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Legal framework and tax implications of e-commerce in Spain
Company and Commercial Law
The Spanish financial system
Accounting and audit issues
- Defining regulatory principles
- Tax Implications of e-commerce in Spain
3Tax implications of e-commerce in Spain
3.3. Indirect taxation
It is in the area of VAT where the most relevant coordinated legislative measures have been adopted.
The indirect taxation implications for e-commerce have so far mainly concerned “online e-commerce,” a term that refers to products supplied on the Internet in digitized format (books, software, photographs, movies, music, and so on) and downloaded by a user in real time onto his or her computer, having clicked on to the supplier’s website and paid for the products in question (in contrast to offline supplies where products sold on the Internet are subsequently delivered by using conventional means of transportation).
However, the EU provisions regarding offline intra-Community trade in goods (distance sales), which are also referred to in this chapter, are to came into force with effect as from July 1, 2021.
There are other relevant VAT issues also to be considered in relation to e-commerce (especially in the area of online e-commerce). These are basically the following:
- The determination of the VAT rates applicable to the different types of e-commerce.
- The adaptation of the formal obligations and management of VAT to the realities of e-commerce and, particularly, the invoicing obligations.
- The problems already raised in relation to direct taxation, regarding the determination of the existence of a fixed establishment and of the effective place of business, are also applicable in the area of indirect taxation. Council Implementing Regulation (EU) No 282/2011 has clarified these concepts, defining them as follows:
- Place of establishment of a business: The place where the functions of the business’s central administration are carried out, i.e., the place where essential decisions concerning the general management of the business are made, the place where the registered office is located or the place where management meets. The Regulation clarifies that if, having regard to the above criteria, the place of establishment of a business cannot be determined with certainty, the place where essential management decisions are made will take precedence. It also clarifies that a postal address cannot be taken to be the place of establishment of a business.
- Fixed establishment: Any establishment, other than the place of establishment of a business, with a degree of permanence and a suitable structure in terms of human and technical resources to enable the services supplied it to be received and used for its own needs.
Each of these issues is briefly examined below.
3.3.1 Services provided electronically
220.127.116.11 Definition of “taxable event” as a supply of goods or services for the purpose of determining the place of supply
Directive 2002/38/EC was based on the premise that transactions performed electronically are deemed supplies of services:
- Services will be deemed to be electronically supplied services where their transmission is sent initially and received at destination by electronic data processing equipment. The fact that the supplier of a service and his customer communicate by e-mail does not of itself mean that the service performed is an electronically supplied service.
In relation to the concept of “electronically supplied service”, article 7 of Council Implementing Regulation (EU) No 282/2011 further defined it by including a list of services that must be regarded as electronically supplied services and others that are not. In this regard, article 7 established that electronically supplied services are those "delivered over the Internet or an electronic network and the nature of which renders their supply essentially automated and involving minimal human intervention, and impossible to ensure in the absence of information technology".
Implementing Regulation 1042/2013, to which we shall refer subsequently because it regulated the changes which came into force on January 1, 2015, revised the list of electronically supplied services as set out in the following table:
18.104.22.168 Place of supply of services provided electronically
Directive 2006/112/EC provides that starting on January 1, 2015, the electronically supplied services will be taxed in the Member State where the recipient is established, regardless of where the taxable person supplying them is established. Thus, effective that date, where the recipient is established in Spain, the services will be deemed supplied in Spanish VAT territory. This general rule is applicable for both recipients classed as traders or professionals and those not classed as such.
The above notwithstanding, Directive 2017/2455, effective as from January 1, 2019, established a threshold for the determining the place of provision of these services, the rule being that when the total amount of services of this kind rendered by the services provider does not exceed, in the current year or the preceding year, €10,000, services provided to final consumers shall be considered subject to VAT in the place where the supplier is established. It should be borne in mind that, effective since July 1, 2021, intra-Community distance sales have also been taken into account for the purposes of calculating this €10,000 threshold.
Spanish legislation stipulates that businesses and professionals may opt voluntarily for taxation at destination even when the €10,000 threshold is not exceeded, this option being valid for a minimum of two calendar years. The option must be exercised through the pertinent census communication, using form 036. In addition, since the approval of Royal Decree 1512/2018 of December 28, 2018, which amends – inter alia - the VAT Regulations, the rule has been that taxable persons who take up this option must demonstrate to the tax administration that the services rendered have been declared in another Member State. Similarly, taxable persons wishing to extend the option exercised must reaffirm it once two calendar years have elapsed, with failure to do so resulting in automatic revocation.
