Main tax measures in the field of VAT included in Royal Decree-Law 3/2020 of 4 February on urgent measures incorporating various European Union directives in the field of public procurement in certain sectors into Spanish law;private insurance;pension plans and funds;in the field of tax and tax litigation


AMENDMENT TO THE LAW ON VALUE ADDED TAX


Article 214 of RD-Law 3/2020 introduces the following amendments to Law 37/1992 of 28 December 1992 on Value Added Tax (VAT):

(A) INTRA-EU TRADE - “QUICK FIXES”

In order to incorporate Council Directive (EU) 2018/1910 of 4 December 2018 into our internal regulations, the following amendments are established:

  • Sale of reserve stock or sales on consignment(art. 9.3, 9 bis, 15, 75.One.8 LIVA)

    As of 1 March 2020, the application of the exemption on transfers of call-off stock from the so-called consignment stock agreements is simplified.

    These are agreements concluded between business persons or professionals for the cross-border sale of goods, whereby a business person (supplier) sends goods from one Member State to another, within the European Union, to be stored in the Member State of destination at the disposal of another business person or professional (customer), who may purchase them at a later date.

    At present, this operation results in a transfer of goods or an operation treated as an intra-EU supply of goods in the Member State of departure and a operation treated as an intra-EU acquisition of goods in the Member State of arrival, in both cases by the supplier.Subsequently, when the customer acquires the goods, the supplier will make a domestic delivery in the Member State of arrival where the reverse charge rule will apply and the customer will be responsible for this.The supplier is required to be identified for VAT purposes in the Member State of destination of the goods

    In order to simplify these operations and reduce the administrative burden on business persons, the new rules provide that supplies of goods under an agreement for the sale of goods on consignment will give rise to a single operation:an exempt Intra-EU supply of goods in the Member State of departure by the supplier and an exempt Intra-EU acquisition in the Member State of arrival by the customer when they withdraw the goods from the warehouse.Specifically, the accrual of the operation will occur on the 15th of the month following that in which the goods are placed at the disposal of the purchaser, or on the date on which the corresponding invoice is issued if this is earlier.

    In any case, business persons or professionals may opt out of the simplification by not complying with the conditions laid down for its application, which are as follows:

    • The seller does not have the headquarters of its economic activity or a permanent establishment in the Member State of arrival.
    • The business person who is to acquire the goods has a tax identification number (N-VAT) in the Member State of arrival.
    • The seller knows at the time of the start of the transport the tax identification number (N-VAT), name and surname, name or full company name of the purchaser.
    • The goods are transported to the Member State laid down in the consignment agreement.
    • The seller has entered the shipment of the goods in the Register Book of certain Intra-EU Operations and on Form 349.
    • One of the following must have occurred within 12 months of the arrival of the goods in the Member State of destination:
      1. The goods are purchased by the business person indicated in the consignment agreement.
      2. The goods are acquired by a business person who replaces the initial recipient when they have a tax identification number (N-VAT) in the Member State of arrival and the seller includes the replacement in the Register Book of certain Intra-EU operations and on Form 349.
      3. The goods are returned to the territory of application of Spanish VAT without the power of disposal having been transferred and the seller includes such return in the Register Book of certain Intra-EU operations.

    A transfer of goods (art. 9.3 LIVA) will be deemed to have taken place when any of the conditions</g> set out above, in particular, are not met within the twelve-month period:

    • When the goods have not been acquired by the business person or professional for whom they were originally intended.
    • Where the goods are dispatched or transported to a destination other than the Member State specified in the consignment stock agreement.
    • In the event of destruction, loss or theft of the goods.
  • Chain operations.(art. 68.Two.1 LIVA)

    From 1 March 2020, the LIVA incorporates the harmonisation of the taxation of “chain operations”.

