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Tax on private holiday home rentals

  • RENTAL ACTIVITY WITH TOURIST APARTMENTS

    Leases for non-residential uses is considered leasing that, in a habitable property, is that destined to uses other than satisfying the need for a permanent home for the tenant.

    Therefore, when the temporary lease of a furnished property which is ready for immediate use, marketed to tourists employing the media and for profit is considered a private holiday rental, and will be governed by a specific regime, that will be subjected to a specific regime, under the sector-specific regulations, in accordance with Article 5 e) of the Act 29/1994, of 24 November, on Urban Rental.

    Over the past few years, there has been a continuous rise in the use of private accommodation for private holiday rentals. These must be differentiated from the services provided by the hotel industry.

    Act 37/1992 of the Value Added Tax Act (LIVA) gives as examples of "complementary services to those of the hotel industry" those of catering, laundry and analogous (Article 20.one.23º b.’ Value Added Tax Act (LIVA). Thus, lodging services are characterised by providing customer service beyond the provision of a property or part of it. In other words, the activity of lodging, in contrast to the activity of leasing of property, normally includes the rendering of services such as reception and permanent and continuous customer service in an area allocated for this purpose, regular cleaning of the property and lodging, regular changing of linen and the provision of other services to the client (laundry, baggage cloakroom, press, reservations, etc.) and sometimes catering services. (DGT consultations V0081.16 and V0575.15)

    In particular, as well as the aforementioned services, regular cleaning services in the property and change of linen in the apartment are also considered complementary services of the hotel industry.

    However, the following services are not considered complementary services in the hospitality industry:

    • Cleaning service in the apartment provided at the beginning and end of the period rented by each lessee.

    • Change of linen in the apartment let at the beginning and end of the stay of each lessee.

    • Cleaning in the building's communal areas (hall, stairs and lifts) and the area in which it is located (green areas, access gates, pavements and streets).

    • Technical support and maintenance services for repairs in plumbing, electricity, glass, blinds, locks and household appliances.


    ECONOMIC ACTIVITIES TAX


    Article 78 of the Legislative Royal Decree 2/2004, of 5 March, through which the revised text of the Law Governing Local Tax Offices (TRLRHL) is approved, defines the nature and taxable event of the Business Activities Act (IAE), establishing that it is a real, direct tax, a tax event that is constituted by the simple exercise, in Spain, of business, professional or artistic activities, carried out or not in a specific place and are or not specified in the tax rates. Furthermore, Article 79 TRLRHL governs the taxed economic activity, stipulating that an activity is considered to be business, professional or artistic when it entails the independent management of means of production and human resources or one of these, with the aim of intervening in the production or distribution of goods or services.

    Rule 2nd of Instructions for the application of Business Activities Tax rates (IAE), both approved (Instruction and Rates) by Legislative Royal Decree 1175/1990, of 28 September, establishes that the activity of any economic activity specified in the Rates, as well as the exercise of any other business, professional or artistic activity, non specified in these, will give way to the obligation of filing the corresponding declaration of registration and payment of this tax, unless this Directive states otherwise. Rule 4th.1 of this Directive states that, as a general rule, payment corresponding to an activity provides exclusively for the exercise of this activity, unless the Law governing this Tax, the Rates or this Directive state otherwise.

    Thus, in accordance with Regulation 4ª.1, we must analyse the various possibilities within the activity of rental of tourist apartments with the aim of correctly classifying the Business Activities Tax rates:

    Firstly, we must analyse the activity in which a person or company lets, in exchange for a rental fee, apartments for certain periods of time, providing lodging services. Thus, accommodation services normally include the rendering of services such as cleaning of the premises, change of linen, cloakroom services, crockery, tableware and kitchen appliances, and sometimes, catering services. Thus, the Fees of the IAE classify in Association 68 of the section first, the “Lodging Services”. Within this Section is group 685 “Non-Hotel Tourist Accommodation”, which classifies business activities involving accommodation services that are provided in establishments other than hotels and hotels, hostels and pensions, inns ad boarding houses, hotel-apartments, organised companies or agencies providing private apartments and campsites for tourists. Specifically, the aforementioned group 685 includes accommodation services provided in rustic buildings, holiday cottages and inns in rural areas, as well as youth hostels, flats and similar premises that do not have any of the conditions of the aforementioned establishments.

