Royal Law-Decree 3/2020 of 5 February has been published at the Official Gazette of 5 February 2020 (the RDL) in order to, among other European regulations, transpose to the Spanish legislation Council Directive 2018/1910 and Council Implementing Regulation 2018/1912,.
As regards VAT the RDL so transposes the so called “quick fixes”, namely, amendments to the Council Directive 2006/112/EC on the common system of value added tax (the VAT Directive) with the aim to simplify the regime of intracommunity transactions until their definitive VAT system is implemented[1].
One of such quick fixes is the establishment of a harmonized regulation of the “call-off stock” arrangements, which refer to the situation where, at the time of the transport of goods to another Member State, the supplier already knows the identity of the person acquiring the goods, to whom these goods will be supplied at a later stage and after they have arrived in the Member State of destination.
According to existing regulations, this operative gives rise to a deemed supply in the Member State of departure of the goods and a deemed intra-Community acquisition in the Member State of arrival of the goods, followed by a ‘domestic’ supply in the Member State of arrival, and requires the supplier to be identified for VAT purposes in that Member State.
To avoid this obligation some Member States[2] had internal provisions considering that, such transactions, where taking place between two taxable persons should be, under certain conditions, considered to give rise originally to one exempt supply in the Member State of departure and one intra-Community acquisition in the Member State of arrival.
Now, after the quick fixes have come into force, the VAT Directive specifically addressed the regime of call-off stock arrangements in a new article 17a and number 3 of article 243 where the formal obligation to keep a register of the transactions incurred within this arrangement is introduced (the contains of this register is regulated by article54a(1) and (2) of Council Implementing regulation 282/2011).
These provisions have been implemented by the RDL by the introduction of a new article 9 bis, and a rewording of first paragraph in number 3º of article 9 and head One of article 15 and number 8º in indent One of article 75 of the Spanish VAT Law (Ley 37/1992). Furthermore, Royal Decree 1624/1992 (the VAT Ordinance) is also modified so to include call-off stock transactions among those to be declared at the recapitulative returns and include the same among those to be included at the VAT register of certain intracommunity transactions (article 79, new number 3º in head 1 and heads 2 and 3 of article 66 of the VAT Ordinance).
An important fact to have in mind is that the obligation to report affect not only to the company dispatching the goods to be affected to a call-off stock, but also to the company to which these goods will actually be delivered out of such stock, circumstance which may give rise to problems as to the timely obtention the required information so both parties can comply with their respective reporting obligations.
Such problems must be a priority to those companies, resident or not, within the scope of the Spanish immediate information supply (the SII)[3] which are so are obliged to file electronically through the website of the Spanish Tax Agency (AEAT) in, almost, real time the contains of the said VAT register of certain intracommunity transactions.
Perhaps aware of the difficulties involved in the update of the ERP system to the new reporting obligation affecting the call-off stock transactions, the inclusion of the same in the SII reports is not required until the 1st January 2021 (Transitory provision number Seven of the RDL).
It must be remembered that when the fiscal frontiers between Member States were abolished by the end of 1992, transitional VAT arrangements for intracommunity trade were adopted which, as the VAT Directive points out, are to be replaced by definitive arrangements.
According to the proposal of the Commission in its communication of 7 April 2016 on an action plan on VAT, such a definitive VAT system for cross-border business-to-business (B2B) trade between Member States must be based on the principle of taxation of cross-border supplies of goods in the Member State of destination.
The Spanish VAT Law does not regulate any simplification measures for consignment or call-off stock. However, via binding consultations, the General Tax Directorate has pronounced that, under certain conditions, the customer is to be considered as the “de facto” owner of the goods from the moment that the goods are transferred into Spain by the supplier in other words placed under its control.
If so and regardless of the fact that the ownership of the goods does not formally occur:
- Such a transfer is to be treated as an intra-Community acquisition by the customer; and
- No deemed intra-Community acquisition is considered to be incurred by the supplier which, as a result, would not be obliged to register.
[3] which considered by those It must be remembered that those companies within a VAT Group or considered big companies (turnover over 6 million Euros), as well as those having the obligation to file monthly VAT returns due to having opted for the so called REDEME (special regime of monthly refund).