bis, issued by two different independent parties:
- each other;
- by the seller and:
- by the purchaser;
or a transport document referred to in (a) above, together with a document relating to the other means of proof referred to in (b) above.
In light of what has been said, it is clear that the safest form of transport and one that can be least challenged by the Inland Revenue is that carried out through a third party, i.e. through a courier or forwarding agent, with the possibility of being able to show, during verification, not only the courier's or forwarding agent's invoice, but also the bank documents proving payment for the shipment.
By contrast, the presumption of delivery of the goods contained in the aforementioned Article 45-bis of Regulation No. 282/2011 is hardly applicable:
- when the shipment is handled by the EU transferee, with collection of the goods from the transferor's business;
- when the shipment is handled by the EU transferor, with collection of the goods at the transferor's business;
in both cases by the transferor's or transferee's own means, without the intervention of other parties.
In fact, according to Article 45a(2) of the aforementioned regulation, the tax authorities of EU countries retain the option of overcoming the presumption of intra-Community transport or dispatch by adopting further, possibly more flexible national rules or practices.
Likewise, the taxpayer retains the possibility of proving by other objective evidence that the transaction actually took place, if he is not in possession of the documentation required by the aforementioned Community provision.
Therefore, in all cases in which the presumption set forth in Article 45-bis does not apply, the national practice, also adopted before the entry into force of that Article on the subject of proof of intra-Community transport of goods, may continue to apply (Circular 12/E/2020).
It is understood, however, that this national practice identifies documents whose suitability for proving transport within the European Union is in any event subject to the assessment, on a case-by-case basis, of the tax authorities.
With reply no. 101/2022 attached, the Revenue Agency has recently reaffirmed this orientation, accepting as means of proof, in the present case, the extraction from the carrier's website of the movement of the goods, recorded with a GPS satellite system at the various stopover points up to delivery, together with the air waybill (AWB) and a daily shipping summary document issued by the shipper.
In the light of the above, it is clear that those involved in the export of goods within the EU should scrupulously and carefully apply the above indications and to:
- preferring to transport by the transferor or the transferee by their own means, the transfer by couriers and forwarding agents;
- always fill out the CMR form;
- to settle invoice payments exclusively through the bank or postal system.