ORDER 2148/2020 to amend and supplement the instructions for applying the VAT exemption for intra-Community exports and deliveries

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ORDER 2148/2020 to amend and supplement the instructions for applying the VAT exemption for intra-Community exports and deliveries

 

In the Official Gazette no. 628 of 17.07.2020, it was published the Order no. 2148/2020 on amending and supplementing the Instructions for applying the value added tax exemption for the operations provided in art. 294 para. (1) lit. a) -i), art. 294 para. (2) and art. 296 of Law no. 227/2015 on the Fiscal Code, approved by Order of the Minister of Public Finance no. 103/2016, which enters into force starting with 17.07.2020.

The order transposes into the Romanian VAT legislation, both UE legislation in force at the date when the Order was published, and the Jurisprudence of the Court of Justice of the European Union. All the clarifications brought by the Order no. 2148/2020 are important and interesting for any contributor who is involved in the international trade of goods / services, so our recommendation is that everyone of them should review the internal procedures or processes in order to determine if they are complying with the new clarifications.

We mention below the main changes brought, among the others, by the Order no. 2148/2020 on the justification for the VAT exemption for the operation of export and intra-Community supplies:

1. There are made additions to the definition of the exporter from the VAT perspective, in the sense that it is considered as exporter both the supplier who makes the exports and the person who transports goods outside the European Union, in the absence of a commercial transaction.

2. The deadline for submitting the documents to justify the VAT exemption was extended to 150 calendar days from the date on which the VAT-generating event for the operation in question occurred.

3. The necessary documents to justify the application of the VAT exemption in case of deliveries of goods shipped or transported outside the European Union by the supplier or by another person on his account are the following:
– The invoice containing the information provided in art. 319 para. 20 of the Romanian Tax Code;
– One of the following documents:
> the certification of the conclusion of the export operation by the customs office of export or, as the case may be, the export notification certified by the customs office of export, in case of electronic export declaration; or
> copy 3 of the unique administrative document, used as an export declaration on paper, certified on the back by the customs office of exit; or
> in the case of excisable products moved under suspensive excise regime using EMCS, the export report submitted to the consignor certifying that the excisable products have left the territory of the EU.

4. If the supplier is not established in the European Union and cannot be an exporter from the customs point of view, in order to justify the VAT exemption it is necessary for him to have the customs export declaration (DVE), in which shall be indicated in the box 44 his identification data and the series and / or number of the invoice issued by him for the delivery of the transported goods outside the European Union.

5. If the supplier is established in the European Union but does not have the status of an exporter from the customs point of view, in order to justify the VAT exemption it is necessary for him to have the customs export declaration (DVE), in which shall be indicated in the box 44 his identification data and the series and / or number of the invoice issued by him for the delivery of the transported goods outside the European Union.

6. If the exit of the goods from the territory of the European Union cannot be justified with DVE, with the certification of the conclusion of the export operation or with the export report (from EMCS), the exporter can prove the actual exit of the goods by other means of proof (eg CMR)., as ruled by the Court of Justice of the European Union in Case C-275/18 “Milan Vins”.

7. In the case of deliveries of goods shipped or transported outside the European Union by the buyer who is not established in Romania or by another person on his account, the VAT exemption is justified with the same documents mentioned above.

8. There are considered as directly related of the export of goods those services which are contributing to the actual performance of the export operation and which are provided directly to the exporter or to the consignee of the exported goods are considered to be directly related to the export of goods, as ruled by the Court of Justice of the European Union in Case C-288/16 «L.È.» IK.

9. VAT exemption for intra-community deliveries of goods provided in art. 294 para. (2) lit. a) of the Fiscal Code, with the exceptions from points 1 and 2 of the same letter a), is justified on the basis of the following documents:
> the invoice in which the registration code for VAT purposes assigned to the buyer in another Member State must be mentioned;
> documents certifying that the goods were transported from Romania to another Member State, which may be different from the Member State that assigned the registration code for VAT purposes communicated by the buyer.

10. In the case of the intra-Community deliveries of new means of transport to a buyer who does not communicate to the supplier a valid registration VAT code, as it is provided in art. 294 para. (2) lit. b) of the Romanian Tax Code, the VAT exemption is justified by:
> the invoice or, if the supplier is not a taxable person, the sale-purchase contract;
> documents certifying that the goods were transported from Romania to another member state.

11. In the case of intra-community deliveries of excisable products provided in art. 294 para. (2) lit. c) of the Romanian Tax Code, with the exceptions from points 1 and 2 of the same letter c), to a taxable person or to a non-taxable legal person who does not communicate to the supplier a valid VAT registration code, if the transport of goods is performed according to art. 34 para. (1) and (2) or art. 19 of the Council Directive 2008/118 / EC of 16 December 2008 on the general regime for excise duty and repealing Directive 92/12 / EEC, the exemption from duty is justified by:
> the invoice which does not have to contain the VAT registration code of the buyer in another Member State;
> documents certifying that the goods were transported from Romania to another member state.

12. In the case of assimilated intra-community deliveries of goods provided by the art. 270 para. (10) of the Romanian Tax Code, respectively the transfers of goods, the VAT exemption provided by the art. 294 para. (2) lit. d) of the Romanian Tax Code is justified, with the exceptions provided in the same paragraph, on the basis of the following documents:
> the self-invoice provided in art. 319 para. (9) of the Romanian Tax Code in which has to be mentioned the VAT registration code assigned in another Member State of the person making the transfer from Romania;
> documents for transporting goods from Romania to another member state, such as a signed CMR document or a signed consignment note, a bill of lading, the specific air waybill document (Air Waybill).