    Take into account that, according to the attachment to group 685, if the accommodation establishments classified in said group remain open for fewer than eight months a year, the charge rate will be 70% of the charge stated in the same.

    Furthermore, and in accordance with the provisions of letter F) of section 2 of rule 4th of the Administrative Instruction, taxpayers who exercise the activity of accommodation may provide, without the payment of any additional fee, complementary services, such as cleaning, changing of bed lined, internet connection, television, etc.

    Thus, group 685 of section the first of the IAE Rates classifies the activity of exploitation of Non-Hotel Tourist Accommodation (DGT V0215-18, DGT V0731-17).

    Secondly, we must analyse the supposition in which a person or company, owner of a tourist apartment, leases it to a business entity or individual, who exploits it as a Non-Hotel Tourist Accommodation and employs tour operators and/or personnel necessary and assumes all the risks of the operation. The person or company owner of the tourist dwelling carries out the leasing activity of property classified in epigraph 861.2 of section one of the IAE “Rental of industrial property and other rentals NCOP” (DGT V2540-08, DGT 1160-02).

    Thirdly, we must study the case that this activity consists exclusively in the leasing for periods of time of houses or part of these, without providing any services associated to the accommodation activity and is limited to providing the property to the lessee. Thus, when this is the case, it is considered an activity pertaining to Epigraph 861.1 “Home Rental” of Section one of the Tariffs, and the owner of the activity, is obliged to register for and pay taxes on this activity. However, Note 2nd of the aforementioned Epigraph establishes that “taxpayers whose fees for this activity are lower than 601.01 euros will pay taxes at zero rate”, in which case, in accordance with the provisions of Rule 15th of the Instruction, “taxpayers will not make tax payments for this tax, nor are obliged to file a tax return” (DGT 1821-02).

    In conclusion, the letting of flats or dwellings for weekends or for specific periods, without the owner of the letting activity providing any type of service to the lessee, constitutes an activity pertaining to Epigraph 861.1 of the Section one of the Tariffs, “Home Rental” (DGT V0898-17, DGT V0931-11 DGT 1482-02)

    It must be taken into account that, once the activity as been correctly classified in its group or epigraph, the exemptions regime governed in Article 82.1 c) TRLRHL, according to which individuals, residents and taxpayers of Corporation Tax, civil partnerships and entities of Article 35.4 of Act 58/2003, of 17 December, Tax General, are exempt from paying Economic Activities Tax (IAE), who have a net volume of business lower than 1,000,000 euros.

    This exemption represents, for the purpose of this tax, the non-obligation of registering in the registration of the tax or paying tax for the same, regardless of the census obligations that may correspond to the taxpayer in accordance with the provisions of Royal Decree 1065/2007, of 27 July, approving the General Regulation of the activities and procedures of tax management and inspection and the development of common standards of application of taxes, which is governed in chapter I of Title II of the Regulations, census obligations.


    PERSONAL INCOME TAX (IRPF)


    In general, yields from the rental of tourist dwellings will be considered Returns on capital assets.

    For this description to proceed, the rental must be limited to the simple rental of a property for a specific period of time, without the rending of services associated to the hotel industry. As an example, the following will not be considered as such: cleaning services carried out before the arrival or after the departure of the tenants or the delivery and collection of keys on arrival and departure of clients.

    Yield obtained from the leasing shall be declared by the owner of the property or the owner of the right conferred upon them for the transfer (for example, in the case of usufructuary of the property granted by the same) for the difference between the whole income and the tax deductible expenses.

