VATupdate

Guidance: Rights of deduction – Importation of tangible movable property

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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This section deals with the deduction of value added tax (VAT) paid on import transactions defined in BOI-TVA-CHAMP-10-30 .

As a reminder, in accordance with 1° of I of article 1695 of the general tax code (CGI) , only persons not subject and not identified to VAT must declare and pay the VAT for which they are liable on importation to the services of the General Directorate of Customs and Indirect Duties (DGDDI) ( II-K § 290 to 335 of BOI-TVA-DECLA-20-20-10-20 ).

Persons subject or identified to VAT in France have had the obligation, since 1 January 2022, to declare and pay the amounts of import VAT for which they are liable on their declaration of turnover (form no. 3310-CA3-SD [CERFA no. 10963] or no. 3517-AGR-SD CA 12A [CERFA no. 10968]). Import VAT is therefore subject to simultaneous collection and deduction, within the limits of the rights to deduction under common law, on the same declaration.

Note 1: Simultaneous collection and deduction also benefit, in the event of imports into France of goods which are then transferred to another Member State of the European Union (EU), the following persons when they are identified for VAT in France: non-established taxable persons who do not deliver goods or provide services for which they are liable for France VAT ( III § 160 of BOI-TVA-CHAMP-20-70 ) and non-taxable legal persons identified for VAT ( V § 145 of BOI-TVA-CHAMP-30-40 ). They then replace reimbursement procedures.

Note 2: The concept of consignee within the meaning of 3° of 2 of article 293 A of the CGI is a tax concept and not customs, it refers to the person for whom the imported goods are actually intended.

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I. General

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When goods are imported, the tax is collected on a determined basis under the conditions provided for in particular by article 292 of the CGI or, where applicable, article 293 of the CGI (in this respect, reference should be made at BOI-TVA-BASE-10-20-60 ).

30

In accordance with b of 1 of II of article 271 of the CGI , a person can deduct VAT on imports when he cumulatively fulfills the following two conditions:

  • the imported good is used for the purposes of its taxable transactions and these transactions give rise to the right to deduction ( § 1 of BOI-TVA-DED-10-10-20 ). For this purpose, it is necessary that this taxable person is the owner of the asset. By way of exception, the person who imports the goods without being the owner thereof may benefit from the right to deduct VAT when he is able to establish that the value of the goods on importation is incorporated in the price of the specific operations downstream. or in the price of the goods or services it provides in the context of its economic operations ( CJEU, order of October 8, 2020, case C-621/19, Weindel Logistik Service ).

Example 1: When a company imports a good of which it is a tenant, it does not have the right to deduct the VAT charged on this import.

Note: For the specific case of goods temporarily staying in France for a manufacturing operation, please refer to IV § 180 of BOI-TVA-CHAMP-20-70 .

Example 2: Company A sells a good to company B. The good is imported as part of this sale. The importation will be deemed to have been carried out for the needs of company B as soon as the amount of this sale is included in the tax base for import VAT, even if the transfer of the right to dispose of the good as an owner from A to B only intervenes after the importation has been carried out (for example, upon receipt of the good). Conversely, this will not be the case if the import VAT base is calculated on the basis of the value of the acquisition of the goods by A.

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It follows from the elements appearing in I § 30 that when the company which is liable under common law for import VAT, pursuant to 1° to 3° of 2 of Article 293 A of the CGI , does not have of the right to deduct, import VAT is not deductible and is likely to constitute a residual tax charge in transactions between persons subject to VAT.

In order to avoid such a situation, pursuant to 4° of 2 of article 293 A of the CGI, the person having the right to deduct can always opt to be designated as being liable for import VAT. Indeed, in accordance with I of article 293 quater A of the CGI , when he is not designated as liable by 1° to 3° of 2 of article 293 A of the CGI, the taxable person who carries out the distance selling of imported goods or any taxable person carrying out operations relating to economic activities within the meaning of the last paragraph of article 256 A of the CGI , for the needs of which the importation is carried out, may opt to be liable for VAT at importation ( III-B § 150 to 170 of BOI-TVA-DECLA-10-20 ).

(50-60)

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In order to facilitate procedures for companies, the online VAT declaration is pre-filled, on the 14th of each month, with the tax bases for import VAT, payable for taxable imports made during the previous month, from the data appearing on the customs declarations.

Taxable persons must complete the declaration of the taxable and non-taxable bases and the amounts due for withdrawals from suspensive regimes, the non-taxable bases relating to certain import operations (suspended, exempt or free of VAT) as well as the amount related deductible VAT.

Since the pre-filled amounts must be checked by the taxpayers, it is up to them to approach, if necessary, their registered customs representatives (RDE) to obtain the communication of all the information. necessary and available on their customs declarations taken into account for the reference month of the VAT declaration to be checked.

Details of the pre-filled amount can also be accessed in the “DONNEES ATVAI” area of ​​the business account of the taxpayer on the website www.douane.gouv.fr . In addition to the declaration numbers and, by declaration item, the taxable base by rate and nomenclature, it includes information identifying the RDEs (Name and EORI number).

The conditions for pre-filling the VAT declaration are detailed in the VAT declaration notice, published on the portal www.impots.gouv.fr .

(70-120)

II. Import carried out under the conditions of delivery of the goods in France by a foreign company not established in France

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In this case, the transport as well as the operations of customs brokers are normally carried out on behalf of the foreign shipper.

Various cases may arise.

