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Resolution 6/1997, Of 10 July, The General Direction Of Tributes, On Application Of The Value Added Tax In The State And Other Public Administrations Contracts Relating To Goods Or Services Supplied From The Extra...

Original Language Title: Resolución 6/1997, de 10 de julio, de la Dirección General de Tributos, sobre aplicación del Impuesto sobre el Valor Añadido en los contratos del Estado y otras Administraciones Públicas relativos a bienes o servicios suministrados desde el extra...

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TEXT

I

Having raised doubts in the application of the Value Added Tax in relation to certain procurements made by public entities, it is appropriate to consider and clarify the precepts of the Law of the said tribute that they are applicable to the operations indicated and, on the basis of them, lay down the necessary instructions for unifying criteria in this field.

In accordance with the provisions of Article 1 of Law 37/1992 of 28 December 1992 on the Value Added Tax ("Official State Gazette" of 29), the tax is a tribute of indirect nature that falls on the consumption and gravel, in the form and conditions provided for in that Law, the following operations:

(a) The supply of goods and services provided by employers or professionals.

b) Intra-Community acquisitions of goods.

c) Imports of goods.

Taxation on the consumption of goods and services is, therefore, carried out through the subjection of various taxable facts, diversity which has not been subject to specific treatment in the procurement rules administrative, problems for the parties involved.

Thus, in the auction award procedure, when determining the most advantageous tender, it must be taken into account that not all are homogeneous in fiscal terms. Tenders from other Member States or from third countries or third territories, which appear to be cheaper to be made on occasion without including the value added tax, may mislead the contracting public authorities, (a) disconnoisseurs, sometimes, of the obligation which is legally incumbent upon them as the addressees of the goods or services to satisfy the tax corresponding to those transactions and, therefore, the need to add their amount to the offer made.

order to avoid these possible distortions, two taxable facts have been provided for in the transitional system of value added tax in relation to the consumption of goods: the importation and the intra-Community acquisition and, other side and with a different technique, the rules of place of performance of the services. The complexity and variety of cases advise a differentiated explanation:

First. -Acquisition of goods from other Member States of the European Community.

The abolition of tax frontiers resulted in the disappearance of imports between Member States, but the application of the principle of taxation at destination demanded the creation of the taxable amount within the Community. of goods, as a technical solution that enables the demand of the tax in the Member State of arrival of the goods.

This new taxable event is configured as the obtaining of the power of disposal, made by a taxable person or legal person who does not act as such (for example, a public body), on a movable body object of a a transfer by an employer or a professional, provided that the goods are issued or transported from one Member State to another.

In the transactions between the Member States it is of great importance to delimit the exemption applicable to the supply of goods which are sent from one State to another, to the object that, in the economic operation which starts in one of them and the latter in another, there are no situations of non-taxation or, contrary, of double taxation.

Intra-Community supplies of goods shall be exempt from the tax when they are sent from one Member State to another, to the acquirer, which shall be a taxable person or a legal person who does not act as such (an entity public, for example). In other words, the delivery at source will benefit from the exemption where it results in an intra-Community acquisition taxed at destination, in accordance with the abovementioned condition of the acquirer.

Within the transitional regime, there are also a number of special schemes which must be used to promote the replacement of the transitional arrangements for intra-Community operations by the definitive system. In terms of administrative contracts, the following points should be highlighted:

(a) The regime applicable to certain persons, such as taxable persons who only carry out exempt transactions (e.g. a hospital) and legal persons who do not act as taxable persons (e.g. a body (i) administrative autonomy), the purchases of which are, optionally, taxed at source where the total volume of such purchases of goods from other Member States does not exceed the threshold of ECU 10 000 per year. As long as this scheme is applied, delivery is understood to be subject to and not exempt from origin and there is no intra-Community acquisition subject to destination.

(b) The distance selling scheme, which will enable the above entities to acquire without physical travel to another Member State, but through catalogues, advertisements, etc., any kind of goods (except for new transport, goods subject to the Excise Duties of Manufacture, used goods, antiques, objects of art or collection), subject to delivery at source, if the volume of sales to Spain of the employer does not exceed, per year Natural resources of ECU 35,000.

