As noted in our September 2015 and October 2015 newsletters, over the past months the Firm has obtained a series of injunctions through which the Tribunale di Trieste and the Tribunale di Gorizia have ordered Agenzia delle Dogane (Customs Agency) to release the guarantees issued by the customs brokers as security for goods warehoused for VAT purposes. The Courts’ injunctions have confirmed that the purpose of the guarantee requested pursuant to art. 50 bis of Italian Legislative Decree 331/1993 is that of securing any liability possibly arising in connection with incorrect VAT quantification, not liabilities arising from the failure to pay VAT after the correct accomplishment of the withdrawal procedures of the goods from the warehouse.
Following this line of decisions and the unexpected impossibility to reclaim the guarantees of the customs brokers, the Customs Agencies of Trieste and Gorizia sent a note to all customs brokers operating with VAT warehouses by means of which they demanded the issuing of an appendix to the guarantee expressly providing the possibility of calling on the customs broker’ guarantee in the event that checks showed that the Agency could not collect the tax from the importer.
A group of customs brokers instructed the Firm to challenge those notes before the TAR (Regional Administrative Court) of Friuli Venezia Giulia. On 9 March 2016, the discussion hearing took place and the TAR granted the precautionary suspension of the contested measures, accepting the arguments brought by the Firm. This is a further confirmation of the view that the purpose for which Article 50 bis requires the issuing of the guarantees is to ensure the legitimacy of the activities performed within a time frame beginning with the introduction of the goods for free circulation through VAT warehousing and ending with the correct conclusion of the withdrawal procedure of the goods from the warehouse. Any subsequent breach, by the importer, of the obligation to pay VAT in the amount quantified at the time of withdrawal from the warehouse is a different matter which, as such, is not covered by the guarantee issued pursuant to Article 50 bis by the customs broker in place of the importer.
(Trieste Office – Massimo Campailla – 0039(0)407600281)
