VAT obligations for the operations territorially relevant in Italy
The non-resident subject – Community or non-EU – who carries out operations relevant for VAT purposes in Italy, must comply with the relative obligations or may exercise the related rights in the following ways:
- Permanent organization – It is realized when a foreign subject carries out a stable economic activity in Italy, and qualifies as a taxable subject in relation to transactions fulfilled in Italy;
- VAT Representative – when a foreign subject carries out individual economic acts relevant for VAT purposes in Italy, it is possible to appoint a VAT representative to fulfil the tax obligations and to exercise the related rights (for ex. the reimbursement of the VAT payed for the purchases). The appointment of the VAT representative is necessary for B2C transactions as well as e-commerce and distance commerce. The appointment is optional when it allows the non-resident party to assert the right to deduct the VAT paid on purchases in Italy. The VAT representative will act on behalf of the non-resident subject due to the power of attorney given and is jointly and severally liable with the non-resident subject for all the obligations required by law and for the payment of the VAT due.
- Direct identification – It is the possibility – only for EU operators – to fulfill the fiscal obligations or exercise the related rights, registering directly to the Revenue Agency, by presenting a declaration of “start of activity” with which it is released a VAT number. Differently form the tax representative the only liable for the tax obligations remains the non-resident subject – directly identified – even if makes use of an Italian advisor.
Appointment of the tax representative in Italy
Tax representation consists of a mandate with representation given to a person established in Italy in order to fulfil tax obligations in the national territory.
The appointment of the tax representative or direct identification is mandatory when the transaction, which takes place in the national territory, must be subject to VAT and the related obligations are expected to be borne by the non-resident:
- sale on the basis of catalogs, by mail order, to private consumers or to other subjects for sales exceeding 35,000 Euros;
- sale of goods to private individuals (even if previously already introduced in Italy for assembly or installation);
- introduction of goods into Italy on own account for the needs of the foreign company;
- some services provided under art. 40 D.L. 331/93 (territoriality of intra-community transactions);
- introduction in Italy of goods in VAT warehouses (art.50 Bis D.L. 331/93);
- transactions involving more than three EU subjects for a single transfer of assets.
The appointment is optional when it allows the non-resident to assert the right to be able to deduct the VAT paid on purchases in Italy.
Liability towards the tax authorities
An important difference between the appointment of a tax representative and direct identification is given by the different responsibility towards the tax authorities:
- the VAT tax representative is jointly and severally liable with the non-resident person for all obligations under the law and for the payment of VAT due (Article 17, paragraph 3, of Presidential Decree 633/72). From a civil law point of view, the tax representative acts as an agent without representation;
- in direct identification, the only debtor remains the non-resident, even when using a consultant (auxiliary) in Itay.
“Light” VAT representative in Italy (art. 44, par. 3, DL 331/93)
In the event that, within the EU, are carried out transactions non-taxable, VAT exempt or not VAT subject, or in any case without obligation to pay VAT, the representative is called “light”. This representative is only required to fulfil the following obligations:
- Invoicing of operations;
- Compilation and presentation of the lists of intra-community sales and purchases.
This simplification stops with the first active or passive transaction, which involves the payment of the tax or the related recovery and, starting from such operation, all the normal VAT obligations arise (invoicing, registration, declaration etc.).
In the mandate it is appropriate to specify the limitation to billing and the compilation of Intrastat lists provided for by art. 44, paragraph 3, of Legislative Decree 331/1993.
Territoriality of the operations rendered in presence of a tax representative or a direct identification in Italy
The appointment of a tax representative or the direct identification in Italy for VAT purposes doesn’t change the condition of non resident subject of the foreign entity and, doesn’t have any effect on the territoriality of the single operation, that must be identified on the bases of the residence of the foreign entity, and not of its tax representative.
Documentation required for the appiontment of the tax representative
The tax representative must be appointed through the declaration of start and change of activities, referred to art. 35, paragraphs 1 and 3, of the D.P.R. n. 633/1972 or alternatively by:
- a public act issued by a Notary;
- a registered private writing;
- a letter noted in a special register at the competent Revenue Agency (Form VI) in relation to the tax domicile of the representative.
For the purposes of registration of the letter of appointment, the Agency requires that the translation in the Italian language of the appointment letter would be legalized taking an oath before a public official (eg Foreign Notary or Consul General of Italy to the Foreign State) and may also request the affixing of the “Apostille” and the certificate of “good standing” of the foreign company. The Apostille replaces the legalization and certifies that the Notary or the Government authority that issued the document is actually authorized to do so.