13. The documents attesting that the goods were transported from Romania to another member state are those provided in the paragraphs 1 and 3 of art. 45a of Regulation 282/2011 (amended by the implementing regulation 2018/1912).
A. If the supplier is the one who makes the transport or a third party on his behalf, the justification of the tax exemption is made with the following documents:
A.1. at least 2 documents specific to the type of transport performed that are not contradictory, namely: documents related to the shipment or transport of goods such as signed CMR or a signed consignment note, a bill of lading, an invoice for the air transport of goods or an invoice from the carrier of the goods, issued by two different parties that are independent of each other, as well as by the seller and the buyer;

A.2. a supporting document from the above list together with any of the following non-contradictory documents: an insurance policy corresponding to the dispatch or transport of the goods or bank documents proving payment for the dispatch or transport of the goods, official documents issued by a public authority, such as a notary, attesting the arrival of the goods in the Member State of destination, a receipt issued by a warehousekeeper in the Member State of destination attesting to the storage of the goods in that Member State issued by two different parties which are independent of each other, as well as by the seller and the buyer;

B. If the shipment is made by the buyer or by a third party on his behalf, he must provide the supplier with the following supporting documents:
B.1. A written declaration from the buyer stating that the goods have been dispatched or transported by him or a third party on behalf of the buyer and stating the Member State of destination of the goods; this written declaration shall state the date of issue, the name and address of the purchaser and the quantity and nature of the goods, the date and place of arrival of the goods and, in the case of delivery of means of transport, the identification number of the means of transport and the identification of the person accepting the goods in the name of the buyer; and
B.2. at least two non-contradictory proofs mentioned in paragraph A.1., issued by two different parties which are independent of each other and as well as of the seller and the buyer, or one of the documents mentioned in paragraph A.1., together with a non-contradictory document from those mentioned in point A.2. which confirms the shipment or the transport, which are issued by two different parties which are independent of each other, as well as of the seller and the buyer.
The buyer provides the seller with a written statement no later than the tenth day of the month following delivery. If the buyer does not provide the seller with the written declaration until the tenth day of the month following delivery, the supplier still benefits from the tax exemption if he receives this declaration later, but within a maximum of 150 calendar days from the date on which the tax-generatin fact occured.
Independent parties are parties that are not considered affiliated under the Romanian Tax Code.
14. In the situation where it does not fall within the presumption provided in art. 45a of Regulation 282/2011, the transport of goods from Romania to another Member State is justified according to the provisions of art. 10, par. 10-11 of OMFP no. 103/2016. Such situations can be, without being limited to these, those in which: the transport of goods is carried out with their own means of transport by the supplier or buyer, the goods that are the subject of delivery are means of transport that travel alone on wheels, by sea, river or air, the persons involved in the transport of goods are not independent of each other and of the seller and the buyer or there is no proof of their independence. Own means of transport represent the means of transport owned by the supplier or buyer of the goods or which are made available to him by leasing, rental, loan or other contracts of this type. It is considered that the goods were transported from Romania to another Member State, if the supplier has documents justifying the transport, such as:
> in case of delivery of excisable products circulating under suspensive excise regime: the administrative document in electronic format and the receipt report;
> in the case of the delivery of means of transport moving alone on wheels, by sea, river or air: the purchase agreement stating that the goods will be transported to another Member State and proof of registration of the means of transport in the Member State of destination;
> in case of delivery of other goods:
– transport documents, such as a signed CMR document or a signed consignment note, a bill of lading, the specific Air Waybill document); and
– one of the following documents: an insurance policy corresponding to the dispatch or transport of the goods, bank documents proving payment for the shipment or transport of goods, official documents issued by a public authority, such as a notary, certifying the arrival of the goods in the Member State of destination, a document certifying receipt of the goods, issued by a depositary in the Member State of destination other than the purchaser of the goods, a written declaration from the purchaser stating that the goods have been dispatched or transported to the Member State of destination which contains: the date of issue, the name and address of the buyer, as well as the quantity and nature of the goods, the date and place of arrival of the goods, the identification of the person accepting the goods on behalf of the buyer.
15. The tax authorities may reject the justification of the transport, if they have sufficient elements to prove that the goods were not transported from Romania to another Member State.
16. The VAT exemption provided in art. 294 para. (2) lit. a) of the Fiscal Code does not apply in case the supplier has not complied with the obligation provided in art. 325 para. (1) of the Fiscal Code to submit a recapitulative statement or the recapitulative statement submitted by him does not contain the correct information regarding this delivery, unless the supplier can suitably justify the deficiency in a manner considered satisfactory by the competent tax authorities.
17. Regarding the art. 294 para. (21) of the Fiscal Code, it is considered that the supplier suitably justifies the deficiency, if it is remedied later, but not later than the completion of the fiscal inspection. It can be considered that the deficiency has been remedied in situations such as:
– the supplier did not include the intra-Community delivery in the recapitulative statement relating to the period in which the exigibility of the tax intervened, but he included it in the recapitulative statement relating to a subsequent period or in an corrective statement for that period;
– the supplier included the intra-Community delivery in the recapitulative statement relating to the period in the exigibility of the tax intervened, but unintentionally erred in one or more information relating to that delivery, such as its value, type of transaction, customer name and made the correction in a corrective statements for that period.

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