VAT WDT documenting – legal explanations of the MF

On the website of the Ministry of Finance, tax explanations for documenting intra-Community supply of goods for the purposes of the goods and services tax have been published, which explain the relationship between the rules Regulation (EU) 282/2011 and the provisions of the VAT Act on how to document WDT, rules for documenting WDT on the basis of provisions Regulation (EU) 282/2011 and on the basis of the provisions of the VAT Act and of the overturning of the presumption in question under Article 45a(1) Regulation (EU) 282/2011 by tax authorities.

The tax explanations concern rules for documenting the intra-Community supply of goods for the purposes of applying the VAT rate 0%.

Purpose of the explanations

According to Article 138(1) Directive 2006/112 Council dated 28 November 2006 on the common system of value added tax[2] Member States shall exempt the supply of goods dispatched or transported to a destination outside the territory of the Member State concerned, but in the territory of the Community, by the seller or by the purchaser of the goods or on their behalf, if the following conditions are met:

goods are supplied to another taxable person or to a non-taxable legal person acting as such in a Member State other than the Member State of commencement of dispatch or transport of goods;

a taxable person or a legal person who is not a taxable person for whom the supply is made shall be identified for VAT purposes in a Member State other than the Member State of commencement of dispatch or transport of goods and shall give the supplier that VAT identification number.

This provision has been implemented into the Polish legal order under Article 42(1) Act dated 11 March 2004 on tax on goods and services[3], according to which the intra-Community supply of goods is taxable at the rate of tax 0%, provided that:

the taxable person has supplied the buyer with a valid and valid identification number for intra-Community transactions, given by the Member State competent for the buyer, containing the two-letter code applicable to value added tax which the purchaser has given to the taxable person;

the taxable person, before the expiry of the time limit for filing the tax return for the settlement period in question, has in his records evidence that the goods in question have been exported from the territory of the country and delivered to the buyer in the territory of a Member State other than the territory of the country;

the taxable person making a tax declaration showing that supply of goods is registered as an EU VAT taxable person.

one the conditions for the exemption (with the right to deduct VAT) and the right to apply the rate, respectively 0% (under the provisions of the VAT Act) for the supply of goods carried out in the context of an intra-Community transaction, is to ensure that the goods are dispatched or transported from one Member State to another Member State and supplied to another taxable person or a non-taxable legal person acting in such a capacity in a Member State other than that of the commencement of dispatch or transport of goods.

From 1 January 2020 in all Member States, including Poland, the provisions of the Implementing Regulation (EU) Directive 2018/1912 dated 4 December 2018 amending Implementing Regulation (EU) No Regulation (EU) 282/2011 for certain exemptions relating to intra-Community transactions[4], forming one from elements of the so-called "Quick Fixes" package.

As indicated in the preamble Regulation (EU) 2018/1912 Member States' differentiated approach to the conditions of application of exemptions to cross-border transactions has led to difficulties and legal uncertainty for businesses. This was found to be contrary to the objective of strengthening intra-Community trade and abolishing fiscal borders. It was therefore necessary to clarify and harmonise the conditions under which exemptions may be applied.

In view of the fact that cross-border VAT fraud is mainly due to the exemption for intra-Community supplies, it is necessary to specify certain circumstances in which goods are considered to have been dispatched or transported from the territory of a Member State to another Member State.

In view of the above, Regulation (EU) 2018/1912 has introduced a catalogue of documents on which the taxable person is entitled to benefit from the emotional presumption that the goods in question have been dispatched or transported from a Member State to a destination outside its territory but within the territory of the European Union.

Notwithstanding the revised provisions of Council Implementing Regulation (EU) No Regulation (EU) 282/2011 dated 15 March 2011 laying down implementing measures Directive 2006/112 on the common system of value added tax[5], national regulations on documenting intra-Community supply of goods remain in force, i.e. Article 42(3-5) VAT Act specifying the so-called basic catalogue of documents and Article 42(11) VAT Act containing an open catalogue of so-called supporting documents.

In view of the provisions in force at the same time, Regulation (EU) 282/2011 and the provisions of the VAT Act, the purpose of these explanations is to clarify:

• Mutual relations Regulation (EU) 282/2011 and the provisions of the VAT Act on how to document the intra-Community supply of goods for the purposes of goods and services tax;
• rules for documenting intra-Community supply of goods under the provisions Regulation (EU) 282/2011;
• the question of overturning the presumption in question under Article 45a(1) Regulation (EU) 282/2011 by tax authorities;
• rules for documenting intra-Community supply of goods under the provisions of the VAT Act.

