The export of goods is understood as the supply of goods sent or transported from Poland outside the EU by:
a) the supplier or on his behalf, or
b) 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 pleasure craft and tourist aircraft or other means of transport for private purposes
– if the export of goods outside the EU is confirmed by the competent customs authority specified in the customs regulations.
The situation when the exporter or an entity authorized by him exports goods outside the EU on his own is the so-called direct export. Indirect export, on the other hand, takes place when the export of goods outside the EU, in the performance of the delivery of goods, is made by a buyer based outside Poland or on his behalf.
According to Art. 41 sec. 4 of the VAT Act, the export of goods is taxed at 0% VAT. However, this rate applies, provided that the taxpayer received a document confirming the export of goods outside the EU before the deadline for submitting a VAT return for a given settlement period.
This document is in particular:
1) a document in electronic form received from the ICT system used to handle export declarations or a printout of this document confirmed by the competent customs authority,
2) a document in electronic form from the ICT system used to handle export declarations, received outside this system, if its authenticity is ensured,
3) export declaration in writing fixed in paper form submitted outside the ICT system used to handle export declarations or its copy certified by the competent customs authority.
If the condition of having document within the indicated period has not been met, the taxpayer does not include this delivery in the VAT records for the given settlement period, but in the next period, applying 0% VAT, provided that the document is received before the deadline for submitting the VAT return for the next period. If this document is not received within this period, domestic will apply.
In a situation where the taxpayer receives a document confirming the export of goods outside the EU at a later date, he will have the right to make a VAT adjustment in the settlement for the settlement period in which he received it.
An exemplary catalogue of documents confirming export is listed in Art. 41 sec. 6a of the VAT Act. At the same time, it is not a closed catalogue, as indicated by the phrase “in particular” used in this provision.
In the judgment of the CJEU of 28 March 2019 in case C-275/18 the CJEU held that the provisions of national law cannot make the exemption from VAT provided for the export of goods conditional on the condition that these goods have been placed under the customs procedure of export, in a situation where it is undisputed that the substantive legal conditions for exemption have been met, including in particular, the premise of the actual exit of the goods concerned from the territory of the EU.
This ruling was also referred to by the Supreme Administrative Court in its judgment of July 21, 2020, file ref. act I FSK 2005/17. The court stated that the he key factor in applying the 0% VAT rate in exports is the fact of export outside the EU (substantive prerequisite), and not the collection of specific documents in a specific procedure (formal prerequisite). As a consequence, according to the Court, a taxpayer cannot be denied the right to apply the 0% VAT rate solely on the grounds that he does not have a specific document confirming the export of goods, if the export actually took place, which fact was not questioned by the authorities.
The current stand point of the Polish tax authorities is that they may allow the use of various evidence that will confirm the export of goods outside the territory of the European Union.
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