Direct identification method
Direct identification for VAT purposes in Italy (art. 35-ter, Presidential Decree 633/72) consists in the assignment of a VAT number directly to the foreign subject, acting in its own name and under its own responsibility in Italy.
All subjects belonging to the territory of the Community can access direct identification as defined by art. 7, paragraph 1, lett. b), of Presidential Decree 633/72, and the subjects of the United Kingdom post Brexit (Resolution 7 / E of 1 February 2021), it follows that, for example, a Canarian company, despite being a company under Spanish law, cannot identify itself directly as it is considered outside the community territory and therefore will have to resort to a tax representative.
Direct identification for VAT purposes is achieved by submitting the ANR / 3 form before carrying out any territorially relevant transaction in Italy.
The ANR form must also be used to communicate any changes of the data already communicated indicated in the declaration for direct identification or to stop the activity.
The declarations for direct identification, with the consequent attribution of a VAT number, must be presented exclusively to the Revenue Agency – Pescara Operations Center – via Rio Sparto n. 21 – 65100 Pescara, in the following ways:
- directly to the office (also by means of a specifically delegated person);
- by postal service, by registered letter, attaching a photocopy of a declarant’s identification document and the certification attesting to the quality of a taxable person for the purposes of the VAT owned in the State of origin. The declarations are considered presented on the day they are sent.
Once completed and signed by the director, the specific ANR / 3 form must be attached:
- an original and updated certificate issued by the Tax Authorities of the Country where the company has its registered office that attests the registratigon for VAT purposes;
- an original and updated certificate issued by the Chamber of Commerce of the country where the company has its registered office and this certificate must indicate the representatives with the power to act and the powers of signature;
- translations into Italian of the aforementioned certificates signed by the translator them, with a copy of a valid identity document attached;
- copy of a valid identity document of the legal representative signatory to the request for direct identification (mod. ANR / 3)
- declaration made under its responsibility, pursuant to art. 47 of Presidential Decree 445/2000, signed by the legal representative of the company, where it is specified:
- the usual activity and other activities actually carried out in the foreign country of establishment;
- the activity that are intended to be carry out in Italy following the direct identification ex art.35 ter D.P.R. 633/1972;
- the reasons for the request;
- towards which subjects (companies, private individuals, etc.) the activity to be carried out in Italy is addressed;
- that the non-resident person does not have a permanent establishment in Italy.
Once the Revenue Agency has allocated the VAT number and sent the certificate of VAT attribution, the identified party must fulfil all the obligations provided for by the Italian VAT legislation.
Fulfilments of Italian VAT legislation
The tax representative (or the direct identification) is subjected to all the duties provided by Italian VAT regulations for the resident entities and enjoys the same rights, such as:
- recording of daily fees for active invoices for B2C transactions;
- record of passive invoices;
- carrying out periodic payments;
- presentation of the VAT data communication and declarations.
Invoices issued and received by the foreign entity with tax representation in Italy or through his direct identification must always indicate, in addition to its exact name and identification, also the exact indication of the tax representative.
The typical rights, related to the application of the tax, such as the obtaining of VAT reimbursement pursuant to art. 38-bis of D.P.R. 633/72, will be applied to the foreign entity, through its tax representative (or through its direct identification), or the possibility to purchase goods without VAT for the regular exporters pursuant art. 8, par. 1, lett. c), DPR 633/72.
Status of habitual exporter and ceiling
C.M. 8 November 1973, n. 70/502886 specified that the non-taxable regime provided for by art. 8, paragraph 2, of Presidential Decree 633/1972 “applies only to those companies that have their residence, domicile or a permanent establishment in the State”, consequently, “subjects residing abroad who carry out occasionally tasks in the territory of the State that, in any case, do not have their domicile or a permanent establishment”, however, the Revenue Agency with resolution no. 80 of 4 August 2011 expressed itself in favour of the use of the plafond as a habitual exporter by a foreign subject identified for VAT purposes in Italy, based on an interpretation of the regulatory provision in the broader context of the VAT regulations.
Art. 17, paragraph 3, of Presidential Decree no. 633/1972, in fact, provides for the tax representative not only the fulfilment of the obligations deriving from the application of the tax, but also the exercise of the related rights, for which the tax representative can exercise the right to purchase goods and / or services with the use of the plafond.