    This type of operation is carried out when the same goods, which are to be sent or transported to another Member State directly from the first supplier to the final purchaser in the chain, are the subject of </g>successive deliveries between different business persons or professionals.Thus the goods will be delivered at least to a first intermediary who will in turn deliver them to other intermediaries or to the final customer in the chain, there being only one Intra-EU transport

    In order to avoid different interpretations between Member States, to prevent double or non-taxation and to increase legal certainty for operators, transport shall be considered as linked:

    • Upon the supply of goods by the supplier to the intermediary, which shall constitute an exempt Intra-EU supply of goods.To this end, the intermediary will have communicated a tax identification number provided by a Member State other than Spain.
    • Upon the delivery made by the intermediary when they have communicated to their supplier a VAT-ID supplied by the Kingdom of Spain.The delivery from the supplier to the intermediary shall be a domestic delivery subject to and not exempt from VAT and the delivery from the intermediary to their customer shall be an exempt Intra-EU delivery.
  • Exemptions for Intra-EU deliveries of goods(art. 25.One and Four, 84.One.2.c’, 164.One.5 VAT)

    With effect from 1 March 2020, the conditions for applying the exemption to Intra-EU supplies of goods are amended in order to strengthen the fight against fraud in this type of operation.

    To that end, the application of the exemption, together with the requirement that the goods be transported to another Member State, as a material</g> and not a formal condition, will require:

    • The purchaser to have communicated to the supplier a VAT identification number (N-VAT) allocated by a Member State other than the Kingdom of Spain.
    • The supplier to have included the operation in the summary declaration of Intra-EU operations (Form 349).

B) TERRITORIAL APPLICATION OF VAT (Article 3.Two.1,a) and b) VAT)

As from 6 February 2020, on the basis of Council Directive (EU) 2019/475 of 18 February 2019, the Italian municipality Campione d’Italia and the Italian waters of Lake Lugano become part of the Union’s customs territory and of the scope of Council Directive 2008/118/EC, for excise duty purposes, but are outside the territorial scope of VAT.


AMENDMENT TO THE VALUE ADDED TAX REGULATIONS


Article 216 of RD-Law 3/2020 introduces the following amendments to Royal Decree 1624/1992, of 29 December, which approves the Value Added Tax (VAT) Regulations, in order to adapt our internal order to Council Directive (EU) 2018/1910, of 4 December 2018, and to Council Implementing Regulation (EU) 2018/1912, of 4 December 2018:

  • Venta de existencias de reserva o ventas en consigna:Register Book and Form 349 (art. 66.1.3, 66.2 and 3, 79, 80.1.4, 80.2, 80.3, DT only RIVA)

    The Implementing Regulation (EU) 2018/1912 determines the information to be included in the call-off stock records, a substantive</g> requirement for the consideration of the transfer of goods to another Member State and subsequent domestic delivery as a single Intra-EU operation.In addition, the VAT Directive provides for an obligation on the seller who dispatches goods to another Member State under an agreement for the sale of consignment goods to submit the summary declaration for Intra-EU operations.

    Accordingly, with effect from 1 March 2020, the RIVA is amended to:

    1. Include among those obliged to present the summary declaration of Intra-EU operations (form 349) those businessmen or professionals who send goods to another Member State within the framework of consignment sale agreements, in which they must indicate:

    • The VAT identification number of the business person or professional for whom the goods are intended and the estimated initial value of the goods in the declaration period relating to the date of issue.
    • The VAT identification number of the business person or professional who replaces the initial recipient of the goods, in the event of such replacement, in the declaration period in which it is entered in the Register Book of certain Intra-EU operations.

