Is the representative of consumers and load managers, in the purchase of electricity, taxpayer for the Electricity Tax?
The binding consultation dated March 6, 2017 asks whether an entity representing consumers and load managers in the purchase of electricity may be a taxpayer for the electricity tax, in different scenarios or modalities (direct and indirect representation).
The Tax Law establishes one of the taxable events as the “supply of electric energy to a person or entity that acquires electricity for its own consumption …,” identifying the taxpayer for this scenario to “those who, duly authorized according to the provisions of Law 24/2013, of December 26, of the Electricity Sector, make electricity supplies to the consumer, without prejudice to what is established in section 3 of this article.” Therefore, in principle it will be the supplier of electric energy the one who has the status of taxpayer, not the consumer.
However, it is important to note that, as the Tax Law itself establishes, it must be in accordance with the rules of the electricity sector as regard the concepts and terms that appear in the Tax Law, so it will also be necessary to compare the definition of load manager to determine if it can have implications for the electricity tax as a supplier.
In this sense, Law 24/2013 of the Electricity Sector establishes the subjects that carry out activities destined to the supply of electric energy, including the load managers as such in the article 6.1, h), which are defined as “those mercantile companies that, being consumers, are enabled for the resale of electric energy for energy recharge services. “
That is to say, at first, it must be taken into account that the Law of the Electric Sector defines the load managers as suppliers of electrical energy, reason why they could have the condition of taxpayer by the electricity tax. However, in this case, the Electricity Tax Law establishes an exception, in its article 92 when, in the face of the definition of the taxable event, it specifically states that load managers will always have the status of consumers for the purpose of this tax, so it seems that it leaves out of the condition of taxpayer thereof, being the only subjects that, carrying out an activity of electric energy supply, do not have the condition of taxpayers by this tax.
On the other hand, with respect to the representatives, these are subjects of the market of electricity production that do not carry out any activity directly intended for the supply of electric energy, but they act on behalf of third parties, so they will not have the consideration of taxpayer. In particular, the DGT, referring to the assumptions made in the consultation states:
- Representation in the name and on behalf of the consumers (direct representation): The taxpayer will be the one who supplies the electrical energy and neither the consumer nor his representative.
- Representation in the name and on behalf of load managers (direct representation): To the extent that the load manager always has the status of consumer and not of supplier for the purposes of the tax, the taxpayer will be the one who supplies the electric energy and not the load manager or his representative. The load manager must not charge the tax on the electricity supply.
- Representation in its own name and on behalf of others (indirect representation): The representative does not perform the activity of supply, so he will not be a taxpayer. In addition, as a consumer representative, he shall be considered as such, being obliged to bear the excise duty and without being entitled charge it.
A copy in Spanish of the binding tax ruling number V0569-17 is attached.
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