by Francesca Solinas
The Supreme Court, with the judgment n. 8473 of 2018 filed last 06 April, addressed – for the first time – the thorny issue concerning the customs taxation of royalties.
The Tax Section of the Supreme Court, has placed a fixed point on a subject that has been the protagonist of long-standing jurisprudential debates, also among ordinary Courts, thus definitively overcoming the previous orientation that compared VAT on importation to customs duties and classified that VAT as a different tax in respect to the Internal VAT.
Indeed, the Court of Cassazione pointed out that VAT on importation has a characteristic in common with customs duties, namely that of being generated by the import activity in the European Union and the subsequent entry into the economic perimeter of the individual Member States; but he also pointed out that, nevertheless, the nature of domestic law that distinguishes VAT on importation, as a species of the widest genus of the VAT system, stands in stark contrast to the aforementioned distinction which, therefore, deserves to be archived.
With this ruling, so, the assumption that the VAT to import and VAT within the EU represent the same tax, even though the first one is characterized by its procedural specificities and sanctions, has been consecrated.
Well, starting from this assumption, the fifth section has conquered a further record, giving concrete and effective application to the principles expressed by the Court of Justice – if in a case other than VAT deposits – with the well-known “Equoland” judgment (CGE, 17 July 2014, case C-272/13), where it was established the absolute illegitimacy of the claim related to the payment of VAT on import already paid through self-invoice.
The ruling in question, enjoys an extraordinary merit, being the bearer of a disruptive conclusion: a single transaction can’t be subjected to double taxation VAT, as this would conflict with the Community principle of neutrality of value added tax.
And indeed, if the intra-community VAT has already been paid by the reverse charge method, the Customs Agency must refrain from subjecting the same transaction to a customs inspection aimed at the recovery of VAT on importation.
This assessment, in fact, is only permitted in case of higher tax rate resulting from the increase in the VAT assessment base, due to the addition of the higher duty, resulting from the inclusion of license fees in the customs value of the goods.
It follows that, by virtue of the principle of unitariness of VAT, Customs cannot claim, ex post, the payment of non-paid VAT on importation when introducing goods in Italy, where it is proven that the licensee has, however, acquitted the tax on license fees by reverse charge.
The self-billing system, then, acquires meaningful value, constituting a mechanism for the real performance of VAT.
