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Practical guide for completing census form 036

The census declaration

Within the scope of the State's powers, the State Tax Administration Agency is responsible for the creation and maintenance of tax censuses and registries defined by regulation. To achieve this goal, census declarations are a fundamental instrument.

To describe the aforementioned tax censuses, we must begin with the Census of Taxpayers, which is made up of all natural and legal persons, as well as taxpayers referred to in article 35.4 of Law 58/2003, of December 17, General Tax Law, who must have a tax identification number for their relationships of a tax nature or with tax significance.

Census of Liable Taxpayers

Forming part of the census of taxpayers is the Census of Businessmen, Professionals and Withholders, made up of the persons or entities that carry out or are going to carry out in Spanish territory any of the activities or operations mentioned below:

  • Business or professional activities. These shall be understood as those activities which, when carried out, confer the status of employer or professional on the party that carries them out, and shall include agriculture, forestry, livestock and fishing activities.
  • Payment of income subject to withholding or payment on account.
  • Intra-Community acquisitions of goods subject to Value Added Tax made by parties that do not act as employers or professionals.
  • Also included in this census are persons or entities that are not resident in Spain in accordance with the provisions of article 6 of the Revised Text of the Non-Resident Income Tax Law, approved by Royal Legislative Decree 5/2004, of March 5, that operate in Spanish territory through a permanent establishment or pay income subject to withholding or payment on account in said territory, and the entities referred to in paragraph c) of article 5 of the aforementioned Law (entities in attribution of income established abroad with a presence in Spanish territory).
  • Similarly, people or organisations that are not established in the area where the Value Added Tax applies shall be included in the census when they are required to pay this tax.

  • Likewise, persons or entities that do not meet any of the requirements set out in this section, but are partners, heirs, co-owners or participants in entities under an income attribution regime that carry out business or professional activities and have tax obligations derived from their status as members of such entities, will be part of this census.

Those who must be part of the Census of Businessmen, Professionals and Withholders:

  • They must submit a census declaration of registration in said census
  • They must inform the tax authorities of that occur in their tax situation.

  • They must report the drop in said census

For these purposes, those who have such status in accordance with the provisions of the Value Added Tax will be considered entrepreneurs or professionals, even when they carry out their activity outside the territory of application of this tax.

Article 5. Concept of businessman or professional. (Law 37/1992, of December 28. VALUE ADDED TAX)

One. For the purposes of the provisions of this Law, the following shall be deemed to be entrepreneurs or :

  1. Individuals or entities that carry out the business or professional activities defined in the following section of this article.

    However, those who exclusively deliver goods or provide services free of charge will not be considered entrepreneurs or professionals, without prejudice to the provisions of the following letter.

  2. Commercial companies, unless proven otherwise.

  3. Those who make one or more deliveries of goods or provide services that involve the exploitation of a tangible or intangible asset in order to obtain continued income over time.

    In particular, lessors of property will be considered as such.

  4. Those who carry out the urbanization of land or the promotion, construction or rehabilitation of buildings intended, in all cases, for sale, award or transfer by any title, even occasionally.

  5. Those who occasionally carry out deliveries of new means of transport exempt from tax pursuant to the provisions of article 25, sections one and two of this Law.

The entrepreneurs or professionals referred to in this letter will only have such status for the purposes of the delivery of the means of transport included therein.

Two. Business or professional activities are those that involve the management of material and human production factors, or one of them, for the purpose of participating in the production or distribution of goods or services.

In particular, extractive activities, manufacturing, trade and provision of services, including crafts, agriculture, forestry, livestock, fishing, construction, mining and the exercise of liberal and artistic professions are considered to be such activities.

For the purposes of this tax, business or professional activities will be considered to have been started from the moment in which the acquisition of goods or services is made with the intention, confirmed by objective elements, of using them for the development of such activities, even in the cases referred to in letters b), c) and d) of the previous section. Those who make such purchases will from that moment on have the status of businesspeople or professionals for the purposes of Value Added Tax.

Three. The exercise of business or professional activities will be presumed:

  1. In the cases referred to in article 3 of the Commercial Code.

  2. When the performance of the operations defined in article 4 of this Law requires paying the Tax on Economic Activities.

Four. For the sole purposes of the provisions of articles 69, 70 and 72 of this Law, shall be deemed to be entrepreneurs or professionals acting as such with respect to all services provided to them:

  1. Those who carry out business or professional activities simultaneously with others that are not subject to the Tax in accordance with the provisions of Section One of Article 4 of this Law.

  2. Legal entities that do not act as entrepreneurs or professionals provided they have been assigned a Value Added Tax identification number provided by the Spanish Administration.

The following will not be included in the Census of Business Owners, Professionals and Withholders, and therefore will not be required to submit census declarations:

  • Those who exclusively lease properties exempt from Value Added Tax, in accordance with article 20.one.23 of Law 37/1992, of December 28, on Value Added Tax, provided that their performance does not constitute the development of a business activity in accordance with the provisions of the regulations governing Personal Income Tax.

  • Those who make occasional deliveries of new means of transport exempt from Value Added Tax pursuant to the provisions of article 25.1 and two of its regulatory Law, and intra-community acquisitions of goods exempt pursuant to the provisions of article 26. three of the same Law.

    Example: An individual will acquire a new recreational boat in the United Kingdom for his own use, for registration in the territory of application of the Tax (Binding consultation DGT V1215-09)

  1. Exclusion from other census declarations