    To the net yield resulting from this operation the reduction of 60% will be applicable c foreseen in Article 23.2 of the Personal Income Tax Act, as the aim of tourist dwellings is not to satisfy a permanent need for housing but to cover a temporary need.

    The periods of time in which the property is not rented will generate the corresponding imputation of property income, just as any other property. The amount will be the result of applying the corresponding percentage of imputation (1.1% or 2%) to the rateable value of the property, and according to the number of days it has not been used for tourism purposes (or, where applicable, leased).

    Nonetheless, leasing can be understood as a business activity and the yield derived from the same will be considered earnings from economic activities when, as well as making the property available, services associated to the hotel industry are offered during the stay of the lessees, such as: regular services of cleaning, changing of linen, catering, leisure or similar activities or when, without providing these services, a person is employed with a full-time contract to manage this activity.


    VALUE ADDED TAX


    General information:

    • Persons who lease tourist dwellings are considered, for the purposes of VAT, employers (Art. 5.one.c Value Added Tax Act).

    • In so far as this activity is carried out by employers, income from leasing of tourist dwellings is subject to VAT (art. 4.one Value Added Tax Act).

    • Being subject to VAT determines the non-subjection to Property Transfer Tax (ITP), unless the exemption can be applied set forth in VAT (Art. 4. four Value Added Tax Act).

    • In accordance with the case-law of the Directorate General for Taxes (consultation V0420-18, among others), those exempt from VAT and, therefore, subject to Property Transfer Tax of the ITP are yields from tourist dwellings in which the lessor does NOT provide services typically associated to the hotel sector. In such cases, the lessor must not file or pay VAT.

    • In the event of providing services specific to the hotel industry, the leasing of a tourist dwelling shall not be exempt from VAT and must be taxed at the reduced rate of 10%, as a hotel establishment, by application of Article 91.one.2. 2nd Value Added Tax Act and in accordance with the criteria of the Directorate General for Taxes. See consultation V0714-15.

    • In the ITP, Property Transfer Tax, the tax rate for leasing shall be obtained by applying to the net tax base the rate established by the Autonomous Community.

      If the Autonomous Community has not approved the rate referred to in the precious paragraph, the following scale shall be applied:

    Euros

    Up to 30.05 euros

    0.09

    From 30.06 to 60.10

    0.18

    From 60.11 to 120.20

    0.39

    From 120.21 to 240.40

    0.78

    From 240.41 to 480.81

    1.68

    From 480.82 to 961.62

    3.37

    From 961.63 to 1,923.24

    7.21

    From 1,923.25 to 3,846.48

    14.42

    From 3,846.49 to 7,692.95

    30.77

    From 7,692.96 hereinafter, 0.024040 euros for every 6.01 euros or fraction.

    (Article 12.1 of the Legislative Royal Decree 1/1993, of 24 September).


    INCOME TAX FOR NON-RESIDENTS


    Internal regulations

    In accordance with the internal regulation, Legislative Royal Decree 5/2004, of 5 March, approving the revised text of the Act on Income Tax for Non-Residents (LIRNR), income obtained in Spanish territory is considered considered earnings derived, directly or indirectly, from real estate assets situated on Spanish territory or from rights relating to these assets.

    Agreement

    Agreements for avoiding double taxation signed by Spain attribute power to tax earnings on property to the State where this is located. In accordance with the Agreements, earnings from property may be subject to tax in the Statement of Financial Condition of the same, regardless of whether the earnings arise from the use or enjoyment of the real property or any other type of exploitation of the same. Therefore, earnings from property situated in Spain may be taxed in accordance with Spanish law.

    Taxation

    The type of taxation will depend on whether the leasing of the property in Spain is deemed to be an economic activity. If it is not considered an economic activity, it will qualify return on real estate.

    a) Return on real estate

    For this description to proceed, the rental must be limited to the simple rental of a property, without the rending of services associated to the hotel industry.

