ERGEBNISSE

If you are a sportsperson or an artist performing abroad, then you may have to pay tax in more than one country for the income obtained. If you are a non-resident sportsman, sportswoman or an artist in Spain with income generated here, you may have to pay tax in Spain. Basically, this taxation simply means that the national payer withholds the correct amount as non-resident income… that's it; Subsequently, those mechanisms fixed to avoid double taxation described in the corresponding double taxation agreement, will offset this withholding against the tax in the respective country of residence. Calculating withholding taxes of non-resident artists and athletes However, in too many cases this aspect is not included in the agreements made between artist and promoter; this may have unpleasant consequences in terms of taxation. The relevancy of this issue is hereafter viewed by an example: "Let’s suppose there is an agreement between a singer “X” resident in a foreign country and a Spanish promoter who wants to engage “X” for performance of a concert in Spain. It is mutually agreed that an advance payment of 5.000 euros being the artist's fee, with issuance of the relative invoice, will be executed. According to the double taxation agreement between Spain and that foreign country, a withholding tax of 19% must be levied on income from artists' work performed in Spain by a non-resident". In this case, the correct withholding tax would be 950 euros (5.000 euros gross plus 19%), so the receivable amount by the artist would be 4.050 euros, while 950 euros would be paid to the tax department, as withholding tax. However, in those cases where the terms are not correctly disclosed, and the artist is credited with the full amount of 5.000 euros, then the tax department may assume that these 5.000 euros are the net amount and raise this amount to gross, as taxable income for the withholding tax. In other words: If the aforesaid 5.000 euros are assumed to be net, then the gross amount would be: Under this assumption, the taxpayer (the Spanish promoter is obliged to draw the withholding) is the one to prove that the withholding was actually 950 euros and not 1.172,84 euros, with the subsequent cost that this entails (penalties, surcharges, fees for managing the claim...). As far is this example is concerned, the amounts may be irrelevant, but imagine the scenario by fixing higher values. The damage could be more than significant! Therefore, when contracting with non-resident artists, there are two issues that must be taken into account: Review the withholdings applicable to the engagement, thoroughly. Incorporate these aspects in contracts and invoices.

The global COVID-19 pandemic has dramatically accelerated remote working, particularly for certain branches. It seems clear that it is a trend that will remain, even after pandemic situation. In fact, legislation is already adapting to that method. Working from home has certain advantages (but also disadvantages). Mainly reducing travel time to zero, which can be very attractive in large cities and/or for certain jobs. It may even allow not having to live in the same country as before, but continue performing the same job, same category, for the same company. This already implies an international tax issue. Mainly because the worker's country of residence may not coincide with the country where the job is performed. That's why today, we will talk about international taxation of home workers. How would International taxation of home workers work? The main topic is to determine the tax residence. Also, if applicable, to apply for the corresponding double taxation agreement. This agreement, if available, will give us a clear criteria regarding where the remote worker is considered resident. This aspect can raise disputes. Particularly, in the first year of adopting this method, as it is a period focusing on more than one country of effective residence. Once the country of residence for tax purposes is clear, then it will be necessary to determine whether, depending on the type of income received from work (self-employed, employed, professional work, civil servants, diplomats, etc.), the legislation of the country and the corresponding agreement oblige to pay tax in one territory or another. This may be as a resident or non-resident. Moreover, the methods described in the agreement itself to avoid double taxation must be applied. State of alarm and travel restrictions represent further issues. As the taxpayer may be forced to pay tax as a resident where he or she did not intend to stay. Binding consultation V1983-20 This happened, for example, to the Lebanese couple in the binding consultation V1983-20, in addition to the fact that Lebanon does not currently have a double taxation agreement with Spain). All this may result in prejudice for a double taxation. This may happen in those cases where the taxpayer’s country of origin also considers him or her a resident by virtue of its own laws. Therefore, if as a taxpayer you intend to perform home work from another country, it is recommended to have a clear insight about taxation. Moreover, if, as a company, you are going to have a remote worker performing in another country, you may be required to pay withholding taxes in that country. International taxation spreads different criteria on each particular case. We should analyse carefully the methods applicable. We at Carrillo Asesores International Department will be delighted to clarify the doubts you have with regard to your specific case.

