The rule is now regulated as an anti-avoidance measure targeting cases which attempt to avoid taxation when transferring immovable properties, by disguising them as a transmission of shares. The rule applies to the acquired entity’s real estate located in Spain and not used for business activities. Depending on the circumstances of the transfer and on the tax deemed to be avoided, the transaction can be either subject to Transfer Tax or VAT.
Extension of the reverse charge mechanism
To prevent fraudulent acts in immovable transactions, three new situations are subject to the reverse charge mechanism:
- cases where the VAT exemption for non-buildable lands or second/ subsequent real estate transfer is waived by the supplier
- deliveries of real estate under warranty execution
- execution of works on real estate assets provided certain requirements are met.
Other changes to the VAT legislation includes the timing of certain tax credits by taxpayers in bankruptcy, when prior invoices are to be corrected, when the rectified invoices are to be reported and tax returns are to be filed or transaction assimilated to an import. A new infringement was added to Spanish VAT law for missing or filing an incorrect tax return when the transaction ought to have been reported. The potential penalty is 10 percent of the VAT accrued, corresponding to those transactions that were not reported or reported incorrectly or incompletely in the relevant tax return, except if the transactions related to a non-customs warehouse regime.
Implementation of the Second Invoicing Directive
Royal Decree 1619/2012 transposed into national legislation Directive 2010/45/UE, which entered into force on 1 January 2013.
The main amendments cover:
Issuance of invoices
- cases in which an invoice has to be issued: the amendments refer to certain cases related to location rules and financial and insurance transactions where the issue of invoices is required
- simplification of the self-billing procedure
- amendment of the deadline for issuing invoices
- rules specifying the legislation applicable to the invoices in cross-border transactions were introduced to clarify this issue.
Content of the invoices
The ways of fulfilling the obligation to issue an invoice have been simplified to allow the issuance of ‘simplified invoices’, which is the main change. The issuance of standard invoices is subject to some minor changes.
The use of electronic invoices has been simplified to bring them in to line with paper invoices, with the aim of increasing the uptake of electronic invoicing.