June 2016
Decree 35/2016, of June 23, which develops the Law on the tax on tourist stays and measures to promote sustainable tourism.
On June 25, it was published in the Official Gazette of the Balearic Islands (hereinafter, “BOIB“) Decree 35/2016, of June 23, which develops the Law on the tax on tourist stays and measures to promote sustainable tourism (hereinafter, “Decree 35/2016“).
Decree 35/2016 contains the regulatory development of Law 2/2016, of March 30, on the tax on tourist stays in the Balearic Islands and measures to promote sustainable tourism (hereinafter, “Law 2/2016“), which created the tax on tourist stays in the Balearic Islands (commonly known as “Ecotasa”).
Specifically, the approval of Decree 35/2016 enables the definitive application of Law 2/2016 and the full effectiveness of this new tax as of July 1, 2016 by approving the models for the tax returns related to said tax (note that Law 2/2016 conditioned the application of the tax to the approval of said return models). Likewise, from a material point of view, Decree 35/2016 completes the tax regulation contained in Law 2/2016 by making conceptual clarifications and developing some specific points of the tax (for example the tax rate, registration obligations, and the regimes provided for determining the tax base).
For the best presentation of the novelties introduced by Decree 35/2016, and in view of the imminent effectiveness of the tax, we consider it appropriate to proceed to expose the basic elements of this new tax, mentioning the most important novelties and specifications contained in the aforementioned Decree 35/2016.
1.- Nature and affectation.
The tax on tourist stays in the Balearic Islands is a direct, instantaneous tax specific to the autonomous community of the Balearic Islands. This is a tax of a final nature, being entirely allocated to the fund to promote sustainable tourism (article 2 of Law 2/2016).
2.- Taxable event.
In accordance with article 4 of Law 2/2016, the taxable event constitutes the stays, for days or fractions, with or without overnight stays, that taxpayers make in the Balearic Islands in the following tourist establishments:
(i) Hotel accommodation establishments, that is, hotels, city hotels, apartment hotels, and inland tourism accommodation.
(ii) Tourist apartments.
(iii) The various types of rural tourism accommodation, that is, rural hotels and agrotourisms.
(iv) Shelters and refuges.
(v) The inns.
(vi) Establishments operated by tourist-residential companies, except with respect to residential accommodation units.
(vii) Hostels, hostels-residences, pensions, inns, guest houses and tourist camps or campsites.
(viii) Tourist vacation homes, homes subject to marketing of tourist stays and homes subject to tourist marketing susceptible to registration in accordance with the laws that regulate them.
(ix) The rest of the establishments and homes to which regional regulations grant the classification of tourism.
(x) Homes subject to tourism marketing that do not comply with the requirements established for this purpose in regional regulations and that, therefore, are not susceptible to registration in accordance with current tourism legislation.
(xi) Tourist cruise vessels when they stop at a port in the Balearic Islands. The beginnings and arrivals of cruises with departure or final destination in the Balearic Islands are not included.
Article 2 of Decree 35/2016 specifies that tourist establishments are furnished and equipped homes in conditions of immediate use, marketed for tourism, for profit, that do not meet the requirements demanded by tourism regulations for tourist marketing.
3.- Exemptions.
The following stays are exempt from the tax (art. 5 of Law 2/2016):
– Stays for minors under 16 years of age.
– Stays carried out due to force majeure.
– Stays made by any person for health reasons, and also those of the people accompanying them, provided that it can be documented that the stays respond to the need to receive health care benefits that are part of the portfolio of services of the public health system of the Balearic Islands.
– Stays subsidized by social programs of the public administrations of any state of the European Union.
4.-Passive subjects.
All natural persons who carry out a stay in the aforementioned tourist establishments are taxpayers of this tax (article 6 of Law 2/2016).
Note that in the particular case of tourist cruise vessels, taxpayers are understood to be passengers who are in transit at the time the tax accrues.
Natural and legal persons, as well as entities without legal personality referred to in article 35.4 of Law 58/2003, of December 17, General Tax Law (hereinafter, “are considered substitute taxpayers of the taxpayer, and are obliged to comply with the material and formal obligations established in the Law)General Tax Law“), who are owners of the companies that operate the tourist establishments referred to in article 4.1 of Law 2/2016 and to which we have previously referred.
5.- Subsidiary and joint responsible parties.
