Electricity tax. Supply of electricity by a tax warehouse to an electricity factory


Resolution of the Spanish Central Economic Administrative Court on October 23, 2017, in which it is determined the accrual of the tax on electricity when supplied from a tax warehouse (Z, S.A.) to a factory of electric power (X, S.A.) in the framework of a contract of supply for consideration.

The Spanish Customs and Excise Duties Authorities, in an audit procedure in relation to the electricity tax, imposed to company X the liquidation corresponding to the referred tax, which is the quota as well as the delay interests, by not paying the corresponding electricity tax debt.

X, S.A., filed an appeal against this settlement to estimate that it cannot be the taxpayer, as electricity supplies made by Z SA were not done under excise suspension regime, having been such entity the obliged to pay tax and to charge the quota on invoices.

At this point, the Regional Administrative Court understood that being company X holder of an electricity factory which is the taxpayer the tax on electricity, in principle, the received power was under excise suspension regime, according to Article 7 of the Spanish Excise Duties Law.

However, the same rule provides in its article 64 bis.5 a) that “Notwithstanding the provisions of article 7 of this law”, the accrual of the tax occurs at the time of invoicing when supply is produced in the framework of a contract for electric power supply for consideration. In this case, this accrual rule over the application of the Excise suspension regime.

Therefore, this Regional Administrative Court considered that the tax accrual when the invoicing of electricity provided by Z to the company X, so Z should charge the corresponding tax quota to X. However, for not charging this quota on time, the law prevents that the quotas not charged on time can be subsequently charged in case of an audit.

Article 64 bis.4 understands as substitutive taxpayer who carry out supplies of electricity for consideration to the referred in letter a) of paragraph 5 of article 64bis.

In conclusion, the electricity tax in this case was payable to the supplying entity, Z, as a substitute of the taxpayer which moves to the taxpayer in connection with the obligation to pay the tax debt.

For these reasons, the Regional Administrative Court estimated X claim and annulled the settlement issued by the Spanish Authorities.

Against the judgment of the Regional Administrative Court follows the present appeal for the unification of criteria by the Director of the Customs and Excise Duties Department of the Spanish Tax Authorities, who understands the following:

To be considered an accrual based on the article 64.bis.A).5 of the Spanish Excise Duties Law is required that takes place “the transmission of electricity from installations considered factories or tax deposits”. Therefore, the chargeable event occurs is always required the output of the electricity from the Excise suspension regime, something that did not occur in this case.

Therefore, located the electricity within the excise suspension regime in the factory of company X, the accrual of the electricity tax was produced by “self-consumption” of electricity (articles 4.3 and 7.1 of the Spanish Excise Duties Law in a case that does not gave rise to the application of none of the exemptions of article 64.5 from law.

And the taxpayer for this self-consuming was the company X, as the owner of the installation in which consumption took place.

In conclusion, as it was produced from Z no “transmission of electricity within the framework of a supply for consideration” must be concluded that the rule of the 64.bis article. (A).5 was not applicable to this case and that the accrual of the tax on electricity was governed, exclusively, by article 7(1) of this law.

The TEAC shares the opinion of the Director that the supply of electric power from a tax warehouse to a factory of electricity through a contract for consideration does not prevent the application of the Excise suspension regime.

The accrual of the tax on electricity in the event that the electricity is received by a company that has the status of a duly registered electricity factory, will take place  in the moment in which the consumption of electricity takes place in a so that not gave rise to the application of any of the exemptions of article 64.5 from the Spanish Excise Duties Law; or for energy not consumed at the factory and that is poured to the national electric net, then producing the finalization of the Excise suspension regime, at the time in which the part of the price for the electric power supply is payable on each invoicing period.

Is no obstacle to the previous conclusions the fact the tax deposit to supply electricity to the company that has the status of factory electricity duly registered, within the framework of an agreement for consideration, because obviously the tax warehouse It supplies electricity for a price or consideration and not for free, not being this the supply of electricity within the framework of a supply contract for consideration to which refers article 64 of the Spanish Excise Duties Law, because this rule refers to the supply of electricity power out of the Excise suspension regime.

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TEAC 23 10 17

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