Article 42 of Law 13/1996, of December 30, of Fiscal, Administrative and Social Order Measures ("Official State Gazette" of 31), has created the Airport Security Rate, which taxes the provision of services for the inspection and control of passengers and baggage at airport venues.

In relation to this rate, the possible subjection of the same to the Value Added Tax has been raised by different operators.

In response to these consultations and to unify criteria in the application of the aforementioned Tax, the following resolution is issued:

" 1. Article 7, number 8.o, of Law 37/1992 of 28 December of the Tax on Value Added ("Official State Gazette" of 29), establishes the following:

They will not be subject to Tax:

8.o The supply of goods and services provided directly by the public authorities by way of consideration of a tax nature.

Nor shall the tax be imposed on the supply of goods and services made directly by the public authorities when they are carried out in the course of a business or professional activity whose operations They are carried out by way of tax.

For the purposes of the preceding paragraph, principal operations shall be considered as those representing at least 80 per 100 of the income derived from the activity.

The non-subjection assumptions referred to in this issue shall not apply where the referred entities act by means of a public, private, mixed company or, in general, of commercial enterprises.

Notwithstanding the foregoing paragraphs of this number, they shall be subject to the tax, in any case, the supply of goods and services provided by the public authorities, in the exercise of the activities which the public authorities The following are related:

a) Telecommunications.

b) Distribution of water, gas, heat, cold, electrical energy and other energy modes.

c) Transports of persons and goods.

d) Port and airport services.

e) Obtaining, manufacturing or transforming products for further transmission.

f) Intervention on agricultural products aimed at regulating the market for these products.

g) Exploitation of trade fairs and exhibitions.

h) Store and deposit.

i) Commercial advertising offices.

j) Exploitation of canteens and canteens of companies, economies, cooperatives and similar establishments.

k) Travel agencies.

(l) Commercial or commercial entities of public radio and television entities, including those relating to the transfer of the use of their facilities.

m) The slaughterhouse. "

2. In accordance with the provisions of Article 42 (2) of Law 13/1996 of 30 December 1996 on Tax, Administrative and Social Order Measures ("Official State Gazette" of 31), it constitutes the taxable fact of the Airport 'the provision of the passenger and baggage inspection and control services at airport premises'.

On the other hand, Article 13 of Law 8/1989 of 13 April of Fees and Public Price ("Official State Gazette" of 15) provides that charges may be imposed for the provision under public law, inter alia, of 'port and airport services to rivers'.

Both the literality of Article 42.2 of Law 13/1996, and the provisions of Article 13 of Law 8/1989, it is clear that "the services of inspection and control of passengers and luggage in the airport enclosures", the benefit of which is the taxable fact of the Airport Security Rate, are included among the airport services referred to in point (d) of the fifth subparagraph of Article 7 (8) of Law 37/1992, to which it was previously reference has been made, so that these services will be subject to the Value Tax Moreover, the fact that they are provided by a public body by way of tax is not relevant for such purposes.

3. Article 42 (3) of Law 13/1996 provides that the taxable person liable to pay the Airport Security Fee is the departing passenger who is boarding at a Spanish airport, regardless of the stages after intermediate that the flight and the destination of the flight can be made.

However, in accordance with the provisions of paragraph 3 itself and Article 42 (7), it shall be the taxable substitute of the taxpayer liable to settle and enter the amount of the fee to the public entity in charge of the management of the same (Spanish Airports and Air Navigation), the particular carrier or carrier with whom the passenger has contracted the carriage under a contract of carriage or lease.

Article 42 (6) of the Treaty provides that the rate of charge shall be included in the price of transport. With regard to the foregoing, this Directorate-General, in its resolution of 30 January 1997, has considered that the inclusion of the rate of charge in the transport price must be made by differentiating the amount corresponding to the service of the transport of which corresponds to the fee.

Article 42 of Law 13/1996 sets out the Airport Security Rate in such a way that, for the purposes of the Value Added Tax, it is to be understood that the recipient of the inspection and control service subject to Tax is the passenger. The carrier carrier, or any other liability substitute for the taxpayer in the levy, makes the payment of the consideration of the service (the amount of the fee) to the public entity Spanish Airports and Air Navigation, acting on behalf and on behalf of the passenger.

4. In accordance with the provisions of Article 22 (7) of Law 37/1992, as provided for in paragraph 4 of the same Article, they shall be exempt from the value added tax, under the conditions and conditions laid down in Article 22 (7) of Law No 37/1992. the provision of services made to meet the direct needs of the aircraft listed below or the shipment of the same shall be established:

(a) Aircraft used exclusively by companies essentially engaged in international air navigation in the exercise of commercial activities for the carriage of goods or passengers.

