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Guidance: Suspension of the tax – Situations or customs procedures – Operations concerned

19 January 2023
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19 min read

The comments contained in this document are subject to public consultation from January 18, 2023 to April 15, 2023 inclusive to allow interested persons to send their possible comments to the administration. These comments must be made by email to the following address: [email protected] . Only signed contributions will be considered. As of this publication, you can take advantage of these comments until their possible revision at the end of the consultation.

Related news item : 01/18/2023: VAT – Public consultation – New rules for declaration and payment of import VAT (law n° 2019-1479 of December 28, 2019 of finance for 2020, art. 181)

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The situations and customs procedures for deferring imports allow goods with “non-Union” status, introduced from territories outside the European customs territory, to remain in this territory without being subject to customs duties or value added tax. (VAT) on import.

Note : BOI -TVA-CHAMP-10-30 provides details on the concepts useful to this document (imports, special tax territory, customs situations, regimes and statutes).

European customs rules are enacted by the Union Customs Code (UCC) ( Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 establishing the Union Customs Code ), its delegated regulation, which complements it ( Commission Delegated Regulation (EU) 2015/2446 of 28 July 2015 supplementing Regulation (EU) No 952/2013 of the European Parliament and of the Council on the detailed rules of certain provisions of the Customs Code Union ) and its implementing regulation (Implementing Regulation (EU) 2015/2247 of 24 November 2015 laying down detailed rules for the application of certain provisions of Regulation (EU) No 952/2013 of the European Parliament and of the Council establishing the Union Customs Code ).

Such goods are likely to be the subject of operations subject to VAT (delivery of goods, intra-Community acquisitions and similar operations) during their placement under these situations or regimes. As the goods are geographically located in France, these operations are subject to French VAT regardless of the fact that the import has not yet taken place. They may also be the subject of services subject to VAT in France (manufacture, rentals, etc.).

The suspension of VAT then makes it possible to limit certain administrative or cash expenses linked to VAT on these transactions. Beyond the cases described in § 1, the suspension of VAT applies more broadly to a set of goods and operations in connection with customs situations and procedures that postpone imports ( § 5 ).

5

Intra-community deliveries or acquisitions of goods and services relating to goods are carried out with suspension of payment of VAT when the goods are placed or intended to be placed in one of the following two positions ( CGI, art. 277 A , I-1° and I-4° at 7°-a ):

  • in a customs situation of postponement of imports, which are also situations awaiting assignment of a customs procedure (period between the notification of arrival and the notification of presentation to customs, temporary storage);
  • under a customs procedure for the deferral of imports (customs warehouse or free zone, inward processing, temporary admission with total exemption from customs duties, external transit or internal transit of the Union).

Note 1:  All goods placed under these regimes are concerned, even when leaving these regimes is not likely to constitute an import given their customs status or their origin ( II-A § 140 of the BOI- VAT-CHAMP-10-30 ). Thus, in addition to “non-Union” goods, goods with “Union” status placed under the Union’s internal transit system may be concerned.

Note 2 : Equivalent goods may also be concerned, which are “Union” goods which may be used as a substitute for “non-Union” goods for one of the functions of the special customs procedures (CDU, art. 213). In addition, “Union” goods admitted to a warehouse or free zone for certain specific reasons are concerned (CDU, art. 237, par. 2), the exit of which, by construction, does not constitute an import.

Imports of goods resulting from trade with special tax territories ( IB § 50 to 110 ) may also be carried out with VAT suspension, outside the customs situations or regimes of postponement of imports .

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Under the terms of article 85 G of appendix III to the CGI , operations which benefit from the suspension of payment of the tax must not lead to end use or end consumption of the goods to which they relate. However, an exception is provided for duty-free shops and sales counters located within the confines of a port or an airport ( CGI, ann. III, art. 85 E, 1-c ) ( II-A -1 and 2 § 120 to 190 of BOI-TVA-CHAMP-20-20-20 ).

In addition, an operation leading to removing a good from the situation or from the import deferral regime, without placing it in such another situation or under such another regime, does not benefit from the suspension. It is also likely to make VAT payable on transactions for which VAT has been previously suspended ( BOI-TVA-CHAMP-40-10-30 ).

I. Deliveries, intra-Community acquisitions of goods and imports

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Pursuant to 1 of Article 85 H of Appendix III to the CGI , the suspension only applies to deliveries of goods and acquisitions of goods relating to goods authorized to be placed in the situations listed in § 5 by the European and, where applicable, national customs rules governing the situations or systems for deferring imports ( I § 30 of BOI-TVA-CHAMP-10-30 ).