The purpose of these tax explanations is not, in particular, to clarify the specific conditions for taxation of intra-Community supply of goods at the rate of tax. 0%, specified under Article 42(1-2) VAT Act.

Provisions governing the documentation of intra-Community supply of goods

Rules on documenting exports of goods from the territory of the country and their delivery to the buyer in the territory of a Member State other than the territory of the country in the context of intra-Community supply of goods (hereinafter: WDT) have been regulated under Article 42(3-5) and 11 VAT Act.

From 1 January 2020 the rules for documenting the dispatch or transport of goods from a Member State to a destination in another Member State are also regulated in Union law, i.e. Under Article 45a Regulation (EU) 282/2011, added Regulation (EU) 2018/1912.

According to Article 288 The Treaty on the Functioning of the European Union, the Regulation is of general scope, binding in its entirety and directly applicable in all Member States. This means that the revised provisions Regulation (EU) 282/2011 did not require separate implementation into the Polish legal order in order to directly apply them from 1 January 2020

Mutual relations Regulation (EU) 282/2011 and provisions of the VAT Act on documenting WDT

Article 45a(1) Regulation (EU) 282/2011 introduced the presumption that one from the conditions of exemption (rates) 0%) for the intra-Community supply of goods in accordance with Article 138 VAT Directives to ensure that goods are dispatched or transported from a Member State to a destination outside its territory but within the EU shall be deemed to have been fulfilled in situations specified under Article 45a(1) point (a) or (b) Regulation (EU) 282/2011 (and, therefore, where the taxpayer has the relevant documents indicated in those provisions).

The taxable person’s use of the presumption under Article 45a(1) Regulation (EU) 282/2011 does not automatically mean that his delivery of goods will benefit from the exemption (rates) 0%) for the intra-Community supply of goods. To allow the taxpayer to benefit from the exemption (rates) 0%) other conditions specified must also be met under Article 138 VAT Directives (as appropriate) Article 42(1)(1a) VAT Act).

As has already been indicated, the taxable person has fulfilled the conditions laid down under Article 45a(1) point (a) or (b) Regulation (EU) 282/2011 means that it will benefit from a presumption that the goods have been dispatched or transported from a Member State to a destination outside the territory of the country but within the EU. In this context, however, it must be stressed that it is not possible to apply the presumption in the opposite way, which would mean that, in the absence of the said under Article 45a(1) point (a) or (b) in conjunction with Article 45a(3) Regulation (EU) 282/2011 documents, goods subject to the DTT have not been sent or transported.

Non-compliance by the taxable person with the conditions of presumption introduced under Article 45a(1) Regulation (EU) 282/2011 does not mean that it will not be possible to apply the rate 0% for the WDT.

In this case, the taxpayer will have to prove in accordance with the provisions of the VAT Act in force (Article 42(3-5)(11)), that the condition for applying the rate 0% that the goods are delivered to the buyer in another Member State is fulfilled by him.

In other words, if the taxpayer fails to comply with the conditions laid down under Article 45a(1) point (a) or (b) Regulation (EU) 282/2011 and the presumption will not apply, the situation of the taxpayer remains the same as before its entry into force Article 45a Regulation (EU) 282/2011.

This is also supported by the explanatory notes issued by the European Commission to the abovementioned provisions.[6], where, inter alia, the failure to meet the conditions set out in Regulation (EU) 282/2011, does not mean that the exemption specified under Article 138 VAT Directives (rate) 0% will not apply under the WDT. In such a case, the supplier shall prove, in accordance with the requirements of the tax authorities, that the conditions for exemption laid down under Article 138 VAT Directives are met.

In summary, from 1 January 2020 in view of the harmonisation of rules for documenting WDTs throughout the European Union, the taxpayer may use specified documents under Article 45a Regulation (EU) 282/2011 and in this respect benefit from the presumption provided for in that provision. However, this is not the duty of the taxpayer, which means that in order to benefit from the exemption (rates) 0%) for WDT, the taxable person is not required to collect all documents in accordance with the conditions indicated under Article 45a(1) Regulation (EU) 282/2011.