In order to implement the above provisions, Implementing Regulation 1042/2013 introduced the relevant amendments. Accordingly, the Regulation contains provisions:
- To define and update the list of services that are affected by the rules discussed here and to clarify who the supplier is where several traders are involved (e.g. sale of applications).
- To define the place of establishment of the customer (legal person not acting as a trader).
- To clarify – since certain rules already exist in this respect in the Regulation – how to evidence the trader’s status as a recipient.
- To specify the place of actual consumption of the services through presumptions on the customer’s permanent address or residence and the evidence that can be required, if applicable, to rebut them.
- To establish transitional provisions.
The Regulation also address the supply of services through a portal or telecommunications network such as a marketplace for applications, in order to clarify who will be deemed the supplier in these cases.
The Regulation contains a number of provisions aimed at defining the place of business, establishment, permanent address or habitual residence according to the type of customer in order to clarify the application of the place-of-supply rules for supplies of services that depend on these circumstances.
These definitions are kept intact, although a specific rule is added for legal persons who do not act as traders whose place of establishment will be where the functions of their central administration are carried out (place of business) or where they have a PE that is suitable for receiving or using the services.
As regards determining the location of the recipient, the place-of-supply rules that apply from 2015 are those for supplies to parties acting as final consumers, that is, natural or legal persons not acting as traders.
For these purposes, the supplier may regard the recipient as the final consumer as long as the recipient has not communicated his individual VAT identification number to the supplier but, unlike other supplies of services, the supplier may consider the recipient as the final consumer regardless of whether he has information to the contrary.
In the case of legal persons that have several establishments or of natural persons who have a permanent address other than their habitual residence, the Regulation establishes that:
- For non-trader legal persons the “place of business” prevails on the terms defined in the preceding section.
- For natural persons, priority will be given to their habitual residence (a concept which is already defined in the Regulation in its current wording) unless there is evidence that the service is used at the person’s permanent address.
However, these rules are not sufficient to determine the place of supply of services where the same recipient can access them from several places or by various means. To try to cover the most frequent cases, the Regulation includes specific rules such as the following:
- If the services are supplied requiring the physical presence of the customer (e.g. an internet café, a wi-fi hot spot or a telephone booth), the services will be taxed at that location. This rule also applies to services supplied by hospitality establishments where they are supplied in connection with accommodation services.
- If the service is supplied on board a ship, aircraft or train, at the place of departure of the transport operation.
- A service supplied through a fixed land line, at the permanent address of the customer where it is installed.
- If it is supplied through mobile networks, at the country identified by the mobile country code of the SIM card.
- If the service requires a viewing card or decoder or similar device (without being supplied through a fixed land line), where the decoder or similar device is located, or if that place is not known, at the place to which the viewing card is sent.
In any other case, at the place identified as such by the supplier on the basis of two items of evidence: billing address, IP address, bank details (e.g. place of demand deposit account), the mobile country code stored on the SIM card, location of the land line, other commercially relevant information.
Since January 1, 2019, the rule has been that only one item of evidence is required when the amount of these services rendered by the services provider does not exceed €100,000, either for the current year or the preceding year.
The presumptions on the place of supply of the service described can be rebutted by the supplier if three of the items of evidence listed in the preceding point determine a different place of supply.
The tax authorities may, in turn, rebut any of the presumptions described where there are indications of misuse or abuse by the supplier.
Lastly, there is a use and enjoyment rule set out in article 70.2 of the VAT Law that applied to electronic services provided both to private individuals and traders or professionals. This closing rule meant that electronic services would be subject to Spanish VAT when, under the general place-of-supply rules, they were not deemed made in the EU, the Canary Islands, Ceuta or Melilla, but they were effectively used or utilized in such territory.
Since January 1, 2023, that rule has been modified by Law 31/2022, of December 23, 2022, on General State Budgets for 2023, eliminating its application to the services provided electronically.
22.214.171.124 Special schemes applicable to electronic services
Directive 2002/38 created a special regime applicable to electronic services provided by traders or professionals not established in the EU to final consumers in the EU (the Non-Union Scheme). The scope of this special scheme was extended, as from January 1, 2015, to cover services provided to private individuals by operators established in the EU but not in the Member State of consumption (the Union Scheme).