A. General case

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1. Deliveries of goods previously placed in a situation or under a customs procedure of postponement of imports

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Under the terms of 6° and a of 7° of I of article 277 A of the CGI , VAT is suspended for deliveries of goods already placed in one of the positions set out in § 5 .

The suspension applies when the goods are already placed in these situations or under these regimes and when the delivery does not lead to their removal.

The suspension applies even when the delivery leads to the placement of the goods under another import deferral procedure or under another situation awaiting assignment to a customs procedure, whether or not it is of the same nature. The so-called “transition” and “transfer” procedures are thus concerned :

  • the transfer procedure leads to the transfer of goods from one type of special customs procedure or from a waiting situation to another special customs procedure or another waiting situation. If, on the occasion of this passage, the goods are the subject of a transfer of ownership between two taxable persons, the VAT due in respect of this delivery is suspended;

Example 1 : A good in a customs warehouse is, following its delivery, placed by its purchaser under the external transit procedure.

  • the procedure for the transfer of rights and obligations allows goods placed under a customs procedure to be transferred to a third party, to whom the rights and obligations attached to this same procedure are transferred, so that the goods remain, after their transfer, placed under the customs procedure in question. The VAT due for this delivery is suspended.

Example 2 : Goods under the temporary admission regime with total exemption from customs duties are delivered to a person who becomes the holder of this temporary admission regime with total exemption from customs duties.

2. Intra-Community deliveries, acquisitions and transfers of goods intended to be placed in a situation or under a customs procedure of postponement of imports

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Under 1° and 4° of the same I of Article 277 A of the CGI , VAT is also suspended for intra-Community deliveries and acquisitions of goods (including similar transactions such as intra-Community transfers) which are not placed in one of the positions set out in § 5 , but which are intended to be so by their acquirer. The suspension applies when the intra-Community delivery or acquisition has the direct and immediate effect of such placement.

However, this option does not apply to goods intended to be placed in transit (external transit or internal transit of the Union) or for temporary admission with total exemption from customs duties.

The suspension specifically covers operations on goods with “Union” status, but which are acquired for use in the context of a situation or a customs procedure for the deferral of imports.

Example 1: An operator holding an inward processing regime acquires on the national market goods necessary for the processing, working or repair of goods placed under this regime. The acquisition of these goods on the national market constitutes a supply of goods normally subject to VAT. However, and insofar as these goods are intended to be used within the framework of the active improvement regime, the VAT due on the delivery may be suspended by application of 1° of I of article 277 A of the CGI. The suspension will apply in the same way to the intra-Community acquisition of goods made by the operator if the place of departure of the shipment or transport is located in another Member State of the Union (CGI, art. 277 A, I-4°).

Example 2:An operator owns goods under the customs warehousing procedure. He wishes to proceed with the repackaging of these goods, within the legal framework of the usual manipulations authorized by customs legislation (CDU, art. 220). To this end, it acquires on the national packaging market. This acquisition constitutes a delivery of goods which should normally be subject to VAT. However, and insofar as this packaging is intended to be used within the framework of the usual manipulations authorized under the customs warehousing regime, the VAT due on the delivery may be suspended by application of 1° of I of article 277A of the CGI. The suspension will apply in the same way to the intra-Community acquisition of goods carried out by the operator if the place of departure of the

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This suspension applies under the same conditions in mainland France and Guadeloupe, Martinique or Reunion.

B. Imports from or into special tax territories

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Trade with special tax territories constitutes imports subject to VAT. This is the case ( II-B § 170 to 220 of BOI-TVA-CHAMP-10-30 ), at the time of their introduction into the territory of destination:

  • goods transported to metropolitan France from a special tax territory;
  • goods sent to Guadeloupe, Martinique or Reunion from any other territory included in the European customs territory.

1. Suspension while in transit

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If the transport is carried out under the internal transit regime of the Union, the VAT on the deliveries relating to the goods placed under this regime is suspended under the conditions set out in IA-1 § 25 in accordance with the provisions of a of 7° of I of article 277 A of the CGI .

On the other hand, no suspension applies in the event of transport under cover of a CO declaration.

2. Suspension at the end of the routing

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At the end of their transport, the goods mentioned in IB § 50 , if they have “Union” status, cannot be placed under one of the customs procedures for deferring imports (with the exception of internal transit) , because these procedures are reserved for goods that have not previously been put into free circulation in the customs territory of the Union.