For the purpose of applying the exemption (rates) 0%) for WDT, the taxpayer can still prove according to Article 42(1)(2) in conjunction with Article 42(3-5)(11) VAT laws that goods subject to intra-Community supply have been exported from the territory of the country and delivered to the purchaser in the territory of a Member State other than the territory of the country, on the basis of the rules and on the basis of the evidence indicated in those provisions.

Documentation of WDTs according to the rules introduced under Article 45a Regulation (EU) 282/2011

According to Article 45a(1) Regulation (EU) 282/2011, Goods shall be presumed to have been dispatched or transported from a Member State to a destination in another Member State but in the territory of the Community, in any of the following cases:

the seller indicates that the goods have been dispatched or transported by him or a person third acting on his behalf, and the seller is held at least two not contrary to the evidence referred to Under section 3 point (a) (the so-called Group A evidence, which was issued by two different parties which are independent of each other, from the seller and from the buyer, or the seller is in possession of any single evidence referred to Under section 3 point (a) (the so-called Group A evidence, together with any individual not in conflict with the evidence referred to Under section 3 point (b) (the so-called ‘B’ evidence, confirming the dispatch or transport which was issued by two different parties that are independent of each other, from the seller and from the buyer;

the seller has the following documents:

a written declaration by the buyer confirming that the goods have been dispatched or transported by the purchaser or by a person third acting on behalf of the purchaser and indicating the Member State of destination of the goods; such written declaration shall specify: the date of issue; the name and address of the buyer; the quantity and type of goods; the date and place of arrival of the goods; in the case of the delivery of means of transport, the identification number of the means of transport and the identification of the person receiving the goods to the buyer; and

at least two not contrary to the evidence referred to Under section 3 point (a) (the so-called Group A evidence, which was issued by two different parties that are independent of each other, from the seller and the buyer, or any single evidence referred to Under section 3 point (a) (the so-called Group A evidence, together with any individual not in conflict with the evidence referred to Under section 3 point (b) (the so-called ‘B’ evidence confirming the transport or dispatch which was issued by two different parties that are independent of each other, from the seller and from the buyer.

The buyer shall provide the seller with the written declaration referred to in point (b) points (i), to the tenth day of the month following the month in which delivery took place.

For the purposes of the presumption referred to, the following documents shall be accepted as proof of dispatch or transport:

Group A: documents relating to the dispatch or transport of goods, such as CMR signed transport note, bill of lading, invoice for goods by air or invoice from the carrier of goods;

Group B:

• insurance policy in respect of the dispatch or transport of goods or bank documents confirming payment for the shipment or transport of goods;
• official documents issued by a public authority, e.g. a notary, confirming the arrival of the goods in the Member State of destination;
• receipt certificate issued by the warehousekeeper in the Member State of destination, certifying the storage of goods in that Member State.

(Article 45a(3) Regulation (EU) 282/2011)

The above mentioned provisions Regulation (EU) 282/2011 they therefore introduce a presumption whose conditions depend on which party – the seller or buyer is responsible for the transport or dispatch of the goods.

Rules for documenting WDT where goods have been dispatched or transported by the seller or by a person third working for him

Where the goods have been dispatched or transported by the seller or by a person third the seller acting on his behalf benefits from the presumption if he has the following documents:

at least two Group A documents, these documents:

• must not conflict with each other, and
• must be issued by two different parties that are independent of each other, from the seller and from the buyer,
• or

any single Group A evidence and any single Group B evidence, these documents:

• must not conflict with each other, and
• must be issued by two different parties that are independent of each other, from the seller and from the buyer.

Example 1

The seller, who is a Polish VAT taxable person, delivered the goods to the buyer with a valid and valid identification number for intra-Community transactions given by another Member State, competent for the buyer.

The goods were transported by a transport company operating for the sellers from Poland to France. The seller shall have the following documents:

• signed consignment note CMR — Group A proof
• invoices for the transport of goods received from the carrier — Group A proof

Seller has a WDT to document two Group A evidence which does not conflict and was issued by two different parties that are independent of each other, from the seller and from the buyer. In that case, because the seller has fulfilled the conditions in question under Article 45a(1) point (a) Regulation (EU) 282/2011 The goods covered by the WDT are presumed to have been transported from the territory one Member State in the territory of another Member State.

Example 2

The seller, who is a Polish VAT taxable person, delivered the goods to the buyer with a valid and valid identification number for intra-Community transactions given by another Member State, competent for the buyer.

