Cross-border VAT Refunds: Analysis of Judgment No. 9556 of 2024

Judgment No. 9556 of April 9, 2024, issued by the Regional Tax Commission of Pescara, addresses a highly relevant issue for internationally operating businesses: cross-border VAT refunds. Specifically, the decision focuses on the interpretation of Article 38-bis.2 of Presidential Decree No. 633/1972, clearly establishing the conditions for the admissibility of such refunds.

Conditions for VAT Refund

According to the judgment, there are two fundamental impediments to cross-border VAT refunds:

• The stability of the organization within the State during the reference period.
• The carrying out of taxable active operations in the same reference period, which coincides with the calendar year.

This interpretation aligns with the provisions of Article 3 of Council Directive 2008/9/EC of February 12, 2008, which sets out the general principles for VAT refunds within the European Union. It is essential for businesses to comply with these conditions to benefit from a VAT refund, thus avoiding potential challenges from the tax authorities.

Practical Implications of the Judgment

Judgment No. 9556 represents an important judicial precedent for companies operating in a cross-border context. Indeed, it clarifies that refunds cannot be simply requested based on tax registration but require a series of conditions that must be strictly met. This leads businesses to pay greater attention to tax planning and the documentation of operations carried out.

Cross-border VAT Refunds - Art. 38-bis.2 of Presidential Decree No. 633 of 1972 - Impediments to Refund - Same Reference Period - Necessity. Regarding cross-border VAT refunds, Article 38-bis.2 of Presidential Decree No. 633 of 1972 must be applied in light of Article 3 of Council Directive 2008/9/EC of February 12, 2008. Therefore, both the stability of the organization within the State during the reference period and the carrying out of taxable active operations necessarily within the same time period, coinciding with the calendar year, i.e., the solar year, and not the tax year, are considered impediments to the refund.

Conclusions

In conclusion, Judgment No. 9556 of 2024 offers a clear interpretation of the rules concerning cross-border VAT refunds, emphasizing the importance of complying with the requirements established by Italian legislation and European directives. Businesses must therefore pay particular attention to their tax and organizational situation to ensure the admissibility of refunds and prevent any disputes with the tax administration.