Approval of the Regulations and the tax return for Spanish Digital Services Tax

On 9 June 2021, Royal Decree 400/2021 was published in the Official State Gazette (the “Royal Decree”), implementing the rules regarding the localisation of users' devices and the formal obligations for the Spanish Digital Services Tax ("DST").

In addition, on 11 June, the Order HAC/590/2021 of June 9 was also published, in relation to the Royal Decree, approving the DST tax return (Form 490) and establishing the form and procedure for the filing of such return (the "Order").

The most significant aspects and fundamental elements of the tax were analysed in the Newsletter dated 5 November 2018 relating to the "Preliminary Draft on the Tax on Certain Digital Services" (https://www.osborneclarke.com/es/insights/spanish-digital-services-tax/ ) and in the Newsletter of 23 October 2018 on "Final Approval by the Spanish Parliament of the Draft on the Tax on Certain Digital Services" (https://www.osborneclarke.com/insights/final-approval-spanish-parliament-draft-law-tax-certain-digital-services/) to which reference is made in order to avoid unnecessary repetition.

However, it is worth recalling, very briefly, that this tax is levied on companies whose net turnover in the previous calendar year exceeded 750 million euros and that obtained income in Spain (also in the previous calendar year) of at least 3 million euros from any of the following sources: (i) online advertising services; (ii) online intermediation services; or (iii) sale of data generated from information provided by the user on digital interfaces. Such income shall be taxed at the rate of 3%.

    a) Royal Decree 400/2021

The Royal Decree mainly defines the mechanisms for tracing users' devices and the formal obligations on DST taxpayers.

The rules on the location of the devices are based on the legal provision that digital services are deemed to be provided on the Spanish territory when the user is present therein. A series of specific rules for each of the digital services are established based on where the devices have been used. A user's device will be deemed to be located  in the place determined by  its IP address, unless proof can be provided, by any other admissible means, that the device was located someplace else (e.g. through the use of other geolocation tools).

Taxpayers' formal obligations include:

(i) The keeping of separate records for each type of service. Such record should contain the parameters necessary to determine the taxable amount and to assess the tax, in particular:

• For online advertising services: (i) the total revenue derived from online advertisements; (ii) the number of times the advertisement is displayed on devices located on Spanish territory; and (iii) the total number of times such advertisement is displayed on any device, regardless of where the device is located.
• For online intermediation services where there is facilitation of supplies of underlying goods or services directly between users: (i) the total revenue earned; (ii) the number of users located in Spain; and (iii) the total number of users involved in that service, wherever located.
• For other online intermediation services: (i) revenues derived directly from users where the accounts allowing access to the digital interface used were opened while using a device that was located at the time of opening in Spain; and (ii) the number of accounts opened during the taxable period.
• For data transmission services: (i) the total revenue obtained; (ii) the number of users who have generated such data that are located in Spain; (iii) the total number of users who have generated such data, wherever located.

These records are not in any particular format and should only be provided to the Tax Authorities upon request to the taxpayer.

(ii) The preparation of a descriptive report containing the processes, methods, algorithms and technologies used to analyse the DST liability, the location of the place where the services are provided, the calculation of the revenue and the identification of the files, programs and applications used in the above processes for each taxable period. This report is also not subject to any specific format and should only be provided to the Tax Authorities upon request to the taxpayer.

(iii) The establishment of systems, mechanisms or arrangements for tracing users in the tax territory requiring taxpayers to use one of these methods to capture the data necessary for tracing.

Finally, the Royal Decree amends the General Regulations on tax management and inspection actions and procedures to cover census actions in relation to the DST.

    b) Order HAC/590/2021

The Order establishes that the corresponding tax return (Form 490) shall be filed on a quarterly basis. Each return must be filed during the month following the end of the corresponding quarter. However, the tax return for the first quarter of 2021 will be filed during the tax return period for the second quarter, i.e. from 1 July to 2 August 2021 (although if the payment is made by direct debit, the payment must be made from 1 to 28 July). In addition, in the event that no amount is payable, a negative tax return must be filed.

With regard to the presentation of Form 490, the Order establishes that electronic filing through Internet is mandatory.

Furthermore, should the taxpayer not be able to ascertain the taxable base in the taxable period and therefore set it provisionally (in order to be able to correct it later when the correct amount is known), the Order establishes that this correction of previously submitted tax returns must be made in the return corresponding to the period in which the definitive amount is known. This adjustment must be made no later than 4 years after the accrual of the tax. If at the time of the adjustment the taxpayer is no longer a taxpayer, the adjustment must be made through supplementary or corrective returns.

Lastly, the Spanish Directorate General for Taxation has issued a Draft Resolution (currently under public consultation), which will have binding effects when approved and is directed at establishing a clear and precise interpretative framework. The Resolution should provide legal certainty in the practical application of the rules relating to the DST, which is much needed in light of the novelty of the tax, the fact that it will apply immediately, and its complexity.