The Decree amends the regulation implementing certain formal tax obligations, approved by Decree 47/2013 of 17 December, with the aim of re-establishing the reporting obligation for persons and entities that act as intermediaries between persons and entities who are assignors or assignees of accommodation for tourist use, which means the temporary transfer of the use of all or part of a dwelling, furnished and equipped and ready for immediate use, whatever the channel through which it is made available, whether free of charge or for a
This obligation was previously established by Decree [Decreto Foral] 3/2019 of 19 February to amend the Regulation implementing certain formal tax obligations, but the Administrative Chamber of the High Court of Justice of the Basque Country, in Judgment 398/2020 of 11 December (published in the Official Gazette of Gipuzkoa of 29/03/2021), rendered null and void that provision as regards paragraph three of the single article of aforementioned Decree 3/2019; that is, the addition of an Article 72b to the Regulation implementing certain formal tax obligations approved by Decree 47/2013 of 17 December, which established the obligation to report on the transfer of use of dwellings for tourist use.
The fourth legal basis of the above-mentioned Judgment refers to the grounds for rendering null and void set out in Supreme Court Judgment 1106/2020 of 23 July on article 1, paragraph 11, of Royal Decree 1070/2017 of 27 July, which incorporated Article 54b into Royal Decree 1065/2007 of 27 July, approving the General Regulation on Tax Management and Inspection Procedures and the implementation of common rules for the implementation of taxation procedures. That reason is none other than that of the procedural omission, in its approval, of the obligation laid down in Article 5(1) of Directive (EU) 2015/1535 of 9 September, which imposes a reporting obligation to the European Commission in the field of technical regulations and rules relating to information society services.
Given that one of the fundamental reasons for the establishment of that obligation, such as the prevention of tax fraud, persists at the present time, it is necessary to adopt a new provision containing and establishing that obligation, in the same terms as the one previously approved, taking into account the procedure omitted from the previous procedure.
The reporting obligation set out in the new Article 72b of the Regulation implementing certain formal tax obligations, approved by Decree 47/2013 of 17 December, is addressed to persons and entities that act as intermediaries between the assignors and assignees of dwellings for tourist use and, in particular, to the so-called collaborative platforms, which act as intermediaries in the renting or transfer of dwellings for tourist use and are considered as information society service providers in the terms of Law 34/2002 of 11 July on Information Society Services and E-commerce.
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 a financial consideration.
Draft DECREE [DECRETO FORAL] of the Provincial Council of Gipuzkoa amending the Regulation implementing certain formal tax obligations, approved by Decree [Decreto Foral] 47/2013 of 17 December.
The content of the new Article 72b of the Regulation implementing certain formal tax obligations, approved by Decree 47/2013 of 17 December, would be identical to that which was rendered null and void by the High Court of Justice of the Basque Country.
It establishes the obligation to submit periodically an information statement by persons and entities acting as intermediaries between the assignors and assignees of the use of housing for tourist purposes.
For this purpose, tourist accommodation shall mean the dwellings referred to in Article 53(1) of the Law of the Basque Parliament 13/2016 of 28 July on Tourism and accommodation in rooms of private dwellings for tourist use provided for in Article 54(1) of the same Law 13/2016.
This concept excludes the rental of housing and the partial subletting of housing as defined in Law 29/1994 of 24 November on Urban Leases as well as the right to use timeshare accommodation.
The corresponding model declaration, form, time and place of presentation, as well as any other information relevant to the fulfilment of this information obligation, shall be approved by means of an order issued by the provincial minister for Finance and Tax.
In addition, all persons or entities providing the intermediary service between assignor and assignee of the use shall be considered as intermediaries, whether that be for a financial consideration or free of charge. In particular, persons or entities, constituted as collaborative platforms, who intervene in the transfer of use and are regarded as the provider of information society services under the terms referred to in Law 34/2002 of 11 July on information society services and e-commerce shall be considered as such.
The information statement shall contain the following information: i) identification of the assigning holder of the use of the dwelling for tourist purposes; ii) identification of the property; iii) identification of the assigning persons or entities, as well as the number of days of enjoyment of the dwelling, (iv) and the amount received by the assignor of the use of the dwelling for tourist purposes or, where appropriate, indication that it is free of charge.