Special rules

The following are considered to be provided in the territory of application of the tax:

Services related to real estate when these reside in the territory.

They are considered related to real estate, among others, the leases or transfers thereof, the preparation, coordination and execution of real estate works, those of a technical nature related to said execution of work, the management services related to real estate or real estate operations, surveillance or security, rental of safe deposit boxes, the use of toll roads and accommodation in hospitality, camping and spa establishments.

Example:

Thus, this includes the intervention services of Notaries in real estate transactions, mine exploration or geophysical prospecting.

In October 2015, the European Commission published on its website the document “Explanatory notes on the location rules for the provision of services linked to real estate for the purposes of VAT ”. Although these Notes are not legally binding, they constitute an instrument of guidance on the practical application of the provisions contained in the cited articles of the Implementing Regulation ( EU ) 282/2011 of the Council, of 15 of March applicable as of January 1, 2017, without the need for transposition to the internal standard.

These Explanatory Notes include both general and specific observations in relation to services linked to real estate. Briefly, we can highlight the following:

“real estate” means:
1. A specific area of the earth's crust, whether on its surface or in its subsoil, on which property and possession can be based;
2. Any building or construction fixed to the ground, or anchored in it, above or below sea level, that cannot be easily dismantled or moved;
3. Any element that has been installed and forms an integral part of a building or construction and without which it cannot be considered complete, such as, for example, doors, windows, roofs, stairs and elevators;
4. Any element, equipment or machine permanently installed in a building or construction that cannot be moved without destroying or modifying said building or construction.
The services linked to real estate covered by Article 47 of Directive 2006/112/ EC, will cover only those services that have a sufficiently direct connection with the property in question.

The services will be considered to have a sufficiently direct connection with the real estate in the following cases:
1. When they derive from real estate and said property is a constituent element of the services and is basic and essential for them.
2. When they are provided in relation to real estate or are intended for it and have as their object the physical or legal modification of said property.
When machinery or equipment is made available to a client to execute works on real estate, said operation will only be considered a provision of services linked to real estate if the provider assumes responsibility for the execution of the works in question.
Transportation of passengers and transportation of goods whose recipient is not a businessman or professional (other than those in article 72 of the VAT Law), for the part of the journey carried out in the territory.

Example:

Thus, a passenger transport by bus from Seville to Paris is understood to be carried out in the territory of application of the Spanish VAT for the part of the journey carried out in said territory, and not for the part of the journey made in France.
Access to cultural, artistic, sporting, scientific, educational, recreational or similar events, such as fairs and exhibitions and the services ancillary to them, provided that the recipient is a businessman or professional acting as such and said events actually take place in the mentioned territory.

These services include all benefits that grant the right of access in exchange for a price (entrance, payment, subscription or season ticket or periodic quote). It does not include the use of facilities such as gyms (Article 32 of Council Implementing Regulation 282/2011).

Ancillary services are considered to be those directly related to access, in particular the use of cloakrooms or sanitary facilities, but not simple intermediation services relating to the sale of tickets (Article 33 of Council Implementing Regulation 282/2011). ).

Cultural, artistic or sporting services, fairs and exhibitions, other than access to them, provided to businessmen or professionals, may or may not be located in the TAI , in the absence of a special rule, in accordance with the general rule established in article 69. One 1. LIVA (Query DGT V1273-11).

Example:

The services provided by an entity dedicated to the organization of events and congresses to other businessmen or professionals participating in a congress, to whom an entrance fee is charged for access, are located in the territory of application of the Tax to the extent that the congress actually take place therein.

As we will see in point 7 of this section, also in the case in which the recipient is an individual and does not have the status of businessman or professional, the service must be located in the territory of application of the Tax as long as the congress takes place in said spatial area (consultation DGT V0010-16).
Those provided by electronic means, telecommunications and radio and television broadcasting, when the recipient is not a businessman or professional acting as such, provided that he is established or has his residence or habitual domicile in the territory of application of the Tax, in the following cases:
1. When the following requirements are met:
  - That they are carried out by an entrepreneur or professional acting as such established only in another Member State because they have the headquarters of their economic activity there, their only permanent establishment in the Community or the place of their permanent domicile or habitual residence; and
  - That the limit provided for in article 73 of the LIVA has been exceeded or the destination tax option provided for in said article has been exercised.
2. That they are carried out by a businessman or professional acting as such other than those mentioned in the first indent of letter a) above.
Services provided electronically will be considered:

Those that consist of the transmission initially sent and received at the destination by means of processing equipment, including numerical compression and data storage, and entirely transmitted, transported and received by cable, radio, optical system or other electronic means and, among others, the following:
1. The supply and hosting of computer sites.
2. Remote maintenance of programs and computers.
3. The provision of programs and their updating.
4. The supply of images, text, information and making databases available.
5. The supply of music, films, games, including games of chance or money, and political, cultural, artistic, sporting, scientific or leisure broadcasts and events.
6. The provision of distance learning.
For these purposes, the fact that the provider of a service and its recipient communicate by email will not, in itself, imply that the service is considered a service provided electronically.
Example:

An individual with habitual residence in the territory of application of the tax contracts with a US company for access to American TV channels. The American company must charge and pay Spanish VAT.
Those of restoration and catering in the following cases:
1. Those provided on board a ship, a plane or a train, in the course of the part of a passenger transport carried out in the Community whose starting place is in the territory of application of the tax.
  
  When it is a round trip transport, the return journey will be considered as a different transport.
2. The remaining restaurant and catering services when they are physically provided in the territory of application of the tax.
Shall be deemed:
1. Part of a passenger transport carried out in the Community: the part of a passenger transport that, without stopping in a third country or territory, runs between the places of start and arrival located in the Community.
2. Starting location: the first place scheduled for boarding passengers in the Community, even after the last stopover outside the Community.
3. Arrival location: the last place scheduled for disembarkation in the Community of passengers also embarked there, even before another stopover made in a third country or territory.
4. Restaurant and catering services: the supply of food or beverages, or both, for human consumption, provided that they are accompanied by sufficient auxiliary services to allow their immediate consumption, so that said supply is only one of the elements of a set in which the services predominate . Therefore, the supply of food or drinks without the provision of any type of auxiliary service is not considered restaurant and catering services.
Those of mediation in the name and on behalf of others, whose recipient is not a businessman or professional and provided that the operations in respect of which they are intermediated are understood to be carried out in the territory of application.

This special rule, therefore, applies only to services provided to individuals; in the event that the recipient is a businessman or professional, the general rule of taxation at destination applies.
Examples:
- A Belgian real estate agency mediates the delivery of a building to an individual located in Spain. The mediation operation is understood to have been carried out in the territory of application of Spanish VAT.
- A Spanish businessman mediates the sale of certain textile items found in China. The items do not leave China. The mediation operation is also not understood to have been carried out in the territory of application of Spanish VAT.
- The mediation services carried out by a commercial representative established in Spain to Italian companies without permanent establishment in Spain, in relation to deliveries from that country to third territories, are not considered provided in Spanish territory, since their recipient is a businessman or professional not established in the territory of application of the Tax.
The following services when the recipient is not a businessman or professional and are physically provided in the TAI:
1. Services accessory to transportation such as loading and unloading, transshipment, handling and similar services.
2. The work and execution of work carried out on tangible movable property and the expert reports, valuations and opinions relating to said property.
3. Services related to cultural, artistic, sports, scientific, educational, recreational, games of chance or similar events, such as fairs and exhibitions, including their organization services and other services accessory to the above.
This special rule applies only to services provided to individuals. In the event that the recipient is a businessman or professional, the general rule of taxation at destination applies, with the exception of access to cultural, artistic, sports, scientific, educational, recreational or similar, to which we have previously referred in point 3.
Examples:
- A German businessman provides computer repair services to a Spanish individual. The computers are installed in Spain and the service is effectively provided in the TAI. Therefore, this service will be taxed in Spain.
- A Spanish businessman sends machinery to Germany to repair which will then be sent back to Spain. The operation will be subject to Spanish VAT by application of the general rule.
- An American singer gives a concert in Madrid, we are faced with a provision of services carried out in the territory of application of the Tax.
Those provided by electronic means, telecommunications, radio broadcasting and television, when the following requirements are met:
1. that the recipient is not a businessman or professional acting as such and is established or has his residence or habitual domicile in another Member State;
2. that are carried out by a businessman or professional acting as such established only in the territory of application of the Tax because they have the headquarters of their economic activity there, their only permanent establishment in the Community or the place of their permanent domicile or habitual residence. ; and
3. that the limit provided for in article 73 of the LIVA has not been exceeded, nor has the option of taxation at destination provided for in said article been exercised.
The above provisions will apply to the services provided during the current year until the quantitative limit indicated above has been exceeded.