The schemes in question, which are optional for the traders by whom such services are provided, are aimed at simplifying their obligations, so that traders only have to register (electronically) in one Member State, although they will have to charge the VAT relating to each of the jurisdictions where their customers are located and pay it over (also by telematic means) to the tax authorities of the Member State in which they are registered. Subsequently, that Member State will reapportion the VAT collected among the other Member States.
The “mini one stop shop” system was created for this purpose, to allow the taxable person to file in the Member State of identification a single return which includes transactions addressed to final consumers of different Member States.
Similarly, Regulation 282/2011 establishes certain special VAT management rules in the case of exclusion from the scheme, rectification of VAT returns, impossibility of rounding off the VAT payable, etc.
Summarized below are the main characteristics of each of these schemes:
- The Non-Union scheme:
This scheme may be applied by traders or professionals who are not established in the EU and provide electronic services to final consumers in the EU.
The trader is required for these purposes to register in a Member State (the “MS of identification”), in which it must comply with the obligations deriving from the scheme. If the Member State of identification is Spain, the corresponding returns declaring the commencement, change or cessation of operations covered by the scheme — form 035 — must be presented, VAT returns must be filed electronically, the corresponding amount of VAT must be paid in, a register of operations included under the scheme must be kept, etc.
Non-established traders or professionals that apply this special regime in Spain will be entitled to a refund of input VAT in accordance with the refund procedure for non-established traders, without being subject to the reciprocal treatment requirement generally established in the legislation.
- Union Scheme:
This scheme is available to traders who provide electronic services and are established in the EU but not in the Member State of consumption.
In this case, the Member State of identification is the place where the trader’s main place of business is located or, if this is outside the EU, the place where it has a fixed establishment. If the trader has more than one fixed establishment, it can chose the Member State of identification.
If the Member State of identification is Spain, the corresponding returns declaring the commencement, change or cessation of operations covered by the special scheme — form 035 — must be presented, VAT returns must be filed in respect of these services, the VAT must be paid in, a register of operations included under the scheme must be kept, etc.
It should be noted that traders established in a Member State cannot apply these special schemes in respect of technological services provided in the Member State in which they themselves are established.
VAT charges borne for the provision of technological services can be deducted either through the general procedure or via the procedure envisaged for traders established in another EU Member State.
For these purposes, where Spain is the Member State of identification, VAT borne in Spanish territory must be deducted in the returns filed under the general VAT regime.
If Spain is the Member State of consumption, the deduction procedure is that envisaged for non-established persons in article 119 of the VAT Law.
3.3.2 The new treatment applicable to distance sales of goods and certain domestic supplies of goods and new one stop shop schemes
As mentioned above, a package of EU measures — established in Directives 2017/2455 and 2019/1995 — is set to come into force with effect as from July 1, 2021. These will be applicable primarily to distance sales of goods and certain imports and will make it possible to pay VAT in in the Member State of identification through the “one stop shop”.
These EU measures were transposed into Spanish legislation6 during 2021. We describe below the main changes introduced within the offline e-commerce framework:
- As a general rule, distance sales made from one Member State to another, to recipients who are not acting as traders or professionals are deemed subject to VAT in the Member State of destination.
Taxation will nevertheless take place in the Member State of origin where the following requirements are met:
- The seller is established in a single Member State.
- Total distance sales for the year do not exceed €10,000, with provisions of telecommunications services, broadcasting and television services and services provided electronically also being taken into account for these purposes.
In any event, the rule will envisage the possibility of opting voluntarily for taxation in the Member State of destination.
- A special one stop shop scheme – “Union Scheme” — was introduced to simplify the self-assessment and paying-in of VAT, and this is similar to that already in place for digital services, as referred to above. The filing of a single quarterly return in the Member State of identification has been envisaged for these purposes, including all intra-EU distance sales of goods.
- A new special scheme was introduced for distance sales of goods imported from third countries – the “Import scheme” — which are not subject to special taxes and whose intrinsic value does not exceed €150. Over and above this value, a full customs declaration is required at the time of importing the goods.
The general rule under this scheme is that the place of supply will be the Member State of destination of the goods and that the import of the goods will be exempt in order to avoid double taxation. A one stop shop system with a monthly return in the Member State of Identification is also envisaged.
