An employee who was leaving the company deleted all the emails from his inbox. At first glance, this might not seem out of the ordinary, but as a result, a few years later, his employer was unable to prove that he had correctly applied the 0% VAT rate.
In this case, which was brought before the District Court of the Northern Netherlands, the 0% rate was at issue because the transactions in question were alleged to be intra-Community transactions. The supplier must therefore be able to demonstrate two things:
– which has been supplied to a company established in another EU Member State VAT-registered business (by verifying the customer’s VAT registration number in the VIES(system);
– that the goods supplied have been physically moved from one EU Member State to another in connection with that supply dispatched or transported.
Proof of transport may be provided by means of all available records and documents. The burden of proof is met when the supplier has substantiated the proof of transport with due care. It is not required to demonstrate conclusively that the goods have actually arrived in the other Member State (the German tax authorities do, however, impose this condition – in our view, contrary to European law – by requiring the customer to issue a so-called “Gelangensbestätigung”).
The goods supplied had been collected by a carrier (a collection transaction). Proof of transport is then heavily dependent on information provided by the customer. The customer had issued a collection declaration which met the conditions set by the Tax and Customs Administration. However, such a declaration may only be used in the case of a regular customer (which was not the case here). And even then, such a declaration must be supported by other objective documents and records showing that it is the customer’s intention to transport the goods (or have them transported) to the other Member State. Such information did exist, but had been lost because the former employee had deleted his email inbox.
The Court concluded that the burden of proof had not been met, meaning that the 0% rate could not be applied and VAT was assessed retrospectively at the standard rate (21%).