Supplier of fuel with own credit cards: delivery of goods for VAT purposes or provision of financial services? Resolution of the Board of Arbitration of the Economic Concert
By means of this resolution issued by the Arbitration Board of the Economic Concert it resolves which Body is the competent for levying the VAT in this case, Foral Administration of Navarra or the tax administration of the State.
While the object of the dispute is to what Body corresponds the levying of VAT, the merits of the case lies in deciding if there is a provision of financial services, in which case it is understood the VAT becomes due in the Spanish common territory (fiscal domicile of the provider) or there is a delivery of goods (fuel) which means that it is carried out where is put at the disposal of the recipient, i.e. in Navarra, and therefore corresponds to the Foral Administration to levy it.
The conflict refers to an entity that, among others, has an agreement with the gas stations to supply their own fuel to users who identify themselves and pay with a card provided by this entity. In this sense, gas stations supplied fuel owned by the entity, differentiated from the rest of the fuel owned by the gas station, through pumps which are put at its disposal. In this regard, pumps are connected to a tank installed on the gas station for share between the owner of the gas station and the entity, who have signed a leasing contract. Both, the entity and the gas station, acquire fuel to be stored in the tank and this means that when a client of the entity wants to refuel must use the card provided by the entity and with the pump held by the latter in the gas station, thus the consumption is recorded in the computer system of the entity for its subsequent billing to the customer.
The central tax administration understands that the entity is making a provision of financial services (commercial credit provided to the end customer in the refueling), because this is the real nature of the operation and the conditions agreed between the entity and suppliers do not distort it, even in the event that the deposit did not content the amount of fuel requested by the consumer since in such a case the gas station is who will undertake to ensure the necessary supply.
However, Foral administration of Navarra argues that this is a supply of goods since, among other things, the entity acquires its own fuel, separately from the one of the gas station, and then sells it to the customer. In addition, the General Tax Directorate treated as delivery of goods the purchases of fuel in gas stations with a card issued by a company that acts as a commission agent in its own name and on behalf of its customers, acquiring from fuel operators of petroleum the fuel sold and provided to the holders of its card (CV 1947/2010).
We must remember to this purpose, because of the similarity of the facts and since the resolution makes reference to it, the judgment of the Court of Justice of the EU in the case-law Lease Holland BV, C-185/01 which establishes that it does not take place a delivery of fuel from the lessor to the lessee of a vehicle transferred pursuant to a contract of leasing when the lessee provides fuel at gas stations even when this supply is made on behalf and for the account of the lessor. However, the difference with respect to the collected facts in that sentence is that, while in the Lease Holland case-law the lessor not gained the fuel that was supplied to the lessee, here the entity acquired it in their own name, as well as leasing the pumps and tank.
The Board of Arbitration is declared competent to resolve the conflict and says that the answer depends on the legal nature of the relationship between the entity and the gas as well as the legal relationship of the entity with end-customers.
In this sense, shall be considered that, according to one of the contracts signed, the entity does not acquire from a third party the fuel nor owns it so far that is provided to the customer and is at this time when the entity acquires the fuel to sell it. The question that arises in this case is whether, considering that the entity does not intervene directly in the operation of the fuel delivery and not owns this until is carried out the transaction, could be legally understood that this delivery does not occur (i.e., there is an unique delivery of goods from the gas station to the client and not a simultaneous sale to the entity). If so, it would result in a financing service, while if it acquires the fuel previously, the entity would be responsible to the customer of the vices of the delivered goods, which would lead to believe there is actually a second delivery of goods.
Other indications allowing to discern whether we are dealing with a supply of goods is, on the one hand, the capacity that has the entity to fix prices of sale or the price that acquires the product, which in this case pays the price for reference in the wholesale market and cashes the selling price of the retail market, which suggests that there is a purchase-sale contract more than a financing transaction where the margin of the entity would be formed by the difference between the selling price applied to the final customer and the discount on the price of sale to the entity, and on the other hand, the right of use of the pumps of the gas station who has the entity since, those differ from other pumps and are only used to supply the fuel owned by the entity which leads to thinking that there are two deliveries, significantly differentiating the entity’s product from other products supplied by the gas station.
All this leads to the Arbitration Board to conclude that in this case we have two fuel sales, clearly differentiated from a financing service supported by a sale from the gas station to the final customer. This conclusion, in turn, means that the delivery of goods takes place in the territory where the product is made available and, for those that take place in Navarra, the VAT shall be collected by the territorial tax administration.
Attached is a copy in Spanish of the resolution of the Arbitration Board.