(b) Aircraft used by public entities in the performance of their public functions.

The application of the exemption provided for in Article 22 (7) of Law 37/1992 for the provision of services to meet the direct needs of the aircraft to which the regulated exemption corresponds in paragraph 4 of the same Article, or in order to take care of the consignment, is conditional, as is the case for the exemption provided for in paragraph 4 and in the case referred to in paragraphs 5 and 6 of Article 22, the above services are provided directly to the company dedicated essentially to the the international air navigation operator of the operation of the aircraft referred to in the services or the public entity using the aircraft in the performance of its public functions.

As a result, the exemption for the inspection and control services of passengers and baggage in the airport premises referred to in the consultation document is not applicable, since, as indicated in the Paragraph 3 above, such services are provided to passengers and, therefore, not to an international air navigation company, nor to a public body that uses an aircraft in the performance of its public functions.

5. In accordance with the provisions of Article 78 (1) of Law No 37/1992, the taxable amount of the value added tax in the supply of goods and services which are subject to it shall be the total amount of the consideration of such operations.

According to Article 78 (3) or Article 3 (3), the sums paid in the name and on behalf of the customer shall not be included in the taxable amount on the basis of an express mandate. In such cases, those who make such payments shall be obliged to justify the effective amount of such payments and shall not be able to deduct the value added tax which, if appropriate, tax the transactions they have made. origin of the payments.

6. In accordance with the provisions of Article 84 (1) (1) or (1) of Law No 37/1992 on the supply of goods and services which are subject to the value added tax, the taxable person shall be liable to the tax. (a) to carry out such operations, except in cases where the provisions of the following numbers in the same paragraph are applicable.

By virtue of Article 88 of Law 37/1992, the taxable person of the Value Added Tax referred to in the preceding paragraph shall have full effect on the amount of that tax on the person for whom carry out the taxable transaction, by means of an invoice or similar document in accordance with the provisions of that Article and by Royal Decree No 2402/1985 of 18 December 1985 on the duty to issue and deliver an invoice for employers and ("Official State Gazette" of 30).

7. As provided for in Article 90 (1) of Law 37/1992, the value added tax shall be required at the general rate of 16 per 100, except in the cases provided for in Article 91 of the same Law.

As a result of all of the above, this Directorate-General considers the following resolution to be right:

One. It is subject and not exempt from the Value Added Tax the provision of inspection and control services of passengers and luggage in the airport enclosures, constituting the taxable fact of the Airport Security Rate, made by the public authority Aeropuertos Nacionales and Air Navigation

In particular, the exemption provided for in Article 22 (7) of Law No 37/1992 does not apply to such services, since the recipient of the services is the passenger, and not a company essentially engaged in the international air navigation, or a public body that uses the aircraft in the performance of its public functions.

Two. The taxable amount of the value added tax in respect of the provision of services subject to that tax shall be the total amount of the consideration of the tax which, according to the data in the consultation file, is the amount of the Airport Security Rate.

Three. The tax rate of the value added tax applicable to such services is the general rate of 16 per 100.

Four. The public authority Airports and Air Navigation has the status of taxable person of the Value Added Tax which taxes the services and, in its condition as such, it is obliged to pass it on the (ii) the Commission's decision on the Commission's decision to take the measures to be taken into account.

The aforementioned impact must be made by invoice or replacement document issued to the passenger by the public authority Airports and Air Navigation, under the conditions laid down in Article 88 of Law 37/1992 and in Royal Decree 2402/1985. In particular, under the provisions of Article 2 (2) (d) and Article 8 (7), both of the Royal Decree No 2402/1985, the public body providing the service may apply to the Department for Tax Management. of the State Agency for Tax Administration, authorization to effect the impact of the value added tax on passengers without issuing an invoice or a substitute document for the same services, or for the purpose of issuing a document equivalent to the replacement invoice for those operations the latter.

Five. For the purposes of the value added tax, and in particular the provisions of Article 78,3 of Law 37/1992, it is to be understood that the air carriers, and the other taxable persons who are substitutes for the taxpayer Airport, they satisfy the public authority Airports National and Air Navigation the amount of the Rate, and that of the Tax on the Value Added that taxes the service of which the Rate is consideration in name and for the account of the passenger, so that, where the company transfers those amounts to the passenger, making them separately to the concerning the transport service provided to the latter, it shall not include them in the tax base of the value added tax corresponding to that transport service.

Madrid, May 22, 1997. -Director General, Enrique Gimenez-Reyna Rodriguez.