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)

Import within the meaning of VAT means the introduction of “non-Union” goods from third territories into the European territory of value added tax (VAT) ( II § 90 to 190 of the BOI-VAT- FIELD-20-10 ). It is constituted by one of the following three events resulting from customs regulations ( II-A § 140 of BOI-TVA-CHAMP-10-30 ), in particular the customs code of the Union (CDU) ( regulation (EU ) No 9 52/2013 of the European Parliament and of the Council of 9 October 2013 establishing the Union Customs Code ):

• the release for free circulation of the good, which may be under common law or carried out under the special customs procedure for the specific destination;
• placement under the special customs regime of temporary admission with partial exemption from customs duties;
• an irregularity with regard to customs rules, resulting in the good being introduced into the economic circuit of the European Union (EU) and being able to be consumed there.

These events occur either as soon as these goods are introduced into the European VAT territory, after their presentation to customs, or later, when they are placed under special customs procedures which postpone the importation until the moment of exit from these regimes.

In addition, also imports for VAT purposes are trade with special tax territories within the meaning of European VAT ( II-B § 170 and following of BOI-TVA-CHAMP-10-30 ).

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2 of I of article 291 of the CGI specifies under what conditions an import is taxable in France.

This provision, which transposes Articles 60 and 61 of the VAT Directive ( Council Directive 2006/112/EC of 28 November 2006 on value added tax ), must be read in the light of the case law of the Court of Justice of the European Union (CJEU) from which it follows that in the event of irregularity, the rules of territoriality of customs duties and those of VAT differ.

I. General case

A. Applicable rule

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In the absence of irregularity, the importation is, for the purposes of VAT, located in France when the good is located in France at the time when the release for free circulation occurs, the placement in temporary admission with partial exemption from customs duties or one of the equivalent formalities implemented specifically for trade between mainland France, the West Indian market (Guadeloupe and Martinique), Guyana and other special French or foreign tax territories (for the definition of special tax territories, please refer to II-C-4 § 190 of BOI-TVA-CHAMP-20-10 ).

In France and Monaco, these formalities are carried out with the General Directorate of Customs and Indirect Taxes.

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The same principle is applied inside the national territory in order to determine if the importation is territorialized in metropolitan France, within the West Indian market (Guadeloupe, Martinique), in Reunion or in the rest of the national territory (where the VAT Not Applicable). It will only be subject to VAT in the first three cases.

It is recalled that exchanges between these territories are qualified as imports ( II-B § 170 et seq. of BOI-TVA-CHAMP-10-30 ). Therefore, except in the case of application of the transit procedures at the end of the presentation to customs ( IB § 40 to 60 ), a good introduced into one of these territories, then transported to another of these territories will be imported twice. It is then necessary to determine the VAT regime of each of these two imports (in certain cases, exemptions are likely to apply, for more details, it is advisable to refer to BOI-TVA-CHAMP-30-40 ) .

B. Consequences of transit regimes

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The purpose of the external transit procedure is to transport “non-Union” goods between EU Member States and States party to the Convention on a Common Transit Procedure (CTC) – PDF (2.3 MB) , and in some cases within the same EU Member State, without being released for free circulation. In concrete terms, this makes it possible to defer the import subject to VAT. 

Therefore, the place where the import is taxable for VAT is not necessarily the place where the goods are physically introduced, but the place where they are put into free circulation, subject to the reservation mentioned in IB § 60 .

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When a “non-Union” good is physically brought into mainland France (resp. Guadeloupe, Martinique or Reunion), the importation will not be taxable there if, following its presentation to customs, it is transported , under cover of the “external transit” regime ( IB § 190 of BOI-TVA-CHAMP-10-30 ), in another territory (territory of another EU Member State or part of French territory other than where it was introduced).

Conversely, the import of a “non-Union” good introduced into the territory of another EU Member State, then transported, under cover of this same regime, to metropolitan France (resp. Guadeloupe, Martinique or Reunion) will be taxable in mainland France (resp. Guadeloupe, Martinique or Reunion).

