With Legislative Decree 192/2021 published in the Official Gazette on November 30^th, 2021, Italy has introduced Directive 2018/1910/EU so-called “Quick Fixes”, which amended Directive 2006/112/EU on the harmonization and simplification of certain rules in the system of value added tax for the taxation of trade between EU Member States.

One of the main changes concerns call-off stock contracts, which refer to B2B transactions in which the transferor transfers goods to a storage location in another Member State at the disposal of a transferee, whose identity is already known since the origin and to which these goods will be transferred at a later stage and after their arrival in the Member State of destination.

In Italy, the Fiscal Authority had already considered, with documents of ministerial practice, that when the transfer of the right to dispose of the asset as the owner occurs, the entire operation has the nature of an intra-community transfer for the person sending the goods and intra-community purchase of goods for the recipient. Now, with the new provisions, the legislation has been harmonized at EU level, confirming the approach that was already applied in Italy.

In fact, in absence of the simplifications introduced, this type of transfer of goods would give rise to three distinct operations: a VAT- exempt transfer in the Member State of departure, an intra-community purchase taxable in the State of arrival by the same transferor, which implies for the transferor the obligation to identify for VAT purposes in that Country, and a subsequent internal transfer to the buyer in the country of arrival of the goods. In order to avoid that suppliers are required to identify themselves for VAT purposes in the Country of arrival of the goods, the decree which introduces the Quick fixes directive provides that transfers under the call-off stock regime only carry out a non-taxable supply in the Member State of departure and an intra-community purchase taxable in the one of arrival. This would happen at the time when the buyer takes the goods from the warehouse, which is when the transfer of ownership takes place.

The legislation (art. 38-ter D.L. 331/1993 and art. 41-bis D.L. 331/1993) provides that certain conditions are met at the same time for a call-off stock operation to be configured:

- the goods are transported to another Member State in anticipation of a subsequent transfer (at the time of collection and, therefore, after their arrival) to another taxable person who has the right to acquire ownership of those goods in accordance with an existing agreement between the two taxable persons;

- the taxable person who ships the goods must not have established, in the Member State to which the goods are shipped, the place of business and must not have a permanent establishment there;

- the identity of the taxable buyer is known to the transferor already at the time of the shipment;

- the person who ships the goods and the recipient of the transfer record the movement of the goods (and the subsequent transfer) in a special loading and unloading register;

- the person who ships the goods must fill in a specific INTRASTAT list in the month in which the goods are transported.

Under these conditions, the intra-community transfer is carried out if the ownership of the goods is transferred to the recipient, or to the person who replaced him in compliance with the provisions of the law, within twelve months of their arrival in the territory of the Member State of destination.

The day following the expiration of the twelve months period without the transfer of ownership, an alleged intra-community purchase will take place by the transferor in the Member State.

Finally, the law governs, in an anti-elusive key, the cases in which contractual changes occur, within the period of twelve months from the arrival of the goods in the territory of the Member State, which forbid the simplification of the call off stock from being implemented and entail, consequently, the carrying out of an alleged intra-community purchase by the transferor in the Member State (for example: lack of one of the conditions identified above; transfer of the goods to a subject other than the recipient of the transfer or the subject who replaced it; destruction , theft or loss of goods; transport of goods to another Member State).

The second news of great interest concerns “chain sales”, i.e. operations that meet the following conditions:

- the goods must be transferred in succession. Therefore, it is necessary that at least three parties are involved;

- the goods must be shipped or transported within the EU from one Member State to another Member State;

- the presence of an intermediary operator, meaning as such a transferor within the chain other than the first one, who organizes the shipment or the transport of the goods directly or through a third party acting on his behalf;

- the goods must be physically transferred directly starting from the first transferor and arriving to the last buyer in the chain.

The new art. 41-ter of the D.L. 331/1993 allows to easily identify which transfer of the chain is considered as intra-community when the transport is organized by the intermediary operator: in fact the second paragraph provides that in the chain transfers in which the transport or shipment begins in the territory of Italy and is carried out by an intermediary operator, it is considered a non-taxable intra-community transfer not taxable pursuant to art. 41 of Legislative Decree 331/1993 only the transfer made to the intermediary operator.

As highlighted in the explanatory report to the Transposition Decree, the transfers prior to the intra-community one are configured as internal transfers carried out in Italy, the Country of departure of the goods, while the transfers subsequent to the one constituting an intra-community transfer are not considered carried out in Italy, and such transfers will be territorially relevant in the State of arrival of the goods.

The rule provides for an exemption under which if the intermediary operator has communicated the VAT identification number assigned to him by Italy to his transferor, the only intra-community transfer is that made by the intermediary operator.

Third paragraph of Article 41-ter of the Legislative Decree 331/1993 provides that in chain transfers in which the transport or shipment ends in the territory of Italy and are carried out by an intermediary operator, it is considered an intra-community purchase pursuant to Article 38 of the Legislative Decree 331/1993 only the purchase made by the intermediary operator.

Therefore, the transfers made by the person making the intra-community purchase and subsequent transfers are territorially relevant in Italy.

Also in this case there is an exception according to which if the intermediary operator has communicated to his transferor the VAT identification number assigned to him by the Member State from which the goods are transported, the only intra-community transfer is that carried out by the intermediary operator.

Such provisions do not apply to remote retail sales made via electronic interfaces.