On the other hand, the suspensive tax regimes make it possible to suspend import VAT on these goods.

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At the end of their transport, if they are assigned to one of the functions provided for in article 85 E of annex III to the CGI , the goods may be placed under the suspensive tax regime provided for in a of 2° of I of article 277 A of the CGI .

This plan ensures:

  • on the one hand, the suspension of the VAT relating to the import constituted by the introduction into the territory in question;
  • on the other hand, the suspension of VAT relating to the supply of goods and services relating to these goods.

It provides storage functions (CGI, ann. III, art. 85 E, 1-a) or transformation (CGI, ann. III, art. 85 E, 1-e) of goods suspended from VAT in a manner analogous to those possible under customs warehousing and in the free zone (storage) or under inward processing (transformation). For more details on the operating rules of this regime, please refer to BOI-TVA-CHAMP-40-20 .

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On the other hand, the suspensive tax regime provided for in a of 2° of I of Article 277 A of the CGI does not perform any function similar to that of the temporary admission regime with total exemption from customs duties. In concrete terms, it does not allow VAT to be suspended for goods which only stay temporarily in their import territory before being re-exported.

Example :A work of art made in Martinique is temporarily sent to France to be exhibited there. The conditions under which it is used in mainland France and the length of stay comply with the temporary admission rules that would have applied if the work had come from a territory outside the customs territory (for example, Japan). The same would apply to professional equipment temporarily sent from Germany to Reunion for use in an industrial installation. Import VAT may not, however, be suspended either under temporary admission with total exemption, insofar as the good has already been put into free circulation, nor under the suspensive tax regime provided for in a of 2° of I of article 277 A of the CGI,

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However, the b of 7° of I of article 277 A of the CGI provides for an ad hoc VAT suspension device for this purpose.

This system ensures, for the goods mentioned in IB § 50 :

  • on the one hand, the suspension of import VAT;
  • on the other hand, the suspension of VAT on deliveries, in the same way as for goods placed under the special customs procedure of temporary admission with total exemption from duties ( IA-1 § 25 ).

Note: The deliveries of goods mentioned in IA-2 § 30 are therefore not concerned .

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Unlike the suspensive tax system, the suspension of VAT by this ad hoc device is acquired solely because the conditions specific to temporary admission are met, without it being necessary to obtain prior authorization from the administration. creating a plan. These conditions, which result from Article 250 of the UCC , include in particular the following obligations:

  • the goods are intended to remain only temporarily in the territory of importation. This condition is to be assessed at the time of importation, and not later;
  • the goods are not called upon to undergo any modification, except for their normal depreciation as a result of the use made of them;
  • the person liable for import VAT is established outside the import territory (consisting, as the case may be, of metropolitan France, Guadeloupe, Martinique or Reunion);
  • certain conditions relating to the nature of the goods and the length of time during which they remain in the territory of importation are fulfilled. The goods comply with the conditions laid down in Articles 209 to 216 and Articles 219 to 236 of  Commission Delegated Regulation (EU) 2015/2446 of July 28, 2015 relating to their nature and the period of presence in the import territory (the common law period is twenty-four months, but many special cases are provided for).

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Under the terms of Article 85 K of Annex III to the CGI , the formalities to be completed for this ad hoc device are the same as the customs formalities governing temporary admission with total exemption from customs duties and provided for by European texts. .

In the context of management of the system by the General Directorate of Public Finance, these formalities are adapted under the following conditions:

  • the use of the regime is reported, within the framework of the information of the general direction of customs and indirect rights of the VAT regime provided for in 2° of 3 of article 293 A of the CGI ;
  • the person liable is required to be able to prove, at the request of the control services, that the substantive conditions set out in IB-2 § 90 are met. In particular, he must be able to establish that the temporary nature of the stay was proven at the time of importation and, at the end of the maximum re-export period, that the property has left the territory of importation;
  • in the event of transfer of the property with maintenance of the suspension of VAT, the purchaser must certify in writing that the acquisition does not call into question the temporary nature of the stay. The certificate is drawn up in two copies kept by each of the two parties. The delivery is declared under the conditions of common law as an untaxed operation.

On the other hand, no prior guarantee of the VAT due is required.

II. Services

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Beforehand, it is recalled that the provision of services is likely to benefit from exemptions:

The benefit of the VAT suspension is not useful when these exemptions apply.

It is therefore of interest for the provision of services which, without being directly linked to the placement of goods, relate to economic operations themselves linked to the placement or for the provision of services which relate to goods already placed in a situation or under a customs import deferral regime. The list of operations eligible for the suspension is also more extensive than that eligible for the exemption linked to placement because it includes working operations ( II § 140 ).

