Source Romanian Ministry of Finance
Unofficial translation
The legislation in the field of VAT provides a series of conditions for the application of the VAT exemption in case of intra-Community supplies of goods and, one of them is that the goods must be shipped or transported from one Member State to another.
In practice, different approaches of the Member States in the application of VAT exemptions for intra-Community supplies of goods have been found in certain situations, which have created difficulties and a lack of legal certainty both among the economic operators who carry out such transactions and from the perspective of tax administrations.
In order to provide concrete solutions and to harmonize the conditions under which VAT exemptions can be applied at EU level, it was considered appropriate to specify certain circumstances in which a European regulation, directly applicable to all Member States, should consider that goods are transported from one Member State to another.
In this respect, the Implementing Regulation (EU) no. 2018/1912 of the Council amending the Implementing Regulation (EU) no. 282/2011 regarding certain exemptions for intra-Community operations, which will enter into force on 1 January 2020.
At art.45a of Regulation 282/2011 (as amended by Regulation 2018/1912), it is established that if the conditions set out in paragraphs (1) letter a) and b) thereof are met, it is presumed that the supplier proves the intra-Community transport of goods in order to apply the VAT exemption for the intra-Community delivery of goods made.
However, the presumption provided for in Article 45a of the Regulation does not cover all the situations that may appear in practice, provided that the documents necessary to justify the intra-Community transport of the goods must be issued by two independent entities, both of each other, as well as the supplier and the buyer. .
Therefore, from January 1, 2020, with a view to applying the VAT exemption for intra-Community supplies of goods:
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- in the case of taxable persons who fulfill the conditions stipulated in art. 45a of the Regulation, it is assumed that the goods were transported intra-community;
- in the case of taxable persons who do not fulfill the conditions provided in art. 45a of the Regulation, the intra-Community transport of the goods is justified according to the provisions of art.10 of the Instructions for applying the tax exemption on the value added for the operations provided for in art.294 paragraph (1) letter. a) – i), art.294 paragraph (2) and art.296 of the Law no.227 / 2015 regarding the Fiscal Code, approved by the Order of the minister of public finances no.103 / 2016. Such situations may arise, for example, when: the supplier or the buyer transports the goods by his own means, the transport is carried out on wheels, in the case of the means of transport, the supplier cannot prove that he is independent of the carrier or of the shipment or that they are independent of each other or the buyer.
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We emphasize that the justification of the intra-Community transport of the goods is not sufficient for the application of the VAT exemption in the case of intra-Community supplies of goods, for the application of this facility it is necessary to fulfill all the conditions provided by Law no. 227/2015 regarding the Fiscal Code.
