The use of electronic commerce allows delivery of goods and performance of services as well as payment by electronic means, which gives rise to some conflictive questions of great importance for the qualification of tax operations.
As far as Spanish Value Added Tax (VAT) is concerned, the place and taxing of the electronic commerce operations will depend on their classification as “delivery of goods” or “the performance of services”.
A.- DELIVERY OF GOODS:
Delivery of goods is defined as; the transfer of the power to dispose of corporeal properties which can be carried out through operations made in Spain (internal operations), purchase or delivery to Member States of the European Union (inter-community purchase and delivery), sales made through advertising and catalogues (overseas sales), purchase or delivery to non-member States the E.U (export and import of assets).
The operations performed in Spain in which both the purchaser and the seller are Spanish businessmen or professionals, according to article 68.1 of VAT,are considered performed in Spain and are therefore liable for Spanish V.A.T when the goods are placed at the disposal of the purchaser in Spain.
Inter-community acquisition and delivery:
In inter-community acquisition of goods, which means the acquisition of goods imported to Spain from a European Union Member State, the Spanish purchaser (who must be a businessman or professional) will be the tax payer and will have to carry out the tax auto-repercussion. Deliveries of goods sent or exported from Spain to a Member State are exempt from VAT.
Overseas sales by means of catalogues or advertising of the seller which do not entail the purchaser travelling to the seller’s establishment and in which the purchaser does not have the role of tax payer of VAT (persons who are not professionals or businessmen) the applicable amount of VAT varies according to the volume of the operations performed by the tax payer (businessman or professional) during the previous calendar year and during the year in course to a Member State of the European Union.
If the volume of overseas sales to Spain exceed 4.550.000-pesetas, the tax location of the delivery of the goods is Spain and is liable to Spanish V.A.T. If on the other hand, the sales are less than 4.550.000 pesetas, the location of delivery of goods will be the U.E Member State where the seller is established, except in the case of the seller already being a taxpayer in Spain.
The import of goods:
If the object of the electronic sale comes from a country which does not belong to the European Union, the acquisition in Spain will constitute an import liable to Spanish VAT., liquidating the corresponding tax amount at Customs.
It has to be born in mind that the goods coming from non-member states into Spain are not considered as an import, provided that the entry of the good into the member state has already been subject to the import tax authorities.
According to article 21 of VAT, if the good, which is object to the electronic dealings, is exported outside the European Union, it will be exempt of Spanish VAT.
B.- PERFORMANCE OF SERVICES:
All operations subject to value added tax which cannot be considered delivery of goods are considered to be the performance of services.
In relation to electronic dealing and the performance of services, the general rule for the place of the taxable event, according to article 69 of VAT, is that the place of the performance is the location of the headquarters of the economical activity of the person who performs such services, or failing this, the domicile of the person who receives the service.
Article 70º of V.AT establishes a series of rules concerning the location of certain performances of services. Especially, those services, which are performed in the headquarters of the recipient, according to article 70.1.5º of V.A.T, these rules, state the taxpayer’s investment.
The performance of those services described in article 70.1.5º of V.A.T, are considered to be carried out in Spain, when the recipient of the service is a professional or businessman and has the headquarters of their economic activity, or a permanent establishment or failing that a permanent home, in the place of the taxable event.
Amongst other services which are regulated by article 70.1.5 of V.A.T, as regards electronic commercial operations the following services stand out, the transfer and authorisation of royalties, patents, licences, trademarks or brand names or any other intellectual or industrial property rights, also data processing services including the supply of specialised computer products.
In the case of the aforementioned services and if the taxpayer’s investment proceeds, the taxpayer would have to issue a receipt or invoice, the tax autoreprecusion and its liquidation and calculation if it is within the deductible amount of V.A.T.
The special rule for the location of the performance of certain services regulated in the article 70.1.5º only mentions the supply of specific computer products and does not include the standard computer programs, therefore the acquisition of this type of product will be the delivery of goods according to Spanish norms.
The information contained herewith is merely a first approach to the subject and cannot be considered as detailed advice on the matter, therefore it is recommendable that should one require, to seek legal advice on their particular case, prior to taking action or undertaking measures.