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When the release for free circulation takes place in a “special tax territory”, i.e. a part of the European customs territory where VAT is not harmonized ( II-C-4 § 190 of the BOI-TVA-CHAMP -20-10 ), subsequent transport in mainland France, which will be carried out under cover of the Union’s internal transit system ( II-B-1 § 190 of BOI-TVA-CHAMP-10-30 ) or, inside the national territory, of a CO type declaration, will constitute a taxable import in metropolitan France although no customs duty is collected on this occasion.

Note : The CO type declaration is an ad hoc customs declaration which, in practice, is preferred to internal transit for trade between mainland France and national tax territories, or between these territories.

The same will apply to the introduction into Guadeloupe, Martinique or Reunion of goods previously released for free circulation in another territory, then directly transported under cover of this regime or this CO type declaration.

II. Case of irregularities

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Article 87 of the UCC defines the place where the customs debt arises. The principle is that it is the place of the customs declaration or, failing that, the place where the facts which are at the origin of the debt occur, in particular the non-observance of a rule. Subsidiary rules are provided when it is not possible to apply this principle or for small amounts.

Thus, even in the formal absence of release for free circulation or placement under the temporary admission procedure with partial exemption from customs duties, an import subject to VAT is likely to be made up solely of the fact of non-compliance with customs regulations relating, in particular, to the collection of customs duties.

An import will be presumed to be subject to VAT in the EU Member State in which the customs debt arose due to non-compliance with customs rules.

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However, for it to give rise to an import subject to VAT, this non-compliance must lead to the introduction of the goods into the economic circuit of the Union, or the irregularity must allow this to be presumed, and the goods can be consumed there ( II-A § 160 of BOI-TVA-CHAMP-10-30 ). The case law of the CJEU draws the consequences of this principle to determine the territoriality of import VAT.

Note: In the event of temporary admission in partial exemption from customs duties constituting an import within the meaning of article 291 of the CGI , the fact that the good is ultimately re-exported does not prevent the payment of a VAT surcharge in the event of a reduction in the import VAT base.

Thus, the presumption of place of taxation for VAT mentioned in II § 70 may be reversed if it is established that, despite breaches of customs regulations in a Member State, the good was introduced into the economic circuit of the Union in the territory of another EU Member State, in which it is intended for consumption.

Goods are brought into Germany, where they are only transhipped from one plane to another, and then transported to Greece, where they are consumed. Two offenses are noted: certain goods were not declared to the German authorities and others were withdrawn from German supervision after having been declared for the two types of irregularities, the customs debt arose in Germany (country of introduction of the property).. The final routing of all the goods in Greece is established. Imports of all goods are subject to VAT in Greece and not in Germany ( CJEU, judgment of 10 July 2019, case C-26/18, Federal Express Corporation Deutsche Niederlassun, ECLI:EU:C:2019:579 ) .

A person residing in Germany brings a private vehicle into that state from Turkey, via Bulgaria, Serbia, Hungary and Austria. The irregularity with regard to customs rules, generating the customs debt, occurs in Bulgaria, the country through which the vehicle was materially brought into the EU. However, the importation within the meaning of VAT takes place in Germany, where the good has entered the economic circuit of the Union and will be consumed. This vehicle must therefore be subject to VAT in Germany, and not in Bulgaria or Hungary ( CJEU, judgment of March 3, 2021, case C-7/20, Hauptzollamt Münster, ECLI:EU:C:2021:161 ).

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The principles set out in II § 70 to 90 are also valid in internal trade within the national territory, in order to determine whether an import is located in metropolitan France or in one of the special tax territories (Guadeloupe, Martinique, Guyana, Reunion, Mayotte, Saint-Martin) and to deduce the corresponding VAT regime (application or not of VAT and determination of the rate).

Source: gouv.fr