Invoicing of sales of goods and services
Regarding the issuance of invoice the Resolution n. 89/E/2010 has specified that the art. 17, paragraph 2, DPR 633/72, “excludes that the non-resident transferor is required to issue the invoice (and the consequent annotation and declaration obligations), using the Italian VAT identification number”. It has also confirmed that the VAT relating to goods and services territorially relevant in Italy must always be paid by the buyer established in Italy, through the application of the reverse charge mechanism, even if the transferor is identified to VAT purposes in Italy, through direct identification or VAT representation. In this regard, see also C.M. n. 14/E/2010 and C.M. n. 36/E/2010.
The Italian customers subject to VAT, purchasing goods or services from foreign subjects, are obliged to issue self-invoice or supplement the invoice received with VAT.
In reality, the Agency admits that, for internal sales, the tax representative of a foreign entity is entitled, for internal needs, to issue to the resident transferee / purchaser a document that is not relevant for VAT purposes, while indicating that the tax related to this transaction will be paid by the assignee or client.
The appointment of a vat representative in Italy doesn’t change the condition of “non resident subject” of the foreign subject and, it doesn’t have effects in the territoriality of the operation, that must be identified on the base of the residency of the foreign subject and not of its vat representative.
Opening of the VAT number
The subject appointed representative in Italy must open the VAT position (declaration of commencement of activity) for the principal. With the opening of the VAT position, the foreign person, through his representative, will be subject to all the obligations and rights established by the national VAT legislation.
The Italian operator who already owns a VAT number, if he becomes a tax representative, will have an additional VAT number. Each VAT number will be managed autonomously with separate accounting. A tax representative can represent several subjects and therefore can be holder of several VAT numbers, while a foreign operator can not have more than one tax representative.
The appointment is also possible for a single operation.
The tax representative can be a physical person or a legal person (resident or permanent established in Italy).
The appointment must be brought to the attention of the suppliers before the first transaction.
What documents are required to make the appointment of a VAT representative in Italy?
For the appointment of a tax representative, it is necessary to have the following documents:
- Up-to-date view of the company released by the competent Chamber of Commerce;
- Certificate of attribution of the VAT number issued by the foreign Revenue Agency;
- State and deed of incorporation of the company;
- Letter of appointment of the tax representative signed by the legal representative and legalized by a notary or at the Italian Consulate in the foreign country.
How long will the Italian VAT number be issued for VAT representation?
The assignment of the Italian VAT number is immediate when the request is sent, so that, once the documentation is collected, within a couple of hours the Revenue Agency issues the VAT registration certificate.
What should I do once I have obtained the Italian VAT number of the tax representation?
It is necessary to communicate to its suppliers that for the purchase operations the company uses a VAT representative, indicating the personal data of the representative and the VAT number assigned to the representative and, finally, specifying that the purchase invoices must be sent, as a copy, also to the tax representative.
If I purchase goods in Italy or I carry them in Italy for logistic purposes from another European country, is it necessary to appoint a VAT tax representative?
The appointment of a VAT representative is not necessary but allows the foreign VAT subjects to deduct the VAT credit on the territorially relevant purchase transactions in Italy, instead the appointment is mandatory in the following cases:
- sale based on catalogs, by mail order, to private consumers or to other parties for sales exceeding 35,000 euros;
- sales of goods to private individuals (even if previously introduced in Italy for assembly or installation);
- introduction of goods in Italy on its own account for the needs of the foreign company;
- introduction of goods in Italy on its own account for the needs of the foreign company;
- introduction in Italy of goods in VAT deposits (art. 50-bis D.L. 331/93);
- transactions involving more than three community subjects against a single transfer of assets.
In case of goods importation from an Ex-EU country in Italy, should VAT be paid on imported goods?
In principle, yes. VAT is due at the time of customs clearance of the goods, however it is possible to enter the goods in “free practice”, that is to make the goods community by paying only customs duties and to use a “tax warehouse”, ie a warehouse where the goods are temporarily exempt from VAT taxation until the time of the their extraction.
At the time of the subsequent extraction, VAT will be paid through the reverse charge mechanism, pursuant to art. 50-bis, paragraph 4, of Legislative Decree 331/93 by those who extract the goods from the tax warehouse. The same mechanism can be used for intra-community purchases previously introduced the tax warehouse.
