Spanish Administrative Court’s Resolution, of January 22 2015, as regard the taxable base of the electricity tax
It is a decision over a claim brought by a consumer for the recovery of unduly sums paid in connection with the electricity tax for considering that it was unduly charged.
The reasons alleged by the claimant to apply for the refund of the tax borne were, first, that there should not have been included in the tax base the “toll” that the consumer pays to the owner of the transport network in order for accessing to the electricity, and on the other hand, there should not have been included in taxable base the discounts applied in connection with the service of interruption.
In this regard, the Court refers to the Law and Regulations of the Excise Duties to remember that the network of transport and distribution of electricity fall within the definition of fiscal warehouse for excise duties purposes, so the discharge of electricity from the producer to the transport network is performed under suspension regime, thus the taxable event does not take place, the excise duty does not become due and, therefore, it is not subject to the excise duty. In this sense has been pronounced the Spanish General Tax Directorate in several binding tax rulings, considering that the “tolls” paid by the producers to the transport network is not subject to tax.
Nevertheless, the Court explains that the excise duty becomes due at the moment the electricity leaves the suspension regime for its consumption, this meaning that, contrary to what happens with the producer, the payment of tolls by the consumer in order to access to the electricity is made in the context of a taxable transaction, since the tax is due with the leaving of the fiscal warehouse, so the tolls paid by the latter is part of the taxable base. The article 64 of the Spanish Excise Duties Act makes specific mention to the tolls paid as part of the consideration that constitutes the tax base.
Moreover, regarding the invoice discounts granted on the basis of the interruption service provided by the consumer, the Court mentions that, firstly, those are a remuneration for the provision made by the consumer and, secondly, this service is independent of the delivery or distribution of electricity. This condition of independence fits with the provisions of article 78.Three.2º of the Spanish VAT Law (to which the Excise Duties Act refers to for determining the tax base) by which excludes from the concept of price’s discount that are part of the taxable base the rebates which constitute a remuneration of other transactions.
In conclusion, the Court rejected the claim on the basis that the electricity tax has been correctly charged including in the tax base the tolls paid by the consumer to the transport network, and not deducting from the tax base the discounts applied in the invoices for the interruption service provided, as far as it constitutes a separate and independent transaction of the delivery of electricity instead of a discount over the price.
Attached is a copy, in Spanish, of the Resolution.
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