Topics about non-resident income and its obligation to report have already been disclosed with our previous posts. The key issue here is to determine the tax residence, in which territory the taxpayer (individual or company) is considered to be a tax resident. Doubts may arise when economic interests are performed in more than one country and income is obtained or assets are held. Tax residence criteria Although article 9 of Personal Income Tax Law 35/2006 defines the criteria for being considered a tax resident in Spain, it may happen that the other state, where the taxpayer has earned income or has assets, also considers the taxpayer to be a tax resident. In fact, this circumstance quite common. Although it is true that spending more than half of the year in a country is usually a residence criteria, in Spain there is another treatment, which states that the taxpayer for whom the main core or base of his activities or economic interests, either directly or indirectly, is located in Spain, will be a tax resident. Certainly, the domestic legislation of other countries also do apply criteria that may, at some point, mirror to a paradox statement declaring that a taxpayer may be considered tax resident in both territories. Now, if this is the case, how to proceed? Double taxation agreement In this case, it will be necessary to refer to the double taxation agreement between Spain and the corresponding state. Review of the residence criteria is compulsory. Normally the treaty offers different "tie-breaking criteria", in order of preference. At least, it is normally indicated that the authorities of both states will decide by mutual agreement, but fixing an agreement before it comes to this point uses to be the most common method. It is important to remark that being a non-resident, but choosing to be taxed as a resident in one country, if applicable, for some income in another, may imply that the taxpayer will be considered a resident by both countries' tax authorities. Evidencing that he/she is a resident in the other country will be compulsory Each individual case may be completely different from the other: different countries, different income, different personal circumstances... Tax queries due to residency issues need to have a clear, solid and documentary proved method applicable to the country, in which the taxpayer will be tax resident. Reversals of being considered a tax resident in one territory rather than another and the relative withdrawals can have serious consequences in quantitative terms. For example, in Spain the general non-resident rate is currently 19% for taxpayers from other EU countries. If later controls performed by the tax office determine the taxpayer to be a resident, the maximum marginal rate depends on the autonomous regions, but percentage applicable can be around 50% and therefore, parallel liquidations of a significant amount (plus interest and taxes) can be levied.

Internet sales (or sales at distance) are different from the popular e-commerce. This is because you do not sell an online service, but goods, just like traditional methods or offline commerce. Goods sold over the Internet are practically identical to what is sold by telephone or fax. That is, since the Internet is still a catalyst for orders, the trade or sale of goods over the Internet is fiscally similar to "distance sales of goods" . For VAT on internet sales purposes, transaction is regulated by Article 68.3,4 and 5 of the VAT Law. One of the main problems in taxing economic activity over the Internet is determining where the transaction takes place. The general rule is to consider the place where the server is located by reference. This can be different from the country hosting the website or from which the products are sent. Sometimes this situation can generate doubts about the place of taxation and, therefore, about which Administration should levy. In this case we assume that the place of taxation is located in Spain. This is because the company is physically in Spain. In other words, the server is Spanish. How does VAT on Internet sales tax, depending on the end consumer? 1.- When the buyer is another company: When the buyer is a business resident in Spain. In this case the sale is subject to VAT. When the business buyer does not reside in Spain, but does reside within the European Union. In this case the sale is not subject to VAT. The recipient company must account for VAT in its country. When the business purchaser resides in a country outside the European Union. In this case the sale is not subject to VAT. The recipient company must account for VAT in its own country. 2.