The goods were transported by a transport company operating for the sellers from Poland to France. The seller shall have the following documents:

• signed consignment note CMR — Group A proof
• confirmation of payment for transport generated from the banking system – Group B proof

The Seller shall, for the purpose of documenting the WDT, have single Group A evidence and single Group B evidence which do not conflict and have been issued by two different parties that are independent of each other, from the seller and from the buyer. In that case, because the seller has fulfilled the conditions in question under Article 45a(1) point (a) Regulation (EU) 282/2011 The goods covered by the WDT are presumed to have been transported from the territory one Member State in the territory of another Member State.

Rules for documenting WDT where goods have been dispatched or transported by the purchaser or by a person third working for him

Where goods have been dispatched or transported by the purchaser or by a person third the seller acting on his behalf benefits from the presumption if he has the following documents:

a written declaration by the buyer confirming that the goods have been dispatched or transported by the purchaser or by a person third acting on behalf of the purchaser and the indicating Member State of destination of the goods; such written declaration shall specify:

• the date of issue;
• the name and address of the buyer;
• the quantity and type of goods;
• the date and place of arrival of the goods;
• in the case of delivery of means of transport, the identification number of means of transport;
• identification of the person receiving the goods to the buyer, including the person who confirms the arrival of the goods to the buyer.

at least two Group A documents, these documents:

• must not conflict with each other, and
• must be issued by two different parties that are independent of each other, from the seller and from the buyer,
• or

any single Group A evidence and any single Group B evidence, these documents:

• must not conflict with each other, and
• must be issued by two different parties that are independent of each other, from the seller and from the buyer.

Example 3

The seller, who is a Polish VAT taxable person, delivered the goods to the buyer with a valid and valid identification number for intra-Community transactions given by another Member State, competent for the buyer.

The goods were transported by a transport company operating for buyers from Poland to France. The seller shall have the following documents:

• a written declaration by the buyer confirming that the goods have been transported by the person third acting for the buyer to the Member State of destination of the goods i.e. France
• signed consignment note CMR — Group A proof
• confirmation of payment for the transport generated from the buyer’s banking system — Group B evidence

The Seller shall, in order to document the WDT, have a statement from the buyer, a single Group A proof and a single Group B evidence that does not conflict and was issued by two different parties that are independent of each other, from the seller and from the buyer. In that case, because the seller has fulfilled the conditions in question under Article 45a(1) point (b) Regulation (EU) 282/2011 The goods are presumed to have been transported from the territory one Member State in the territory of another Member State.

Example 4

The seller, who is a Polish VAT taxable person, delivered the goods to the buyer with a valid and valid identification number for intra-Community transactions given by another Member State, competent for the buyer. The goods were transported by a transport company operating for buyers from Poland to France. The seller shall have the following documents:

• a written declaration by the buyer confirming that the goods have been transported by the person third acting for the buyer to the Member State of destination of the goods i.e. France
• signed consignment note CMR — Group A proof

The seller does not have two Group A evidence or additional single evidence from Group B and therefore not all the conditions in question have been met by him under Article 45a(1) point (b) Regulation (EU) 282/2011. In that case, the presumption will not apply.

To apply the rate 0% for WDT, the seller should prove according to Article 42(3)(11) VAT Act that goods subject to intra-Community supply have been exported from the territory of the country and delivered to the buyer in the territory of a Member State other than the territory of the country.

Example 5

Company B, having an appropriate and valid identification number for intra-Community transactions provided by a Member State other than Poland, orders goods in Company A – a Polish VAT taxable person. The goods are transported by a transport company operating for Company B from Poland to France - directly to the client of Company B – Company C (which results from formal arrangements concluded between Company A and Company B). Company A has the following documents:

• a written declaration from the buyer (Company B) confirming that the goods were transported by the person third acting for the buyer to the Member State of destination of the goods i.e. to France
• signed (by Company C) of the CMR consignment note — Group A proof
• confirmation of payment for transport generated from the buyer's banking system (Company B) — Group B proof

The Seller (Company A) in order to document the WDT has a statement received from its buyer (Company B), a single Group A proof and a single Group B evidence that does not conflict and was issued by two different parties that are independent of each other, from the seller and from the buyer. In that case, because the seller meets the conditions in question under Article 45a(1) point (b) Regulation (EU) 282/2011 The goods are presumed to have been transported from the territory one Member State in the territory of another Member State.

