This is to let you know that tax guidance was released on 17 December 2020 regarding the evidence requirements for intra-Community supplies of goods (“ICS”) which will allow such supplies to be zero-rated for VAT purposes (“Guidance”).

In accordance with the Guidance, as of 1 January 2020 taxable persons may support their ICSs with the evidence listed in Article 45a of Council Implementing Regulation (EU) 2018/1912 of 4 December 2018 amending Implementing Regulation (EU) No 282/2011 as regards certain exemptions for intra-Community transactions (OJ L 311, 7.12.2018, p. 10)(“EU Regulation”). The EU Regulation sets out documents which enable the taxable person to rely on the presumption that the goods have been transported from the point of despatch to a destination in another EU country (“delivery presumption”). This presumption is rebuttable by the tax authority proving that, despite the documentation, the goods were not in fact so transported.

The Guidance points out that regardless of the amended Regulation (…) the national ICS evidence requirements remain in force. This gives businesses an option to rely on the Polish VAT Act to document their ICSs, in which case however the delivery presumption will not apply.

A taxable person may thus use the documents mentioned in Article 45a of the EU Regulation (and so rely on the presumption therein provided) but is not required to do so. He can still choose to support the zero-rating in accordance with Polish VAT law by using the documents listed therein to prove that the goods have been moved out of the Polish territory and delivered to a customer in the territory of another Member State. But the difference is that if he relies on national regulations, he will have the burden of proving that the goods have been physically delivered to the customer in the other Member State. In contrast, if he holds the evidence mentioned in the EU Regulation, an ICS will be presumed and it is the tax authority that will have the burden of proving that none happened.

Note also several other important points explained in the Guidance:

  • The 10th day of the following month as the deadline for delivery of customer’s written statement under Article 45a of the EU Regulation (in cases where the goods are transported by or on behalf of the customer, or “acquirer” as he is called) is merely indicative, meaning that the supplier may rely on the delivery presumption as long as he obtains the statement before his JPK_VAT filing deadline.
  • The delivery presumption will not apply if the supplier or the customer use their own means of transport for the delivery process. In such a case, the movement of the goods out of Poland (…) should be evidenced in accordance with Article 42(4) of the VAT Act.
  • ICS evidence, whether that listed in Article 45a of the EU Regulation or in the Polish VAT Act, may have any form, e.g. the documents may be generated via an electronic system, such as EDI or ERP.

If these issues pertain to your business and you are interested in our assistance, please contact your WTS&SAJA consultant.

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