Judgment 1106/2020 of 23 July 2020 of the Chamber for Contentious Proceedings of our Supreme Court annuls and declares inapplicable Article 54 ter of the General Regulation on steps and procedures in tax management and inspection, and on developing common rules for tax application procedures (introduced by Article 1(11) of Royal Decree 1070/2017 of 29 December 2017, Official State Gazette No 317 of 30 December 2017 regulating the obligation to provide information on the assignment of use of housing for tourism purposes), after hearing the judgment of the CJEU of 19 December 2019, Case C-390/18, which states: ‘we are dealing with a general provision establishing a series of obligations for collaborative entities providing information services, which, while still being legitimate from the point of view of national law, entail a technical regulation implementing the Law transposing the Information Directive, and consequently the Spanish State should have notified the European Commission [under Directive 2015/1535]’. The transposing Law in question is Law 34/2002 of 11 July 2002 on Information Society services and electronic commerce (Official State Gazette No 166 of 12 July 2002), which transposed Directive 2000/31/CE of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market.
Draft Royal Decree XX/2020 of XX amending the General Regulation on steps and procedures in tax management and inspection, and on developing common rules for tax application procedures, adopted by Royal Decree 1065/2007 of 27 July 2007.
The content of the new Article 54 ter of the General Regulation on steps and procedures in tax management and inspection, and on developing common rules for tax application procedures, adopted by Royal Decree 1065/2007 of 27 July 2007, (Official State Gazette No 213 of 5 September 2017), would be identical to the one annulled by our Supreme Court.
It would impose the obligation to periodically submit a disclosure declaration on the persons and entities intermediating between the assignors and assignees of the use of housing for tourism purposes located on Spanish territory.
To this end, the assignment of use of housing for tourism purposes is understood to be the temporary assignment of use of housing, completely or partially, that is furnished and equipped and ready for immediate use, regardless of the channel through which it is marketed or promoted, and that is assigned free of charge or for pecuniary interest. Contracts subject to Law 29/1994 of 24 November 1994 on urban leases; tourist accommodation governed by its specific regulations and timeshares are exempt. In addition, all persons or entities providing intermediation services between the assignor and the assignee of use will be considered intermediaries, whether for pecuniary interest or free of charge. In particular, such consideration will be given to persons or entities which, established as collaborative platforms, intermediate in the assignment of use and are considered a provider of Information Society services in accordance with the terms set out in Law 34/2002 of 11 July 2002 on Information Society services and electronic commerce.
The disclosure declaration will contain the following information: i) identification of the owner assigning the use of the housing for tourism purposes; ii) identification of the property; iii) identification of the assignee persons or entities as well as the number of days of use of the housing, iv) and amount received by the owner assigning the use of the housing for tourism purposes or, where appropriate, indication that it is free of charge.