VATupdate

Guidance: Details relating to certain transactions carried out by taxable persons not established in France

I. Reminder of the principles

1

In general, taxable persons established outside France who carry out transactions whose place is located in France pursuant to the rules of territoriality provided for in Article 258 of the General Tax Code (CGI) in Article 259 D of the CGI are subject to value added tax (VAT) under the same conditions as taxable persons established in France carrying out the same transactions.

10

However, under the terms of the second paragraph of 1 and 2 of Article 283 of the CGI , when the delivery of goods or the provision of services is carried out by a taxable person who is not established in France, the tax is payable by the customer identified for VAT in France.

20

For the purposes of VAT, a person is considered to be established in France when he has the seat of his economic activity, a permanent establishment, his domicile or a habitual residence there. For the definition of these different concepts, reference should be made to II and III § 100 to 190 of BOI-TVA-CHAMP-20-50-10 .

A. Taxable persons established both in France and outside France

30

A company having its statutory seat abroad and which has the seat of its economic activity or a permanent establishment in France is established there. The same applies to a natural person of foreign nationality who has his domicile or habitual residence in France.

These taxable persons are subject to the same obligations and must pay the tax under the same conditions as companies and individuals having their registered office, domicile or habitual residence in France who carry out taxable transactions.

40

Are concerned in particular:

  • French branches of companies whose head office is located abroad and, in general, any establishment in France of a foreign company that delivers goods or provides taxable services in France;
  • foreign natural persons who do not have their place of business or establishment in France, but have established their domicile or habitual residence there and carry out taxable transactions there.

B. Taxable persons not established in France

50

Companies whose registered office is abroad and foreign natural persons who do not have the seat of their economic activity, a permanent establishment, or failing that, their domicile or habitual residence in France are not established in France.

60

These non-established taxable persons are however subject to certain obligations and, where applicable, must pay the tax payable for the following transactions:

  • deliveries of goods whose place is located in France, with the exception of those for which the person liable for the tax is the customer;
  • deliveries of goods covered by the distance selling regime, the place of which is located in France;
  • intra-community acquisitions of goods whose place is located in France;
  • imports of goods whose place is located in France;
  • services whose place is located in France, with the exception of those for which the tax must be paid by the lessee;
  • transactions for which they must fulfill reporting obligations without being liable for the tax.

II. Case of persons established in France intervening in the delivery of goods or the performance of services by taxable persons not established in the European Union

A. Intermediaries concerned

70

In accordance with the provisions of b of 1 of article 266 of the CGI , persons established in France, who intervene in the delivery of goods or the performance of services by taxable persons not established in the European Union (EU) ( i.e. companies which do not have their place of business, permanent establishment, domicile or habitual residence in the EU), pay the tax on the total amount of the transaction carried out on behalf of of this company if:

  • the taxable person established outside the EU, liable for the tax for the delivery of goods or the provision of services, has not appointed a representative, as provided for in I of article 289 A of the CGI ;
  • the representative appointed by this taxable person, in accordance with I of article 289 A of the CGI, has not fulfilled his obligations.

80

Intermediaries acting in France in the name and on behalf of companies established outside the EU (“transparent” intermediaries) and who take an active part in the execution of the sale of goods or the provision of taxable services:

  • agents who conclude sales contracts with customers of foreign taxable persons in their name and on their behalf or who participate in the performance of taxable services rendered by these taxable persons;
  • representatives of foreign companies who submit these goods to the choice of buyers and re-export the products not selected;
  • custodians who ensure deliveries according to the instructions of foreign companies.

90

Furthermore, it is recalled that intermediaries who act in their own name but on behalf of others (“opaque” intermediaries) and intervene in the delivery of goods or the provision of services are deemed to have personally acquired and delivered the good, or received and provided the services ( CGI, art. 256, V ).

Note: On the distinction between intermediaries, please refer to I § 10 to 30 of BOI-TVA-CHAMP-10-10-40-40 .

100

On the other hand, are not affected by these provisions:

  • commodity brokers who limit themselves to bringing buyers and sellers together without handling the transactions themselves and without intervening in their execution;
  • sales representatives whose activity is limited to collecting customer orders and transmitting them to the foreign companies they represent without intervening in the execution of orders;
  • freight forwarders or customs brokers who limit themselves to carrying out their professional operations of customs clearance and reshipment of goods as they are.