Subsidiarily responsible for paying the tax are the persons or entities that directly contract, as mediators, the stays with the taxpayers’ substitutes, and who are responsible for paying for said stays on behalf of or in the interest of the taxpayers (article 7 of Law 2/2016).
In the case of tourist cruise vessels, consignees who, in accordance with Law 14/2014, of July 24, on maritime navigation, act on behalf of substitute taxpayers through an agency or commission contract, will be jointly and severally liable for the income of the tax debt.
6.- Accrual.
The tax will be accrued at the beginning of each stay, computed for each day or fraction, in tourist establishments, the beginning of the stay being understood as the moment in which the taxpayer’s substitute makes the stay in the tourist establishment available to the taxpayer (article 9 of Law 2/2016).
In the case of tourist cruise boats, the start of the stay takes place when the boat stops at a port in the Balearic Islands.
7.- Exigibility.
Article 10 of Law 2/2016 provides that the substitute will demand the tax from the taxpayer at any time before the end of the period of stay and that, in any case, the taxpayer will be obliged to pay the corresponding amount to the substitute and may not pass it on to another person or entity.
8.- Formal obligations of the taxpayer substitute.
In accordance with article 11 of Law 2/2016, the taxpayer substitute has the following formal obligations:
(i) Submit the census returns established by regulation relating to the beginning of the exploitation activity of the tourist establishments, the relevant tax elements for the application of the tax and its modifications, and the cessation of the exploitation activity.
(ii) Submit the self-assessments referred to in article 14 of Law 2/2016.
(iii) Issue and deliver supporting documents for the demand and collection of the tax to the taxpayer.
(iv) Keep the books and records necessary to collect all the circumstances with tax relevance inherent to the stays subject to the tax, the supporting documents referred to in the previous letter, the exemptions and, in general, the different tax elements necessary for the application of the tax.
(v) Record the operations and other elements referred to in the previous letter within the period established for the settlement and payment of the tax.
(vi) Appoint a representative domiciled in the Balearic Islands, for the purposes of the relations between the Tax Administration and the substitute inherent to the application of the tax, in the case of substitutes with tax domicile outside the Balearic Islands.
9.- Tax base.
In accordance with the provisions of article 12 of Law 2/2016, the taxable base of the tax is constituted by the number of days of each period of the taxpayer’s stay in tourist establishments, with a day being understood as the time slot that runs from 12:00 noon to 12:00 the next day.
Likewise, said provision establishes three different regimes for determining the tax base:
to. Direct estimate, which will be applied as a general regime.
b. Objective estimate.
c. Indirect estimate, which will be applied on a subsidiary basis in accordance with the provisions of the General Tax Law.
In this regard, articles 10 and 11 of Decree 35/2016 make the following clarifications:
– In the direct estimation regime, the tax base will be constituted by the number of days included in each period of stay.
– The objective estimation regime will apply to taxpayer substitutes who are owners of the companies that operate the tourist establishments included in letters a) to j) of article 4.1 of Law 2/2016, unless they resign or are excluded, provided they meet one of the following requirements:
(a) that the figure of 12,000 capacity places is not exceeded at the end of the previous fiscal year or, in the event of the start of activity, during the opening time authorized by the component tourism Administration;
(b) that more than 15% of the places have been contracted throughout the previous fiscal year through intermediaries, wholesalers or tour operators.
– When the objective estimation regime is applicable, it will apply to all establishments located in the Balearic Islands operated by the taxable person, without, therefore, the same substitute being able to apply different regimes for determining the base.
– For the taxpayer’s substitutes, it will be possible to waive the objective estimation regime, in which case it will mean inclusion in the direct estimation regime for a minimum period of two years for all establishments operated by the substitute, and it will be understood to be tacitly extended for each of the following years in which it may be applicable, unless the waiver is revoked during the month of December of the last year of application.
10.- Tax fee.
The full tax rate of the tax is determined by applying to the tax base the rate contained in the table contained in article 13 of Law 2/2016. In accordance with the provisions of said provision, the tax fee will range from a minimum of 0.5 euros to a maximum of 2 euros per person per day, based on the different types of tourist establishments.
The net tax amount of the tax is obtained by applying the following bonuses:
to. A 50% bonus on the full tax rate for stays made during the low season (months from November to April included).
b. A 50% bonus on the full tax rate – or, where appropriate, reduced by the application of the previous bonus – corresponding to the ninth and following days in all cases of stays in the same tourist establishment of more than eight days.
