Article 44 RVD as the main rule for intra-Community place of supply of services B2B: legal issues arising at its application. Is the implementation in Italy in line with article 44 RVD and the EU laws?

University essay from Lunds universitet/Institutionen för handelsrätt

Abstract: This Thesis is aimed at clarifying the meaning of article 44 RVD in order to determine which legal issues arise at its implementation, both at European and at Italian level. Art 44 RVD, as the main rule for B2B intra-Community supply of services, has a fundamental impact on the assessment of VAT liability among business operators in order to define on whom, where and when the liability arises. Uncertainties on its application may have dramatic consequences in terms of litigation among privates and public sanctions. As refers “on whom” the VAT liability arises, an explanation of the concept of “dual capacity” of taxable persons is given. As refers to “when”, the concepts of chargeability of the supply and of chargeable event are explained in relation to the Italian implementing rule of art 6 IVA Code. As refers to “where”, that is the main question to answer in order to identify the “place of supply” for VAT purposes, an analysis is made on the impact of the principles of destination, origin, territoriality on art 44 RVD. Then, as to “where” the supply of services is provided, an analysis of the concept of establishment as “place of business” and “fixed establishment” is given. As refers to “fixed establishment” an analysis is made of art 11 of the Implementing Regulation, in relation to art 44 and art 45 RVD, in order to evaluate if the double definition of “supply side” and “receiving side” fixed establishment given by art 11 IR is compliant to the scope of the RVD, from a legal and jurisdictional perspective. Then, an explanation of the particular “receiving fixed establishment” that is represented by the Global Contracts is given. In relation to the “receiving side” fixed establishment, is analysed the compliance of art 11(1) IR to art 171 RVD art 3(a) Directive 2008/9, the main rule for the right of refund, and to the scope of art 44 RVD. In relation to the “supply side” fixed establishment a question has been raised on the compliance of art 11(2) IR to art 45 RVD and to art 192a RVD. As refers to the Implementation in Italy, an evaluation of the IVA Code is made, analysing the compliance of the main national rule and other VAT national provisions with art 44 RVD, art 45 RVD, art 192a RVD, art 196 RVD and art 63 RVD. As refers to the “fixed establishment” the compliance of art 38 Bis 2 (1) IVA Code with art 171 RVD, art 3(a) Directive 2008/9 EC, has been analysed, with reference both to the “supply side” and to the “receiving side”. In particular, on the receiving side, it has been analysed the compliance of art 38 Bis 2(1) IVA Code with art 44 RVD as implemented by the art 11(1) IR.

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