By means of this judgment, dated July 10, 2019 and number 1041/2019, the Supreme Court establishes doctrine regarding the supporting documentation required for a customs agent, who has paid import VAT to the Customs Administration, acting in his own name but on behalf of the importer, but who has not obtained the payment from the latter, to claim the refund from the Customs Office, pursuant to the provisions of the additional provision of Law 9/1998, of April 21.

In accordance with this additional provision, in the importation of goods through customs agents acting on their own name and on behalf of the importer who would have paid the tax on behalf of the importer, the following rules shall apply:

“1ª The document justifying the right to deduct the import VAT paid shall be the document evidencing the payment of the tax, in which is stated the recognition of the customs agent of having obtained the refund of the tax from its client.

Customs agents will have the right of retention of the document referred to in this rule until they have obtained the tax refund.

2ª If one year has elapsed since the birth of the right to deduct, and the importer has not reimbursed the tax paid, the agent may request a refund from Customs within three months and in the following conditions and with the requirements determined by regulation.

The customs agent or the person or entity that has acted on its own name and on behalf of the importer must enclose to the claim the document supporting the payment of the tax

In the present case, the customs agent who paid the VAT on the importation in his own name but on behalf of the importer, once the latter had not reimbursed the payment of the tax, requested from the Customs the refund of the import VAT through the procedure established in the Additional Provision of Law 9/1998, providing the invoice issued to the importer and proof of payment of the tax. However, Customs Office denied the refund claiming that the payment had been made from a bank account whose ownership did not belong to the agent, but was of a company of which the customs agent (who was listed as a representative in the import SAD) was partner and director, also adding that the invoice issued to the importer had been issued by this company and not by the customs agent. Both the Regional Economic-Administrative Court and the Superior Court of Justice of the Valencian Community, dismissed the appeal filed by the appellant, bringing the matter in cassation to the Supreme Court.

The Supreme Court recalls that this issue was already addressed in Supreme Judgment 844/2018, of May 23, so it follows the same arguments of Law, establishing, with respect to model 031 that justifies the payment of import VAT, that “The relevance of that document, and of its possession, is to give rise to the origin of the special refund requested, since it acts as a privileged proof of how that alternative to which we were referring to has been decided”. In this way, the Court argues that this document is the one that the importer needs to provide if he had requested the refund, which includes the recognition of the customs agent who has acted on his own name but on behalf of the importer, and in that case the customs agent would not have the option to request the refund, so when it is the customs agent who exercises this right, he must provide the same document and, therefore, as established by the Law, he has the right to retain this document when the importer has not reimbursed the tax paid. In this sense, the Court deduces that if the company requesting the refund is in possession of that document, it is because the importer has not paid him, and the Administration’s blur in this aspect comes from confusing what is the simple recovery of internal sense that the recurring legal entity has obtained through its group or commercial corporate relations (as it could have been done with a bank discount line).

The Court deduces that the maintenance by the customs agent of model 031 proves that the tax has not been reimbursed, so proof of a negative fact of reimbursement cannot be required.

With all of the above, the Supreme Court proceeds to establish the following doctrine:

  1. a) The document proving the payment of the tax is sufficient and allows, by itself, that the customs agent obtain the refund.
  2. b) Payment by an interposed person, other than the customs agent or the importer, has effects for obtaining reimbursement in accordance with the procedure of Law 9/1998.

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