(c) The new means of transport, the acquisition of which is always taxed at destination, even if it is made by the persons mentioned above, and even if the seller at source does not have the status of an employer or a professional. The special significance of these goods on the market justifies that, during the transitional arrangements, the principle of taxation at destination is applied, without exception, by the exemption from the supply at source and the tax on the acquisition of Intra-Community trade.

The abolition of border controls has required more intensive administrative cooperation, as well as the establishment of complementary formal obligations to monitor the goods in question. intra-Community

Thus, it is foreseen in the new regulation that all Community operators will have to identify themselves for the purposes of Value Added Tax in the Member States in which they carry out transactions subject to it; (a) liabilities shall be submitted on a regular basis, in which the intra-Community transactions are entered in a separate manner, annual declarations with the summary of the same transactions and the summary lists of such deliveries; and acquisitions of an intra-Community nature

Second. -Acquisition of goods from third countries or territories.

The creation of the internal market also led to other major changes in Community legislation, which affected, in particular, external trade operations and which have determined the corresponding changes. of the rules of this Tax.

As a result of the abolition of fiscal frontiers, the taxable fact imports of goods only occurs in respect of goods from third countries or territories, while the receipt of goods from Other Member States of the European Community make up the already mentioned intra-Community acquisitions.

The importation is the taxable fact that allows to tax the consumption at the destination of goods subject to a previous delivery not subject or exempt in the State or territory of its origin or origin, being subject to the said tax imports, whatever the purpose of the goods and the condition of the importer.

Third. -Provision of services by businessmen or professionals from the Canary Islands, Ceuta, Melilla or abroad or in relation to goods found in these territories.

They are subject to Value Added Tax on services provided when they are realized in the space field of the Tax and are carried out by businessmen or professionals in the development of their business activity. or professional.

In these operations, therefore, the Contracting Public Administrations must first consider the application of the rules for the location of services. Where the benefit is understood in the territory of application of the tax, the Spanish legislation, in respect of the taxable person and the impact of the tax, will be applicable, but if the operation was understood in another territory, it would be The rules governing the application of the rules in question may not contain the same rules in this field.

Without prejudice to the recognition that the subject of this resolution concerns the whole of the current Value Added Tax legislation, the importance of the following precepts should be highlighted:

1. Article 88 (1), second subparagraph, which lays down the following:

" In the supply of goods and services which are subject to and not exempt from the tax, the recipients of which are public entities shall always be understood as the taxable persons of the tax, when formulating their economic proposals, even if they are not exempt from the tax. they are verbal, have included within the same the value added tax which, however, must be passed on as an independent item, where appropriate, in the documents to be filed for recovery, without the overall amount The contract has been increased as a result of the recording of the tax. '

As it follows from the very literality of the precept, this rule is not applicable to intra-Community acquisitions of goods or imports. Nor can it be applied to the supply of goods and services which, by means of an understanding made outside the territory of application of the tax, are not subject to the same or governed by the Spanish legislation, but by the in the territory where they are subject and are to be understood. In these four cases, it will be understood that employers or professionals, when formulating their economic proposals, have not included the value added tax. Where such transactions give rise to intra-Community imports or acquisitions of goods, the contracting public entity must submit the corresponding declaration-settlement and comply with the other obligations imposed by the law for the taxable persons of this tax. In the case of transactions not subject to any understanding made in other territories, before accepting the offer, the public entity must know the tax conditions of the country or territory of origin, in order to be considered before accepting the offer. economic proposition.

2. Article 165 of the Law on Value Added Tax, which lays down special rules on invoicing applicable to intra-Community acquisitions of goods and services, is another precept of singular interest in relation to this matter. (a) the investment of the taxable person referred to in Article 84 (1) (2) or (2), pointing out the following in paragraphs 1 and 2:

" Article 165. Special rules for invoicing.

One. In the case referred to in Article 84 (1) (2) and within the intra-Community acquisitions as defined in Article 13 (1) or both of this Law, a document containing the following shall be joined to the accounting officer of each operation. the liquidation of the tax.

This document shall be in accordance with the requirements to be laid down in regulation.

Two. The invoices received, the accounting documents, the documents referred to in the previous paragraph and the duplicates of the invoices issued must be kept during the period of limitation of the tax.

