The Supreme Court, by decision 24 September 2019, n. 23674, has stated that passive solidarity, provided for the indirect customs representative, does not extend to VAT, given the different nature of VAT on imports compared to customs duties.
The judges of the Supreme Court, in fact, considered that the joint liability of the indirect customs representative, together with the importer, represents a valid obligation only for the customs obligation in the proper sense: notion that does not include VAT to be collected for the import of goods.
As is known, representation may be direct, if the representative acts in the name and on behalf of third parties, or indirect, if the representative acts on behalf of the importer, but in his own name. While in the case of direct representation, the representative is not responsible for the greater rights due to the importation, in the case of indirect representation there arises a joint liability of the declarant with the subject on whose behalf the customs operation is carried out (art. 77 CDU).
Despite the fact that this topic is widely discussed within the sector of tax litigation, especially as regards the objective limits of joint and several liability, starting from the Equoland judgment has been consolidated the principle according to which “VAT on imports, requested by the Italian State, has nature of internal taxation” .
The judgement under discussion fits well into this argumentative framework, stating that the VAT on importation is not a customs duty and that, consequently, the claim of VAT, made against the indirect representative, is illegitimate. In addition, with the judgement under examination, the Court of Cassation stated that, in the event of irregular use of the VAT warehouse, the VAT assessment competence lies with the Revenue Agency, since these are goods released for free circulation and which have already completed the verifications of competence of the Customs Agency.