Frequently asked questions about the temporary energy tax

The basis for the benefit of each party obliged to pay must be calculated from the Net Amount of Business Turnover (INCN) derived from the activity carried out in Spain of the calendar year prior to the birth of the payment obligation that appears in their profit and loss account.

The INCN will be determined in accordance with the provisions of the applicable accounting regulations.

The INCN will be determined in accordance with the provisions of the applicable accounting regulations.

However, Law 38/2022, in section 5 of its article 1, establishes some items that must be excluded from the INCN of the person obliged to pay.

Likewise, Law 38/2022 provides for two specific rules to determine the INCN when the person obliged to pay is part of a tax group or a business group in the cases referred to in the fourth and fifth paragraphs of section 2 of article 1.

For the purposes of calculating the benefit, the following will be excluded from the INCN, in accordance with the provisions of section 5 of article 1 of Law 38/2022, of December 27:

• Revenues corresponding to the Hydrocarbon Tax, the Special Tax of the Autonomous Community of the Canary Islands on Petroleum Derived Fuels and the Complementary Taxes on Fuels and Petroleum Fuels of Ceuta and Melilla, which have been paid or borne via repercussion.

• The net amount of the turnover will also be excluded from the amount corresponding to regulated activities, understood as the supply at a regulated price (PVPC for electricity, TUR for gas, bottled LPG and LPG through pipelines), the regulated income from the electricity and natural gas transport and distribution networks and, in the case of generation with regulated remuneration and additional remuneration in non-peninsular territories, all income from the facilities, including those received from the market and the economic dispatch respectively.

Section 5 of Article 1 of Law 38/2022 establishes that the amount of the benefit to be paid by each party obliged to pay will be the result of applying the percentage of 1.2 percent to its net amount of the turnover derived from the activity it carries out in Spain in the calendar year prior to the birth of the payment obligation that appears in its profit and loss account, determined in accordance with the provisions of the applicable accounting regulations.

The preamble of Law 38/2022 establishes that, in the case of companies in the electricity, gas and oil sectors, the general rule is that economic groups that have the status of main operators, defined in accordance with tax regulations, are subject to the benefit, which exclusively includes Spanish companies in the group, therefore, the turnover obtained by said groups through subsidiaries in other countries is not subject to taxation.

The law has therefore excluded from the basis of the benefit the turnover that comes from carrying out economic activity abroad, both from subsidiaries that operate abroad and from permanent establishments abroad of entities resident in Spain, since the production centres and facilities in which all or part of the activity from which they obtain their income is carried out are located outside Spanish territory.

On the contrary, income derived from exports or sales operations to clients outside Spain comes from activities carried out in Spain and must form part of the net amount of the turnover that constitutes the basis of the benefit, and not be excluded from it.

The rules on tax groups and business groups shall apply when the person liable for payment forms part of a tax group or a business group in the cases referred to in the fourth and fifth paragraphs of section 2 of article 1.

Paragraph 2 of Article 1 applies only to persons or entities referred to in the first subparagraph of paragraph 1 of this Article 1, namely operators in the energy sectors that are considered to be principal operators under market and competition regulations. Therefore, only these main operators, in the event that they are part of tax groups or commercial groups, must refer to the specific rules that establish how to calculate the INCN when belonging to such groups.

On the contrary, the main operators referred to in the second paragraph of section 1 of article 1 of Law 38/2022, that is, those carrying out the activities of crude oil production, natural gas, coal mining or oil refining, must not apply the rules established for groups unless they are in the following situation:

• That they form part of a tax group which, in turn, forms part of a commercial group, whose parent company is considered the main operator because it is included in the list established by the National Commission of Markets and Competition.

Because they are not included in the scope of application of section 2 of article 1 of Law 38/2022.

Since the business group includes a tax group that pays corporate tax subject to common regulations and another tax group subject to regional regulations, the specific rules provided for tax and business groups in sections 2 and 5 of article 1 of Law 38/2022 apply.

The basis for the benefit shall be determined, in accordance with the provisions of said sections of article 1, by the sum of the net amount of the turnover resulting from the consolidated profit and loss account of each of the tax groups corresponding to the activities carried out in Spain, with the exclusions that are applicable.

Since the business group includes a tax group that pays corporate tax subject to common regulations and another tax group subject to regional regulations, the specific rules provided for tax and business groups in sections 2 and 5 of article 1 apply.

The basis for the benefit shall be determined, in accordance with the provisions of said sections of article 1, by the sum of the net amount of the turnover resulting from the consolidated profit and loss account of each of the tax groups corresponding to the activities carried out in Spain, with the exclusions that are applicable.

Furthermore, the entity that is part of the business group but is not integrated into any of the tax groups, and is considered a main operator in the energy sectors by reason of its activity, is obliged to pay the temporary energy tax, the basis for which will be constituted by the INCN of its profit and loss account corresponding to the activities carried out in Spain with the applicable exclusions.

In this case, the business group is only made up of entities that pay corporate tax subject to common regulations, so the specific rule on business groups referred to in the fifth paragraph of section 2 of article 1 is not applicable and, consequently, neither is the rule in the fourth paragraph of section 5 of the same article.

When a tax group is integrated into the business group, it is appropriate to apply the specific rule established in the third paragraph of section five, according to which the basis of the benefit will be constituted by the net amount of the turnover resulting from the consolidated profit and loss account of the tax group corresponding to the activities carried out in Spain, with the applicable exclusions.

Furthermore, the entity that is part of the business group but is not integrated into the tax group, and is considered a main operator in the energy sectors by reason of its activity, is obliged to pay the temporary energy tax, the basis for which will be constituted by the INCN of its profit and loss account corresponding to the activities carried out in Spain with the applicable exclusions.

As part of a tax group whose representative is considered the main operator, the party obliged to pay is the representative of the tax group and the basis of the benefit will be the INCN of the consolidated profit and loss account of the group, corresponding to the activities carried out in Spain and with the applicable exclusions.

The entity that is part of a business group but is not integrated into any tax group, and is considered a main operator in the energy sectors by reason of its activity, is obliged to pay the temporary energy tax, the tax base for which will be constituted by the INCN of its profit and loss account corresponding to the activities carried out in Spain with the applicable exclusions, regardless of whether the parent company of the business group is considered a main operator according to CNMC in the energy sectors due to the regulations governing markets and competition.

The entity that is considered the main operator in the energy sectors due to its activity is obliged to pay the temporary energy tax, the basis for which will be the INCN of its profit and loss account corresponding to the activities carried out in Spain with the applicable exclusions.

In this case, it is irrelevant whether the entity is part of a tax or commercial group, if the entity representing the tax group or the parent company of the commercial group is not considered the main operator.

The amount of the benefit to be paid by each party obliged to pay will be the result of applying the percentage of 1.2 percent to their net turnover amount (INCN) in accordance with the provisions of article 1.5 of Law 38/2022, of December 27 (clarified in the previous questions).

The amount of the benefit will be reduced by the amount of the advance payment that has been made.