According to the Polish VAT Act regulations, every taxpayer who exports goods asks himself: Is he entitled to apply a 0% VAT rate in the lack of IE-599 document?
The issue seems to be obvious, but in our view, it may raise doubts.
In connection with the Polish VAT Act regulations, export of goods means a supply of goods transported or dispatched from Poland outside the European Union (EU), which is carried out by or on behalf of the supplier (direct export) or by the purchaser or on behalf of the purchaser (indirect export) and is confirmed by the relevant customs authorities. It is worth noticing that the export of goods should take place in the performance of activities specified in article 7 of the Polish VAT Act - the transfer of the right to dispose of goods as owner.
The above distinction is of particular importance in the event of documenting export and applying the 0% VAT rate to the export of goods transactions. For direct export of goods, the Polish VAT Act indicates that the 0% VAT rate shall apply on the condition that the taxpayer, before the deadline for submission of the VAT return for a given settlement period, receives a document confirming the export of goods outside the EU. It is further stated that such a document is, in particular:
- a document in the electronic form received from the teleinformatic system used to handle export declarations or a printout of that document confirmed by a competent customs authorities;
- a document in electronic form from an electronic system handling export declarations received outside that system, if its authenticity is ensured;
- a paper-based export declaration lodged outside the computerized system for handling export declarations, or a copy thereof certified by the competent customs authority.
For the indirect export of goods, it is stipulated that the 0% VAT rate may be applied on condition that the taxpayer, before the expiry of the deadline for submission of the VAT return for the given accounting period in which the goods have been supplied, has received, in particular, the abovementioned document from which the identity of goods being the subject of supply and export results.
At the same time, the customs regulations specify that the electronic document confirming the export of goods outside the UE is the IE-599 document generated by the electronic system used to handle electronic declarations.
It is worth noting that the Polish VAT Act regulations, before listing the documents that are deemed to confirm export of goods, use the term "in particular". Therefore, it is an open catalog, given by way of example, and apart from the IE-599 document mentioned above, other alternative documents from the exemplary list should also be admissible, by means of which, in our view, the export of goods outside the EU and giving the right to 0% VAT rate may be confirmed.
However, in practice tax authorities often strictly adhere to the wording of the Polish VAT Act regulations, narrowing the catalog of documents by means of which the taxpayer may prove the export of goods outside the EU and thus confirm the right to 0% VAT rate. They recognize only the IE-599 document as the only admissible form of confirming the export of goods outside the EU.
Meanwhile, we know from practice the position of the authorities and also the administrative courts, when to document the export of goods (direct and indirect) the taxpayer may use alternative documents which, if they are unambiguously and beyond any doubt confirm the export of goods outside the EU, may be submitted to the tax authorities, giving the taxpayer the right to apply the 0% VAT rate, e.g:
- in the tax ruling dated on August 13, 2018, No. 0112-KDIL1-3.4012.388.2018.2.PR, the tax authorities held that IE-599 document issued by the customs office of another EU Member State received outside the ICT system are sufficient evidence to apply the 0% VAT rate;
- in the tax ruling dated January 22, 2019, No. 0114- KDIP1-2.4012.779.2018. 1.KT, the tax authorities shared the position of the taxpayer who considered that the documents in his possession consisting of IE599 documents containing incorrect data, correct import declarations of goods in a third country, delivery documents, entitled him to apply the 0% VAT rate to direct exports of goods;
- in the tax ruling dated March 19, 2021, No. 0114-KDIP1-2.4012.547.2020.1.AC, the tax authorities shared the position of the taxpayer who has before the expiry of the deadline for submission of the VAT return for a given settlement period, has a printout of the electronic customs document received from the Austrian customs authorities confirming the export of goods from Poland outside the territory of the EU, it is entitled to tax this export with the 0% VAT rate;
- in the judgment of the Administrative Court in Poznan dated February 2, 2017 (I SA/Po 993/16), the court agreed with the taxpayer, holding that both documents (the EAD document and the import declaration) are official documents and together constitute evidence of what was officially stated in them. He stated that the Export Accompanying Document (EAD) alone is not a document confirming the export of goods outside the EU. However, the juxtaposition of this document with the import declaration leaves no doubt that the goods have been exported out of the country;
- according to the Administrative Court's argumentation, it is worth mentioning the judgment of the Administrative Court in Łódź dated on June 23, 2016 (I SA/Łd 437/16), despite the specific factual situation concerning direct export from the territory of France to New Caledonia (overseas territory of France not being part of the EU). The taxpayer didn’t have an IE-599 document but submitted to the tax office analogous documents (issued in this type of transaction by the French authorities) containing all the data corresponding to the data from the IE-599 documents. The court held that the fundamental importance related to the export of goods, and so the possibility of applying the preferential rate, should be linked to the removal of the goods outside the EU, and the confirmation of this event can take place in any unambiguous and reliable form. Moreover, in the assessment of the case, the court took into account the fact that the customs office of export could not use the electronic document generated by the ECS system, and thus the taxpayer, as the company, in this case, should not bear the negative consequences of this state of affairs, because it could not obtain the IE-599 document, which the state of exit of the goods through its competent authorities did not use.
Above mentioned examples of the tax rulings and judgments indicate that in case of lack of IE-599 document - both in case of direct and indirect export - the taxpayer is not always in the lost position. In our view, it is worth making an effort to prove that the goods were exported outside the EU territory, by submitting documents other than those mentioned directly (as an example) in the Polish VAT Act. Certainly, it is worth doing everything at the beginning, to get the IE-599 document. However, if you are unsuccessful, you can prove in our view the physical export of the goods outside the EU and the identity of the exported goods with other documents of an official nature issued by customs authorities of the other EU Member States or customs authorities of the importing country, or other documents clearly proving the export and identity of the exported goods.
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