Exports of goods with the participation of an intermediary and the 0% VAT rate
The developing European and global market offers new opportunities also for Polish entities. The development of services in the world has also opened new doors for Polish entrepreneurs intermediating in the export of goods. And the question here is, what rate of VAT should be taxed at this type of services accompanying the export of goods?
Export of goods
The export of goods should be understood as the export of goods from the territory of a country outside the territory of the European Union, confirmed by the customs office and specified in the customs regulations, if the export is made by:
supplier or on his behalf, or
a buyer established outside the territory of the country or on its behalf, with the exception of goods exported by the buyer himself for the purpose of equipping or supplying recreational craft and tourist aircraft or other means of transport for private purposes.
Tax obligation on the export of goods
The obligation to tax the export of goods with VAT arises upon the delivery. If an advance payment has been received prior to delivery, the tax obligation occurs on the date of receipt.
Tax base for the export of goods
Pursuant to Art. 29a (1) of the VAT Act, the taxable amount in the export of goods is what constitutes a payment, not excluding received subsidies, subsidies and other surcharges that have a direct impact on the price of the exported goods, i.e. taxes, duties, fees and other charges of a similar nature, with the exception of the amount of tax and additional costs, such as: commissions, packaging, transport and insurance costs, charged by the supplier or service provider from the buyer or service recipient.
In addition, the taxpayer has the right to reduce the tax base by the amounts of rebates, discounts and other rebates granted, as well as by the amounts of payments returned before delivery, subsidies, subsidies and other surcharges. The taxpayer also has the right to reduce the tax base in the event of goods being returned by the counterparty.
Intermediary services most often relate to indirect export
The 0% VAT rate for indirect exports will apply when the exporter of goods has an appropriate customs document (obtained from the customs office), which will confirm that the goods have been cleared through customs. In addition, the exporter must have the abovementioned customs document until the date of submitting the declaration for the month or quarter in which the goods were exported.
If the exporter does not receive the document before the date of submission of the declaration, then he does not indicate this sale at all in the VAT register and waits for the document. If he receives the confirmation of customs clearance in the second settlement period, he may use the 0% rate in the VAT return for the latter period, but if he still does not receive the above document, he is obliged to apply the domestic VAT rate.
In a situation where the exporter has received the document after the above two periods entitling him to apply the 0% rate on exported, the seller has the right to correct the domestic VAT in the declaration in the current period, which he had to add previously and is obliged to apply the 0% VAT rate for exported goods. However, what VAT rate will the participating entities providing services related to the export of goods have to apply?
Intermediary services in the export of goods
Pursuant to Art. 83 sec. 1 point 19 of the VAT Act, a tax rate of 0% applies to services consisting in the performance of activities directly related to the organization of the export of goods, in particular issuing shipping documents, bills of lading and settling customs formalities.
Moreover, as indicated by the legislator in Art. 83 sec. 1 point 21 of the VAT Act, the tax rate of 0% also applies to services related directly to the export of goods:
for exported goods consisting in packing them, transporting them to the places where collective consignments are formed, storage, reloading, weighing, controlling and supervising the safety of transport,
provided on the basis of a brokerage, agency, commission and agency agreement regarding exported goods.
It should be added that the tax rate of 0% applies to activities referred to, inter alia, in the above point 21, in the case of keeping the documentation by the taxpayer, which clearly shows that these activities were performed in compliance with the conditions specified in this provision.
Intermediary services in the export of goods and the 0% rate on the example of case law
Polish, an active VAT payer, conducts activities consisting in intermediation in the export of goods to the USA. The taxpayer concluded an agreement for brokering the sale of goods for a US contractor with a Polish export company. The subject of the contract are the following activities:
analyzing the commercial offers of various manufacturers,
monitoring and creating orders,
negotiating prices, supervision of logistic activities,
determining auxiliary and collective labels and delivery dates,
ordering appropriate containers,
setting sea freight rates for the current month,
personal supervision over the loading of goods,
forwarding invoices, specifications and required certificates to a recipient in the USA,
as well as activities of informing about all changes that may affect the sales process.
