A resident of Ukraine − the value added tax payer (hereinafter − VAT) sells goods to a non-resident, but under the terms of the contract transfers it in the customs territory of Ukraine. In this case, the actual export of such goods from the customs territory of Ukraine in the customs regime of export will be carried out by such a non-resident − buyer. There is a logical question in this situation: does the resident of Ukraine − supplier of the goods have a right to apply 0% of VAT under the date of transfer of goods to a non-resident?
To answer it is enough to remember that according to para. 195.1.1 of the Tax Code of Ukraine (hereinafter – TCU) transactions for the export of goods outside the customs territory of Ukraine in the customs regime of export are to be taxed at 0% rate. They are considered to be exported only when such export is confirmed by a customs declaration in accordance with the procedure established by the Cabinet of Ministers of Ukraine, namely by the Resolution “Questions related to the application of customs declarations” of May 21, 2012 No. 450:
- if the export is made by an electronic customs declaration, the information about it will be sent automatically to the State Fiscal Service of Ukraine (the payer does not need to do this);
- if the customs declaration is made in paper form, the actual export is confirmed by a mark in it − it will be made by the customs authority at the request of the declarant or his/her authorized representative.
In view of this, there are no grounds for applying the rate of 0% for VAT at the date of transfer of goods to a non-resident in the customs territory of Ukraine. They will appear only after the actual export of such product, confirmed in the above order. As a matter of fact, this was reported by the tax authorities in the letter of the State Enterprise SFS in Chernihiv region “On the occurrence of taxpayer tax liabilities on value added tax” dated April 21, 2017, No. 1493/10/25-01-12-01-09: “...in accordance with para. 187.1 of Art. 187 of TCU the date of the VAT liability when the export of goods is the date of registration of the customs declaration, that is, the date of completion of the customs clearance procedure of the export transaction, which is determined by the fact that the official of the customs authority places on all sheets of the declaration personal stamp imprint, and in case of electronic declaration − on the fact of an electronic digital signature of an official of the customs office of the electronic customs declaration after the conversion of it into a visual form. The fact of export of goods outside the customs territory of Ukraine, which were placed in the customs regime of export, should be confirmed by a customs declaration, as well as a notification about the actual export of goods beyond the customs territory of Ukraine”.
At the same time, it should be noted that the same conclusion will also apply if the non-resident − buyer of the goods until the moment of its actual export sells such a product to a third party.
