In the practice of trade in goods, we may encounter a slightly less typical situation: a Polish taxpayer buys goods transported from the territory of the EU (typical part), but the seller is not registered for VAT purposes in the EU (non-typical part). At the same time, customs clearance has already been carried out and VAT on the import of goods has been settled.
At the outset, it should be pointed out that, according to Article 9 sec. 1 of the Polish VAT Act, the intra-Community acquisition of goods referred to in Article 5 sec. 1 point 4 shall be understood as the acquisition of the right to dispose as the owner of the goods which, as a result of the delivery, are dispatched or transported to the territory of a Member State other than the territory of the Member State of commencement of the shipment or transport by the person making the supply, purchaser of the goods.
The condition regulated in the cited provision will be met in the analyzed case – i.e. the goods will be transported from the territory of an EU country to the territory of Polish. As a rule, such transactions should therefore be settled in Poland as ICA.
Importantly, according to Article 9 sec. 2 of the Polish VAT Act, the provision of paragraph 1 applies under the condition that:
- the purchaser of the goods is: (a) a taxable person referred to in Article 15 or a taxable person subject to value added tax and the goods purchased are intended to serve the economic activity of the taxable person, (b) a legal person who is not a taxable person referred to in point (a), subject to Article 10;
- the supplier of goods is a taxable person referred to in point 1(a).
Pursuant to Article 15 sec. 1, taxable persons are legal persons, organisational units without legal personality and natural persons who independently carry out the economic activity referred to in paragraph 2, regardless of the purpose or result of such activity.
It can be presumed that, in view of the transaction in question, the supplier should register for VAT (EU) purposes in the country where the goods are dispatched. However, this should be confirmed each time on the basis of local regulations. Nevertheless, notwithstanding the above, it will be justified in the present situation to recognize the acquisition in question as a standard ICA in the SAF-T (JPK_V7M) return in items 23 and 24.
At the same time, due to the lack of the counterparty’s EU VAT number, the transaction in question should not be disclosed in the recapitulative statement.
In addition, when submitting the settlements in question, it is worth considering submitting written explanations to the competent head of the tax office, indicating discrepancies between the SAF-T file and the summary information.
The correctness of such settlements is confirmed by the positions of the tax authorities, e.g. individual interpretations of the Director of the National Tax Information of 15 February 2023 (file reference number 0111-KDIB3-3.4012.31.2023.2.MPU) or 19 October 2023 (file reference number 0114-KDIP1-2.4012.445.2018.2.RM).