Example 6

The seller, who is a Polish VAT taxable person, shall, within the framework of the contract concluded, regularly supply the goods to the buyer having a valid and valid identification number for intra-Community transactions given by another Member State, competent for the buyer. The deliveries are made several times a week, and the goods are transported from Poland to France by a transport company operating for the buyer. The seller shall have the following documents:

a written statement by the buyer confirming collectively that the goods the supply of which was made during the relevant settlement period (month) were transported by the person third acting for the buyer

CMR signed transport letters — Group A proof

confirmations or confirmations of payment for transport generated from the buyer’s banking system — Group B evidence

In the light of the provisions Regulation (EU) 282/2011 it should be allowed to use the buyer’s declaration, which together confirms that during the period concerned, the goods have been transported by the person third acting on behalf of the buyer, provided that the declaration contains all the necessary data (separately for each of the deliveries made, but without the need to duplicate one common data document for all deliveries) referred to under Article 45a(1) point (b) point (i). In that case, because the seller has fulfilled the conditions in question under Article 45a(1) point (b) Regulation (EU) 282/2011 The goods are presumed to have been transported from the territory one Member State in the territory of another Member State.

Time limit for delivery of the claim to the seller under Article 45a(1) point (b) point (i) Regulation (EU) 282/2011

According to Article 45a(1) Regulation (EU) 282/2011 the buyer shall provide the seller with the written declaration referred to in point (b) points (i), to the tenth day of the month following the month in which delivery took place.

As indicated in the explanatory notes, time limit 10 the days are intended to determine the exact time frame in which the buyer is to provide the seller with a written statement, not punishing the seller and denying him the possibility to benefit from the presumption where the buyer has not made a written statement within the time limit. Therefore, even if the buyer provides the seller with a written statement after the deadline (but taking into account the time limits resulting from the Article 42(1)(2) and Article 42(12) the VAT Act) the seller will also be able to benefit from the presumption provided that all other conditions specified under Article 45a Regulation (EU) 282/2011 will be fulfilled.

In the light of the above, it should be assumed that the time limit in question should be under Article 45a(1) Regulation (EU) 282/2011 is instructive in nature and remains without, in principle, affecting the existing provisions of the VAT Act as regards the period before the expiry of which the taxable person (in order to apply the rate) 0% for the WDT), it should have evidence that the goods in question have been exported from the territory of the country and delivered to the buyer in the territory of a Member State other than the territory of the country; i.e. by Article 42(1)(2) and Article 42(12) VAT Act.

For example, if the taxpayer receives a statement from the buyer after expiry tenth on the day of the month following the month in which the delivery took place, but before the deadline for submitting the tax return (JPK VAT) for that period, it may benefit from the presumption in question under Article 45a(1) Regulation (EU) 282/2011 and provided that the other conditions in question are met under Article 42(1) and 1a of the VAT Act, apply the rate of WDT 0%.

Identification two „independent’ parties within the meaning of Article 45a(1) point (a) and point (b) point (ii) Regulation (EU) 282/2011

As indicated in the explanatory notes, when determining for use Article 45a(1) point (a) and point (b) point (ii) Regulation (EU) 282/2011 is two the parties are ‘independent’, it must be assumed that:

two the parties are not considered to be ‘independent’ if they have the same legal personality; and

the criteria specified are applied under Article 80 the VAT Directive, which means that it cannot be considered independent of each other of the parties between which there are "family ties or other close links of a personal nature, organisational, proprietary, membership, financial or legal nature".

Example 7

Company A, which is a Polish VAT taxable person, made deliveries to the buyer – Company B with a valid identification number for intra-Community transactions given by another Member State, competent for the buyer. The goods were transported by the transport company – Company C acting for the buyer - Company B from Poland to France. Company B owns 50% shares - in the share capital of Company C. Company A has the following documents:

• a written declaration from the buyer (Company B) confirming that the goods were transported by the person third acting for the buyer to the Member State of destination of the goods i.e. to France
• signed consignment note CMR — Group A proof
• invoices for the transport of goods received from carrier (Company C) — Group B proof

Documents held by Company A were not issued by two independent parties. There are links of a proprietary nature between B and C. In that case, the presumption in question under Article 45 a section 1 Regulation (EU) 282/2011 does not apply.

The above example illustrates that, in order to benefit from the presumption, an additional obligation has been imposed on the seller to examine whether the evidence he holds has been issued by an independent party, from the seller and from the buyer, and therefore whether there are no links between the issuing documents - in the example of the carrier and the buyer - (personal, organisational, proprietary, membership, financial or legal).

