Non-resolutive guidance from the Revenue Agency on the involvement of a fixed establishment for VAT purposes

In the Ruling No. 57/2023, the Revenue Agency addressed again the subject of the intervention of the Fixed Establishment for VAT purposes in a case concerning a flow of intra-Community purchases of goods between the German Head Office and an Italian customer. In light of the facts brought forward by the taxpayer, according to whom the case in question concerned the case of a supply of a product made by the Head Office through the intervention of the Fixed Establishment, the tax authorities confirmed that the intervention of the Fixed Establishment may be deemed to have occurred where its contribution is “relevant to the concrete determination of the quality, structure and functionality of the product supplied by the Head Office”.

The Revenue Agency’s Ruling apparently does not provide any clear interpretative criteria to identify if and when the Fixed Establishment “intervenes”, relying on what is reported by the taxpayer and recalling the need for a case-by-case assessment. However, with respect to the position expressed by Italy within the VAT Committee (Working Paper no. 857 of 2015), some further indications emerge from the recent interpretative document, namely that (i) the absence of transit from the warehouse of the Italian Fixed Establishment is not in itself sufficient to exclude its intervention in the context of an intra-Community supply of goods, and (ii) the circumstance that the Fixed Establishment enters into contracts in the name and on behalf of the Head Office or deals with marketing and customer relations activities is not in itself a factor indicating its qualifying “intervention” in the supply transactions.