Intra-Community Supply with Free Documentary Evidence: The Cassation Court’s Substantive Approach

By Giorgio Trevisan

In the landscape of international commercial transactions, proper documentation of the transfer of goods represents a fundamental pillar for benefiting from the VAT non-taxable regime. However, recent jurisprudential evolution is outlining a more flexible framework, prioritizing the substance of the transaction over mere bureaucratic formalism.

With Order No. 8726 of April 8, 2026, the Court of Cassation reiterated an essential principle: proof of an intra-community supply can be provided with any suitable element, even in the absence of the rigorous documentary set required by EU legislation.

Overcoming Documentary Formalism in EU Transactions

Article 45-bis of EU Regulation No. 2011/282 introduced a relative presumption of transport having taken place that facilitates the taxpayer's task when specific documents are available. However, the Supreme Court clarifies that this provision must not be interpreted as an insurmountable limit for those carrying out an intra-community supply.

The orientation of the legitimacy judges is based on three pillars:

• Freedom of evidence: The supplier who does not possess the typical documentation (such as the CMR signed upon receipt by the recipient) can still demonstrate the dispatch of goods to another Member State through other objective elements.

• Substantive approach: In line with the EU Court of Justice, the VAT exemption must be granted if the substantive conditions of the transaction are satisfied, regardless of compliance with every single formal requirement.

• Global assessment: Tax authorities are required to comprehensively evaluate any evidence provided, without being able to conclude that the intra-community supply does not exist solely due to formal documentary deficiencies.

Burden of Proof and Protection of VAT Fiscal Neutrality

Although the burden of proving the conditions for non-taxability remains with the taxpayer, the principle of fiscal neutrality requires that the exemption not be denied for mere procedural or logistical errors.

Non-compliance with formal requirements may result in the loss of the tax benefit only in two specific circumstances:

1. When the supplier has intentionally participated in tax fraud.

2. When the formal violation prevents certain proof of compliance with substantive requirements (i.e., that the goods physically left Italy).

A Strategic Direction for Internationalized Companies

The Cassation Court's order confirms the legitimacy of "open" documentary practices, validating for example intra-community supply transactions in which the international consignment note is signed only by the carrier, provided it is supplemented by other documents (such as contracts, bank transfers, and accounting records) that confirm its actual occurrence.

For companies operating in the single market, this jurisprudential opening represents significant protection against the risks of tax recovery related to logistical issues or deficiencies of foreign partners. However, designing a solid internal document archiving procedure remains fundamental. Only conscious and multidisciplinary management of evidence can guarantee the necessary security to face the challenges of international growth and long-term tax compliance.

Plan your company's financial and tax security

The team of professionals at Studio Alcor is available to support your company in proper corporate management, tax compliance, and strategic planning.

Request an appointment with our consultants at the nearest office