FAQs

Any software, including websites or parts thereof and applications, including mobile applications, that is accessible to users and that allows sellers to contact other users to carry out an activity relevant, directly or indirectly, to those users.

It also includes any form of collection and payment of “consideration” in respect of the “relevant activity”. The term “platform” does not include software that, without any further intervention to carry out the “relevant activity”, exclusively enables any of the following operations:

1. process payments related to the “relevant activity”;

2. that users offer or promote a “relevant activity”;

3. redirect or transfer users to a platform.

An entity that enters into contracts with sellers to make all or part of a platform available to such sellers.

It is a platform operator that has demonstrated in advance and on an annual basis, to the satisfaction of the Spanish tax authorities, to which it would otherwise have had to have communicated the information in accordance with article 54 ter of the General Regulations on actions and procedures for tax management and inspection and the development of common rules on procedures for the application of taxes, approved by Royal Decree 1065/2007, of July 27, that the entire business model of the platform is such that it does not have “sellers subject to communication of information.

Platform Operators required to report information must register, as applicable:

• In the Registry of non-qualified foreign platform operators if they are operators referred to in article 54.ter.3.b) first paragraph of the General Regulation of the actions and procedures of tax management and inspection and development of the common rules of the procedures for the application of taxes, approved by Royal Decree 1065/2007, of July 27, who choose Spain as the Member State of single registry).

• In the Register of other platform operators required to report information (operators referred to in article 54.ter.3.a) of the aforementioned regulation).

To do so, they must submit form 040 of “Census declaration of registration, modification and deregistration in the Registry of non-qualified foreign platform operators and in the Registry of other platform operators required to report information”, using the following procedures available on the Tax Agency's electronic headquarters:

Model 040. Platform Operator Records

Any modification of the declared data must be communicated to the Tax Administration, submitting the corresponding modification declaration within one month from the events that motivate its submission.

If you cease to carry out your activity as a platform operator or no longer meet the conditions of Article 54.ter.3.a) or 54.ter.3.b) first paragraph, you must submit the deregistration declaration within one month of this circumstance occurring.

It is an activity carried out for a consideration and which constitutes one of the following operations:

1. the leasing or temporary transfer of use of real estate, including residential and commercial real estate and any other type of real estate, as well as parking spaces;

2. personal services;

3. the sale of goods;

4. the leasing of any means of transport.

It does not include activities carried out by a seller acting as an employee of the platform operator or an entity related to the platform operator.

The concept of “platform” does not include software that, without any further intervention to carry out the relevant activity, exclusively allows users to offer or promote a relevant activity.

Since the software exclusively provides an advertising service, there would be no obligation to communicate information.

A marketed property is all the real estate units located at the same postal address that belong to the same owner and that the same seller puts up for rent on a platform. This definition does not require that seller and owner be the same entity.

There is no obligation to provide information to the Tax Administration regarding the excluded sellers , which are those sellers:

1. that they are a state entity;

2. that they are an entity whose share capital is regularly traded on a recognised stock exchange or an entity linked to an entity whose share capital is regularly traded on a recognised stock exchange;

3. that they are an entity to which the platform operator has facilitated, in the reference period, more than 2,000 relevant activities through leases or temporary transfers of use with respect to a marketed real estate, or

4. where the platform operator has facilitated, through the sale of goods, less than thirty relevant activities, for which the total amount of consideration paid or credited has not exceeded EUR 2 000 during the reference period.

Partner jurisdictions, in accordance with the Annex to RD 117/2024, of January 30, are defined as "Spain and any other jurisdiction with which Spain has in force an agreement or other legal instrument by virtue of which they automatically exchange the information specified in article 54 ter of the General Regulation of the actions and procedures of tax management and inspection and development of the common rules of the procedures for the application of taxes, approved by Royal Decree 1065/2007, of July 27, and which is identified as such in a public list."

Specifically, for the Kingdom of Spain, jurisdictions that have an activated bilateral exchange relationship with Spain are considered partner jurisdictions within the framework of the Multilateral Agreement between Competent Authorities on the automatic exchange of information relating to income obtained through digital platforms (DPI AMAC), which can be consulted in the section "Activated exchange relationships for information pursuant to the Model Rules for Reporting by Platform Operators with respect to Sellers in the Sharing and Gig Economy”.

Accordingly, “relevant activities” of “reportable sellers” resident in such jurisdictions or involving the leasing of real estate located therein must be reported.

Unqualified foreign platform operators are subject to the due diligence, registration and reporting obligations arising from DAC 7 provided that:

• do not meet in any Member State the connection criteria set out in Article 54.Ter.3.a) of Royal Decree 1065/2007, and

• facilitate the performance of a relevant activity by sellers subject to information reporting residing in a Member State or that involves the lease or temporary transfer of use of immovable property located in a Member State and is not a “qualified platform operator external to the Union”.

1. Due diligence obligations.

   Unqualified foreign platform operators are responsible for carrying out due diligence procedures to ensure the collection and accuracy of the information submitted about sellers subject to information reporting residing in any Member State. In the case of operators registered in Spain, these rules are those regulated in the Royal Decree 117/2024, of January 30.

2. Registration obligations.

   These operators must register in a Member State; if they choose Spain as their single registration Member State, they must submit the model 040of “Census declaration of registration, modification and deregistration in the Register of non-qualified foreign platform operators and in the Register of other platform operators obliged to communicate information” to register in the Registration of unqualified foreign platform operators.

3. Information obligations.

   Unqualified foreign platform operators registered in Spain will be required to submit annually the informative declaration model 238, “Informative declaration for the communication of information by platform operators”.

   The content of the information declaration is that provided for in Annex II of Order HAC/72/2024, of February 1. This can be found in the question "What information must be provided in form 238?", included in section 4.

   However, operators resident in Canada, the United Kingdom and New Zealand or with connection criteria in those countries will not be required to provide information on "reportable vendors" resident in Spain, since this information will be received under the Multilateral Agreement on automatic exchange of information relating to revenue obtained through digital platforms.

In case of failure to comply with due diligence, registration and information provision obligations Derived from DAC 7, the twenty-fifth Additional Provision of Law 58/2003, of December 17, General Tax Law, indicates that the general sanctioning regime of title IV of this Law will apply, as well as a specific sanctioning regime for certain breaches.

Thus, non-compliance with due diligence obligation It will constitute a serious tax offense that will be sanctioned with a fixed monetary fine of 200 euros for each seller in respect of whom the obligations arising from the procedures and rules of due diligence were not met.

As far as the unqualified foreign platform operators obliged to communicate information, the absolute non-compliance in the European Union of registration obligation It will constitute a very serious tax offense, provided that it results in the Spanish tax administration not receiving the information it should have received within the deadline relating to "sellers subject to information reporting" resident in Spanish territory or real estate located in said territory. Failure to provide this information will be penalized with a fine of three times the amount that would have been due according to the general rules of Title IV of the General Tax Law.

The possibility is foreseen that the Tax Administration will agree to the precautionary removal from the corresponding census from the non-qualified foreign platform operator when the latter fails to comply with the information obligation after two requests. Once the cancellation is agreed upon, the operator may only register again if they offer the Tax Administration adequate guarantees that they commit to complying with the information obligation, including information that is pending communication, with the Administration accepting as a guarantee a responsible declaration or any other guarantee provided for in the tax regulations.

Likewise, the Article 147.1.g) of Royal Decree 1065/2007 empowers the Tax Administration to revoke the assigned tax identification number when the precautionary discharge has been accredited.