Gold buyers, reverse charge with verification of substantive requirements
The Supreme Court upholds the appeal of the Inland Revenue and refers the examination of the merits to the Tax Court
by Nunzio Ragno
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The legitimate applicability of the "reverse charge" in the supply of used precious objects implies the objective ascertainment of the substantial elements and logical reasoning that would justify the assimilation of the same finished goods to the gold material contemplated by Article 17, paragraph 5 of Presidential Decree No. 633/72. These are the reasons upheld by the Court of Cassation in Order No. 13717/2023 whereby it upheld the appeal filed by the Inland Revenue against Judgement No. 84/07/2023 of the Abruzzo Court of Justice.
In particular, at the origin of the dispute, the Inland Revenue notified three notices of assessment to a company active in the trade of used precious objects contesting the improper application of the reverse charge regime as provided for by Article 17, paragraph 5 of Presidential Decree 633/72, and the consequent failure to comply with the margin regime, Article 36 of Legislative Decree 41/95.
In the second instance, after the Abruzzo Regional Tax Commission had confirmed the correctness of the classification of the transactions between the taxpayer and the transferee among those subject to the margin regime, "but excluding penalties, due to the objective difficulty in interpreting the functional area of the respective tax regimes", the taxpayer's reasons were upheld with reference to the VAT regime paid, recognising the legitimate application of the reverse charge.
In detail, the referring court, after examining the principle of neutrality of VAT, held that the taxpayer carried on the activity of 'compro oro' (buying and selling gold) without engaging in any activity of marketing jewellery or second-hand goods, since it only sold the gold objects, previously purchased from private individuals, to foundries specialised in the affiliation and recovery of the precious metal.
All of this, recalling that for the reverse charge regime to be applicable, it is sufficient that the products in question are not immediately intended for consumption and that they meet the purity requirements established by the rule; conditions, therefore, that would allow the objects in question to be assimilated to so-called gold material for the supply of which the reverse charge regime is applicable, and not also to second-hand goods for which, instead, the margin regime applies.
