Deliveries of goods and provision of services

As a general rule, taxpayer is the businessman or professional , natural or legal person, who delivers goods or provides services. This condition of taxable person implies compliance with both material and formal obligations of the tax.

Furthermore, for the purposes of VAT , are considered taxable subjects , provided they carry out transactions subject to the tax, existing inheritances, communities of property and other entities that do not have legal personality, but constitute an economic unit or separate assets susceptible to taxation.

To determine who is the taxpayer of the tax , the Tax Law establishes a general rule and two special rules:

General rule

The businessman or professional who delivers goods or provides the subject services is a taxable person.

Special rules

1. The so-called rule of inversion of the taxable subject, according to which, the businessman or professional who receives the goods or services, that is, the recipient, is a taxable subject.

   This rule is applicable in the following cases:

   1. When the person carrying out the operations is not established in the territory of application VAT Spanish, except in the following cases:

      • When it comes to distance sales subject to Spanish VAT.

      • In the case of provision of services in which the recipient is not established in the territory of application of the tax, except in the case of provision of services included in article 69.One.1 of the Law.

      • In the case of intra-community deliveries of goods or deliveries of goods destined for export, exempt in both cases from VAT, as well as intra-community deliveries of goods that are subject and not exempt from the tax (modification introduced by article 214 of the Real Decree-law 3/2020, of February 4 ( BOE of 5), applicable from March 1, 2020.

      Established in the territory

      Taxpayers who have the headquarters of their economic activity, their tax domicile, or a permanent establishment that intervenes in the delivery of goods and services subject to the VAT are considered established in the territory of application of the Spanish VAT. tax.

      It will be understood that said permanent establishment intervenes in the delivery of goods or services when it orders its material and human production factors or one of them with the purpose of carrying out each of them. That is, it requires a qualified intervention of the establishment in which there is effective performance of the material and human resources of said permanent establishment in the production of goods and services, without the performance of merely administrative tasks such as the simple expedition being considered sufficient. of invoices or other similar.

      Example:

      The services provided to a Spanish company by a Belgian lawyer not established in Spain will be subject to VAT in Spain and the Spanish company is a taxable subject, due to investment.

      Example:

      There is no reversal of the taxable person in the leasing of a property located in Spain whose owner resides abroad since, in this case, the foreigner is considered established in the territory of application of the tax, the permanent establishment being his own. building subject to lease; Therefore, the taxpayer of the tax is the owner of the property, even if he does not reside in the territory.

      Example:

      A French businessman not established in the Peninsula or the Balearic Islands contracts with a German company for the organization of an exhibition in Madrid of the products manufactured by the French company.

      Likewise, it contracts with a Portuguese company to provide the ticket sales service for access to the exhibition.

      The exhibition organization service is located in accordance with the general rule of article 69.Uno.1 of the LIVA and, therefore, is not considered carried out in the territory of application of the tax.

      Regarding the ticket sales service, it is located in accordance with the provisions of the special rule of article 70.Uno.3 of the LIVA in the place where the service is physically provided. Consequently, since this is a case in which the provider and the recipient are not established in the TAI the taxable person will be the provider of the access service.

      Example:

      German businessman not established in Spain, who has various merchandise of his property stored in an industrial warehouse located in Teruel. Such goods are sent to French businessmen, with the German businessman responsible for transporting them from Spain to France. French businessmen communicate their French NIF/VAT to the German.

      Intra-community deliveries of goods made by the German businessman are subject to and exempt from Spanish VAT. The taxpayer of said tax is the German businessman (since there is no investment), so he will be the one obliged to comply with the formal obligations corresponding to said delivery: issuance of invoice, recapitulative statement, etc.

      It must be clarified that the industrial warehouse located in Teruel to which the case refers does not constitute a permanent establishment for the German businessman. For it to be so, he would have to be the owner, tenant or usufructuary of it, or of a certain and determined part of it.

   2. In the case of deliveries of unprocessed gold or semi-finished gold products, with a grade equal to or greater than 325 thousandths.

   3. When it comes to deliveries of certain recovery materials, as well as some services (selection, cutting, fragmentation and pressing) on the aforementioned recovery materials.

   4. In the case of deliveries of gas and electricity or deliveries of heat or cold through heating or cooling networks that are understood to be carried out in the territory of application of the tax, if the supplier is not established and the recipient is a entrepreneur or professional or a legal entity that does not act as such and is identified in said territory.