A. The good is transported directly to the buyer to whom it is delivered in the state in which it was presented to customs

140

Delivery to the buyer means that defined by II of article 256 of the CGI .

In situations where the supplier takes care of customs formalities, before delivering the imported goods to the purchaser established in France, he has the option of designating himself liable for import VAT in accordance with the option given to him. offered by article 293 A quater of the CGI . If he uses this option, the delivery of the imported good to his purchaser is located in France in accordance with V of article 258 of the CGI and must therefore be subject to VAT.

However, in the situation where the supplier plans to transport the imported goods to the purchaser and to deliver them to him in the state in which they were presented to customs, he is not obliged, although he makes the declaration in customs, to have recourse to the option of article 293 A quarter of the CGI. By designating the purchaser as the effective recipient on the import declaration in the dedicated data, it allows the latter, in accordance with 3° of 2 of article 293 A of the CGI , to be considered as liable for VAT at importation and to declare it on its declaration of turnover. The purchaser will therefore be able to deduct the import VAT, for which he is liable, under the conditions of common law.

(150-160)

B. The imported good is not delivered to the buyer in the state in which it was presented to customs

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This is particularly the case when the tangible personal property is assembled or installed in France before delivery. Such a delivery is subject to French VAT pursuant to b of I of article 258 of the CGI . In this situation, in accordance with 1° of 2 of article 293 A of the CGI , the non-established taxable person who makes such a delivery is liable for the VAT due on the importation. Consequently, when importing, if he is not already designated as the effective recipient on the import declaration, he must designate himself as liable for import VAT by means of the dedicated data of this same declaration. .

As a result, the foreign company or its tax representative may operate, under ordinary conditions, the deduction of the tax collected during importation as well as that which may have related to the transport and the intervention of the customs representative registered under provided that for this last tax, the supporting documents are annotated with his name and his capacity as tax representative.

Note: Certain foreign companies not established in the territory of the European Union may be exempted from the appointment of a tax representative. For more details, please refer to BOI-TVA-DECLA-20-30-40-10 .

With regard to the VAT due on the delivery of goods subsequent to importation, insofar as the foreign company is not established on the territory of the European Union, the person liable will be the taxable purchaser if the latter is identified for VAT purposes in France ( CGI, 283, 1, al. 2 ). If, on the other hand, the purchaser is a non-taxable person or a taxable person not identified for VAT, the non-established foreign supplier remains liable for VAT on the subsequent delivery.

III. Details

A. Payment of tax on behalf of a foreign company

180

When the VAT is paid by the tax representative of a company established outside the European Union accredited in accordance with I of article 289 A of the CGI , it is normally up to him to issue invoices.

The foreign company concerned, however, has the option of carrying out this formality itself, but it must, in such a case, specify on the invoices it issues, not only its own contact details and VAT identification number in France, but also the name (or company name), address (or location of the registered office) and VAT identification number of its tax representative pursuant to the provisions of 5° of article 242h A of Annex II to the CGI .

B. Imports made through a freight forwarder

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Brokers and other agents who, as opaque intermediaries, conclude contracts for the sale of imported goods deliverable in France with the customers of foreign firms not established in this country must, pursuant to b of 1 of Article 266 of CGI , pay the VAT on the total price of the transaction. From the tax thus payable for the delivery of goods, these brokers may in particular deduct the tax which they have collected and declared as liable for import VAT.

C. Reimbursement by the DGDDI departments of the VAT collected on the importation of goods subsequently re-exported or destroyed

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It is recalled that this hypothesis can only concern persons not subject to and not identified with VAT in that they are the only persons required to pay the amounts of VAT on importation to the services of the DGDDI ( CGI, art. 1695, I ; II-K § 290 to 335 of BOI-TVA-DECLA-20-20-10-20 ).

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Reimbursement or rebate must be the subject of an express request to the services of the DGDDI. For more information, consult the dedicated page of the portal of the General Directorate of Customs and Indirect Duties .

(210-240)

D. International transport of goods carried out on the order of freight forwarders

250

Foreign companies, not established in the European Union, which are involved in the international transport of goods experience certain difficulties in transmitting to the French recipients of the goods the right to deduct the VAT which affects the transport relating to the French part of the journey. This is the case, in particular, when the transport is carried out under a charter contract by French companies, either in full or only in part, the French company then only providing terminal transport after unbundling of the goods.

Foreign companies, not established in the European Union, placed in this situation and which thus exercise in France the activity of freight forwarder must have a representative domiciled in France accredited with the tax department who undertakes to fulfill, in their place and place, the regulatory formalities.

Thus, foreign companies, not established in the European Union, pay, through this tax representative, the VAT on the remuneration relating to the taxable part of the journey. The invoices they issue on this occasion to their French customers must bear the indication of the name and address of this representative. From the tax thus payable, they deduct, under ordinary conditions, on the one hand, the tax paid, where applicable, either by themselves or by their accredited representatives, and on the other hand, that which may be invoiced to them. by the French carriers they use.

E. Recovery of VAT when routing import mail

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The French recipients of the items may, under the conditions of common law, deduct the tax for which they are liable and collected on their turnover declaration ( II § 205 of the BOI-TVA-CHAMP-20-60-20 ).

Foreign senders generally bear VAT only in the case of non-commercial or valueless shipments; this tax is that which relates to transport. In this case, the tax in question may be refunded under the conditions provided for in article 242-0 M of annex II to the CGI in article 242-0 T of annex II to the CGI .

Source: gouv.fr

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