The American company will make payments for the purchased goods in the form of bank transfers directly to the exporter's account in Poland, who in turn pays for the intermediation of the taxpayer in a given export of goods. In addition, the taxpayer has the goods order, invoice, specification, certificate (of the exporter) confirming the purchase of goods from a Polish contractor by a foreign recipient, an export forwarding order, a copy of the bill of lading.
In order to apply the 0% tax rate to services directly related to the export of goods, the above-mentioned conditions must be met pursuant to Art. 83 sec. 1 point 21 of the VAT Act.
At the same time, it should be noted that the application of a 0% tax rate based on the above-mentioned provision, requires the taxpayer to keep documentation, which clearly shows that these activities were performed in accordance with the conditions set out in this provision.
It should be pointed out that the legislator has not specified any catalog of documents that the taxpayer must have, so it is crucial that the documents in it unambiguously confirm that these activities were performed in compliance with the conditions specified in this provision.
The activities presented by the taxpayer are related to the export of goods and are provided on the basis of an agency agreement. A Polish taxpayer who is an intermediary for the export of goods will have the right to apply a 0% tax rate pursuant to Art. 83 sec. 1 point 21 lit. b) the VAT Act.
This is also confirmed by the position of the Director of the Tax Chamber in Bydgoszcz included in the individual ruling of June 4, 2012. with reference number ITPP2 / 443-407 / 12 / RS.
The Polish VAT taxpayer conducts business activity consisting in intermediation in export sales in the territory of Russia and Ukraine on the basis of an agency agreement concluded with a Polish contractor. The subject of this contract is the acquisition of recipients of his goods for a domestic contractor in the territory of Russia and Ukraine. The Polish broker receives remuneration for the given export-related services after the exporter has shipped the goods directly to the recipient in the USA.
Payments for purchased goods are made by a foreign company in the form of bank transfers directly to the exporter's account in Poland. A Polish broker issues a VAT invoice with a 23% rate for brokerage services provided to a domestic exporter, on the basis of which he receives payment. The Polish broker has a document confirming the transaction, i.e. a photocopy of the MRN export confirmation.
The subject of the contract are the activities of conducting research on the needs of a domestic contractor, obtaining tender materials for it, as well as promoting the company of a domestic contractor on the territory of Russia and Ukraine, which are presented in detail below.
Activities related to the reconnaissance of the needs of the domestic contractor and the acquisition of tender materials for it and the promotion of the domestic contractor's company in Russia and Ukraine cannot be considered as services directly related to exports, because the above-mentioned the activities are of a general nature, not related to a specific export delivery. Therefore, these services will not benefit from the preferential 0% tax rate and will be subject to taxation at the 23% tax rate on goods and services.
On the other hand, the activities carried out by a Polish intermediary include:
providing a domestic contractor with appropriate commercial advice, assistance at the stages of acquisition, preparation of offers, negotiation of contracts and their implementation,
conducting preliminary talks with a foreign recipient on behalf of a domestic contractor,
agreeing on the essential terms of the contract and participation in signing the contract,
representing the interests of the domestic contractor during the performance of the contract,
organizing the transport of goods to a foreign contractor by searching for transport companies, agreed prices and delivery dates,
informing about any changes that may affect the sales process.
- can be identified as directly related to the export of goods in question, to which the Polish intermediary will be able to apply the 0% VAT rate. In addition, the taxpayer should have relevant documents, i.e. those from which it will be concluded that the above-mentioned the activities were performed in compliance with the conditions specified in the provision under analysis.
In addition, the Polish broker must keep documentation, which clearly shows that these activities were performed in accordance with the conditions specified in this provision.
It should also be stated that the document in the form of a photocopy of the confirmation of MRN export will be a document on the basis of which it is possible to apply the 0% VAT rate to services related directly to the export of goods covered by this document, performed under the agency agreement concluded with the contractor.
Finally, it should be added that the above-mentioned the document confirming the export of goods (MRN) should be related to a specific service that the Polish broker has provided and which is directly related to the export of goods, i.e. the MRN document should be assigned to a specific invoice that the Polish broker issues to its contractor and which documents the services taxed at the 0% VAT rate.
This is also confirmed by the position of the Director of the Tax Chamber in Katowice included in the individual interpretation of 07/05/2014. with reference number IBPP4 / 443-54 / 14 / BP.