The main amendments brought by the Order no. 2148/2020
In this issue:
Order no. 2148/2020 amending and supplementing the Instructions for applying the value added tax exemption for the operations stated by art. 294 par. (1) let. a) -i), art. 294 par. (2) and art. 296 of Law no. 227/2015 regarding the Fiscal Code, approved by Order of the Minister of Public Finance no. 103/2016
The amendments concern the conditions justifying the VAT exemption applicable to exports or to other similar operations, to intra-Community supplies and to international and intra-Community transport.
In the light of these amendments, it is really important that the companies involved in such operations review and update their internal procedures and justifying documentation in order to secure the VAT exemptions applied.
We present below a summary of these amendments / clarifications brought by Order no. 2148/2020.
The period within the documents justifying the tax exemption can be submitted is extended from 90 to 150 calendar days from the date the chargeable event occurred.
Export of goods
A new concept is introduced, namely exporter from a VAT perspective, who can differ from the exporter from a customs perspective.
From a VAT perspective, the person transporting goods outside the European Union, in the absence of any commercial transaction is considered an exporter.
In the particular case of suppliers who cannot be qualified as exporters from a customs perspective, the export customs declaration can be used as a justifying document for VAT exemption on condition that the supplier's identification data in the sense of VAT, as well as the invoice series and / or number related to the respective export are included in box 44.
For excisable products moved under duty suspension regime using EMCS, the justifying of the VAT exemption by the exporter in the sense of VAT can also be made with the export report attesting that the excise goods have left the EU territory.
According to the judgement of the Court of Justice of the European Union ("CJEU") in case Milan Vinš (C-275/18), it is allowed to justify the VAT exemption for export operations even by other means of proof, when it is not possible to justify the export by the documents specifically mentioned in Order no. 2148/2020 (invoice, customs export document, EMCS report, as applicable).
Supply of services
- Services directly related to the export of goods are deemed only the services rendered directly to the exporter or consignee of the exported goods and which contribute to the actual realization of an export operation in accordance with CJEU case „L.Č.” IK C-288/16). This change is particularly relevant for transport services and transport ancillary services (e.g. loading, unloading and handling) in relation to the exported goods.
- The VAT exemption related to services for processing of imported goods is no longer conditioned by applying of a specific customs procedure (i.e. inward processing in reimbursement system), the essential condition being that the goods obtained after processing are transported outside EU. In this situation, specific documents are required to show that the processed goods have been transported outside the EU by the supplier of services or by the customer not established in Romania (or by another person on behalf of any of them), in accordance with the above mentioned requirements for export exemption.
Operations directly linked to ships and aircrafts
- As regards the VAT exemptions in case of ships attributed to offshore navigation, the Order no. 2148/2020 brings the following clarifications:
- In accordance with the judgment of the CJEU in case Grup Servicii Petroliere SA (C-291/18), vessels used mainly in a stationary position to exploring / exploiting hydrocarbon deposits at sea are not considered to be vessels used for navigation on the high seas.
- The condition of a vessel to be effectively and predominantly used for navigation on the high seas shall be deemed to be fulfilled if the vessels has been used so for the last 5 years or for the entire period of use, if it is less than 5 years.
- The VAT exemption for the delivery of fuels and supplies intended to be used on vessels also applies in the case of deliveries made to intermediaries, if at the time of delivery the final destination of the goods is known and the intermediary takes ownership of the goods at the earliest or at the same time when the ownership is transferred to the ship operator.
- According to the CJEU decision in case A-Oy (C-33/16), the VAT exemption applies to the services related to loading / unloading services on / off a vessel used for navigation on high seas provided towards the owner / operator of the vessel or to the vessel's agent, as well as to services provided at an earlier stage.
- As regards the VAT exemptions in case of aircrafts, Order no. 2148/2020 brings the following clarifications:
- According to the CJEU decision in case A-Oy (C-33/11), the VAT exemption regarding the operations related to aircraft used by airlines performing mostly international transport of persons and / or goods made for consideration may also apply to the delivery of an aircraft to an economic operator who is not itself an airline company but who acquires the aircraft for the purpose of its exclusive use by such a company (for example, for leasing operations).
Intra-community supplies of goods in the context of Quick Fixes
As a result of the direct effect of the applicability of European provisions in the national legislation, certain VAT exemptions for intra-Community supplies of goods are justified taking into account the conditions / special documents for exemption regarding the intra-Community transport introduced by art. 45a of EU Regulation 282/2011, as amended by Regulation 2018/1912 (hereinafter Regulation 282/2011).
Thus, art. Article 45a of this Regulation provides for two situations in which the goods are presumed to have been dispatched or transported from a Member State to a destination outside its territory but within the Community. In this case, the documents attesting that the goods were transported from Romania to another Member State are those provided in par. (1) and (3) of art. 45a of Regulation 282/2011, which must be issued by parties independent of each other, as well as by the seller and the buyer. Order no. 2148/2020 defines the concept of independent parties in terms of the affiliation relations provided in the Fiscal Code at art. 7 pt. 26.
If the presumptions provided by Regulation 282/2011 cannot apply, including in case of transfer of own goods, in order to justify the transport of goods from Romania to another Member State, both are necessary:
(i) The invoice mentioning the valid VAT code of the buyer from another Member State or, in case of a transfer performed by a taxable person, a self-invoice stating the valid VAT code of the person from another Member State, and
(ii) the transport documents (such as a signed CMR document, or a signed consignment note, a bill of lading, the specific air transport document) as well as
(iii) one of the following additional documents: an insurance policy relating to the transport of the goods, bank documents attesting payment of the transport, official documents issued by a public authority (such as a notary) or a document certifying the receipt of the goods, issued by a depositary from the Member State of destination, a specific written declaration from the buyer attesting the shipment to the Member State of destination.
Note: The situations in which the presumptions from Regulation 282/2011 cannot be applied are exemplified in Order 282/2011.
The VAT exemption for intra-Community supplies of goods, other than new means of transport or excisable products under a duty suspension regime, is conditioned by the fulfillment of the obligations regarding their correct reporting in the recapitulative statement.
If there are deficiencies regarding the reported information, the obligation is considered to be fulfilled if the supplier can justify the deficiency in a manner considered satisfactory by the competent tax authorities, as well as if the deficiency is subsequently fixed, but not later than the completion of the tax inspection. There are examples of situations in which the reporting deficiency is adequately remedied.
In case of intra-Community supplies of excisable goods circulating under excise duty suspension regime to a buyer who does not communicate the supplier a valid registration code for VAT purposes, the VAT exemption is justified with the electronic administrative document and the receipt report.
In case of intra-Community supplies of new means of transport which can move by itself to a buyer who does not communicate the supplier a valid registration code for VAT purposes, the tax exemption is justified by the invoice and the documents attesting that the goods were transported from Romania to another Member State (i.e. the sale-purchase agreement from which the transport to another Member State results and proof of registration in the Member State of destination).
Feel free to reach out to us should you like to receive detailed information on the provisions brought by this normative act as well as its applicability to your specific case.