- When the purchaser is the final consumer: Transportation is not carried out by or on behalf of the purchaser. The receiver is not a VAT payer but a private individual In the event that we are dealing with a distance sale, the operative will be subject to Spanish VAT. For this reason, the corresponding rate must be included in the invoice. Location rules for Internet sales to individuals Internet sales to Spanish customers Effect of 21% VAT charge. In the case of a private customer, it is not necessary to issue an invoice, a ticket is sufficient. "For operatives carried out by those who are not entrepreneurs or professionals acting as such, it will not be obligatory to include the recipient's identification details on the invoice for transactions whose counter-party is less than 100 euros, excluding Value Added Tax" Art. 6 of the Regulation governing invoicing obligations. Internet sales to Community customers The location rules for this type of delivery of goods are set out in Article 68.4 of the VAT Law, and they do have the following requirements: The supply of goods, the dispatch or transportation starting in the territory of application of the tax shall not be classified as being carried out within the territory of application of the tax where the conditions referred to in points 1, 2 and 3 of the preceding paragraph are met and where the total value of the goods, excluding tax, exceeded the limits stipulated for that purpose in the previous calendar year in that State. The provisions of this paragraph shall in any case apply to supplies carried out during the current year as soon as the amount exceeds the quantitative limits established by the respective Member States of destination. Entrepreneurs whose sales to other Member States have not exceeded the above limits may choose to apply the provisions of this paragraph in the form laid down by regulation. The option shall cover at least two calendar years. Nevertheless, the earlier mentioned supplies of goods shall not be classified as being carried out within the territory of application of the tax when the goods are subject to excise duty. Cases when the general rule does not apply Therefore, the general rule is taxation at source, i.e. in Spain with Spanish VAT. But there are still some cases where the general rule does not apply: The general rule does not apply when sales to the same country exceed the limits established by European regulations for each Member State (for example, for Belgium 35,000 euros), in which case it will be taxed at destination. The general rule does not apply when the seller chooses to pay tax at destination. The limits for each member country of the EEC are as follows: Taxation in the other country will be compulsory in those cases, where the above-mentioned sales threshold is exceeded in each country. It will become effective at the moment when the threshold is exceeded. VAT equivalent to a commercial transfer must be recorded when the threshold previously detailed for each country is reached. Once the value exceeds the threshold in the Member State, the supplier is obliged to register in the Member State and settle the VAT, according to Article 68. Three, of the VAT Law will be from the moment that this limit is exceeded. Registry in the consequent EEC country and settle the VAT of the destination country for the sales made, without ending the financial year, might be the case. If the threshold is not exceeded, the supplier can apply VAT according to the Member State, but it is then possible to pay tax in the other Member States of the European Union, even if the aforementioned threshold or limit has not been exceeded. Therefore, until the end of the year, businesses selling products to private individuals in other EU countries can opt for the distance selling scheme for the following two years. The earlier mentioned scheme is therefore compulsory, i.e. when a company established in Spain supplies products to private individuals (final consumers) located in another European Union country, it must charge them Spanish VAT (there is generally no exemption) [LIVA, Art. 25], unless it exceeds the limits per country set out in the figure above. Optional Scheme However, the optional scheme means that, even if your business does not exceed the limit for a given country, you may choose to benefit from this scheme and charge VAT in that territory. To do so, submit a form 036 in December and tick boxes 901 and 902, specifying the country concerned. In this case, you must apply the system for two years (after this period, the option will be understood to have been revoked, unless you apply for it again) [LIVA, Art. 68.4; Order EHA/1274/2007, Art. 11.2.e]. It should be noted that the voluntary option for the distance selling scheme may be interesting. This happens when the VAT rate in the country of destination is lower than the Spanish rate. For example, in the case of Germany, which has a VAT rate of 19%. Also when you plan to exceed the threshold in the near future (in which case the scheme will be compulsory) and you wish to avoid having to give explanations to customers for the change in rates. Internet sales to non-EU customers These will be treated as exports