In relation to the annual fee, article 15 of Decree 35/2016 adds the following details:
– The annual fee will be obtained by applying the daily fee established in article 13.1 of Law 2/2016 for each type of tourist establishment to the total number of days of stay in the fiscal year.
– In the direct estimation regime, the annual fee will be the liquid fee after the application of the corresponding bonuses, in accordance with article 13.2 of Law 2/2016.
– In the objective estimation regime, the annual fee will be determined for each tourist establishment that is operated by the substitute, unless during the fiscal year changes occur in the same establishment that entail its inclusion in different groups.
– In the objective estimation regime, the bonuses of article 13.2 of Law 2/2016 will not be applicable, without prejudice to the fact that the substitute must apply them in the acts of passing on the tax to the taxpayer in the terms established in articles 10 and 13 of Law 2/2016.
11.- Management.
Regarding the management of the tax, article 14 of Law 2/2016 establishes the following:
– The persons or entities responsible for the operation of the tourist establishments, as substitutes for the taxpayer, will present the self-assessment or self-assessments and the payments on account.
– In cases of determination of the tax base under the direct estimation regime, the settlement period will be quarterly, for each of the quarters into which the calendar year is divided, and the taxpayer’s substitute will present the corresponding quarterly self-assessments.
– In cases of determination of the tax base under the objective estimation regime, the settlement period will correspond to the calendar year, and the taxpayer’s substitute will present the corresponding annual self-assessment.
– Likewise, in these cases, and in general, in the month of September of each year the taxpayer’s substitute will present a payment on account, through the corresponding self-assessment, for a maximum amount of 60% of the fee resulting from the application of the corresponding signs, indices or modules.
– The application of the tax will be carried out in accordance with the tax and collection procedures established in the General Tax Law and in the financial legislation of the autonomous community of the Balearic Islands.
– In any case, when the taxpayer’s substitute does not present the self-assessment, the Tax Agency of the Balearic Islands may issue the corresponding ex officio assessment using the signs, indices and modules that are regulated by regulation for the objective estimation regime.
– The payment of self-assessments, including those corresponding to deposits on account, and also that of settlements cannot be deferred or divided into installments.
– According to this, all requests for postponement or fractionation will not be accepted for processing, and the fact of submitting them will not prevent the beginning or continuation of the executive period and the enforceability of the debt liquidated or self-liquidated by the enforcement procedure, with the corresponding surcharges and interests.
Article 14 of Decree 35/2016 adds that the substitutes will determine with respect to each tourist establishment the total number of days of stay in the fiscal year that must be subject to taxation, by applying the signs, indices and modules that appear in Annex 1 of said Decree, and that, for this purpose, the different types of establishments will be classified by homogeneous groups in accordance with the classification and category established by Law 2/2016.
12.- Registration obligations.
Article 18 of Decree 35/2016 establishes that the taxpayer’s substitutes will adequately keep and preserve (i) the declaration record book and (ii) the record book of payment receipts issued.
These books will be kept autonomously for the management of the tax, so that for this purpose other record books that, in compliance with other tax or accounting obligations, are kept by the substitute may not be used.
The substitutes that determine the tax base through the objective estimation regime will only have the obligation to keep the proof of the signs, indices and modules used and to issue the proof of payment when the taxpayer requires it, in which case they will keep a copy of the same.
13.- Census declaration.
Articles 23 et seq. of Decree 35/2016 create the census of substitutes, and establish the following obligations:
(i) The census of substitutes will be made up of people and entities that are owners of companies that operate tourist establishments whose stays are subject to the tax.
(ii) For this purpose, the substitutes will present the declarations of the start of the activity or registration, of modification of data or of cessation or withdrawal in relation to each establishment that is the object of exploitation.
(iii) The declaration of the start of the activity will be presented before starting the activity and will state the content provided for in this article, both with respect to the substitute and with respect to the establishments that are being operated.
(iv) When any of the data collected in the registration declaration, or in another subsequent declaration, changes, the substitute will notify the Tax Administration through the corresponding modification declaration.
(v) The substitutes who cease the activity of operating tourist establishments and who, therefore, stop acting as substitutes, will submit to the Tax Agency of the Balearic Islands the declaration of withdrawal from the census of substitutes.
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The content of this Alert is for informational purposes only. Any decision or action based on its content must be subject to appropriate professional advice.
