The Italian Revenue Agency has recently provided significant clarifications regarding the new rules on the deadline for shipping or transporting goods to another EU Member State, in relation to the VAT exemption regime for intra-Eu sales. In its response to ruling request No. 236 of 29.11.2024, the Agency specifically referred to Article 2 of Legislative Decree No. 87/2024, which introduced a new penalty regime for entities carrying out supplies of goods where transportation or shipment is arranged by the purchaser. This legislative measure aims to establish clearer rules aligned with existing export regulations, defining the responsibilities of taxable persons more precisely.
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Requirements for Intra-EU Supplies
To qualify as a VAT-exempt intra-Eu supplies under Article 41(1)(a) of Legislative Decree No. 331/1993, the following conditions must be met:
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The supply must be made for consideration;
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The goods must be transported or shipped to another EU Member State by the supplier, the purchaser, or a third party;
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The purchaser must be a taxable person identified for VAT purposes in another EU Member State, or a non-taxable person under Article 4 of Presidential Decree No. 633/1972.
Additionally, the following conditions must be satisfied:
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Both the supplier (based in Italy) and the purchaser (based in another EU Member State) must qualify as economic operators;
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The right of ownership or another real right over the goods must be transferred;
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The goods must be physically transported to another EU Member State.
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New Penalty Regime
The new regime introduces, among other measures, a penalty equal to 50% of the non-applied VAT for entities performing intra-Community supplies if the goods are not transferred to the destination Member State within 90 days from delivery. However, this penalty may be nullified if the invoice is corrected, and the VAT due is paid within 30 days from the expiration of the 90-day period.
The 90-day period is calculated from the date of goods delivery; in this regard, the transport document date is crucial. The invoice date is only relevant if the delivery date is not otherwise available (as per Ministry of Finance Circular No. 26/1979).
The interpretation of these provisions suggests that the new penalty rules apply to any violation occurring from September 1, 2024, onward. This matter was also addressed in ruling request No. 236, which inquired about which intra-Community supplies fall under the new regulation. The requesting company had already performed intra-Community supplies under the VAT exemption regime before this date and sought clarification on necessary corrective actions should the goods not reach their destination country.
The Italian Revenue Agency clarified that the applicability of the new penalty regime is determined by the moment the supply is finalized, specifically referencing the actual transfer of goods. According to the Agency, taxable persons who carried out supplies before September 1, 2024, even if they have not received confirmation of the goods’ arrival in the destination Member State, will not be subject to the new regime, as violations would only be considered in the absence of proof of shipment or transportation. Therefore, the key determining factor is the date when transport commenced, confirming that supplies with transportation carried out before August 31, 2024, will be subject to the previous penalty regime (as per Article 6(1) of Legislative Decree No. 471/1997), with penalties ranging between 90% and 180% of the omitted tax.
It is important to note that the voluntary disclosure procedure (“ravvedimento operoso”) remains available to reduce penalties for potential errors. This can be done by issuing corrective invoices and paying the outstanding VAT. In such cases, the VAT refund procedure for EU purchasers will depend on whether they are identified for VAT purposes in Italy, requiring careful attention in managing tax documentation.
Conclusions
The measures introduced by Legislative Decree No. 87/2024 represent a significant update for intra-Community supplies, both in terms of penalty responsibilities and corrective procedures.
The provisions clarify the applicable deadlines and the conduct that could result in violations, creating a more consistent regulatory framework. Businesses must pay close attention to shipping timelines and invoice issuance to avoid substantial penalties.
It is essential for companies involved in intra-Community transactions to stay informed about these regulatory changes and implement the necessary compliance procedures to mitigate potential tax risks.