    The income to be declared will be the whole amount received from the lessee, without deducting any expenses.

    However, in the case of taxpayers resident in another European Union member state and, from 1 January 2015, also in Iceland and Norway, individuals may deduct the expenses provided for in the Personal Income Tax Act for the determination of the gross tax base, or Corporation Tax, in the case of corporate persons, provided that it is certified that such expenses are directly related to the incomes obtained in Spain and have a direct and inseparable link with the activity performed in Spain.

    This income is understood to accrue when it is requirable by the lessor or on the collection date, if earlier.

    The tax rate applied is the general rate, according to the year of accrual (see chart).

    Year of return

    2011

    2012-2014

    2015

    2016 and later

    Residents in the EU, Iceland and Norway

    Other taxpayers

    Tax rate

    24%

    24.75%

    Until 11-07:

    20%

    From 12-07:

    19.50%

    24%

    Residents in the EU, Iceland and Norway: 19%

    Rest of taxpayers: 24%

    Tax return form Form 210, declaring income type 01 or 35.

    This will be used both to declare separately each accrual of income and to declare jointly several incomes obtained in a determined period.

    Grouping of incomes: incomes obtained by the same taxpayer may be grouped together provided that they originate from the same payer, are subject to the same tax rate, and originate from the same property (declaring the income type: 01). However, in the case of income from leased properties not subject to withholding, accrued after 1 January 2018, income originating from several payers may be grouped together provided that the same tax rate is applied and they originate from the same property (in this case declared as income type: 35). Under no circumstances can income grouped together offset each other.

    The grouping period will be quarterly in the case of self-assessments with positive (payable) result, or annual for self-assessments with result nil or refund.

    Filing methods::

    • on paper, generated as a result of printing the PDF form available on the Tax Agency website.

      Instruction how to fill out the form: www.agenciatributaria.es/Fiscalidad of non-resident/IRNR/without OCCUPATIONAL DISEASES/Model 210/Information and Assistance/General information

    • Online, via Internet.

    Period for presentation: depends on the result of the self-assessment:

    • With positive result: within the first twenty calendar days of the months of April, July, October and January in relation to the income whose accrual date falls within the previous calendar quarter.

      Direct billing of the tax payment: in the case of online filing, payment can be direct-billed between the 1st and 15th days of the months of April, July, October and January.

    • With result nil: from 1 to 20 January of the year following the accrual year for the declared income.

    • With refund result: as of 1 February of the year following the accrual of the income declared and within a period of four years from the end of the period for filing the return and depositing the withholding. The deadline for filing the self-assessment will be understood to conclude on the date it is filed.

    b) Earnings from economic activity obtained from a permanent establishment (PE).

    Economic activity will exist carried out through the PE if some of the following conditions are met:

    • at least one employed person with a full-time employment contract is in Spain and in charge of the management of the activity,
    • if the leasing of the tourist dwelling is complemented with the rendering of services associated to the hotel industry, such as catering, cleaning, laundry and other analogous services. These services may be rendered directly or through subcontracts with third parties.

    PE must file a Tax return for Payers of Non-Residents' Income Tax (IRNR) in the same Forms and in the same terms as resident entities subject to Corporation Tax.

    Tax rate:

    For tax periods starting from 1 January 2015, the applicable tax rate is the corresponding rate of those set out in the Corporation Tax regulations. The general tax rate will be 25%. However, 28% will be applied in the 2015 tax period.

    Deductions and allowances

    EP may apply to their overall amount, the same deductions and allowances as Corporation Tax taxpayers.

    Tax period and accrual

    The tax period coincides with the fiscal year of the declaration, and shall not exceed twelve months. The tax is accrued on the last day of the taxable period.

    Tax withheld (retenciones) and account deposits (ingresos a cuenta)

    PE are subject to the same withholding regime as entities subject to Corporation Tax for the income they receive.

