CYIL vol. 13 (2022)

MARCELA HRADECKÁ CYIL 13 ȍ2022Ȏ The judgment of the Court of Justice in a Case [C-430/09] states, in its summary, that where two successive supplies of goods are made between different taxable persons who are acting as such, but the supply is made by a single transport operation only, it must be determined to which supply the transport is to be attributed. Furthermore, the summary judgment states that, where the first acquirer has acquired the right to dispose of the goods as the owner in the territory of the Member State of the first supply and expresses its intention to transport those goods to another Member State and provides its tax identification number for the value added tax purposes, then the intra Community transport must be attributed to the first supply, provided that the right to dispose of the goods as their owner has been transferred to the second acquirer in the Member State where the transport operation ends. It is advisable for taxable entities submitting evidence within the framework of tax proceedings to use also such supporting secondary evidence that can prove the legitimacy of the exempt intra-Community taxable supply realised. There is a judgment of the Court of Justice [C-245/04] in the case of non-recognition of the entitlement to deduct the value added tax in the Member State of the purchaser. In the case in question, the intermediary purchased the goods in the Member State of the supplier and also ordered the transport from the transport company, to which it gave instructions concerning the place (address) of delivery of the goods. 24 The place of taxable supply and the place of termination of transport was the warehouse of the purchaser’s customers in the Member State of the purchaser’s jurisdiction. The intermediary issued a standard tax document for the price of the goods subject to the VAT rate in the purchaser’s Member State. The purchaser then claimed a deduction for the value added tax on the issued tax document within the framework of its tax return. The locally competent tax administrator (tax authority) did not recognise the VAT deduction claim. The Court of Justice has addressed the questions of whether, in the case of two successive supplies of goods between taxable persons acting as such, constituting a single intra-Community dispatch (transport) of identical goods, the two supplies can constitute exempt supplies, and which of the persons involved has the right to dispose of the goods as their owner during the transport. The Court states in its statement that there would be two successive exempt supplies only if it were possible to attribute one transport operation to both the intra-Community supplies. The Court further states that such a chain would be illogical and contrary to the system of intra-Community supplies of goods. Furthermore, the second delivery, i.e., the transfer of the right to dispose of the goods as their owner, can only take place after the first delivery of the goods has taken place, i.e., the first delivery 25 of the goods between the supplier and the intermediary ends in the purchaser’s Member State. It is only in that Member State where the right to dispose of the goods as their owner can be further transferred to the purchaser.

24 Place of delivery, the place of the supply shall be deemed to be in another Member State. 25 The place of taxable supply is in the purchaser’s Member State where the transport of the goods ends and the supply takes place.

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