DOCUMENT SUBMITTED TO THE PUBLIC INFORMATION PROCESS
SEPTEMBER 9TH, 2022
PRELIMINARY DRAFT BILL OF LAW, DATED XX OF XX, AMENDING LAW 37/1992, DATED DECEMBER 28, 1992, ON VALUE ADDED TAX, TO INCORPORATE THE
OF DECEMBER 28TH, 1992, ON VALUE ADDED TAX, FOR THE TRANSPOSITION OF THE DIRECTIVE
OF THE COUNCIL DIRECTIVE (EU) 2020/284, OF 18 FEBRUARY 2020, BY WHICH THE COUNCIL
FEBRUARY 2020, WHICH AMENDS DIRECTIVE 2006/112/CE WITH REGARD TO THE INTRODUCTION OF CERTAIN REQUIREMENTS FOR THE
INTRODUCING CERTAIN REQUIREMENTS FOR PAYMENT SERVICE PROVIDERS
PAYMENT SERVICE PROVIDERS
EXPLANATORY MEMORANDUM
I
This law contains tax amendments to Law 37/1992, of December 28, 1992, on Value Added Tax, hereinafter referred to as VAT, in order to
Value Added Tax, hereinafter referred to as VAT, in order to transpose Directive (EU) 2020/2209/EC of the European Parliament and of the Council of Ministers.
transposition of Council Directive (EU) 2020/284 of 18 February 2020, which amends Directive 2006/112/EC of the European Parliament and of the Council of Ministers of the European Union, of 18 February 2020, amending
amending Directive 2006/112/EC as regards the introduction of certain requirements for payment service
requirements for payment service providers.
The transposition of this Directive into Spanish law, the rules of which will be applicable as of January 1, 20
The transposition of this Directive into national law, the rules of which will apply from January 1, 2024, will improve the control of cross-border payments and will
to combat potential VAT fraud by obliging payment service providers to maintain sufficiently detailed records and to
sufficiently detailed records and their notification to the tax authorities.
tax authorities.
II
This law consists of a single article and four final provisions.
In accordance with the provisions of Law 39/2015, of October 1, 2015, on the Common Administrative Procedure of Public Administrations, the
Administrative Procedure of Public Administrations, the preparation of this law has been carried out in accordance with the principles of necessity, effectiveness
with the principles of necessity, effectiveness, proportionality, legal certainty, transparency and efficiency.
efficiency.
Thus, the principles of necessity and effectiveness have been complied with, inasmuch as it is necessary to adopt
a Law, given that the changes introduced into the legal system, having legal rank, require their incorporation into it,
are required to be incorporated into the legal system by means of a regulation of the same rank.
The principle of proportionality is also complied with, inasmuch as it has been observed in an exclusive manner the way in which the objectives of the law have been
the way to meet the aforementioned strictly required objectives has been exclusively observed.
With respect to the principle of legal certainty, the coherence of the text with the rest of the national legal system has been guaranteed, as well as the consistency of the text with the rest of the national legal system.
of the national legal system, as well as with that of the European Union. In fact, this text
the need to transpose the aforementioned Directive (EU) 2020/284 into Spanish law.
Spanish law.
..
Lastly, in relation to the principle of efficiency, an effort has been made to ensure that the regulation generates the least administrative burdens for citizens, as well as the
administrative burdens for citizens, as well as the lowest indirect costs,
promoting the rational use of public resources. In this sense, the information and documentation
information and documentation required from taxpayers are those strictly necessary to guarantee the control of their
essential to guarantee the control of their activity by the Tax Administration.
III
The exponential growth of e-commerce in recent years has led to widespread cross-border shopping.
cross-border shopping. In the field of VAT, the Directive has established new rules for the
rules for destination taxation on sales of goods and services which, when purchased by final consumers, mainly via the Internet, are
consumers, mainly via the Internet, are sent from other territories or are supplied by traders or professionals not
supplied by traders or professionals not established in the Member State of acquisition.
In addition, the new VAT e-commerce rules have modernized and simplified the VAT settlement and management in a simple way.
and management of VAT in a simple way through the generalization of the new one-stop special regimes.
special one-stop-shop regimes. The transposition into Spanish law of this
This regulatory package, applicable as from July 1, 2021, has been transposed into our domestic legislation by Royal Decree-Law 7/2021, which is applicable as from July 1, 2021.