Lastly, VAT relief (exemptions) on imports of goods of negligible value — which had been set at €22 — was eliminated. As a result, since July 1, 2021, imports have been subject to and not exempt from VAT whatever their value.
- In certain cases, the operators of the electronic interface are responsible for payment of the VAT (on the understanding that they act as intermediaries in the sale in their own name).
In particular, it is established that a trader who facilitates certain sales through the use of electronic interfaces (online marketplace, platform, portal or similar) has itself received and supplied the goods in the following situations:
- Distance sales of imported goods in consignments with an intrinsic value not exceeding €150.
- Supply of goods made within the EU by traders not established in the EU to private individuals.
In this way, when the interface is understood to have facilitated the sale, two supplies of goods take place: (i) that made by the supplier of the goods to the trader who facilitates the sale via the electronic interface and (ii) the supply made by such trader to the private individual.
3.3.3 New regimes applicable to services provided by taxable persons not established in the Member State of consumption
In addition to the one stop shop schemes referred to in previous sections, “Directive 2017/2455, since July 1, 2021, has envisaged the possibility of including in the Union Scheme services provided by traders or professionals established in the EU but not in the Member State of consumption, to recipients who are not classed as traders or professionals acting in their capacity as such, following identification for this purpose in the Member State of their choice.
Similarly, services provided by taxable persons not established in the EU who provide services to recipients who are not classed as EU traders or professionals would come under the Non-Union Scheme.
3.3.4 Determination of the VAT rates applicable to the various types of e-commerce
In keeping with the view held by the Spanish tax authorities, the standard VAT rate of 21% will apply in all cases, since it is a kind of service for which the VAT Law makes no special provision.
In the case of electronic books, newspapers and magazines, however, the legislation envisages, as from April 23, 2020, the application of the super reduced VAT rate (of 4%) when such publications are not made up solely or primarily of advertising and do not consist entirely or mainly of audible video or music contents, and supplementary items supplied along with them for a single price.
3.3.5 Formal obligations and management of taxes
Both the EU and the Spanish tax authorities ascribe to the principle that this form of commerce should not be hindered by the imposition of formal obligations that reduce the speed with which transactions should be performed.
Of particular relevance in this regard are the rules already contained in Council Regulation (EEC) No 1798/2003 on administrative cooperation in the field of Value Added Tax, which, among other matters, provides that individuals and legal entities involved in intra-Community transactions can access the databases kept by the tax authorities of each Member State. This possibility of identifying reliably the status under which the recipient is acting (trader, professional or final consumer) is absolutely decisive for the proper tax treatment of each transaction.
Royal Decree 1619/2012, approving the Regulations on Invoicing Obligations, establishes the legal regime applicable to electronic invoices, which are defined as invoices that have been issued and received in electronic format without the use of a certain technology being required. This Royal Decree supersedes its predecessor, Royal Decree 1496/2003, and stipulates that paper and electronic invoices are treated similarly. In addition, it permits invoices to be kept in an electronic format provided that the conservation method ensures the legibility of the invoices in the original format in which they were received, and the data and mechanisms that guarantee the authenticity of their origin and the integrity of their contents.
The requirements that must be met by electronic invoices are as follows:
- The recipient must have given his consent.
- The invoice must reflect the reality of the transactions documented in it and guarantee this certainty throughout its period of validity.
- The authenticity, integrity and legibility of the invoice must be ensured.
These aspects must be guaranteed by any legally admissible proof and, in particular, through the “usual management controls over the business or professional activity of the taxable person” which must enable the creation of a reliable audit trail establishing the necessary connection between the invoice and the supply of goods or services documented in it.
The authenticity of the origin and integrity of the contents will, in all cases, be guaranteed by:
- The use of an advanced electronic signature based either on a qualified certificate and created using a secure-signature-creation device, or on a qualified certificate.
- An EDI that envisages the use of procedures that guarantee the authenticity of the origin and integrity of the data.
- Other means that have been communicated prior to their use and validated by the authorities.
In relation to the issue of invoices, Royal Decree 1512/2018 of December 28, 2018 which amends – inter alia - the VAT Regulations, stipulates that the legislation applicable to invoices issued by taxable persons who have elected to apply the special single one-stop shop regimes for telecommunications, radio and television broadcasting services and services provided electronically - which had previously been the legislation of the Member State of consumption - shall now be that of the Member State of identification. This avoids the taxable person being subject to different legislative regimes in relation to billing.
