A change in the interpretation provided by the Italian Tax Authorities
Having a direct VAT registration or having appointed a fiscal representative in Italy does not obstruct an EU VAT taxable person from filing the VAT refund claim (referred to Italian VAT) via the web portal, according to Directive 2008/9/EC. This is the new – i.e. different from the one previously provided – interpretation by the Italian Tax Authorities in the response to ruling 359/2021 and it should be kept in mind in the light of the approaching deadline on 30 September 2021.
As already known, according to Directive 2008/9/EC (implemented in Italy in Art. 38-bis2, Presidential Decree 633/72), a taxable person who is established in a member state different to Italy is entitled to obtain the refund of Italian VAT paid on goods and services purchased or imported goods, provided that the related requirements, in particular, the following conditions are met:
- during the refund period, the taxable person neither had the seat of their economic activity nor a fixed establishment in Italy from which business transactions were carried out, (if no such seat or fixed establishment existed) and had no domicile or normal place of residence in Italy; and
- during the refund period, the taxable person did not supply any goods or services deemed to have been supplied in Italy, with the exception of the following transactions:
- the supply of exempted transport services and services ancillary thereto;
- the supply of goods and services to a person who is liable for payment of VAT under the reverse charge mechanism.
If the related requirements are met, the VAT refund claim must be filed via the web portal, according to the procedure implemented by the member state of the establishment, at the latest by 30 September of the calendar year following the refund period. Therefore, the deadline for the VAT refund 2020 is approaching: 30 September 2021.
According to the previous clarification provided by the Italian Tax Authorities (see FAQ n. 40 published in 2010) - which indeed was not consistent with the article of the law (Art. 38-bis2, Presidential Decree 633/72, that implements in Italy the Directive 2008/9/EC) - a taxable person being established in a member state different from Italy, but having a direct VAT registration or a fiscal representative appointed in Italy, could not file the Italian VAT refund claim via web portal.
Recently, the Italian Tax Authorities have expressly disregarded this clarification and have confirmed that the mere direct VAT registration or fiscal representative appointment cannot be an obstacle to the VAT refund procedure via web portal, provided that all the requirements are met (response to ruling 359/2021).
When outlining this change, the Italian Tax Authorities also provided useful operative remarks. In brief, a taxable person, who is established in a member state different from Italy, having a direct VAT registration or a fiscal representative appointed in Italy and without having performed outgoing transactions in Italy (apart from those expressly admitted by the Directive 2008/9/EC):
- can file the Italian VAT refund claim via the web portal also in the event that they performed intra-Community acquisitions of goods in Italy;
- for deduction purposes, can decide to include – in the yearly VAT return – all the purchase invoices showing Italian VAT, including the ones addressed to his foreign VAT-ID-numbers; however in this case it is advisable to book the invoices separately (i.e. the invoices addressed to his Italian VAT-ID-numbers. and the invoices addressed to his foreign VAT-ID-numbers) and to draft and file two separate forms in the yearly VAT return.
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