EC Takes Action Against Spain Over VAT

by Ulrika Lomas, Tax-News.com, Brussels

06 June 2008

The European Commission has formally requested Spain to bring its national rules governing the right to deduct VAT on imports into line with the provisions of the VAT Directive.

The request takes the form of a reasoned opinion, which is the second step of the infringement procedure provided for in Article 226 of the EC Treaty.

If, within two months, the relevant national provisions are not amended so as to comply with the reasoned opinion, the Commission may decide to refer the matter to the European Court of Justice.

According to the VAT Directive, the right to deduct VAT due on the importation of goods:

• Arises at the time when the goods are imported, or
• Requires, in order to be exercised, that the taxable person be in possession of an import document specifying him as consignee or importer, and stating the amount of VAT due or enabling that amount to be calculated.

However, according to the Spanish VAT legislation in force prior to 1-1-2008, the right to deduct VAT due on the importation of goods:

• Arises at the time when the taxable person pays the deductible VAT to the customs authorities (Article 98 of the Spanish VAT Law), or
• Requires, in order to be exercised, that the taxable person be in possession of a document showing that the VAT has already been paid to the customs authorities (Article 97 of the Spanish VAT Law).

The Commission considered the Spanish legislation to be in breach of the VAT Directive (the conditional payment of the VAT by the importer to the customs authorities went far beyond the provisions of the VAT Directive) and therefore sent a letter of formal notice to Spain.

Following this, the Spanish authorities amended Article 98 of the Spanish VAT Law as of 1-1-2008.

However, Article 97 thereof remained untouched, the consequence being that according to the rules presently in force, and contrary to the VAT Directive, deduction of VAT due on imports is still conditional upon the importer being in possession of a document attesting to the fact that VAT has already been paid to the customs authorities.

For this reason, the Commission has formally requested Spain to change its national rules.

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