In the hypothesis of goods sales to VAT subjects in Italy is it necessary to apply the VAT on the invoice?
Absolutely not! The foreign company, even if identified in Italy or with fiscal representation in Italy, does not change its status as a foreign subject even if the goods were purchased through the VAT representation, therefore it will always be the foreign company to issue the invoice with its identification data, specifying that the goods come from Italy. The assignee will receive the invoice and register it with the reverse charge mechanism pursuant to art. 17, paragraph 3, Presidential Decree 633/72, which consists of a system of liquidation and payment of VAT by the assignee, rather than as normally done by the transferor. In other words, the transferee will integrate the invoice (which does not show VAT) with VAT and will register it both in the VAT purchase register and in the VAT sales register, effectively offsetting the VAT credit on the purchase with the VAT debit deriving from the registration of the invoice on the register Sales VAT. The invoice issued with only the indication of the Italian VAT number has no fiscal value and the transferee must receive the invoice directly from the foreign company. It is however admitted that the VAT representation may issue pro-forma documents on behalf of the foreign partners for the sole purpose of facilitating the registration by the buyer.
Does the VAT subject that sells in Italy to the foreign company with a VAT representative have to issue an electronic invoice?
There is no obligation to issue an electronic invoice for the transfer of goods to foreign VAT subjects with direct identification. For not resident subjects in the State territory, but identified therein by VAT representative, pursuant to article 17, paragraph 3, or directly identified pursuant to article 35-ter of the D.P.R. 633/1972 (the latter, granted only to the community subjects), the identification in the territory of the State does not confer the qualification of subjects established in Italy (nor that of resident), with the consequence that, the operation carried out with these subjects do not flow into the obligation of issuing an electronic invoice, which therefore remains optional to agreement with the counterparty and without prejudice to the need to ensure the paper copy where required.
Should a company resident in the EU have a VAT representative for territorially relevant operations in Italy or are there alternative instruments?
The companies belonging to the EU that carry out significant territorial purchase transactions in Italy in order to request the reimbursement of the VAT credit can, as an alternative to the appointment of a VAT representative, identify themselves directly with the Office of the Revenue Agency of Pescara. The identification times are on average longer than the appointment of a VAT representative (around 30 days) and the management of VAT reimbursement procedures will be carried out directly by the Office of the Revenue Agency of Pescara with average repayment times longer a few months compared to the repayment terms provided for tax representation.
When does the VAT credit on purchases can be requested in reimbursement and what is the timing for VAT reimbursement?
VAT refund can be requested at the end of each calendar quarter by sending the refund request (model TR) to be sent by the end of the month following the reference quarter, or by sending the annual VAT return in April of the year following the reference year.
Pursuant to Article 38-bis, paragraph 1 of the Presidential Decree 633/1972, the VAT refunds, as provided for in the previous article 30, are ordinarily performed, upon request made at the time of the annual declaration, within three months from the presentation of the declaration. It must be emphasized that the repayment times are not binding for the Agency, which may take even longer than required by law.
In the case of indirect electronic commerce, am I obliged to appoint a VAT representative in Italy?
The answer is affirmative, alternatively it is possible to identify oneself directly (only for EU subjects). “Indirect” electronic commerce, for VAT purposes, represents a supply of goods. In particular, this type of trade, unlike direct electronic commerce, is assimilated to mail order sales, therefore, for the purposes of invoicing, the rule established by Article 22, paragraph 1, n. 1) Presidential Decree 633/1972, according to which, the issuance of the invoice is not mandatory, if it is not requested by the customer after the transaction is completed. For these transactions, which can be classified as internal VAT purposes, there is no obligation to issue receipts as far as internal transactions are concerned. However, the obligation to register the daily fees remains.
In indirect electronic commerce, can I pay VAT in Italy for transfers to private end-users (B2C operations) resident in another EU state?
For B2C sales made to private citizens (not subject to VAT) residing in another state of the EU, VAT will be applied in Italy unless the turnover thresholds are exceeded (100,000.00 euros or less if required by the individual State). Beyond the mentioned turnover thresholds it will be necessary to identify oneself directly in the foreign state or to appoint a VAT representative and to apply the VAT on the invoice of the foreign state.