B. Application of the device

110

When they pay VAT on the total price of the transaction, intermediaries acting in the name and on behalf of foreign taxable persons are not subject to taxation in respect of the remuneration of their intermediary.

They are considered as paying, in fact, the VAT instead of their principal. These intermediaries can therefore deduct, from the tax payable for the delivery of goods or the performance of services, not only the tax relating to transactions carried out in their personal name but also any tax paid on importation, as well as than that shown on the invoices sent to their foreign principals, when these invoices relate to the delivery of goods or the performance of the services in question.

120

In addition, they must themselves invoice the customers of foreign taxable persons for the tax relating to the total amount of the transaction. But nothing prevents them from specifying on their invoices, if necessary, that these are established on behalf of such or such foreign company.

130

Finally, intermediaries normally only have to submit a single monthly turnover declaration for all the taxable transactions they have carried out either as agents of foreign companies or as part of their own transactions.

(140)

III. Import as part of a supply made between taxable persons

150

In the context of a delivery between taxable persons of goods from a territory outside the EU, the delivery is normally located at the place of departure and is therefore not taxable in France ( CGI, art. 258, Ia ). However, this rule is waived in three situations:

In these three cases, the seller must be identified for VAT, be identified at customs on the single administrative document in section 44 ( III-B § 150 to 170 of BOI-TVA-DECLA-10-20 ) and declare the VAT relating to the import operation. This obligation applies even if the seller is not liable for VAT on the delivery pursuant to 1 of article 283 of the CGI (seller not established in France and purchaser identified for VAT in France).

160

In the three situations mentioned in III § 150 , import VAT is deductible by the seller.

The latter is authorized, in all cases, to exercise his right of deduction by charge to his declaration of turnover, at the same time as the declaration of the VAT relating to this importation.

This option applies including to the benefit of sellers not established in France who do not deliver goods or provide services for which they are liable for VAT in France and who bear VAT in France ( I § 30 to 80 of the BOI -VAT-DED-50-20-30-40 ). In this case, it replaces the reimbursement procedure commented on by this same document (reimbursement known as the “thirteenth directive”). The formalities are carried out by the tax representative of the taxable person in situations where the appointment of a representative is mandatory ( BOI-TVA-DECLA-20-30-40-10 ).

(170)

IV. Imports of goods intended to be processed in France on the order of a principal established in a third country and redirected outside the European Union

180

The situation of goods which:

  • are imported into France for the purpose of being processed in France by a taxable person established there following an order from a principal established in third-party territory;
  • then, at the end of this work, reshipped to territories outside the EU on the order of this client.

Note: For the definition of the notions of “EU” and “country or territory outside the EU”, please refer to BOI-TVA-CHAMP-20-10 . For the definition of import, please refer to BOI-TVA-CHAMP-10-30 .

190

In this situation, it is up to the originator and the opener to choose the scheme in which they register with regard to import tax obligations ( II-C § 110 and 120 of the BOI-TVA-DECLA- 10-20 ):

  • the person liable for import VAT is the opener pursuant to 3° of 2 of article 293 A of the CGI . In this case, it is accepted, by way of derogation from the principles set out in I § 30 of BOI-TVA-DED-40-10-30 , that the opener may declare, pay and deduct VAT on imports on his own declaration. turnover (without disbursement to the benefit of the Treasury); this tolerance is only open on the condition that the instructing party is not already identified for VAT in France;

Note: When the principal is already identified in France, the tolerance cannot apply, which leads to a persistence of import VAT since the opener will not be able to deduct it.

  • the principal chooses to be liable for import VAT in application of 2° of II of article 293 A quarter of the CGI . In this case, he must, if this is not already the case, identify himself to the VAT in France and, if necessary, appoint a tax representative ( BOI-TVA-DECLA-20-30-40-10 ). His representative, or himself, will then be able to declare, pay and deduct the VAT on the import (without disbursement to the benefit of the Treasury).

In both schemes, when the designated person liable for import VAT benefits from a duty-free purchase quota ( CGI, art. 275 ; BOI-TVA-CHAMP-30-30-50-10 ), it may use this quota for such imports. In this case, the imports in question will be declared in the corresponding box of the VAT declaration and there will be no disbursement for the benefit of the Treasury.

(200-230)

Source: gouv.fr

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