When invoices received relate to investment goods, they must be retained during their corresponding regularisation period and the following five years. "

3. Also, in intra-Community transactions, the public authorities must comply with the formal obligations established for taxable persons in accordance with Article 164 of Law 37/1992. In particular, they must apply for a tax identification number and submit the summary declaration of intra-Community transactions referred to in Articles 78 to 81 of the Value Added Tax Regulation, approved by the Royal Decree 1624/1992 of 29 December 1992, as last amended by Royal Decree 80/1996 of 26 January 1996 (Official Gazette of the State of 31).

4. As regards the specific tax identification number attributed for the purposes of the value added tax to persons or entities carrying out intra-Community transactions, Articles 2.o-d) and 16 of Royal Decree 388/1990 of 9 March, respectively drawn up in accordance with the provisions of the Rea les Decretos 1624/1992, of 29 December, and 1811/1994, of 2 September, have the following:

" Article 2.o General rules for the composition of the Tax Identification Number. -The tax identification number shall be:

(...)

(d) For persons or entities carrying out the intra-Community transactions referred to in Article 16 of this Royal Decree, the tax identification number shall be the same as those applicable to them in accordance with the previous rules with the prefix ES, according to the international standard ISO code-3166 alpha 2.

(...)

Article 16. Identification of employers or professionals for the purposes of Value Added Tax.

1. For the purposes of the Value Added Tax Act, the tax identification number defined in Article 2 (d) of this Royal Decree shall be attributed to the following persons or entities:

1. Employers or professionals who make supplies of goods, services or intra-Community acquisitions of goods subject to the said tax, even if the goods covered by such acquisitions Intra-Community activities are used to carry out business or professional activities abroad.

2.o Legal persons who do not act as employers or professionals, where the intra-Community acquisitions of goods carried out are subject to the value added tax, in accordance with the provisions of the Articles 13, number 1.o, and 14 of the regulatory act of the same.

(...). "

5. Article 24 of the Sixth Community Directive 77 /388/EC of 17 May 1977 on the value added tax provides for the possibility for Member States to apply relief schemes for those employers or employees. whose annual turnover does not exceed certain limits.

Entrepreneurs who are eligible for this scheme will not be able to pass on the tax on their deliveries or services or to deduct the quotas supported by their acquisitions.

The Spanish legislation does not apply this option, but it is recognised in the domestic legislation of other Member States, and it must therefore be taken into account for the supply of goods to be carried out from those Member States. employers who have received this franchise scheme.

6. Directive 94 /5/EC of 14 February 1994, which is incorporated as Article 26a of the Sixth Directive, regulates the special arrangements for used goods, art objects, antiques and collectors ' items.

According to this Directive, in the supply of goods which are covered by the said special scheme and are sent from one Member State to another, the tax will be required in the Member State of origin and will not constitute an acquisition. intra-Community trade in goods in the Member State of destination. These criteria are set out in Article 68 (2), number 1, of Law 37/1992, of the Value Added Tax, which provides as a general rule that the supply of body goods to be issued or transported for their making available to the acquirer, shall be construed as being made in the territory of application of the tax when the issue or transport is initiated in that territory, and in Article 13 (1) (b) which excludes from the concept of Intra-Community acquisitions of goods the acquisitions whose delivery has been taxed subject to the rules laid down in the special arrangements for used goods, the object of art, antiques and collectors ' items in the Member State in which the goods are dispatched or transported.

7. Article 8 of the Sixth Directive, which lays down a special rule for the location of supplies of goods which must be the subject of installation or assembly, according to which the supply shall be understood in the place where the supplies are made relating to the installation or assembly of the good. This criterion is laid down in Article 68 (2) (2) of Law No 37/1992, cited above.

8. Finally, Article 15 of the Sixth Directive lays down a number of exemptions relating to operations treated as exports, which are also applicable in respect of deliveries made in one Member State to another Member State. of the European Community, whose criteria are laid down in Article 22 of the Value Added Tax Act.

Where the supply of goods in the Member State of origin of the issue or of transport benefits from the exemption from the tax under the said provision of the Directive, it is not necessary to pass on or to liquidate the tax in that State of origin and also in the Member State of destination, in which the corresponding intra-Community acquisitions are not subject to the value added tax.