Starting from January the 1st 2020, the following changes are envisaged:
- the discipline of “distance sales” will no longer be applied but the general criterion will be applied that indirect electronic commerce operations will be territorially relevant in the EU country of destination of the goods (and therefore in the country where the private buyer resides);
- the current “protection thresholds” will be eliminated and a single threshold of € 10,000.00 will be introduced, common to all member states, below which transactions will be relevant for VAT purposes in the country of the transferor;
- if the aforementioned common threshold is exceeded during the year, the general principle will be applied starting from that moment (ie these operations will be considered territorially relevant for VAT purposes in the EU country of destination of the goods);
- the transferors can opt for the simplified MOSS procedure (procedure currently in use for “direct” electronic commerce which avoids the transferor to identify himself in the purchaser’s country and which allows him, by transmitting specific quarterly VAT returns, to carry out your country’s tax payments).
What is the IOSS and OSS simplified procedure?
The OSS (One Stop Shop) and IOSS (Import One Stop Shop) regimes introduce a centralized and digital European VAT settlement system, which generally applies to the following B2C transactions:
- distance sales of goods imported from third territories or third countries (with the exception of goods subject to excise duties) transported or shipped by the supplier or on his behalf and even if carried out through the use of an electronic interface that facilitates transactions (marketplace );
- intra-community distance sales of goods transported or shipped by the supplier or on its behalf and even if carried out through the use of an electronic interface that facilitates transactions;
- national sales of goods made through the use of an electronic interface that facilitates the transaction;
- provision of services by taxable subjects not established in the EU or by taxable subjects established within the EU but not in the Member State of consumption.
Do I need to provide special guarantees for the recovery of VAT credit?
For amounts claimed for reimbursement of more than € 30,000, the Revenue Agency, pursuant to Article 38-bis, paragraph 5 of Presidential Decree 633/72, once the documentation supporting the request has been examined, requests the issuance of a bank guarantee or a surety policy for the amount requested to be reimbursed, for a period equal to three years from the execution of the repayment.
Do I need an Italian bank account for the reimbursement of the VAT credit?
It is not necessary to use an Italian current account to the recovery of VAT credit. The foreign company may request the crediting of the sums due by communication of the details of the foreign current bank account. Taxpayers who want to obtain tax refunds on their bank or postal current account can request it at any time, using the appropriate form.
The model must indicate the data relating to a current account held or jointly held by the beneficiary of the repayment. In particular, it is necessary to carry the IBAN code. For credit operations on foreign current accounts, the name of the bank, the account holder, the BIC code and the IBAN (if UEM) or the bank details (if not EMU) and the bank address must be indicated.
For reasons relating to data security, the request for accreditation can be made:
- communicating your bank details directly online, through the specific application;
- by presenting the appropriate form to any local Revenue Agency Office, showing a valid identity document, the photocopy of which must be attached to the model.
If a foreign company carries out territorially relevant operations in Italy, does it need to have a VAT representative?
According to the articles 38-bis2 and 38-ter of Presidential Decree 633/72 both subjects established in other member states of the European Community, and those established in countries that are not part of the European Community with which bilateral agreements of reciprocity exist (Israel, Switzerland and Norway), can request reimbursement of VAT paid in Italy:
- According to the articles 38-bis2 and 38-ter of Presidential Decree 633/72 both subjects established in other member states of the European Community, and those established in countries that are not part of the European Community with which bilateral agreements of reciprocity exist (Israel, Switzerland and Norway), can request reimbursement of VAT paid in Italy:
- Subjects established in countries that are not part of the European Community with which there are bilateral reciprocal agreements (Israel, Switzerland and Norway) request reimbursement directly from the Revenue Agency’s Pescara Operations Center, by sending the VAT 79 form. In this last case the reimbursement is made within six months from the receipt of the request for reimbursement, or in case of request for additional information, within eight months from the same.
VAT representation and direct identification services in Italy
ASB consulting S.r.l., thanks to its long experience in accounting and tax services, is committed in the activity of VAT representative in Italy of foreign subjects through its specialized structure.
ASB consulting S.r.l. moreover provides the service of direct indentification of EU subjects and gives the required professional services in accounting and tax issue for the management of the permanent establishment (Stable organization) in Italy.
If you are interested in obtaining a price quotation for the professional service of tax representation, direct identification or permanent organization in Italy from ASB consulting Srl, or simply if you wish to have further clarifications, you can write directly to the email address email@example.com or call our office at the number +39 049 8726744. We will be happy to answer your questions and solve your doubts.
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We also deal with tax representation for online sales, subjects who carry out distance sales of goods and services in UE through online platforms to private recipients “B2C”