Intra-Community Supplies: Commentary on Judgment No. 22261 of 2024

Judgment No. 22261 of August 6, 2024, issued by the Court of Cassation, offers significant insights regarding intra-community supplies and the duty of care incumbent upon the supplier. This ruling is part of a context of increasing attention from tax authorities on the correct fulfillment of VAT obligations and the prevention of tax fraud.

Regulatory and Legal Context

Pursuant to Article 41 of Legislative Decree No. 331 of 1993, the supplier has a duty to adopt diligent and prudent conduct, especially when anomalies emerge in ordinary business practices. This judgment reiterates that the duty of care is not limited to superficial checks, such as the mere existence of a VAT number, but requires a thorough investigation into the actual solvency of the buyer.

Intra-community supplies - Supplier's duty of care and prudence - Art. 41 of Legislative Decree No. 331 of 1993 - Purpose - Content. In the context of intra-community supplies, the duty of care and prudence – which, pursuant to Art. 41 of Legislative Decree No. 331 of 1993, rests on the supplier to foresee and prevent possible downstream illicit activities – is heightened when anomalies arise compared to ordinary practices (in this case, conducting negotiations with the future legal representative of a company to be established) and must consider the effectiveness, operability, seriousness, and solvency of the buyer, in order to derive an overall assessment of reliability, through an investigation that is not limited to formal findings, such as the existence and validity of the VAT number, but extends to the actual economic and asset situation, scrutinizing structures, capitalization, clientele, and reputation.

Implications of the Judgment

The ruling by the Court of Cassation highlights the importance of a rigorous approach in assessing the buyer's solvency. This implies that the supplier must:

• Verify the effectiveness of the buyer's economic structure;
• Examine the buyer's commercial reputation and track record;
• Ascertain the seriousness and operational capacity of the purchasing company.

In particular, the judgment emphasizes that the supplier must be particularly attentive when encountering anomalous situations, as in the case examined, where the supplier interacted with a party who was in the process of establishing a new company. This requires greater caution and accurate analysis to avoid potential illicit activities that could have repercussions not only on a fiscal level but also on a legal one.

Conclusions

In conclusion, judgment No. 22261 of 2024 represents an important guide for professionals and businesses involved in intra-community supply operations. It highlights the need for adequate due diligence, reinforcing the idea that mere formal verification is insufficient to ensure regulatory compliance. The supplier's prudence and diligence not only protect the fiscal interest but also contribute to maintaining market integrity. In an increasingly complex legal landscape, awareness of one's responsibilities becomes crucial to avoid penalties and legal issues.