Refund of the import VAT to the customs agent when the importer of the goods has not refunded this import VAT to the customs agent
Response of the Spanish Central Economic Administrative Court to the appeal for the unification of criteria brought by the Director of the Customs Department of the Spanish Tax Authorities.
The case concerns a refund claim made by a customs agent after the presentation and dispatch of the declaration of import, related to the import VAT paid, on the basis of the provisions of the Sole Additional Provision of Law 9/1998 of 21 April.
The Director of the Provincial Customs and Excise duties refused that refund claim on the grounds that, in their opinion, the payment of the import VAT should have been made directly by the customs agent and not by any other, which did not occur in this case.
It should be mentioned that this Sole Additional Provision states that if after one year since the starting of the right to deduct the import VAT, the importer has not refunded to the customs agent this import VAT which was paid on his behalf, the customs agent may request the refund of this import VAT before to the Customs Authorities, within the following three months.
Contrary to the discretion of the Customs Department of the Spanish Tax Authorities, the Spanish Central Administrative Court considers that the absolute requirement of identity between the customs agent and the perpetrator of the tax payment, sustained by the Customs Director, is an undue restriction of the possibilities that the General Tax Law grant for the customs representative, while taxpayer, acting through voluntary representative under the terms established by Article 46 of that Act.
According to this Court, this identity between the customs agent and material payment author does not necessarily follow.
Therefore, this Court interpreting the standard mentioned, mainly taking into account the spirit and purpose of it, should reject the arguments of the Customs Department of the Spanish Tax Authorities made in this regard.