The question of how intra-Community transactions should be documented has always been a source of practical problems. One of the main requirements for eligibility to charge VAT at the rate of 0% in the case of intra-Community supplies is for the taxable person to be in possession of documents confirming that the taxable goods have been transported from one member state and delivered to an acquirer in another member state. The Polish VAT regulations, specifically the provision of section 42(3) of the VAT Act, define such documents to include shipping documents that clearly show the goods have been delivered to their destination in an EU member state, and a packing list. The VAT Act also contains a list of supporting documents that may be used as evidence if the shipping documents and the packing list do not confirm clearly the delivery of the goods to an acquirer in another EU member state (Section 42(11) of the VAT Act). 

In the past, tax authorities have argued that a CMR document (particularly if it is signed by the consignee in section 24) is essential for eligibility to apply the rate of 0% and that where such a document is not available, even if alternative documents prove that the goods have been delivered to a destination outside the territory of Poland, the rate of 0% must not be applied. That was helped by the Supreme Administrative Court's resolution of 11 October 2010 (I FPS 1/10). The Court said that for a taxable person to be eligible to apply the rate of 0% to an intra-Community supply of goods, it is sufficient for that person to be in possession of only some of the documents specified in Section 42(3) of the VAT Act, supported by the documents specified in Section 42(11) of the VAT Act and/or or any other documents if all of them confirm that the goods have been transported from Poland and delivered to an acquirer based in another EU member state. Based on that resolution, it has become a practice that the unavailability of a CMR document (or, if available, a CMR document not signed in section 24, but supported by other documents) does not automatically mean problems with charging VAT at the rate of 0% in the case of intra-Community supplies.

Given the EU-level changes regarding the documentation of intra-Community supplies, where one of the documents required for eligibility to charge VAT at the rate of 0% is a signed CMR document, it is worth considering whether the established practices based on decisions of Polish courts confirming that eligibility to apply the rate of 0% to intra-Community supplies may be based on other documents will continue to be respected by tax authorities.

The new provisions on the documentation of intra-Community supplies are based on Council Implementing Regulation (EU) 2018/1912 of 4 December 2018 amending Implementing Regulation (EU) No 282/2011 as regards certain exemptions for intra-Community transactions ("Regulation"). The provisions of the Regulation do not require the enactment of a statute to apply in Poland, as these provisions are directly applicable.

According to the Regulation, an exemption (the rate of 0% in Poland) for intra-Community supplies may be applied on the presumption that the goods have been transported from one EU member state to another. The Regulation focuses on documents issued by parties other than the acquirer and the vendor. The new provisions require that documents that may be the basis for the presumption be issued by two different parties that are independent of each other, of the vendor and of the acquirer. Therefore, transport and logistics companies will play a major role in ensuring compliance with the requirements of the presumption. The presumption will, however, not apply if the vendor or the acquirer transport the goods using their own means of transport (i.e. the requirements for the presumption will not be met).

For example, the presumption will apply if the taxable person is able to prove that the goods have been transported to another EU member state using two documents, such as a CMR document signed in section 24 and a bank document confirming the payment for the transport of the goods. See Box 1 and Box 2.

If the requirements for the presumption are met, the taxable person will have the certainty that they may lawfully apply the rate of 0% to their supplies. The burden of proving that the goods have not been transported from one EU member state to another, to rebut the presumption, will rest on the relevant tax authority.

What is important is that the new EU provisions introducing the presumption do not mean that the transport of the goods may not be proved under the applicable provisions of domestic law.

This is confirmed by the reasons for the amendments to the VAT Act. The document with the reasons reads that "failure to meet the presumption requirements does not automatically mean that the rate of 0% will not apply. In such a case, the vendor has an obligation to prove otherwise, in accordance with the VAT Act, that the requirements for eligibility to apply the rate of 0% are met."

If the requirements for the presumption are met, the taxable person will have the certainty that they may lawfully apply the rate of 0% to their supplies. The burden of proving that the goods have not been transported from one EU member state to another, to rebut the presumption, will rest on the relevant tax authority.

What is important is that the new EU provisions introducing the presumption do not mean that the transport of the goods may not be proved under the applicable provisions of domestic law.

This is confirmed by the reasons for the amendments to the VAT Act. The document with the reasons reads that "failure to meet the presumption requirements does not automatically mean that the rate of 0% will not apply. In such a case, the vendor has an obligation to prove otherwise, in accordance with the VAT Act, that the requirements for eligibility to apply the rate of 0% are met."

The same view is expressed in the draft Explanatory Notes of the European Commission (Explanatory Notes on 2020 Quick Fixes”, GFV No. 89).

Consequently, the new EU provisions should not affect the scope of documents required by Polish tax authorities as evidence of the taxable person's eligibility to apply the rate of 0% in the case of intra-Community supplies. It would, however, be advisable for the taxable person to review their records in terms of whether thy meet the Polish statutory requirements, particularly if the records do not include a signed CMR document. This is because tax authorities may adopt a more restrictive approach in this regard.