Author: Gabriele Liberatore
Committee: National Institutions Committee
Date: 06/11/2024
Italy secures customs procedure 42 by providing a selective anti-evasion guarantee
Among the transnational VAT frauds that are particularly insidious and harbour significant revenue losses are included, also as recently pointed out by the EPPO in its 2023 Report, MTIC fraud and abuse of customs procedure 42.
The customs procedure 42
With reference to the second type, the customs procedure 42 (considered by the article 143 Directive 2006/112/CE) constitutes an important financial facilitation to the honest companies cause allow to the economic operator not to pay the VAT tax, upon the occurrence of a series of conditions, on goods imported into a Member State from third countries when destined to be transferred to another Member State.
This regime is called regime 42 cause the importer must indicate in the box 37 of DAU a pin that start with 42.
However, EU commission and now EPPO reported how this procedure si significantly and repeatedly abused by fraudulent operators.
EU institutions have recommended to fiscal and custom authorities of each member states to use with more frequency the tools establish by the international fiscal cooperations but until now the results aren’t satisfying.
Italy introduces a selective anti-evasion guarantee
Italy, with the aim to restrict the abuse of customs procedure 42, has recently introduce with article 6 dlgs 141/2024 (laying down additional national provisions to the Union Customs Code of the European Union and revision of the system of penalties concerning excise duties and other indirect taxes on production and consumption) an anti-evasion misure for the indebt use of the facilitate system.
Legislator introduced the new subsection 2-quater of the article 67 D.P.R. 633/72 that impose the obligation to loan a guarantee to obtain the access to this regime. The goal is to render more effective and dissuasive the control of the documentation on the effective goods delivery to another EU member state.
At the same time, but, as highlighted by the illustrative relation to the decree, the legislative intervention had to consider what illustrated in the past by the EU commission. The EU commission, in fact, has ruled that imposing a general guarantee obligation to all the operators risks being a disproportionate duty to the honest companies undermining the fair operation of this procedure.
Hence, EU commission considered that the guarantee obligation should be specific and selective in that it should only apply to risky operators.
Going into the matter of the new legislation, the customs authority, as part of the risk analysis carried out in accordance with the principles set out in the Customs Code of the Union (regulation 2013/952) and if documentation is requested indicated in subsection 2-ter (adequate documentation that prove the effective goods delivery), could demand the deposit of a bond equivalent to the suspense tax.
The deposit is confiscated if, within 45 days to the release of the goods, the operator doesn’t produce the request documentation or doesn’t demonstrate the effective goods delivery to another EU state.
It was established an exoneration from the deposit for the subjects in possess of AEO authorization (Regulation 2013/952, article 38) and for those will satisfy the conditions and the standards establish in a next regulation issue by Customs and Monopolies Agency as provide by article 51 of the national complementary disposition to the EU Customs code.