Yachts supplied by an Italian operator to another European operator can benefit from the special intra Community non-taxed VAT regime
by Berardo Lanci* – photo by Guillaume Plisson
As discussed in a previous article, the supply of yachts – like other goods – by an Italian VAT taxpayer to another European VAT taxpayer may benefit from the special Intra-community regime of VAT exemption if, among other conditions, that of the actual transport of the goods to another EU country, other than Italy, in which the purchaser is resident or is identified for VAT purposes, is met. The circumstance that the Italian seller making the Intra-community supply has the proper documentation proving that the goods have left the Italian territory is of specific importance in this respect.
However, because over time each EU country had adopted its own rules concerning the aforementioned documentation, traders were burdened with having to prepare a set of documents with different areas of uncertainty as to their actual probative validity. Aware of this situation, the EU legislator amended the reference legislation using EU Regulation No. 2018/1912 by which Article 45-bis was inserted into Regulation No. 282/2011. In particular, it has been established for all EU countries that if the VAT payer is in possession of the documents listed below, the transfer of goods from one EU country to another is presumed to have taken place, unless the contrary is proved. Furthermore, in the alternative hypothesis that the VAT payer does not have all or part of the documentation referred to here, this does not affect the possibility for the same VAT payer to prove, by other means of proof, that the goods have been transported or dispatched to the other EU country. Article 45-bis cited has specifically identified two groups of documents, listed respectively in subparagraph (a) of paragraph 3 (such as CRM, bill of lading, freight forwarder’s invoice) and in subparagraph (b) of the same paragraph 3 (such as insurance policy relating to the transport of the goods, bank documents relating to the payment of the transport of the goods, official documentation issued by a public authority confirming the arrival of the goods in the EU country of destination). Moreover, for the validity of the presumption of transfer of the goods, it is required that, depending on the person entrusted with the transport, the VAT taxpayer has some of the above-mentioned documents, provided that they do not contradict each other.
However, in the absence of the documents referred to in Article 45-bis of Implementing Regulation No. 282/2011, it is possible
to prove the transport of the yacht by means of other elements. In the case of a transfer “by sea”, it is possible to present, among other documents, the mooring contract in the port of the EU country of destination.
If the transport is carried out by the purchaser, or by a third party on his behalf, a declaration of transport issued by the purchaser himself is further required. As already mentioned, in the event of documentation that does not comply with the above-mentioned principles, the supply is not automatically considered taxable for VAT purposes, with the consequent application of VAT, as if it were a domestic transaction: instead, the documentation at hand is not considered to have the presumption value. All these principles are valid also if the object of supply is a yacht. It is therefore important for the involved VAT taxpayers to carefully prepare the set of documents required by the above-mentioned Regulation to argue – with a rebuttable presumption – that the condition of transport of the yacht to the EU country of destination has been met. It is also important to remember that, in the event that the taxpayer does not have the documents required by the Regulation, the taxpayer may nevertheless rely on the principles expressed by the Revenue Agency before the entry into force of Article 45-bis.
Article 45-bis of Regulation 282/2011 provides that the possession of certain documents creates a rebuttable presumption that the yacht has been transported to the EU country of destination.
In this respect, we recall in particular Resolution No. 71/E of 24 July 2014, whereby the Italian Revenue Agency clarified that in the event of an Intra-community transfer of a yacht with transfer “by sea”, the transport of the yacht from the Italian harbour to the EU harbour of destination may be proved by integrating the documentation ordinarily required (such as, for example, sales invoice bank documentation; commercial documentation attesting to the transfer of ownership between the transferor and the transferee; a document showing that the transferor has deleted the yacht from the Italian register), with a declaration attesting to its arrival at the EU harbour of destination and a copy of the mooring agreement in that same harbour.
(Supply of yachts – Barchemagazine.com – November 2023)