Spain. First step to unilaterally introduce a "Digital tax"

The Spanish Ministry of Finance has made public the draft law for the introduction of a tax on certain digital services (hereinafter “digital tax”). According to its motivation, this new tax takes into consideration the initiatives for a fair taxation of the digital economy that are taking place at a multinational level originated by the difficulty of properly taxing the benefits of big on-line companies. Such a difficulty arises from the existence of new business models which are difficult to accommodate to the provisions of the internal Corporate tax provisions of the countries and to a network of tax treaties which are based in the existing OECD model. 

Special mention is made to the proposal for a Council directive on the common system of a digital services tax on the provision of certain digital services issued the 21st March 2018 (hereinafter, “the Proposal”), where an interim digital tax of similar design is contemplated. Given the difficulties and time involved in the achieving of a global solution within Europe, the Spanish Government has taken the lead  of similar unilateral initiatives which have been announced by other member states and decided to start taking the necessary steps to implement the digital tax. In any case, given the unstable political situation of Spain, the final outcome of this initiative is uncertain at this stage.

In line with the Proposal, the intended digital tax will charge with a 3% rate the portion of turnover generated by on-line platforms providing certain qualifying digital services (Note) which can be allocated to Spain on the basis of the location of the devices of the users (based in the IP address or via geolocation) at the moment when the publicity is inserted, the underlying transaction takes place or the data are generated. 

Taxable subjects of the tax will be those companies, regardless where they are established (Spain, UE or third countries), that exceeds both the two following thresholds:

• A turnover during the previous year of 750 million Euros.

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Introduction of the SII in the Canary Islands

The regional Decree 111/2018 of 30 July that modifies the Management Ordinance of the Taxes contemplated in the Special Tax Regime of the Canaries has been published at the Official Gazette of the Canaries of 7 August 2018.

The main novelty is the introduction since 1st January 2019 in the General Indirect Tax of the Canaries (IGIC) of the Inmediate Information Supply (“Suministro Inmediato de Información” or “SII”). As happens with the VAT, companies affected will be obliged to file electronically their IGIC registers of issued and received invoices and Register of Investment Goods (the Register of Intracommunity operations does not exist in the IGIC) at the website of the Canary Islands Tax Agency

Obligation

The SII will oblige to those IGIC taxable subjects filing their IGIC returns in a monthly basis, namely:

-             Large companies (V.O. previous year> € 6,010,121.04)

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Navarra modifies the VAT and billing regulations to adapt to the regional SII

On January 1, 2018, the so-called Immediate Supply of Information , in force at the national level since July 1, 2017, was implanted in the Foral Community of Navarre. The SII in Navarre affects those VAT taxpayers who, in accordance with the corresponding regional regulations, are obliged to carry out the management of the tax exclusively before the tax authorities of said Autonomous Region.

 

As is the case with VAT in common territory, with the introduction of the SII in Navarra, those entrepreneurs who file tax returns on a monthly basis with the said Autonomous Region are also obliged to keep the VAT registers in real time by electronic means through the website of the Navarra Regional Treasury.

 

Now, so to adapt certain aspects of the regional tax regulations to the new system, the DECREE FORAL 47/2018, of June 27 (published at the Official Gazette of Navarra of June 28, 2018) amends the Regulation of the Value Added Tax, approved by the Regional Decree 86/1993, of March 8, and the Regulation that governs the billing obligations, approved by the Foral Decree 23/2013, of April 10.

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SII. Beware of the consistency of data. It is not only penalties

Once the unofficial truce lasting until past December 2017 is over, the time has come for companies failing to comply with their SII obligations having to face the consequences of such a behaviour.

However, more than the specific penalties which may result from the failure to properly deal with the SII reporting obligations, companies must be aware that these are not the only negative consequences.

Furthermore, such unexpected consequences which may result for uncompliant companies or for companies which, regardless of their having complied with their SII reporting obligations, have declared inconsistent data, are producing.

It must be remembered that, as results from the new paragraph 6 added to article 62 of the VAT ordinance following the introduction the so called “Immediate Information Supply” or SII, this is just a special system of keeping the VAT registers required by the VAT regulations (namely, electronically through the website of the Tax Agency), that is obligatory to those companies under its scope.

As a result, in the event of a tax review, SII uncompliant companies could be considered to qualify for the application of the second paragraph in number three of article 99 of the Spanish VAT Law, according to which:

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New version 1.1 of the SII (1st July 2018)

The News section of the SII banner at the website of the Spanish Tax Agency has been updated so to include a presentation on the technical novelties included in the SII version 1.1 to come into force on next July 1st, 2018.

To access the document click here.

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