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As at today, the free movement of goods is continuing without border controls and no customs formalities. Customs and tax treatment after the exit of the United Kingdom will depend on which model will be adopted.


The European Commission has released the "Checklist for Brexit Preparedness", addressed to EU businesses that trade with the UK. The document contains the links and references to all the provisions and instructions issued so far on this matter.


We remember the 2 key dates:

  • in case of a non-negotiated exit (hard Brexit), the United Kingdom would become a third country from 1st November 2019;
  • in case of agreement, EU rules on the internal market and the customs union will cease to apply from 31st December 2020.

 

The Commission has proposed to extend the EU Regulations on freedom of trade and EU legislation on state aid, in relation to any flexible solutions for national support measures.


The topics addressed in the Commission document are the following: certificates and authorizations; tax residence; label and brand; EU trade agreements; customs procedure; Customs rights; prohibitions and restrictions; sanitary and phytosanitary controls; provision of services in the EU and cross-border; professional qualification; VAT (goods and services); drawings, models, legal protection; clause of the court of jurisdiction; processing of personal data; British company; direct taxation. Please find here attached to this mail the document mentioned above.

Below we try to summarize what would be the main VAT impacts in the case of a hard Brexit:

SALES OF GOODS AND SERVICES BETWEEN UNITED KINGDOM AND EU COUNTRY

The supply of goods from an EU country to the United Kingdom will continue to be without the application of VAT but on the basis of a different title of non-taxability. In fact, if these operations currently considered as intra-community, pursuant to art. 41 of Decree-Law 331/1993, once the Brexit process has been completed they will be considered as exports, pursuant to art. 8 of DPR 633/1972.

Likewise, purchases of goods from the United Kingdom will no longer be treated as intra-community purchases, pursuant to art. 38 of the DL n. 331/1993, but as imports, with consequent payment of VAT at customs. This last aspect must be taken into account by the economic operators who, by no longer paying the tax on the purchase through the reverse-charge mechanism (which provides for the registration of VAT on the intra-community purchase both debit and credit, thus resulting in a material overcoming of the tax), they will have to bear, as a rule, a new exit (or rather, anticipation) of cash.

With reference to the services, the territoriality rules on the services rendered by an operator resident in an EU Country to a UK client will not undergo significant changes; it should be noted, however, that the relative invoice must contain the descriptions "transaction not subject" (and no longer "reverse charge") pursuant to art. 21, paragraph 6-bis, lett. (b) of DPR n. 633/1972.

On the other hand, VAT on services rendered by an established subject in the United Kingdom to a customer established in Italy will be paid by the latter, through the self-billing mechanism and no longer through the invoice integration (which it is provided for purchases of generic services rendered by an established subject in an EU country).

DIRECT IDENTIFICATION VS APPOINTMENT OF THE FISCAL TAX REPRESENTATIVE

According to art. 35-ter of DPR n. 633/1972, non-resident subjects without a permanent establishment in Italy, who intend to carry out operations on Italian territory and which must fulfill their VAT obligations and VAT rights, can obtain an Italian VAT number through a simplified direct identification.

Subjects resident in an EU country or in a third country, with which exist mutual assistance instruments for indirect taxation, can use direct identification.

Currently, the aforementioned mutual assistance instruments have been activated only with EU Country; consequently, a non-EU subject cannot access the direct identification mechanism, being instead obliged to appoint a fiscal tax representative in Italy. This method, which involves the joint responsibility of the representative with the subject represented and it is, therefore, more expensive than direct identification.

Consequently, if there were no negotiated legal instruments of mutual assistance for indirect taxes with the United Kingdom (which became a non-EU Country), to a UK subject there would be required to appoint a fiscal tax representative in Italy, as they could no longer use the direct identification.

If this were the case, it would also remain to understand if the non-resident UK subjects, already identified directly for VAT purposes in Italy, will be able to continue to fulfill the obligations and exercise their VAT rights as subjects identified directly, or if they will be required, to appoint a fiscal tax representative. The transition from direct identification to the fiscal tax representative could lead to the closure of the "old" VAT number and to the opening of a new one, complicating relations with customers and suppliers. It would then remain to be clarified how the positions (for example VAT debit and credit, habitual exporter status, plafond previously formed, etc.) accrued to direct identification may be transferred to the fiscal tax representative.