The vat refund for non-resident taxpayer with fiscal representative

The Italian Supreme Court with the decision n. 21684/2020 ruled that taxpayer resident in another EU State may apply for VAT refund even if they appointed a fiscal representative in Italy.

The matter concerned a VAT refund application for fiscal year 2000 submitted by a French company. The Tax Office denied the VAT refund arguing that the French company had a fiscal representative in Italy.

At the date of the facts, the VAT Directive n.  79/1072/EC (currently replaced by Directive 2008/9/EC) provided that the direct refund to non-resident could be made in the absence of a place of business or a permanent establishment in the State of refund. Article 38-ter of the Presidential Decree 633/1972 required that the non- resident had no permanent establishment and no fiscal representative in Italy.

The Italian Supreme Court, in the above-mentioned decision, stated that the appointment of a fiscal representative cannot be considered as a permanent establishment and that it is not able to deny the right to VAT refund.

The EU Court of Justice already ruled on this matter in its judgment in case C-323/12, considering the right to refund even if the foreign taxable person had appointed a fiscal representative and considering that the Italian rules on this point conflicted with EU directives.

The same principle could also apply to the current art. 38-bis2 DPR 633/1972 that regulates the VAT refunds of taxpayer established in other EU countries.

Cecilia Breviglieri