II

Consequently, and on the basis of the precepts indicated, the following instructions are given in order to unify the criteria in the application of the Value Added Tax rules in relation to the contracts subscribed by the public authorities:

First.-In the award of contracts for the acquisition of goods concluded by any public entity, the taxable persons shall always be understood to be taxable persons, in formulating their economic proposals, even if they are verbal. The tax on the value added, as provided for in general, in Article 88 of the Law of the said tax.

Second. -However, when such goods are sent from another Member State of the European Community, either the national or foreign supplier, the said tax cannot be understood.

When the public entity chooses to pay tax to its destination and when it is obliged to do so as indicated in point (a) of paragraph 1 (a) of this Resolution, it shall inform the supplier of its identification number. Fiscal preceded by the indicative ES for Spain.

In the cases referred to in the preceding paragraph and also in the case of acquisitions of new means of transport, in accordance with point (c) of the same paragraph, the public entity, after the purchase of the goods, must declare the corresponding intra-Community acquisition of goods and entry of the accrual fee.

In accordance with the provisions of Article 28.quater.A) of the Sixth Community Directive establishing the common system of value added tax applicable in all Member States of the European Community, the supply of goods by the supplier from another Member State, which is subject to the value added tax of that country, shall be exempt from that tax, as a supply of goods dispatched from one Member State to another and whose consignee is a legal person making an intra-Community acquisition of goods subject to Spanish Value Added Tax. Therefore, no impact of the tax in force in that other Member State will be affected and, if such an impact is made, the public body would not be obliged to bear it.

As regards the specific formal obligations of the public entity liable for an intra-Community acquisition, it must apply for the specific tax identification number provided for in intra-Community transactions. (Articles 2.o (d) and 16 of Royal Decree 338/1990 of 9 March 1990), to issue the document containing the liquidation of the tax referred to in Article 165 of Law 37/1992 and to present the summary declaration of intra-Community transactions referred to in Articles 78 to 81 of the Tax Regulation.

Third. -When a public body can and effectively decides to avail itself of the possibility of paying the value added tax in the State of origin, in application of the scheme of certain entities, succinctly reviewed in the (a) paragraph I of this Resolution, contained in Articles 13 and 14 of the Tax Act, shall bear the impact of the tax in force in that Member State in accordance with the rules in force therein, which may or may not establish that the Tax is included in the offer made in that Member State. In this case, the public body must not communicate its identification number to the supplier.

Fourth.-The so-called distance selling scheme may also be exceptionally applicable, as explained in point (b) above, and in this case the seller may, optionally, within the limits set in the Article 68 of the Law, to pass on the corresponding tribute either to the country of origin or to the country of destination. The seller must have communicated to the contracting public his intention to apply one or another Tax or, in the absence of such communication, it cannot be understood as being included in the offer made.

When in that communication the seller would show the subjection to the tax in Spain of the delivery of the goods, the rule contained in article 88 of the inclusion of the tax in the offer would be applicable.

In the case described in the preceding paragraph, there is no intra-Community acquisition of goods in Spain, but a supply of goods by the supplier from the Member State of origin and by the special rules of (a) location, is understood to be carried out in the territory of application of the tax and to which the same rules will have to be applied as for the internal offers.

Fifth. -In the other cases, referred to in Article 13 of the Law, in which the acquisition of goods delivered by an employer or professional from another Member State does not give rise to the taxable acquisition intra-community goods, the following rules apply:

1) In the case of acquisitions of goods the delivery of which is carried out by an employer or professional who benefits from the tax relief scheme in the Member State from which the goods are dispatched or transported, there is no tax in Spain or an impact from another Member State.

2) In the procurement of goods for which delivery has been taxed subject to the rules laid down for the special arrangements for used goods, art objects, antiques and collectors ' items in the Member State in which they are initiate the issue or transport of the goods, shall be obliged to bear the tax in force in that Member State, which shall always be included in the price. This circumstance shall be made manifest by the invoice for the application of the Seventh Council Directive on the harmonisation of value added tax (Directi va 94 /5/EC), or other of the type "VAT included", " Prix TTC ', or similar.

3) In the acquisition of goods which correspond to the supply of goods to be installed or assembled, falling within the meaning of Article 68 (2) (2) of the Act, as a result of the supply of goods The Tax on Value Added in Spain shall apply the rule of inclusion of the Tax on the offer made as provided for in Article 88.

