Construction of tripartite transactions in the Act of 11 March 2004 the tax on goods and services (hereinafter: VAT Act) has been introduced to prevent invoices being issued in two countries and then apply for a refund of excess input tax. This procedure is intended to be simplified in relation to the general rules on settlement of intra-Community transactions and refers to the case where three VAT payers in different Member States carry out formal transactions but transport is carried out directly between first and third the entity, omitting the central entity.
The simplified procedure for tripartite transactions was regulated in Article 135-138 VAT Act. In order to consider an economic event as an intra-Community tripartite transaction, it is necessary to:
- • Identification of all third entities for intra-Community transactions;
- • to be sent or transported by first or transported by second in the order of the VAT taxable person or on their behalf from the territory one Member State in the territory of another Member State.
However, attention should be paid to the position of the Provincial Administrative Court in Warsaw (hereinafter referred to as the WSA) as regards the obligation to send or transport goods by first or second an entity in a transaction according to which the actual organisation of transport by the last entity involved in the transaction does not exclude the existence of a tripartite transaction if that entity is acting in favour of first or second the entity.
Moreover, according to the content Article 135(1)(4b) VAT Act simplified procedure for tripartite transactions only applies if second in the order of the VAT taxable person making the supply to the last VAT taxable person, he is not established in the territory of the Member State where the transport or dispatch ends.
In that case, the second entity applies to the first and the last in the order of the VAT taxable person, the same VAT identification number and shall specify the last in the order of the taxable person as liable for VAT on the supply of goods carried out under the simplified procedure.
On the other hand, the last VAT payer shall use the VAT identification number of the Member State where the transport or dispatch ends.
Attention should also be paid to the documentation obligation on second in the order of the trilateral transaction. According to Article 136(1) This entity is obliged to issue an invoice containing the following information:
- • "VAT: EC invoice simplified under Article 135-138 Laws on pt" or "VAT: EC invoice simplified under Article 141 Directive 2006/112";
- • the statement that the supply tax will be settled by the last in the order of the taxable person;
- • the number at which the entity is identified for the purposes of the tax which it applies to first and the last in order of the taxable person for value added tax;
- • the identification number used for the purposes of the value added tax last in the order of the taxable person.
This leads to the conclusion that the very existence of an intra-Community tripartite transaction does not automatically result in the simplified procedure, but that it is necessary to comply with the additional requirements and conditions set out in the Act in order to adopt this method of settlement.
However, attention should be paid to the position of the Provincial Administrative Court in Warsaw (hereinafter referred to as the WSA) as regards the obligation to send or transport goods by first or second an entity in a transaction according to which the actual organisation of transport by the last entity involved in the transaction does not exclude the existence of a tripartite transaction if that entity is acting in favour of first or second the entity.
According to the judgment of the WSA of 8 April 2008 (Act No: III SA/Wa 194/08) „it is not important that the final recipient arranges and pays for the transport, it is important that it works for first or second a taxpayer.
Similarly, he assessed this legal condition Wojciech Maruchin in Commentary to Article 138 Act of 11 March 2004 on tax on goods and services (Journal of Laws of 2004, item 535) - (in:) W. Maruchin, VAT.
Commentary, ABC Publishing House, 2005, II.’ Article 135(1)(2) VAT laws would constitute a narrowing interpretation of a provision aimed at simplifying economic trade between countries belonging to the European Union.