Decree-Law 7/2021, of April 27, on the transposition of European Union directives in the areas of competition, prevention of money laundering and the
of the European Union in the areas of competition, prevention of money laundering, credit institutions,
telecommunications, tax measures, prevention and repair of environmental damages,
the provision of transnational services and the protection of consumers, and by Royal Decree
and consumers, and by Royal Decree 424/2021, of June 15, which amends the Value Added Tax
Value Added Tax Regulations, approved by Royal Decree 1624/1992, of December 29, 1992, and the Regulations
December 29, the Regulation regulating invoicing obligations, approved by Royal Decree 1619/2012, which
Royal Decree 1619/2012, of November 30, 2012, and the General Regulations on the actions and procedures for tax
procedures for tax management and inspection and for the development of the common rules of the procedures for the
procedures for the application of taxes, approved by Royal Decree 1065/2007, of July 27, 2007,
which have amended the VAT Law and the VAT Regulations, respectively.
However, in this context and in spite of the facilities offered to operators for the settlement of the VAT due in each
the settlement of VAT due in each Member State, the Community tax authorities have detected the emergence
and professionals who, taking advantage of the fact that the majority of e-commerce transactions constitute trans
transactions are cross-border payments made through means of payment linked to electronic transfers.
means of payment connected to electronic transfers, are gaining unfair commercial advantages by avoiding their
unfair commercial advantages by evading their obligations to charge and collect VAT. Indeed, since the recipient is a final consumer
the recipient is a final consumer acting in good faith and is not subject to accounting and registration obligations, the
and registration obligations, the Community tax authorities may have difficulty in verifying the destination of their payments.
the destination of their cross-border payments, which makes it necessary to have adequate instruments and a system
and an information system that makes it possible to detect these cross-border payments without the need for
cross-border payments without the need to impose obligations on the final consumers and to affect the development of trade and the
the development of trade and the expansion of the market. This information is relevant and may
This information is relevant and may be an indication that the beneficiary is carrying out an undeclared economic activity.
Thus, the aforementioned Directive has designed a simple system that will impose on payment service providers the obligation to provide information to the final consumer.
payment service providers the obligation to keep sufficiently detailed records of cross-border payments made
of cross-border payments in which they are involved and to provide this information to the tax authorities.
the tax authorities.
In order to comply with the principle of proportionality and to ensure that compliance generates the least management burdens on the tax administration.
the payment service providers, only the information considered necessary and sufficient for the purpose of
information considered necessary and sufficient for the tax administrations to be able to comply with this requirement.
The tax authorities of the Member States can combat situations of tax fraud and tax evasion.
Thus, it will only be necessary to record and report cross-border payments when the payer is located in a Member State and the payee is located in another Member State.
the payer is located in one Member State and the payee is located in another Member State or in a third country or territory.
Member State or in a third country or territory. In addition, the only information relating to the payer
of the payment to be retained is that concerning his location. As regards the
the payee, it will be necessary to keep information that may enable the tax authorities to detect possible economic activity.
authorities to detect a possible economic activity. In this regard, a minimum limit is set for the number of payments received by the same payee in the same period.
payments received by the same beneficiary in a calendar quarter as an indication of possible economic activity.
of a possible economic activity. Once this limit is reached, which is set at 25 quarterly cross-border payments
quarterly cross-border payments to the same beneficiary, the obligation to keep records and to report them to the tax
and its notification to the tax authorities.
As a single payment from a payer to a payee may involve several payment service providers, it will be necessary for all the
payment service providers, it will be necessary for all payment service providers involved in the chain that ensures
chain that ensures the transfer of funds from the payer to the payee, with the exception of certain exclusions
exclusions contained in the regulation itself, comply with the obligation of record keeping and reporting.
record keeping and reporting. In this way, it will be possible to identify the
initial payer and final beneficiary of each transaction and their connection to the electronic commerce operations.
electronic commerce.
Therefore, the obligations of record-keeping and the provision of information will affect both the
the payment service provider transferring funds or issuing payment instruments to the payer, as well as the payment service
instruments for the payer, as well as the payment service provider receiving such funds or acquiring payment transactions on behalf of the payer.
acquires payment transactions on behalf of the payee.
However, these obligations shall not apply to those payment service providers that are outside the scope of the
service providers that are outside the scope of application of Royal Decree-Law 19/2018 of November 23, 2018, on payment services and other
November, on payment services and other urgent measures in financial matters.
Payment service providers shall keep the aforementioned records for a period of three
years in order to allow Member States sufficient time to carry out checks effectively and to investigate the
to carry out controls effectively and to investigate or detect suspected VAT fraud.
…
Source: gob.es