4) In the acquisitions of goods the delivery of which in the State of origin of the issue or transport has been exempt from the tax, by application of the criteria laid down in Article 22, paragraphs one to the eleven of the Law, not there is no impact or liquidation of the tax, as they are exempt transactions in the Member State of origin and not subject to the destination.

Sixth. -Where the goods acquired are to be imported, or are to be treated as imports, by the public contracting entity, the price offered by the employer or professional must be understood as not including, no case, the value added tax, where the taxable person is liable to the taxable person for the purposes of the acquiring or the recipient of the goods, as provided for in Article 86 of the Law.

Seventh. -It must be remembered that in the supply of goods made within the territory of application of the Tax by businessmen or professionals without permanent establishment in the same, being public entities As a general rule, the rule contained in Article 88 is applicable, and it must be understood that the tax was included in the price offered. This will be the case for domestic deliveries of which the employer or professional who carries them will be a taxable person, even if he does not have permanent establishment in the said territory of application of the Im post.

Even if the rule cited in Article 88 of the Law is also applicable, in the case referred to in Article 84 (1), number 3, of the same Law, it shall be liable to the delivery made by a non- established in the territory of application of the tax the public entity to which it is addressed, even if it does not act in that operation as an employer or a professional, since it is a subsequent delivery to the intra-Community acquisition exempted by virtue of the of the provisions of Article 26 (3) of the Law. The correct application of the tax in this case will follow what is stated in the Ninth instruction of this Resolution.

Eighth. -With regard to the provision of services for which the addressees are public, the rule of inclusion of the tax on the offer made, contained in Article 88 of the Law, must be understood to apply when the services are provided in the space of the tax and are carried out by employers or professionals, established or not in the territory of application of the tax, in the development of their business or professional activity.

In such operations, the public authorities must therefore consider, first, the application of the location rule corresponding to the provision of contracted services, among those contained in the articles 69 to 74 of the Law. Only where the benefit is understood in the territory of application of the tax will the Spanish legislation be applicable, in particular as regards the taxable person and the impact of the tax; but if the transaction was understood in another territory, its own rules would be applicable, which may not contain the same rules in this field.

Ninth. -When public authorities act as employers or professionals and affect the goods or services acquired from a business or professional activity, the effect on the subjective condition of the the addressee of the transactions subject and the rules provided for in general are applicable for employers or professionals in respect of the subject to the tax on transactions, the determination of the taxable person, exemptions, etc. However, since the addressees are public authorities, it is always understood that, in the supply of goods and services which are subject to and not exempt from the tax, employers or professionals, when formulating their economic proposals, they are verbal, have included within the same the Value Added Tax, in application of the already cited article 88 of the Law 37/1992.

In this case, it should be noted, in particular, that the public body acquiring goods from other Member States must comply systematically and compulsorily with the provisions of the second instruction in this Resolution. on the dispatch of goods from another Member State to the territory of application of the tax, without being able to apply the arrangements referred to in the third and fourth instructions, which relate respectively to certain deliveries of goods which are taxed in the Member State of origin and distance sales.

It should also be recalled that in the cases referred to in the seventh and eighth instructions, the person who makes the supplies of goods or services is an employer or professional without establishment on the territory of application of the tax, the public entity to which the tax is intended to be the taxable person shall be liable for the purposes of that operation, pursuant to Article 84 (1) (2) of the Law on this Tax, at the expense of which it is the obligations of declaration and entry and of the formal nature laid down in the Article shall remain 164 of the same Law. Logically, in this case, the total amount of the contract price will not be satisfied, but of this amount, with all the contractual modifications affecting it, will be broken down the Value Added Tax, whose declaration and income, As has already been stated, it is not up to the one who made the operation but to the recipient, in this case a public body which affected those goods or services to the development of a business or professional activity.

The same procedure shall apply in cases where a public body is the final recipient of a triangular intra-Community transaction, contained in Article 26 (3) and in which it is a taxable person of the Last delivery by application of the provisions of Article 84, paragraph 1, number 3, already reviewed in the seventh instruction.

Madrid, July 10, 1997. -Director General, Enrique Gimenez-Reyna Rodriguez.