Where the documents held by the taxable person have not been issued by two independent parties and the taxpayer is not entitled to benefit from the presumption in question under Article 45a(1) Regulation (EU) 282/2011, to apply the rate 0% for WDT, the seller should prove according to the rules and on the basis of the documents specified under Article 42(3) and 11 VAT Act that goods subject to intra-Community supply have been exported from the territory of the country and delivered to the buyer in the territory of a Member State other than the territory of the country.

Rules for documenting WDT where the goods have been dispatched or transported by the seller or purchaser by his own means of transport

Nor will the presumption apply where the supplier or buyer uses its own means of transport for transport purposes.

Example 8

The seller has its own fleet of cars and intends to transport goods to buyers in different EU Member States only with these cars.

In such a case, the presumption does not apply because the requirement set out in the under Article 45a(1) point (a) Regulation (EU) 282/2011, according to which the seller must have evidence from two different parties that are independent of each other, from the seller and the buyer.

Exports of goods subject to intra-Community supply of goods directly by the taxable person making such supply or by their purchaser, using the taxable person's own means of transport or the buyer's own means of transport, should be documented as provided for Article 42(4) VAT Act.

Form of documents in question under Article 45a(1) point (b) point (i) and Article 45a(3) Regulation (EU) 282/2011

Provisions Regulation (EU) 282/2011 do not regulate the form in which documents accepted as proof of dispatch or transport are to be collected.

As indicated in the explanatory notes, it should be expected that Member States will be flexible in this matter and will not impose strict restrictions, such as paper-only documents, but will also allow such documents in electronic form.

It should therefore be assumed that an electronic document or document made available by electronic means (e.g. e-mail, scan or fax of a document), including generated via an electronic system, e.g. an EDI or an ERP, can provide evidence for the purposes of applying the presumption in question under Article 45a(1) Regulation (EU) 282/2011.

Overturn of the presumption referred to under Article 45a(1) Regulation (EU) 282/2011 by tax authorities

Article 45a(2) Regulation (EU) 282/2011 provides that the tax authority may overturn the presumption adopted on the basis of section 1, that the goods have been dispatched or transported from a Member State to a destination outside its territory but within the EU.

Presumption in question under Article 45a(1) Regulation (EU) 282/2011 is therefore of a moving nature, with the burden of demonstrating (provide) that although the conditions laid down are met Article 45a(1) Regulation (EU) 282/2011 the goods have not actually been dispatched or transported to the tax authority.

Confrontation occurs when, in the existence of the necessary conditions, the tax authorities are able to demonstrate that the goods have not actually been dispatched or transported from a Member State to a destination outside its territory but within the EU. This may be the case, for example, when the tax authorities find during the inspection that the goods are still in the supplier's warehouse or tax authorities will develop knowledge of the incident that occurred during transport and that the goods were destroyed before leaving the country.

The tax authority may overturn the presumption accepted by providing evidence that the goods have not actually been dispatched or transported.

If the presumption referred to in Article 45a(1) Regulation (EU) 282/2011 by the tax authority, exemption (rate 0%) specified under Article 138 The VAT Directive will not apply.

However, in order to effectively refute the presumption, it is not sufficient to conclude that the goods are suspected that they have not been dispatched or transported from a Member State to a destination outside its territory but within the EU.

The rejection of the presumption may occur when the tax authorities have evidence that the shipment or transport of goods has not taken place.

„Definitive presumption’ should be distinguished from the situation where the tax authority can demonstrate that the document in question under Article 45a(3) Regulation (EU) 282/2011, which has been submitted as evidence, contains incorrect information or its authenticity raises doubts. This would result in the seller's failure to comply with the conditions laid down under Article 45a(1) point (a) or (b) Regulation (EU) 282/2011, and consequently not being able to benefit from the presumption.

In this case, the Seller to benefit from the exemption (rates) 0%) could still:

• provide other specified documents under Article 45a Regulation (EU) 282/2011, which would allow him to benefit from the presumption (unless the tax authorities once again find that the documents are incorrect or, for example, non-authentic), or
• provide appropriate documents according to Article 42(3)(11) VAT Act.

Documentation of WDT under the provisions of the VAT Act

Intra-Community supply of goods shall be taxable at the rate 0%, provided that the taxable person has evidence in his records that the goods in question have been exported from the territory of the country and delivered to the buyer in the territory of a Member State other than the territory of the country before the deadline for filing the tax return for the relevant settlement period (Article 42(1)(2) VAT Act).