Accordingly, the aforementioned Royal Decree 1512/2018 of December 28, 2018 amends the Billing Regulations and clarifies that Spanish billing rules shall be applicable when Spain is the Member State of Identification of the provider of electronic services.
Moreover, the entry into force on July 1, 2021 of the provisions of Directive 2017/2455 will result in the elimination of the obligation to issue an invoice in distance sales for which this was previously required in accordance with the billing obligations applicable in the Member State of destination of the goods.
On the other hand, regarding to formal obligations, it must be noted that since 1 July 2017, taxable persons who have to file monthly VAT returns (generally, those whose turnover in the previous year exceeded €6,010,121.04; any taxable person registered in the monthly refund scheme, and any taxable person applying the VAT grouping regime) have also been required to keep their business records on the website of the Spanish tax agency (AEAT) by electronically providing the information requested therein, together with some additional data of the invoices (but not the invoices themselves).
Under this system (generally known as “SII”), taxable persons will have to submit the information related to invoices issued within 4 calendar days from the date of issuance. If they are invoices issued by the recipient or by a third party, a longer time period of 8 calendar days is allowed. In both cases, subject to a limit ending on the 16th day of the month following that in which VAT on the transaction became chargeable.
Invoices received must also be reported within 4 calendar days, in this case from the date when they are recorded in the accounts. A limit is laid down, also ending on the 16th day of the month following the assessment period in which the transactions are included. A similar rule applies to import transactions.
Saturdays, Sundays and public holidays are excluded from the calculation of the time periods.
The above notwithstanding, in the case of taxable persons who apply the special regime for telecommunications, radio and television broadcasting services and services provided electronically, it is not necessary to record the operations performed under this special regime in VAT registers. Instead, a specific register must be kept, containing a series of special fields:
- The Member State of consumption in which the service is provided;
- the type of service provided;
- the date of provision of the service;
- the taxable amount, indicating the currency used;
- any subsequent increase or reduction of the taxable amount;
- the tax rate applied;
- the amount of tax owed, indicating the currency used;
- the date and amount of payments received;
- any advance received prior to the provision of the service;
- the information contained in the invoice, if this has been issued;
- the name of the customer, where available;
- the information used to determine the place where the customer is established, or its domicile or habitual place of residence.”
3.3.6 Tax on Certain Digital Services
The preamble to the Law approving the TCDS reminds us that the creation of this tax is temporary until the OECD completes its works to adapt the international tax system to the digitalization of the economic, through the “re-allocation of taxing rights to market countries or territories when participating in the economic activity, without the need for a physical presence, creating a new nexus for that purpose”, in clear reference to pillars 1 and 2 of the OECD.
The TCDS charges taxes to companies whose global net revenues in the preceding calendar year are above 750 million euros and that obtain revenues in Spain (also in the preceding calendar year) of at least 3 million euros derived from the provision of online advertising services, online intermediation services or the sale of data generated on the basis of information provided by the user of digital interfaces.
The tax rate at 3%, and the scope of the tax excludes sales of goods or services between users in the context of an online intermediation service, and sales of goods or services contracted online on the website of the supplier of those goods or services in which the supplier does not act as intermediary. The tax will be assessed every three months as indicated in the Ministerial Order of June 9, 2021 approving the self-assessment tax form (i.e., Form 490) for payment of the aforementioned tax.
It is stipulated in the sole transitional provision that for 2021, the revenue taken into account shall be the total amount deriving from digital services subject to the tax from January 16, 2021 through to the end of the settlement period, on an annualized basis.
The DGT, in its Ruling of June 25, 2021, has sought to provide clarification and greater legal certainty in the interpretation of the elements and criteria relating to this tax, focusing on the following concepts:
- Online advertising services.
- Online intermediation services.
- General instances of non-subjetion.
- Accrual and taxable amount.
The Spanish tax authorities have also made available to taxpayers a bank of frequently asked questions updated to March 24, 2022.
6We refer, specifically, to Royal Decree-law 7/2021, of April 27, 2021 on the transposition of European Union directives on competition, anti-money laundering, credit institutions, telecommunications, tax measures, environmental damage prevention and remediation, posting of workers in the framework of the transnational provision of services and consumer protection; to Royal Decree 424/2021 of June 15, 2021 amending, inter alia, the VAT Regulations (Royal Decree 1624/1992), and the Billing Regulations (Royal Decree 1619/2012).