STS 4776/2011. Accrual in VAT in the supply of goods. Prevalence of the economic conception against legal.


The publication last January 30, 2014, of the Appeal 4776/2011 by the Spanish Supreme Court, review the criteria maintained on the issue of accrual of the supply of goods on VAT, in transactions in which no coincide the transfer of possession and the transfer of the legal acquisition title.

This Court mentions Article 1462 of the Civil Code in which to convey the property, the title and mode theory requires the concurrence of both factors to conclude the legal business. Pointing to turn when the sale is made by public deed granting it equal to the delivery of the good matter of the contract, if the same script is not shown or otherwise clearly appreciate.

However, this Court of the TS seems to adopt the criteria held by the ECJ in cases such as C-320/88, dated 8 February 1990, or 8 February 1990 or No 111 /05 dated 29 March 2007, which economic conception seems to be imposed on the legal, considering that the VAT accrual on the supply of goods can take place even if it has not transferred on property rights, but if you have transferred the powers of the owner.

However, the case analysed by this appeal does not apply this criteria from the ECJ, because even if the acquirer actually had physical possession of the real estate, at any time before the execution of the public deed there was any transfer of the powers of the owner.

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