The basic catalogue of documents necessary to document exports of goods within the framework of the intra-Community supply of goods carried out with the involvement of the carrier or freight forwarder responsible for the export of goods from the territory of the country has been specified under Article 42(3) VAT Act.

According to Article 42(3) VAT Act for the evidence in question under Article 42(1)(2) The following documents may be accepted if they together confirm the supply of goods subject to intra-Community supply of goods to a buyer located in the territory of a Member State other than the territory of the country:

transport documents received from the carrier(s) responsible for the export of goods from the territory of the country from which it is clear that the goods have been delivered to their destination in the territory of a Member State other than the territory of the country - where the carriage of the goods is ordered to the carrier(s)

specifications of individual cargo units.

By means of a transport document as defined Article 42(3)(1) The VAT Act is, in principle, a transport note which lays down the terms of the contract for the carriage of freight. Depending on the mode of transport, this may in particular be: International Rail Carriage List (CIM) or International Rail Carriage List (SMGS), which are documents stating the conclusion of a rail freight contract, a bill of lading bill of lading in the transport of goods by sea, an International Motor Carriage List (CMR) stating the conclusion of a road transport contract, an International Air Transport List (AWB) which states the conclusion of a carriage contract in the air.

Specification of the individual cargo items in question under Article 42(3)(3) The VAT Act constitutes a kind of calculation which the taxable person may draw up in the form of both a separate document and which he may have in the context of the invoice issued, with the aim of identifying goods subject to intra-Community supply in any case being crucial.

Article 42(3) The VAT Act provides that documents proving the export of the goods in question under Article 42(1)(2) VAT laws must together and unequivocally confirm the supply of goods subject to an intra-Community supply of goods to a buyer located in the territory of another Member State. This means that the documents held by the taxable person together should clearly confirm that the goods have been delivered to the buyer located in the territory of another Member State.

In addition, in the case of exports of goods subject to an intra-Community supply of goods directly by the taxable person making such supply or by their purchaser, using the taxable person or buyer's own means of transport, according to Article 42(4) The VAT Act, the taxable person, in addition to the specifications of the individual items of goods, shall have a document containing at least:

• the name and address of the taxable person carrying out the intra-Community supply of the goods and the purchaser of those goods;
• the address at which the goods are carried, where it is different from the address of the place of business of the buyer;
• the determination of the goods and their quantities;
• confirmation of acceptance of the goods by the purchaser of the place in question Under points 1 and 2, located in the territory of a Member State other than the territory of a country;
• the type and registration number of the means of transport to which the goods or flight number are exported, where the goods are carried by air transport.

That document may be issued by the taxable person himself who supplies intra-Community goods.

The VAT Act also sets out an additional catalogue of documents for the supply of new means of transport by the purchaser, without any other means of transport (transport). In such a case, the taxable person should additionally have a document containing the data enabling the correct identification of the taxable person supplying and the buyer and of the new means of transport concerned under Article 42(5) VAT Act.

According to Article 42(11) VAT Act where the documents in question Under section 3-5, do not clearly confirm the delivery of the goods to a buyer located in the territory of a Member State other than the territory of the country, the evidence in question Under section 1 point 2, there may also be other documents showing that an intra-Community supply has taken place, and in particular:

• commercial correspondence with the purchaser, including its order;
• documents relating to insurance or freight costs;
• a document confirming payment for the goods, except where the delivery is free of charge or the undertaking is carried out in another form, in which case another document stating the expiry of the obligation;
• proof that the purchaser accepts the goods in the territory of a Member State other than the territory of the country.

Under Article 42(11) Only examples of supporting documents have been listed, which means that the taxable person may also use other documents, and it is important that the aforementioned documents contain information indicating that the goods in question have actually been delivered to the buyer in another Member State.

Proof that the purchaser accepts the goods in the territory of a Member State other than the territory of the country concerned under Article 42(11)(4) VAT Act, which in practice can take the form of e.g. a buyer's statement - for the purposes of fulfilling the condition referred to under Article 42(1)(2) VAT Act does not need to contain all the data provided for the buyer’s declaration in question under Article 45a(1) point (b) point (i) Regulation (EU) 282/2011.

Referring to the mutual relationship between laws Articles 42(3) and 42(11) The VAT Act should indicate that Article 42(3) The VAT Act introduces a basic catalogue of documents confirming the export of goods and their delivery to the buyer in the territory of another Member State, which, in the circumstances indicated, under Article 42(11) may be supplemented by other additional documents specified under Article 42(11), and other documents – not mentioned in this provision.

