B Law & Tax
20 September 2023

Tax advisor: According to the CJEU, the unauthorized removal of an excise goods from the suspension regime precludes tax exemption for the authorized warehousekeeper.

An Italian company engaged in the storage and transport of petroleum products was merged
by absorption. As an authorized warehouse keeper, it made 196 shipments of hydrocarbons
(diesel and gasoline) from its tax warehouse in Italy to a company in Slovenia, which was
authorized to receive these products as a registered trader. However, the Customs and
Monopolies Agency issued a tax assessment on July 15, 2009 to the Italian company to collect
excise duties on 161 shipments that had irregularities. The referring court argues that a recent
judgment of the CJEU (Case C-711/20, CJEU of 24 March 2022) does not resolve the doubts on
the interpretation of Article 14 of Directive 92/12. In that case, the consignee of the mineral
oils under a duty suspension arrangement denied having received them, whereas, in this case,
the consignee returned the relevant documents, which led the warehousekeeper to believe
that the goods had arrived at their destination.

The court concludes that when a product subject to excise duty irregularly leaves the
suspension arrangements, even if this is due to the unlawful action of a third party and the
warehousekeeper had a legitimate expectation that the product was moving regularly under
suspension arrangements, the authorized warehousekeeper cannot be granted a tax
exemption. Directive 92/12 confers a central role on the authorized warehousekeeper in the
process of movement of excise goods under duty suspension arrangements. Therefore, Article
14(1) of this Directive does not allow granting a tax exemption to the warehousekeeper in case
of irregular departure from the duty suspension arrangement due to an unlawful action, even
if the warehousekeeper had no involvement in this action and legitimately believed that the
product was regularly circulating under the duty suspension arrangement.

B Law & Tax International Tax & Legal Advisors.

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