Is a “proforma” invoice valid for the VAT deduction? Binding tax ruling V2825/2017
On the basis of the provision set in the article 97 of the Spanish VAT Act, the deduction of the input VAT by a taxpayer is possible when it is in possession of the document supporting its right, which is only the original invoice complying with the formal requirements established in the Regulation. That is, documents that do not comply with the formal requirements established by the Regulation would not justify the right to deduct VAT, without considering the chance of rectifying the documents to correct them.
Occasionally, as a document that sets a budget or that supports the advance payment for a service or a delivery of goods, the taxpayer is in possession of what is commonly called “proforma invoice”. This is the case of a taxpayer who asks to the Spanish General Tax Directorate about his right to deduct VAT for the services provided by a lawyer, according to the “proforma invoice” provided by the latter.
In this sense, it is provided in the Royal Decree 1619/2012 of Invoicing where are set, in the articles 6 and 7, the mandatory content that the invoices must have, such as the invoice number, date of issue, identification of the recipient and VAT quota, among other information. Only a document that contains all the information established in the article 6 of the Royal Decree of invoicing would be valid for VAT deduction purposes.
This same criterion is established in the General Tax Law, in the article 105, which refers to the invoice delivered by the entrepreneur or professional who has performed the transaction and which complies with the requirements of the tax regulation as the document justifying the tax deduction, without considering that the taxpayer may provide other evidence that justifies the reality of the transactions.
Therefore, from a joint interpretation of the previous articles, the General Tax Directorate concludes that the invoice is a preferred mean of proof, but without existing a specific invoice model, although with a minimum content. In addition, the Invoicing Regulation does not establish that the document must contain the word “invoice”, so this word is not a mandatory requirement, contrary to the formal requirements set forth in the article 6 of said Regulation.
In brief, in order to exercise the right to deduct, it will be necessary to be in possession of a document that complies with the content established in the article 6 of the Invoicing Regulation, regardless of the name given to it, which in the case of the tax ruling is “proforma invoice”, but that in this case lacks several of the mentions of article 6 of the Royal Decree on Invoicing, such as the document number, the date and the identification of the recipients.
Attached is a copy, in Spanish, of the binding tax ruling number V2825/2017.