Although the taxable person should in principle have the evidence in question under Article 42(3) VAT laws and such evidence shall together confirm that the goods have been exported and delivered to the purchaser in the territory of another Member State, if:

• this evidence does not clearly support the delivery of the goods to a buyer located in the territory of another Member State (which may be due, for example, to irregularities in the content of those documents or the lack of certain data);
• the taxpayer is unable to gather all the evidence in question under Article 42(3) VAT Act

for application of the rate 0% for the intra-Community supply of goods under the provisions of the VAT Act, it is possible for the taxable person to have only certain evidence in question under Article 42(3) VAT Act, supplemented by the evidence in question under Article 42(11) VAT Act.

Given the complementary nature of the evidence in question under Article 42(11) The VAT Act, the documents indicated in that provision should not replace the documents in question under Article 42(3) VAT Act.

In this context, however, it should be pointed out that if the taxable person does not have the transport document in question under Article 42(3)(1) Other documents from the carrier, such as the invoice for the transport of goods or other documents confirming the transport of goods by the carrier, may also be relevant for evidence purposes.

Likewise, regardless of the concept of ‘transport document’, it is not appropriate to deprive evidence for the purposes of applying the rate 0%, documents generated under the system used to track consignments on shipment of goods by a courier company.

However, in order to prove that the goods are exported and delivered to the buyer in the territory of another Member State, the content of the said goods should be important. Under Articles 42(3) and 42(11) VAT Act of documents, not their number.

This is confirmed, among others, by the resolution of the Supreme Administrative Court dated 11 October 2010, reference no. I FPS 1/10, in which it was stressed that the wording itself Article 42(3)(4) The VAT Act points to a basic catalogue of documents confirming the export of goods and their delivery to the territory of another Member State, which may be supplemented by additional documents specified under Article 42(11) VAT Act.

Consequently, as the NSA indicated, in the light Article 42(1)(3)(11) VAT Act for the application of the rate 0% in the intra-Community supply of goods, it is sufficient for the taxable person to have only certain evidence in question under Article 42(3) Act, supplemented by documents indicated under Article 42(11) laws or other evidence in the form of documents referred to under Article 180(1) Tax Ordinance, where they together confirm the export and supply of goods subject to intra-Community supply to a buyer located in the territory of a Member State other than the territory of the country.

In this context, it should be noted that the provisions Tax Ordinance (as well as the VAT Act) do not contain a definition of a legal ‘document’. The definition of a ‘document’ (in a material sense) that meets the needs of systemic tax law should therefore be sought in the legislation of other branches of law. In this respect, the Article 773 Civil code[7], according to which the document is a storage medium for reading the content.

The provisions of the VAT Act do not make the application of the rate possible 0% for WDT from holding original documents in paper form. Since the provisions only concern a document, it should be assumed that any form of document is admissible.

In view of the above, if the taxable person has an electronic document or document made available in electronic form (e.g. e-mail, scan or fax of the document), including those generated via an electronic system, e.g. an EDI system or an ERP, it may constitute evidence referred to in the VAT Act under consideration.

It should also be borne in mind that, in any case, the competent tax authority, in the course of, inter alia, tax proceedings, tax checks, customs and tax checks or verifications, may assess the correctness, including the authenticity of the individual evidence held by the taxpayer, as well as whether the evidence at its disposal actually confirms the completion of the WDT.

1 General explanations of tax legislation on the application of these provisions (tax explanations) based on Article 14a(1)(2) Act dated 29 August 1997 - Tax Ordinance (i.e. Journal of Laws of 2020, item 1325, as amended) (hereinafter: ‘Tax Ordinance”). According to Article 14n(4)(1) Tax Ordinance, where the taxable person complies with the tax clarifications during the tax period, the provisions shall apply mutatis mutandis. Article 14k-14m This bill.

6 Explanatory notes on changes in the scope of the Union VAT with regard to call-off stock storage procedures, chain transactions and intra-Community supplies of goods ("quick solutions for 2020” – (hereinafter: ‘Explanatory notes’) https://ec.europa.eu/taxation_customs/sites/taxation/files/explanatory_notes_2020_quick_fixes_pl.pdf

7 Act dated 23 April 1964 Civil Code (Journal of Laws of 2020, item 1740 as amended)