separation by the agency contract
In the rules that govern the agency relationship, particularly in civil law contained in Articles. from 1742 to 1753 cc, this is not a regulatory filing that, in a large number of cases, is formed at the side of the intermediary. E 'on the other hand are likely to assist in the near future, an appreciable increase in the use of agency deposits, from the perspective of faster fulfillment of requests for supply from the customers. Sometimes play in a manner favorable to the institution of deposits, in the streets of greater absorption, transport costs, lower if large lots are started for the storage, instead of a multitude of items to individual names to be used, although there are, in this case, the burden of managing decentralized location. The formula
agent or representative to deposit with a deposit, in truth, reveals the existence of two relationships between the same parties, but conceptually and normatively distinct. If the agency relationship, with or without representation, one must head to the Articles. 1742 et seq. cc, the ratio of deposit should use the proper discipline, which is located in the Arts. from 1766 to 1797 cc The specific part of the discipline that is more interested in the section on deposit in General, which provides for the concept. It is worthwhile to read it carefully because it appears at first sight not easily applicable to specific cases that arise. Article. 1766 cc states: "The deposit is a contract whereby one party receives something other mobile with the obligation to preserve it and return it in kind." Doubts may arise from the fact that, in addition to the obligation of custody, there is the refund, and yes there is a second requirement, but in order to make delivery to customers in the area, customers served by the neighboring principal the broker that has on-site warehouse. The hypothesis
delivery against a person other than the applicant, however, is provided for by paragraph 1 of art. 1777 cc, books, notes, "persons with which to return the thing." It could be argued, however, that all civil law focuses on the obligation of the housing, while in storage at the side of the brokerage relationships is prevalent must ensure the supply of customers. There may be returning to the house so the principal, but this is generally pathological in nature, the standard being established by delivery to the customer to the store or to the same address.
If you are not convinced the foundation to the call to discipline the deposit, you rise to the anticipation of a contract atypical format under the second paragraph of art. 1322 cc, which permits the conclusion of contracts with a particular discipline. It is certainly the condition of the realization, through atypical of interest worthy of protection under the laws. In any case, be made applicable provisions contained in the framework of the deposit.
Approach to the VAT
of fundamental importance, both for home and for the principal agent of storage, is art. 53, DPR 26.10.1972, n. 633 and subsequent amendments thereto, entitled "Presumptions the sale and purchase. "
For the first of the two presumptions, allegedly sold the goods purchased or imported products that are not in places where the taxpayer (ie business or company) carries on its activities, unless it is shown that, apart from other circumstances, that the property in question were delivered to third parties in a non-transmissive of ownership - is explicitly mentioned in subparagraph b) of the first deposit ratio -.
For the second requirement, the assets that are in place or in one of the places in which the taxpayer carries on his business is presumed to be purchased if the taxpayer does not demonstrate that he has received them under a regular report (in paragraph 4 of ' art. 53, issue to consider now, is expressly mentions the ratio of representation, but at the same time, the terms "in mountain" mentioned in the reports for the first assumption).
may seem strange to those not familiar with the VAT rules are dictated by the fact that two different regulations for filing mediation with: a (special) for filing with the representative, the other for several hypotheses, including the agency relationship with deposit.
ambivalent formulas are used, namely that "contain" the two separate reports, but his gaze to the ratio of deposit. Article. 53. On the other hand, is designed to regulate the presence and movements of goods.
deposit with Agent
In terms of the steps necessary to counter the presumption of transfer (at the house principal) is to buy (in the intermediary), the position of deposit with, as it was written above is not treated separately (as this condition is detected, as shown below, to have a representative with deposit).
The filing agent is included in the term "deposit", in the letter b) of the first paragraph of art. 53 DPR 633/1972, together with many other figures in the contract. It begins with the goods delivered to third parties for processing, then mentioning those assigned in trust, then the property data dependency return contracts gradually to mention, to make matters worse, the goods delivered in another form, other than those spelled out first, meaning not transmissive property.
