Exportation where the person acquiring the goods exported is not identified
Article 146 – Exemptions on exportation – Article 146 — Exemptions on exportation — Concept of ‘supply of goods’ — Article 131 — Conditions laid down by the Member States — Principle of proportionality — Principle of fiscal neutrality — Evidence — Tax evasion — Practice of a Member State consisting in refusing the right to exemption where the person acquiring the goods exported is not identifie
There is a VAT exempt export of goods when (1) the right to dispose of the goods as owner has been transferred to the person acquiring the goods and (2) the supplier demonstrates that those goods have been dispatched out of the EU.
According to the European Court of Justice, “the fact that exported goods are acquired outside the European Union by an entity which is not the one mentioned on the invoice and which is not identified does not preclude those objective criteria from being met”. The contrary would endanger the suppliers involved in supply chains as these businesses do not necessarily know the identity of the final customer in the country of destination. As a consequence, the VAT exemption cannot be made conditional upon the fact that the person acquiring the goods is identified. VAT exemption could however be rejected if the failure to identify the person actually acquiring the goods prevents from demonstrating that the transaction constitutes an exempted exportation as defined above or if it is established that the supplier knew or ought to have known that that transaction was part of a fraud (detrimental to the common system of VAT).
Transport Services connected to Export Supplies – Conditional Zero-rating
Article 146(1)(e) — Exemptions on exportation — Supply of services directly connected with the exportation or the importation of goods — Meaning’
The transport of goods to a non-EU country may be zero-rated in so far as those services are provided directly to the consignor or the consignee of the goods.
Comments: This is a quite strict interpretation of the scope of that exemption. Where such transport is supplied to a person other than the exporter or the acquirer out of the EU, the zero-rate may not be relied upon. That is likely to affect the VAT regime applied to sub-contracted activities inter alia in the logistic sector.
Export Sales : What About the Time-Limit for Dispatch of Goods Leaving the European Union ?
Article 146 – Exemptions on exportation – Article 131– Conditions laid down by Member States – National legislation requiring that property intended to be exported leave the customs territory of the European Union within a fixed period of 90 days after supply)
Articles 146(1) and 131 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as precluding national legislation under which, in the context of a supply for export, goods intended to be exported from the European Union must have left the territory of the European Union within a fixed period of three months or 90 days following the date of supply, where merely exceeding that time‑limit results in the definitive loss for the taxable person of the right to exemption in relation to that supply.