130

Under the terms of 5° and 6° of I of Article 277 A of the CGI , certain services relating to situations and import deferral systems may be carried out with VAT suspended. For this purpose are distinguished:

  • the provision of services relating to an intra-Community supply or acquisition of goods intended to be placed in a situation or under an import deferral scheme listed in § 5 for which VAT is suspended ( I § 15 to 110 );

Note: It is accepted that the suspension also applies when the provision of services relates to an import for which VAT is suspended due to the placing of the good under a suspensive tax regime.

  • the provision of services relating to goods already placed in one of the two positions set out in § 5 , independently of the connection to an intra-Community delivery or acquisition.

In these two situations, the suspension of VAT on the provision of services does not apply either for transit procedures (internal or external), or in the event of temporary admission with total exemption from customs duties, or in cases described in IB § 50 to 110 .

In addition, under the terms of c of 7° of I of article 277 A of the CGI, VAT is suspended for the provision of services relating to deliveries relating to goods already placed under a transit regime (internal or external) or temporary admission with total exemption from customs duties (including in the cases described in IB § 50 to 110 ).

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In addition, in either case, only transactions of the nature of those listed in 1° to 7° of Article 85 J of Appendix III to the CGI may benefit from the suspension, namely:

  • the transport of goods and related services: commissions relating to this transport, loading and unloading of the vehicles used for this transport and other incidental handling of these goods ( IC § 70 of BOI-TVA-CHAMP-30-30-20-10 ) , rentals relating to transport vehicles and equipment used for vehicle loading and unloading operations, containers and equipment used for the protection of property (concerning the nature of the rentals in question, reference should be made to IE § 90 BOI-VAT-CHAMP-30-30-20-10 );
  • the guarding and storage of goods ( ID § 80 of BOI-TVA-CHAMP-30-30-20-10 ) as well as their packaging;
  • the operations carried out by the customs representatives and relating to the placement in the situations and deferral regimes as well as their operation ;

Note: Customs representatives, defined in point 6 of Article 5 of the UCC , mean persons appointed by another person to carry out acts or formalities provided for by customs legislation with the customs authorities. The filing of declarations, the accomplishment of ancillary formalities and the material operations necessary for the functioning of the customs procedure are concerned in particular.

  • the usual manipulations and any transformation operation relating to the goods placed under a carry-over procedure, insofar as they are permitted by European and national customs rules. To find out about the applicable customs regulations, please refer to I § 30 of BOI-TVA-CHAMP-10-30 .

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It follows from the cumulative conditions set out in II § 130 and 140 that VAT is not suspended for the following services:

  • transport services carried out in the context of transit, in the absence of deliveries, intra-Community acquisitions or imports;

Note: The latter are however likely to benefit from the exemption commented on in BOI-TVA-CHAMP-20-60-20 .

  • certain operations permitted on goods placed under the temporary admission regime: safekeeping and, in the absence of deliveries of goods, the operations mentioned in the second paragraph of Article 204 of  Delegated Regulation (EU) 2015/2446 of the Commission of 28 July 2015 (repair, maintenance, measures aimed at ensuring the preservation of the goods or their compliance with the technical requirements essential to allow their use under the regime);
  • any operation concomitant with or subsequent to the exit of the good from a situation or from an import deferral regime, when the good is not immediately placed in such another situation or under such another regime;
  • the rental of goods or any other service carried out with these goods and which does not relate to the goods themselves placed in suspension or intended to be so.

Example : Building work carried out using machinery placed under a deferred import regime.

III. Specific obligations

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The suspension of the value added tax (VAT) by the situations and regimes of postponement of imports is by right and is not subject to any particular formalism for the purposes of the VAT.

On the other hand, European and national customs rules, in particular those governing entry into and exit from customs procedures, are fully applicable. Their non-respect is likely to induce the end of the suspension, that is to say the exigibility of the VAT ( BOI-TVA-CHAMP-40-10-30 ).

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When the transaction for which VAT is suspended is subject to invoicing pursuant to article 289 of the CGI (delivery of goods or provision of services), the VAT does not appear on the invoice. On the other hand, the first paragraph of Article 85 L of Annex III to the CGI provides that, when the suspension results from an import deferral scheme, the invoice mentions:

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When the suspension results from a situation of the property in temporary storage, the invoice mentions the related authorization number.

Source: gouv.fr

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