In its Resolution (Case File No. I FPS 3/12) of 25
June 2012, the Supreme Administrative Court
(“SAC”) composed of seven judges held that the
export of goods takes place also in a situation when
the goods exportation procedure commences in a
country other than Poland. The adoption of the SAC
Resolution was prompted by a dispute between tax
authorities and taxpayers over the treatment of
transactions involving export of goods outside the
EU when the customs clearance takes place in an EU
country other than Poland. While the taxpayers
argued that such a transaction should be treated as
the export of goods, the tax authorities elected to
treat the transaction as an intra-Community supply of
goods to the country in which the customs clearance
took place and only then as the export of goods from
that country. The interpretation applied by the tax
authorities meant that VAT registration was required
in the country of the customs clearance.
In the Resolution adopted, SAC held that:
Pursuant to Article 2(8) of the Act on Tax on
Goods and Services (“VAT Act”) of 11 March
2004 (Journal of Laws no. 54, item 535, as
amended) in its version prevailing in 2010, the
condition of “exportation of goods from the
territory of the country outside the Community”
is met not only when the goods exportation
procedure referred to in Article 161 of the
Community Customs Code commences by
submission of an export declaration to a customs
office located in the Republic of Poland.
In order for the taxpayer to be able to apply in
Poland the 0% rate on the export of goods,
Poland must be the place of supply, for which to
happen it is necessary to demonstrate that the
export of goods outside the EU occurs, pursuant
to Article 22(1)(1) of the VAT Act, as part of
transportation commencing in Poland, in
performance of the supply of goods set forth under Article 7 of the VAT Act. While the
declaration of goods for the exportation
procedure referred to in Article 161 of the
Community Customs Code submitted to a
domestic customs office provides undeniable
proof of such transportation commencing in
Poland, it is not the only proof.
SAC pointed out that the determination of the place
were exportation commences, within the meaning of
customs regulations, is not fundamental for
determining tax consequences of the export of
goods. For that purpose, the place where the
transportation of the exported goods commences
needs
to
be
established
unequivocally.
Commencement of such procedure at a Polish
customs office provides undeniable but not the only
proof of such transportation commencing in Poland.
The taxpayer can present evidence demonstrating
that while the exportation procedure, within the
meaning of customs regulations, commenced in an
EU country other than Poland, due to the
uninterrupted transportation, commencing in Poland,
the supply is subject to Polish VAT regulations. The
burden of proof in that respect rests on the exporter.
SAC stressed that interrupting transportation (e.g. by
unloading goods) and recommencement thereof in
another EU country in principle provides no grounds
to claim that the exportation of goods in fact
commenced in Poland. Under such circumstances,
simultaneously exportation for VAT purposes is
recognized in the country in which the goods export
transportation commences.
The Resolution under review (so far SAC’s opinion
is known only based on an oral justification) should
improve the situation of businesses and help
eliminate inconsistent practices of tax authorities,
illustrated among others by Interpretation no.
IPPP3/443-272/12-4/BH of 9 May 2012 in which the
Head of the Customs Chamber in Warsaw found that
the commencement of the customs procedure in a
country other than Poland does not amount to the
export of goods referred to in Article 2(8) of the
VAT Act.