Collection of VAT on imports. Option of the deferral of VAT on the importation by a non-established operator
Since the month of January 2015 the possibility of opting for a regime of deferral for the payment of VAT on imports is enabled for VAT taxable persons who carry out imports into the Spanish VAT territory. In particular, the article 74 of the VAT Regulation provides for this option for those operators that, among other requirements, are within monthly filings.
It should be recalled that, through this method of collection of VAT on imports, the taxable person who has opted for this within the deadlines established for that purpose will not pay the VAT accrued on the import at the time of clearing the goods before the customs authorities, but it will include this VAT accrued in the VAT return of the corresponding monthly settlement period, together with the deduction of the VAT, so achieving in this way a neutral financial effect on the recovery of the tax.
In this sense, the Spanish General Tax Directorate (DGT) has been pronounced recently, through binding tax ruling dated April 4th, 2016, about the possibility that a not established taxable person may apply this import VAT deferral regime. In particular, through the consultation is questioned to the tax body if a company established in Ireland and that made imports of goods in the Spanish VAT territory could opt for this regime of deferral.
In this respect, in principle, the condition of not established is not an impediment itself for the Irish entity to apply for this regime of deferral, provided it complies with the requirements established for this purpose.
However, the determining factor in this case, linked in some way to the condition of established or not of the importer, is related to the method of VAT recovery, since it recalls the DGT, that article 119 of the VAT Law establishes the conditions for the VAT refund for entrepreneurs or professionals not established in the territory of application of the VAT but established in the Community , Canary Islands, Ceuta or Melilla, which enables the option of this special procedure of refund only for those taxable person that not have performed in the VAT territory supplies of goods or services different from those in which the recipient becomes VAT taxpayer on a reverse charge basis.
Under these conditions the non-established taxable person is not required to file the regular VAT returns, but they would claim for the import VAT refund through the special procedure of article 119 of the VAT Law (Directive 2008/9/EC), and this lead to the exclusion for the taxable person from the choice of applying the import VAT deferral regime.
On the contrary, if the non-established taxable person does not meet the conditions to follow the VAT refund claim procedure regulated in article 119 due to carrying out supplies of goods or services for which it acquires the status of taxpayer in the Spanish VAT territory, thus being obliged to follow the general procedure of refund, that is, through the submission of the regular VAT returns, the import VAT deferral regime would be enabled for him, despite not being established and as far as it complies with the requirements for applying this.
Attached is a copy, in Spanish, of the binding tax ruling number V1392/2016.
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