General rule
The taxable base of the tax is constituted by the total amount of the consideration for the operations subject to it from the recipient or third parties.
When the taxpayer does not expressly and separately reflect the tax rate in the invoice, it is understood that the consideration did not include said rates, except in the following cases:
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When the express impact of the tax is not mandatory.
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In the case of payments withheld pursuant to law in the event of termination of operations.
The concept of consideration includes:
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Any effective credit in favor of the person who makes the delivery or provides the service, derived from the main or accessory service, such as commissions, shipping and transportation costs, insurance or premiums for advance services.
Example:
The leasing of premises will include the amount of rent, amounts assimilated to rent and any other amount that the landlord may require from the tenant, such as community fees, the amount of Property Tax, heating, water, electricity, construction costs, etc.
Interest for deferral of payment of the price will not be included when the following requirements are met:
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Those corresponding to a period after the delivery of the goods or the provision of the services.
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That they are remuneration of financial operations of deferral or delay in payment of the price, exempt from tax.
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That they appear separately on the invoice issued by the taxpayer.
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That they do not exceed the one usually applied in the market.
Example:
In January, a flat is purchased for 100,000 euros and received on 1 October. The payments to be made are:
The tax base will be:
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April: 31,000, includes interest as it is prior to accrual.
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October: 70,000 (40,000 to be paid in October plus the 30,000 to be paid in December), upon delivery the VAT of the pending payments is accrued, interest not being part of the tax base accrued from this moment.
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subsidies directly linked to the price of the operations, that is, established according to the number of units delivered or the volume of services provided when determined before the operation is carried out.
Both the DGT , in its consultation no. 0285-03, and the ECJ in its Judgment of November 22, 2002, have qualified the second of the requirements demanded in the previous paragraph, in the sense that “ what must be established prior to the delivery of subsidized goods or the provision of services is not so much the amount of the subsidy as the mechanism for determining it, in such a way that the businessman or professional who carries out the operation is in a position to determine its amount, but without it necessarily being established in monetary units in such advance ”.
Example:
A passenger transport company receives two subsidies: One of 2 euros for each passenger transported and another of 20,000 euros which is intended to cover the cost of the bus. The price of the trip is 10 euros plus VAT .
The first subsidy is included in the tax base as it is directly associated with the price of the ticket.
The second grant is not included in the tax base because it does not meet the requirement of being established based on the volume of services provided.
The requirements that must be met for a subsidy to be considered directly linked to the price have been simplified on the basis of the criterion set out by the Court of Justice of the European Union in its judgment of 27 March 2014 (Case C-151/13). This criterion is also recognized by the Central Economic Administrative Court, among others, in its resolution of November 20, 2014 (Resolution No. 01360/2011) and by the General Directorate of Taxes in consultations V4149-15 and V2263-16.
In the aforementioned ruling, the CJEU specifies that the taxable base of the tax will be constituted by everything that is received as compensation for the service provided, the only thing necessary being the existence of a direct link between the provision of the service and the compensation obtained. In this regard, it clarifies that, in order to recognize this link, it is not necessary for the direct beneficiary of the service to be the recipient of the service, nor for the consideration to be linked to individualized service provisions. It will be necessary that the service is actually provided in exchange for payment, without requiring that said exchange be received directly by the recipient of the service, but it may be a third party who satisfies it.
However, is excluded from consideration of subsidies linked to price , and, therefore, the monetary contributions made by the Public Administration to finance do not form part of the tax base:
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The management of public services or the promotion of culture in which there is no significant distortion of competition, regardless of the form of management. These are financial contributions that Public Administrations make to the operator of certain publicly-funded services when there is no distortion of competition, generally because, as these are activities financed wholly or partially by the Administration, they are not provided under a free competition regime, such as, for example, municipal transport services or certain cultural activities financed with these contributions.
These contributions will not limit the right to deduction regulated in the last paragraph of article 93.Five of the VAT Law .
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Activities of general interest whose recipient is society as a whole, as there is no identifiable recipient nor users who satisfy any compensation. This would be the case of contributions made to finance research, development and innovation activities or public broadcasting services, under the conditions indicated, without prejudice to the consequences that may arise from this in terms of the exercise of the right to deduction.
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The taxes and levies of any kind that fall on the same taxed operations, except the VAT itself.
This includes special taxes levied on goods that are the subject of taxed transactions, with the exception of the special tax on certain means of transport.
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The perceptions retained in accordance with law by the party obliged to provide the service in cases of resolution of the operations.
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The amount of the containers and packaging , including those that may be returned, charged to the recipients of the operation.
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The amount of the debts assumed by the recipient as full or partial consideration for the operations.
The following are not included in the tax base:
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The compensations , other than those contemplated in the previous section, that do not constitute consideration or compensation for the subject operations.
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The discounts and bonuses granted prior to or simultaneously with the time at which the transaction is carried out and based on it and which are justified by any means of proof admitted by law.
This provision shall not apply when the price reductions constitute remuneration for other operations.
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The sums paid in the name and on behalf of the client, by virtue of the express order of the same. The taxpayer is obliged to justify the actual amount of such expenses and cannot deduct the tax that would have been levied on them.
It is essential that the invoice appears in the name of the client, the final recipient of the transaction.
Requirements that must be met to exclude supplies from the tax base:
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These must be sums paid in the name and on behalf of the client. This will normally be accredited by the corresponding invoice issued to the client.
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Payment of these sums must be made pursuant to an express mandate, verbal or written, of the client on whose behalf the action is being taken, which excludes the possibility of considering as covered the expenses incurred by the entrepreneur or professional without knowing the name of his potential client.
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The amount received by the mediator must exactly match the amount of expenses incurred by the client.
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The entrepreneur or professional mediator may not deduct the tax that would have been levied on expenses paid on behalf of and for the account of his client.
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