    2. To regulate how to register these operations within the Register Book of certain Intra-EU operations

    1. The seller must provide the following information:
      • The Member State from which the goods have been transported and the date of dispatch.
      • The VAT identification number of the business person or professional for whom the goods are intended, allocated by the Member State to which the goods are transported.
      • The Member State to which the goods are being transported, the VAT identification number of the person holding the goods, if different from the recipient, the address of the warehouse and the date of arrival at the warehouse.
      • The value, description and quantity of the goods that have arrived at the warehouse.
      • The VAT identification number of the business person replacing the initial recipient of the goods.
      • Description, taxable base, quantity and unit price of the goods supplied, date of supply and VAT identification number of the acquiring business person.
      • Description, taxable base, quantity and unit price of the goods whose movement results in a transfer due to non-compliance with the requirements of consignment sales, date on which the circumstances occurred and reason.
      • Description, quantity and value of goods returned, if any, and date of return
    2. The business person for whom the goods are intended or their replacement must provide the following information:
      • The seller’s VAT identification number.
      • The description and quantity of the goods sent to be made available to them.
      • Description, taxable amount, quantity and unit price of the goods acquired and the date on which the Intra-EU acquisition is made.

      If they take over the storage of the goods, they must also register:

      • The date of arrival of the goods at the warehouse.
      • Description and quantity of the goods that are removed from the warehouse by the seller and are no longer available, as well as the date on which they are removed.
      • Description and quantity of the goods destroyed or missing from the warehouse and the date when this occurs or is discovered.

      For those businessmen who apply the Immediate Provision of Information (SII), the obligation to register sales on consignment in the Register Book of certain Intra-EU operations through the AEAT’s E-Office is delayed to 1 January 2021.

  • Exemptions for Intra-EU supplies of goods:Form 349. (art. 81.4 and 81.5 RIVA)

    Directive (EU) 2018/1910 provides that the declaration of the Intra-EU supply in the summary declaration of Intra-EU operations (Form 349) becomes a substantive requirement for the application of the exemption.

    In this regard, in order to bring compliance with this requirement closer to the date of operation, and taking into account the low level of use by companies, the possibility of annual filing is abolished with effect from 1 March 2020.

  • Proof of Intra-EU transport.(art. 13.2, 13.3, 13.4.1 RIVA)

    From 1 January 2020, Article 45a of Implementing Regulation (EU) 2018/1912 establishes a harmonised system of presumptions, subject to proof to the contrary, which aims to simplify the proof of the conditions for the application of the exemption for Intra-EU supplies.

    The transport of the goods to the Member State of destination shall therefore be justified by any means of proof permitted by law and shall in particular be supported by the following evidence:

    1.When the seller indicates that the goods have been transported by them or by a third party on their behalf and:

    1. Se encuentra en posesión de al menos dos de los siguientes elementos de prueba (expedidos por partes independientes de vendedor y adquirente):
      • Carta o documento CMR firmados
      • Conocimiento de embarque
      • Factura de flete aéreo
      • Factura del transportista de los bienes
    2. Se encuentra en posesión de uno de los elementos de prueba mencionados anteriormente junto con alguno de los siguientes elementos de prueba (expedidos por partes independientes de vendedor y adquirente):
      • Póliza de seguro relativa al transporte de los bienes o documentos bancarios que prueben el pago del mismo.
      • Documentos oficiales expedidos por una autoridad pública, como un notario, que acrediten la llegada de los bienes al Estado miembro de destino.
      • Recibo extendido por un depositario en el Estado miembro de destino que confirme el almacenamiento de los bienes en ese Estado miembro.

    2.Where the seller is in possession of a written declaration by the purchaser that the goods have been transported by them or on their behalf, stating the Member State of destination of the goods and:

    1. Se encuentra en posesión de al menos dos de los siguientes elementos de prueba (expedidos por partes independientes de vendedor y adquirente):
      • Carta o documento CMR firmados
      • Conocimiento de embarque
      • Factura de flete aéreo
      • Factura del transportista de los bienes
    2. Se encuentra en posesión de uno de los elementos de prueba mencionados anteriormente junto con alguno de los siguientes elementos de prueba (expedidos por partes independientes de vendedor y adquirente):
      • Póliza de seguro relativa al transporte de los bienes o documentos bancarios que prueben el pago del mismo.
      • Documentos oficiales expedidos por una autoridad pública, como un notario, que acrediten la llegada de los bienes al Estado miembro de destino.
      • Recibo extendido por un depositario en el Estado miembro de destino que confirme el almacenamiento de los bienes en ese Estado miembro.