Resolution from the National Court. Concept excluded from the VAT taxable base. Compensation


This case refers to the compensation received due to an earnest money contract, which is accompanied by a transactional agreement for renouncing of going to court. The Tax Administration issued a provisional settlement by failing to include in the VAT tax base the amount received as consideration for the resignation of the taxpayer for their rights in a contract of sale of a plot, derived from a transactional agreement between the parties.

The taxpayer pleads that the deposit have compensatory nature and therefore, pursuant to Article 78.three.1 of the VAT Act, it must not be included in the tax base, so cannot be claimed that there has been a breach of the contractual obligations by the appellant.

The Court confirms, first, that the earnest money contract clearly had a compensatory nature, but to the extent that the transactional nature of the contract is confirmed, it understands that a consideration has been obtained. That is, in the present case is not merely a compensation agreement, but an earnest money contract accompanied by a transactional waiver of resigning to claim to the courts, which makes it a consideration and eliminates the compensatory nature.

The resolution is dated December 11th, 2014 and with claim number 128/2014.

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