   5. When it comes to provision of services that have as their object rights on greenhouse gas emissions.

   6. When it comes to the following deliveries of real estate:

      • Deliveries made as a result of a bankruptcy process.

      • The exempt deliveries referred to in sections 20 and 22 of article 20.One of the LIVA in which the taxable person has waived the exemption.

      • Deliveries made in execution of the guarantee constituted over real estate. It is also understood that the guarantee is executed when the property is transferred in exchange for the total or partial extinction of the guaranteed debt or the obligation to extinguish the aforementioned debt by the purchaser (consultation DGT V1415-13).

   7. In the case of execution of work, with or without the contribution of materials, for the development of land or the construction or rehabilitation of buildings, as well as the transfer of personnel for its execution, as a consequence of contracts directly formalized between the promoter and the contractor. It also applies when the recipients of the operations are subcontractors (consultation DGT V2583-12).

      Example:

      A City Council contracts the construction of a public library for free use by the residents of the municipality.

      In this case, the reversal of the taxable person does not occur, since the City Council is not acting as a businessman or professional.

      Otherwise, it would be necessary for the City Council to expressly and reliably inform the main contractor that it is intervening in the operation as a businessman or professional, and the taxable person would be reversed.

      Example:

      Company A contracts with Company B to construct a building where it will install its headquarters, for an amount of 500,000 euros. For said construction, B subcontracts the installation of doors and windows with company C for a value of 40,000 euros.

      The execution of the work as a whole is considered construction. Therefore, A becomes a taxable person for the delivery of goods carried out by B, for which reason he must charge and pay the VAT corresponding to said operation for an amount of 105,000 euros. On the other hand, company B becomes a taxable person for the execution of work carried out by C and must charge and pay the VAT corresponding to the operation for an amount of 8,400 euros (without prejudice to the fact that, where appropriate, it may deduct this amount).

   8. When it comes to deliveries of the following products defined in section ten of the annex to the VAT Law:

      • Silver, platinum and palladium, unworked, powdered or semi-worked; Deliveries whose purpose is said metals resulting from the performance of transformation activities by the acquiring businessman or professional are assimilated to them. In any case, these must be products that are not included in the scope of application of the special regime applicable to used goods, art objects, antiques and collectibles.

      • Mobile phones.

      • Video game consoles, laptops and digital tablets (consultations DGT V1037-15 and V0720-16).

      The provisions of these last two indents will only apply when the recipient is:

      • A businessman or professional reseller of these goods, regardless of the amount of the delivery.

        For these purposes, the following will be considered a reseller:

        To the businessman or professional who regularly sells mobile phones, video game consoles, laptops and digital tablets. These businessmen or professionals must communicate their status as reseller by means of a census declaration (form 036) at the beginning of the activity or during the month of November prior to the beginning of the calendar year in which it must take effect.

      • A businessman or professional other than those referred to in the previous indent, when the total amount of the deliveries of said goods made to him, documented in the same invoice, exceeds 10,000 euros, excluding Value Added Tax. To calculate this limit, the total amount of the deliveries made must be taken into account when, documented in more than one invoice, it is proven that it is a single operation and that the artificial breakdown of the same has occurred for the sole purpose of avoiding application of this standard.

        The accreditation of both conditions must be expressly and reliably communicated to the businessman or professional who makes the delivery prior to or simultaneously with the acquisition.

        In order to facilitate this accreditation, there is the possibility, once the status of reseller has been duly communicated, to request a specific tax certificate to accredit the status of reseller of mobile phones, video game consoles, laptops and digital tablets.

2. Legal entities that do not act as entrepreneurs or professionals in the following two cases:

   1. When they are recipients of deliveries subsequent to intra-community acquisitions exempt for triangular operation, provided that they have communicated to the supplier a VAT NIF assigned by the Spanish Administration.

   2. When they are recipients of the services provided by businessmen or professionals not established in the territory of application of the tax referred to in articles 69 and 70 of the LIVA , for the purposes of which they must have of a NIF-VAT assigned by the Spanish Administration.

      Example:

      A City Council, which carries out an intra-community acquisition of goods subject to Spanish VAT, contracts with a non-established French businessman to transport the goods from France to Spain, communicating its Spanish VAT NIF.

      The intra-community transport service of goods is subject to Spanish VAT, with the City Council being a taxable subject.