Entrepreneurs or professionals may choose not to apply the provisions of this number, even if they have not exceeded the limit provided for in article 73 of the LIVA . The option will cover, at least, two calendar years, and it will be necessary to reiterate the option once the two years have elapsed so that it is not considered revoked.

Telecommunications services will be considered:

Those whose purpose is the transmission, emission and reception of signals, texts, images and sounds or information of any nature, by wire, radio, optical means or other electromagnetic means, including the transfer or granting of a right to use means to such transmission, emission or reception and, equally, the provision of access to computer networks.

Radio and television broadcasting services will be considered:

Those services consisting of the provision of audio and audiovisual content, such as radio or television programs provided to the public through communications networks by a communication service provider, acting under its own editorial responsibility, to be listened to or seen simultaneously following a programming schedule.
Transportation leasing services in the following cases:
1. Short-term rentals when they are actually put into the possession of the recipient in the aforementioned territory.
2. Long-term leases when the recipient does not have the status of businessman or professional acting as such as long as he is established or has his domicile or habitual residence in the TAI. However, in the case of leasing of recreational boats, they will be understood to be provided in the TAI when they are effectively placed in the possession of the recipient therein, provided that the service is actually provided by an entrepreneur or professional from the headquarters of his economic activity or a permanent establishment located in said territory.
Short term will be understood as:

The possession or continued use of means of transport for an uninterrupted period of no more than thirty days and, in the case of ships, no more than ninety days.

How the duration of possession or continued use is determined:

The contractual conditions will be adhered to. The contract will constitute a presumption that admits proof to the contrary.

When the leasing of the same means of transport is carried out through consecutive contracts between the same parties, the global duration will be considered, including the contract and its extensions.

Short-term lease contracts that, due to force majeure, exceed the contractual duration will not have their duration altered for the purposes of determining their tax regime.
The services indicated below, when they are not understood to be carried out in the Community, Canary Islands, Ceuta or Melilla, but their effective use or exploitation is carried out in said territory:
- The following services whose recipient is a businessman or professional:
  1. Assignments and concessions of copyrights, patents, licenses, trademarks and other intellectual or industrial property rights, as well as any other similar rights.
  2. The transfer or granting of goodwill, purchase or sale exclusive rights or the right to carry out a professional activity.
  3. The advertising ones.
  4. Those of advice, audit, engineering, study office, lawyer, consultants, accounting or tax experts and other similar, with the exception of those included in number 1 of section One of article 70 of this Law.
  5. Those for data processing and the provision of information, including procedures and experiences of a commercial nature.
  6. Those for translation, correction or composition of texts, as well as those provided by interpreters.
  7. Insurance, reinsurance and capitalization, as well as financial services, mentioned respectively by article 20, section One, numbers 16 and 18, of this Law, including those that are not exempt, with the exception of the rental of boxes of security.
  8. Those for the transfer of personnel.
  9. Dubbing of movies.
  10. Leases of tangible movable property, with the exception of those whose purpose is any means of transport and containers.
  11. The provision of access to natural gas networks located in the territory of the Community or to any network connected to such networks, to the electricity, heating or cooling network and transport or distribution through such networks, as well as the provision of other services directly related to any of the services included in this letter.
  12. The obligations not to provide, totally or partially, any of the services listed in this number.
- Those of mediation in the name and on behalf of others whose recipient is a businessman or professional acting as such.
- Those for leasing means of transport.
- Those provided electronically, telecommunications, radio broadcasting and television.
Intra-community transport services of goods that begin in the territory of application of the tax and whose recipient is not a businessman or professional.
Meaning of:
1. Intra-community transport of goods: the transport of goods whose places of departure and arrival are located in the territories of two different Member States.
2. Starting location: the place where the transportation of the goods actually begins, without taking into account the journeys made to reach the place where the goods are located.
3. Arrival location: the place where the transportation of the goods is actually completed.
Example:
1. A German company buys goods from a Spanish company located in Zaragoza.
  
  The transfer of this merchandise will be done:
  - Zaragoza-Barcelona by land transportation.
  - Barcelona–Munich by air transport.
  The German company contracts the transport with a Spanish company, to which it communicates its VAT NIF as a German businessman, therefore, the transport service is not subject to Spanish VAT by application of the general rule provided for in article 69. One.1 of the LIVA.
2. A French individual purchases furniture online from a Spanish company whose headquarters are in Valencia. The company is responsible for the transportation by road. These transports will be taxed by Spanish VAT when they begin in the TAI and the recipient is an individual.