Referring to his letter b) of paragraph 1 of art. 53, warning that the body of the paragraph 3 of that Article (as modified by art. 57, par. 1, Lett. H), DL 30/1993, No 331, conv. with modifications. with L. 29.10.1993, No 427) is established that the delivery of goods to third parties, and in this case the agent with a deposit, must be from the ledger or other book kept in accordance with Civil Code or by a special register kept in accordance with art. 39 of DPR 633/1972, or another document kept under that article or document recorded at the registry office. The most practical solution, even to closely monitor the movement of the deposit is calculated by keeping a register in accordance with art. 39, Presidential Decree 633/1972.
The role of that record can not be played by the stock records (see Art. ARTICLE 14. D), DPR 29.09.1973, n. 600).
Representative with deposit
Representatives, with deposit of course, are expressly mentioned in the first paragraph of art. 53 here at the center of attention, immediately after the places of operation of the business or company, including the dependencies thereof, in respect of which the legislature itself, in order not to overlook any situation, said several names used in practice. It 's true that for the representative, as agent, is useful for the letter b), since in either case it is constantly in the presence of goods in formula "goods delivered to third party assets" . However, for the representative, as stated, is a special mention.
keeping the legislature has considered separately in the third paragraph of Article. 53, where is exposed to the line of conduct to be observed in order to overcome the presumption of transfer for the non-translational steps of the property. The second sentence states that the representation should be a public deed, by deed registered letter or recorded in a register, in an earlier time than was the case in which the passage of goods from the relevant authority in relation to tax domicile representative or the principal.
Among the various formulas, the most practical, of course, is given by the letter-contract to be finalized in advance of the first movement of goods, then the annotation to be at the sole competent tax office (whether individuals the legal relationship you are in the same district) or at one of the tax authorities (if the subjects themselves, however, are located in different districts). The choice in this regard is clear, however, appears preferable to provide the fulfillment house principal. Which, after the record achieved, will send a copy to the representative, preferably by mail. The date certain, even in the art. 2704 cc, however, is attested by the stamp tax. The predicted performance does not preclude the keeping of a register loading and unloading (which is the solution already recommended to follow the movement of the deposit). Strictly speaking, for the representative, is not ruled out membership to the persons referred to in the third period of the third paragraph of art. 53; here, in fact, provides for the "delivery of goods to third parties" referred to in subparagraph b) of paragraph 1 of that Article. 53, hence the delivery of goods to the representatives. No other interpretation does not seem legitimate.
Presumption of purchase
Presumption of purchase is won, for the principal assets of the house that held in storage "in the margins" of agents and representatives, according to fulfillment that has been describing in the preceding paragraphs. Considering how the taxpayer's agent or representative, as alleged it follows from the fourth paragraph of art. 53, Presidential Decree 633/1972 where it is literally written the goods that are in place or in one of the places in which the taxpayer carries on his business (deposit on the side of the agency or representation) is presumed to be purchased if the taxpayer does not demonstrate , in the cases and manner specified in the first and second paragraph, after receiving a report on the basis of representation or processing or any other securities in the first paragraph - in the end in the letter b) -.
The methods, regularly observed, apply, then, to overcome the presumption of sale (the parent) is to buy (an intermediary).
importance of the role of the representative
The fact that the legislature has used a particular treatment for the representative brings to mind the difference between the agent and representative, as it emerges from the comparison between Article. And Article 1742. 1752 cc The comparison reveals that while the agent promotes the conclusion of business, the representative will end.
Strictly speaking, therefore, should deposit with the agent to propose the principal business of the house before delivering the goods requested by the customer, this practice, however, would not be required if the representative with storage, given its full capacity to conclude .
If you made a deposit center in relation to the seat of the house, but in an interesting area for sales, it signifies a commitment to serve the customers with all possible care. Which suggests that the status of "agent" is purely nominal, not real. Intermediary, ie, they are given the opportunity to immediately deliver the goods, albeit on the basis of a list of borrowers requiring a decision of competence of the house. In this case if you have the opportunity to do business, it is not official, but a representative. Looking around, you may find that the representation is more common where there is a deposit.
