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Frequently asked questions about the temporary energy tax

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Those obliged to pay

Persons or entities that are considered the main operator in the energy sectors in accordance with the provisions of paragraphs 1 and 2 of section 1 of Law 38/2022 are required to pay the energy tax on a temporary basis during the years 2023 and 2024.

The Law attributes the status of principal operator to persons or entities in which either of the following two circumstances is met:

  1. In accordance with the provisions of paragraph 1 of section 1 of article 1 of Law 38/2022 that have been included in the list of main operators by the National Commission of Markets and Competition. The list of main operators in the energy sectors is established and published by the National Commission of Markets and Competition, for the purposes of the provisions of article 34 of Royal Decree-Law 6/2000, of June 23, in the following resolutions:

    • Resolution of December 10, 2020.

    • Resolution of December 16, 2021.

    • Resolution of June 9, 2022, which modifies the previous one.

    You can access these resolutions at this link

  2. In accordance with the provisions of paragraph 2 of section 1 of article 1 of Law 38/2022, persons or entities that carry out production activities in Spain of:

    • Crude Oil

    • Natural gas

    • Coal mining, or

    • Oil Refining

    And, in addition, they generate, in the year preceding the year in which the obligation to pay the benefit arises, at least 75 percent of their turnover from economic activities in the field of extraction, mining, petroleum refining or the manufacture of coke oven products referred to in Regulation (EC) No 1893/2006 of the European Parliament and of the Council of 20 December 2006 establishing the statistical classification of economic activities NACE Revision 2 and amending Council Regulation (EEC) No 3037/90 and certain EC Regulations on specific statistical aspects.

    NOTE : From now on, for reasons of simplification, to refer to persons or entities that are considered principal operators in accordance with the provisions of paragraph 1 of article 1.1 of the Law, the expression “principal operator according to CNMC” may be used; and to refer in this document to persons or entities that are considered principal operators in accordance with the provisions of paragraph 2 of article 1.1 of the Law, the expression “principal operator by reason of activity” may be used.

Yes. In accordance with the provisions of section 2 of article 1 of Law 38/2022, exclusively persons or entities that are considered principal operators by having been included in the list of principal operators in the energy sectors by the National Commission of Markets and Competition, will be exempt from paying the temporary energy tax, when any of the following circumstances occur:

  1. That the net amount of the turnover corresponding to the year 2019 is less than 1,000 million euros

  2. That the net amount of the turnover corresponding, respectively, to the years 2017, 2018 and 2019 derived from the activity that would have determined its consideration as the main operator of an energy sector does not exceed 50 percent of the total net amount of the turnover of the respective year.

No. Law 38/2022 only includes the possibility of being exempt from paying the tax for the persons or entities referred to in the first paragraph of section 1 of article 1, that is, for the persons or entities included in the list of main operators in the energy sectors by the National Commission of Markets and Competition.

Yes. Law 38/2022 establishes two special rules for calculating the net amount of turnover that defines the exemption from payment, which applies exclusively to persons or entities that are considered the main operator in the energy sectors because they are included in the list of the National Commission of Markets and Competition:

  1. If the main operators are part of a tax group that pays corporate tax under the tax consolidation regime in accordance with the regulations applicable to them, the net amount of the turnover will be determined by reference to said tax group.

  2. If the main operators are part of a business group made up of persons or entities that must file corporate tax returns in the common territory because they are subject to common regulations and by persons or entities that must file corporate tax returns in the regional territory because they are subject to regional regulations, the net amount of the turnover will be determined taking into account the persons, entities and groups that have filed returns in the common territory and those that have done so in the regional territory.

No. If all persons or entities that form part of the business group are subject to the regulations of the common territory for Corporate Tax, the net amount of the turnover for the purposes of exemption from payment of the tax will be the result of the profit and loss account of the main operator or, in the event that it forms part of a tax group, the result by reference to said tax group.

Those obliged to pay the energy tax are the persons or entities that, in accordance with the provisions of section 1 of article 1, are considered to be the main operator in the energy sectors.

In this case, the person or entity that carries out the activities that determine its status as principal operator will be obliged to pay the tax.

There may be two particular situations:

  • If this main operator, due to its activity, is integrated into a business group, but is not part of any group that pays taxes under a tax consolidation regime, it will be the party obliged to pay the tax, regardless of whether there may be another main operator within the business group.
  • On the other hand, if this main operator by reason of activity is integrated into a tax group that also includes an entity that is considered a main operator according to CNMC, the obligation to pay the tax will fall solely on the main operator according to CNMC if it is not exempt from said payment.

If this main operator, according to CNMC, were exempt from paying the tax due to any of the circumstances referred to in paragraph 2 of article 1.2 of Law 38/2022, the entities comprising the tax group that have the status of main operators by reason of activity will be individually obliged to pay the tax.

Those obliged to pay the energy tax are the persons or entities that, in accordance with the provisions of section 1 of article 1, are considered to be the main operator in the energy sectors. It is irrelevant whether the main operator is subject to common or regional regulations in corporate tax.

Those obliged to pay the energy tax are the persons or entities that, in accordance with the provisions of section 1 of article 1, are considered to be the main operator in the energy sectors.

If the main operator according to CNMC is the parent entity of a business group in which several tax groups are integrated, it will be the parent entity, in its capacity as the main operator in the energy sectors, that will be obliged to pay the tax and not the entities representing the tax groups.

Those obliged to pay the energy tax are the persons or entities that, in accordance with the provisions of section 1 of article 1, are considered to be the main operator in the energy sectors.

If the main operator according to CNMC is the parent entity of a business group that includes several tax groups, the parent entity, as the main operator in the energy sectors, will be the party obliged to pay the tax and not the entities representing the tax groups, regardless of whether these groups are subject to common or regional regulations.

If, in addition to this principal operator, there is another person or entities also considered to be principal operators due to the activity they carry out, which form part of the business group but are not integrated into any tax group, these other operators will also be obliged to pay the tax.

Those obliged to pay the energy tax are the persons or entities that, in accordance with the provisions of section 1 of article 1, are considered to be the main operator in the energy sectors.

If the main operator according to CNMC is the parent entity of a business group in which a tax group is integrated, it will be the parent entity, in its capacity as the main operator in the energy sectors, that will be obliged to pay the tax and not the entity representing the tax group.

If the tax group includes persons or entities that, due to the activity they carry out, are considered the main operator in the energy sectors, the party liable for paying the tax will be only the main operator that is the parent company of the group.