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Fiscal representative required for UK entities in Italy: Scope of the post-Brexit agreement also questionnable according to the FAQ of the Agenzia Entrate

Unofficial translation

Article 35-ter of Presidential Decree 633 of 26 October 1972 (hereinafter the “VAT decree”), entitled “identification for VAT purposes and accounting obligations of the non-resident” governs the direct identification in the territory of the State by the subjects non-residents who carry out sales of goods and services subject to tax in Italy.

In particular, paragraph 5 of the aforementioned article 35-ter provides that ” non-resident subjects who carry out business, art or profession activities in another Member State of the European Community or in a Third country with which there are legal instruments governing mutual assistance in the matter of indirect taxation, similarly to the provisions of the Council directives no. 76/308 / EEC of 15 March 1976 and no. 77/799 / EEC of 19 December 1977 and by Regulation (EEC) no. 218/92 of the Council of 27 January 1992 “.

Differently from what is provided for in the case of subjects established in a Member State, for whom the possibility of directly identifying themselves for VAT purposes in other Member States is automatically attributed, for subjects residing in third countries this right is subject to verification of the existence of agreements administrative cooperation similar to those in force in the EU (see resolutions 5 December 2003, n. 220 / E and 28 July 2020, n. 44 / E).

Following the so-called “Brexit”, the United Kingdom, starting from 1 January 2021, qualifies as a third country with respect to the EU. As soon as the collation and analysis of the detailed elements of the agreements recently reached between the European Union and the United Kingdom are completed, the Revenue Agency will provide clarification on the existence of an agreement governing the mutual assistance between the European Union and United Kingdom in a manner similar to the agreements in force within the EU, in accordance with the provisions of the aforementioned paragraph 5 of article 35- ter .

It is understood that, in the meantime, UK operators who are identified in Italy pursuant to the aforementioned legislation can evaluate the opportunity to:

  • close the VAT number attributed to them pursuant to article 35- ter of the VAT decree by submitting the ANR / 3 form (by ticking box 3 – CESSATION OF ACTIVITY -, as per the instructions attached to the model, according to which this box ” must be crossed by non-resident subject who no longer intends to fulfill the obligations and exercise the rights regarding VAT directly or who has ceased to exercise business, art or profession in the foreign State of establishment due to cessation of activity “);
  • request a new VAT number, by submitting the AA7 / 10 or AA9 / 12 model, through your Italian tax representative.

As clarified in the instructions to the ANR / 3 form, in the event of cessation of the exercise of activity in the foreign State of establishment, the deadline for submitting the declaration of cessation of activity is 30 days from the date on which the same cessation occurred.

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