irrespective of where they are made and the amount of sales to each territory. These transactions are exempt from VAT. Sales made by a Spanish company to a foreign individual (non-resident in the EU), whether via the Internet or not, as they are goods, are exempt under Article 21 of VAT Law 37/1992. This article states: The following operations shall be exempt from the tax, under the conditions and with the requirements established by regulation: The supply of goods dispatched or transported outside the Community by the transferor or by a third party acting in the name and on behalf of the transferor. … The above exemption will be subject to compliance with the requirements set out in Article 9 of the Value Added Tax Regulations, approved by Royal Decree 1624/1992, of 29 December, which approves the Value Added Tax Regulations. Exemptions relating to exports or shipments outside the Community shall be subject to compliance with the requirements set out below: Supplies of goods exported or sent by the transferor or by a third party acting in the name and on behalf of the transferor. In these cases the exemption will be conditional on the actual departure of the goods from the territory of the Community, where this is provided for by customs legislation. For the purposes of justifying the application of the exemption, the transferor must keep at the disposal of the authorities, for the period of limitation of the tax, copies of invoices, contracts or order slips, transport documents, documents proving the departure of the goods and other evidence of the transaction. … In this case it would be essential that the Seller keeps a copy of the SAD of each export. The SAD is the Customs Document proving the exit of the goods. Conclusions of VAT on Internet sales In those cases where the buyer is a businessperson, the sale will be taxed in the country of destination. On the other hand, if the buyer is a private individual, the sale will be taxed at origin, except when sales to the same EU country exceed the thresholds established by European regulations, in which case it will be taxed at destination. And remember that you can also voluntarily choose to be taxed at destination on distance sales. If you have any questions or comments to add, please leave them below.

La culpa de ser contribuyente. Comienza una nueva legislatura y con ella deben llegar todas las promesas, guiños, pactos y acuerdos que los partidos políticos han realizado estos últimos meses. En el ámbito tributario no han faltado los mismos y si hacemos caso a todo lo que se ha escrito y se ha dicho, vamos a encontrarnos con un panorama impactante, entre otras cuestiones: Mayor control para las SICAV (Sociedades de Inversión de Capital Variable), cuya primera medida pasará por devolver las competencias a la Agencia Tributaria; actualmente las competencias están en manos de la Comisión Nacional de Valores. Creación de una oficina de control de personas físicas con grandes patrimonios. Inicialmente se focalizará este control en patrimonios de más de 50MM de euros, pero paulatinamente se bajaría hasta los 10MM de euros. Reforzar el servicio de Prevención de Blanqueo de Capitales (SEPBLAC); este servicio está compuesto entre otros por miembros de la Guardia Civil, Policía, Agencia Tributaria, Inteligencia y Banco de España, y su finalidad es el control de operaciones financieras sospechosas de blanqueo de capitales. Y por último, un endurecimiento en la lucha contra el fraude fiscal. Dicho así, tengo que reconocer que suena bien, pero cuando las actuaciones o las órdenes se radicalizan, cuando levantamos una bandera para defender actuaciones en detrimento de la libertad y defensa de los contribuyentes, cuando el fin legitima cualquier medio; la verdad es que me preocupa y asusta. Hemos leído como todos los partidos políticos han cuadrado el déficit de sus cuentas de miles de millones de euros con una simple anotación, que se llama lucha contra el fraude fiscal, lo que puede convertir a una labor meritoria y reconocida, en una necesidad en la que el único que sufra sus consecuencias sea el contribuyente pequeño y mediano, en definitiva, más presión para los mismos. Si a los órganos de control se les fija como único objetivo la recaudación, iremos al absurdo de considerar que todos los contribuyentes son culpables tributarios, cuando, quizás, su única culpa sea ser contribuyente. Emiliano Carrillo Fernández Socio-Director en Carrillo Asesores 968 24 22 58 info@carrilloasesores.com Murcia – Madrid – Valencia – Yecla – Fuente Álamo- Lorca – Molina de Segura – Las Torres de Cotillas – Argelia Consulte con nosotros, podemos solucionar sus problemas. Con este blog queremos ayudar al empresario y administrador a conocer mejor el marco legal y fiscal donde hace negocios. Las publicaciones y comentarios que aquí se reflejan son de carácter general por lo que no constituyen asesoramiento jurídico. #agenciatributaria