    Payment by instalments

    PE are obliged to pay by instalments under the same terms as those subject to Corporation Tax. The formal obligations regarding payment b instalments are the following:

    • Terms: Within the first twenty calendar days of the months of April, October and December.

    • Model: 202

      When payment in instalments is not required, it will not be mandatory to Form 202, except for PE that are considered Large Companies, which must file the Form, even when no payment is required, which will result in negative self-assessments.

    Declaration

    • Term: 25 calendar days following the six months after the end of the tax period.

    • Model: 200

    Formal obligations

    Permanent establishments are obliged to undertake the same accounting, register and formal obligations as resident entities.

    These must request, before they begin to engage in such activity, enrolment in the Census of Businessmen through Form 036. This tax return will also be used to request, in the case of a corporate person taxpayer, the assignation of the tax ID number of the permanent establishment.

    A representative residing in Spain must also be appointed.


    OBLIGATIONS WITH RESPECT TO THE PROVISION OF INFORMATION


    Since 2018, a new obligation of provision of information regarding transfers of property for tourist purposes has been established through Form 179, which must be filed by persons or companies that mediate in the transfer of use of property with tourist purposes (either analogical or digital); and, in particular, the so-called “collaborative platforms” that mediate in these transfers.

    IMPORTANT: This new information obligation will have full effect in the 2018 Income Tax return campaign, to be filed in 2019, notwithstanding the obligation of declaring incomes received from the transfer of these dwellings for tourist purposes in the fiscal year in which they accrue, the same as with the other income from property.

    The intermediaries of these operations will inform the Spanish Tax Agency after 2018 of each of the transfers of property for tourist purposes situated in Spain. These include transfers of tourist dwellings (Article 5.e) of the LAU and the seasonal lease (Article 3 of this Act).

    The information to be supplied in the new Form 179 includes:

    • Owner of the property
    • Owner of the right in virtue of which the property is rented (if other than the property owner)
    • Identification of the persons or companies renting the property.
    • Property object of rental.
    • Number of days of rental of the holiday home
    • Amount received by the landlord
    • Contract number assigned by the intermediary
    • Start date of the holiday home rental
    • Intermediation date
    • Identification of the means of payment used
    PRIVATE HOLIDAY HOME RENTAL
    SERVICES ANCILLARY TO THOSE OF THE HOTEL INDUSTRY ARE PROVIDED (cleaning, laundry, catering, etc.) IAE GROUP 685: NON-HOTEL TOURIST ACCOMMODATION
    Personal Income Tax EARNINGS FROM ECONOMIC ACTIVITY
    VAT SUBJECT AND NOT EXEMPT 10%
    ITP (Property Transfer Tax) NOT SUBJECT
    IRNR (Income Tax for Non-Residents) EARNINGS FROM ECONOMIC ACTIVITY OBTAINED FROM A PERMANENT ESTABLISHMENT (PE)
    INFORMATIVE TAX RETURNS FORM 179: TO BE FILED BY INTERMEDIARIES (IN PARTICULAR, THE SO-CALLED COLLABORATIVE PLATFORMS)
    COMPLEMENTARY SERVICES ASSOCIATED TO THE HOTEL INDUSTRY ARE NOT PROVIDED (only rental) IAE EPIGRAPH 861.1: HOME RENTALS
    Personal Income Tax RETURNS ON REAL ESTATE INVESTMENT (without reductions)
    VAT EXEMPT
    ITP (Property Transfer Tax) Rate set by Autonomous Communities. Failing this, the scale foreseen in Article 12.1 ROYAL DECREE-LAW 1/1993
    IRNR (Income Tax for Non-Residents) RETURNS ON REAL ESTATE INVESTMENT
    INFORMATIVE TAX RETURNS FORM 179: TO BE FILED BY INTERMEDIARIES (IN PARTICULAR, THE SO-CALLED COLLABORATIVE PLATFORMS)