The Decree introduces a new article 65e into the Regulation regulating the formal tax obligations of the Historical Territory of Bizkaia, in the same terms as the previous article 65e, approved in its single article by Decree of the Provincial Council of Bizkaia 143/2018 of 13 November, amending the regulation regulating the formal tax obligations of the Historical Territory of Bizkaia, which was approved by Decree of the Provincial Council of Bizkaia 205/2008 of 22 December, with the aim of establishing a new reporting obligation for persons or entities, in particular the so-called collaborative platforms, acting as intermediaries in the renting or leasing of tourist accommodation.

Judgment 381/2020 of the Administrative Chamber of the High Court of Justice of the Basque Country renders null and void Decree 143/2018 of 13 November of the Provincial Council of Bizkaia, which, with effect from 1January 2018, amended the Regulation regulating the formal tax obligations adopted by Decree 205/2008 of 22 December, and published in the Official Gazette of Bizkaia [BOB] No 226 of 23 November 2018, in accordance with the Judgment of the Second Section of the Third Chamber of the Supreme Court of 23 July 2020 (related

to Article 54ter of the General Regulation on Steps and Procedures for Tax Management and Inspection, adopted by Royal Decree 1065/2007) after the rendering of the Judgment of the CJEU of 19 December 2019, case C-390/18, stating: ‘We are faced with a general provision which lays down a series of obligations for collaborative entities providing information services, which, although legitimate from a domestic law standpoint, entail a technical regulation for the implementation of the Act transposing the information directive, and should therefore have been notified to the European Commission’ under Directive 2015/1535. The transposing Law is Law 34/2002 of 11 July on information society services and e-commerce (Official State Gazette No 166 of 12 July 2002) transposing into our domestic law Directive 2000/31/EC of 8 June on certain legal aspects of information society services, in particular e-commerce in the internal market.

The High Court of Justice of the Basque Country recognises that: “[...] This, in short, is the decision in this procedural case at issue which extends to the full content of the new Article 65e of the Regulation of the Decree of the Provincial Council of Bizkaia [DFB] under appeal, whose inessential differences and those in detail with the text of the provision rendered null and void by the Supreme Court have not merited specific treatment by the current litigants”, thus rendering null and void the precept in question.

Bearing in mind 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, taking into account the procedure omitted from the previous procedure.

The reporting obligation regulated in the new article 65e of the Regulation regulating the formal tax obligations of the Historical Territory of Bizkaia is addressed to persons and entities that act as intermediaries between the assignors and assignees of accommodation for tourist use and, in particular, to the so-called collaborative platforms, which are involved in the renting or leasing of tourist accommodation and are regarded as information society service providers, in accordance with Law 34/2002 of 11 July on information society services and e-commerce.

For this purpose, tourist accommodation shall mean the dwellings referred to in Article 53(1) of 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.

Decree [Decreto Foral] of the Provincial Council of Bizkaia / 2021, , , amending the Regulation regulating the formal tax obligations of the Historical Territory of Bizkaia approved by Decree of the Provincial Council of Bizkaia 205/2008 of 22 December.

The content of the new Article 65e of the Regulation regulating the formal tax obligations of the Historical Territory of Bizkaia would be identical to the one rendered null and void by the High Court of Justice of the Basque Country.

It would provide for the regular reporting obligation by persons and entities acting as intermediaries between assignors and assignees of the use of tourist accommodation.
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 reporting 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, either for a financial consideration or free of charge. In particular, persons or entities shall be considered as such when, constituted as collaborative platforms, they 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.
The information statement shall contain the following information: i) Identification of the assigning holder of the use of the tourist accommodation; ii) identification of the property; iii) identification of the assigning persons or entities, as well as the number of days of enjoyment of the accommodation, (iv) and the amount received by the assignor of the use of the tourist accommodation or, where appropriate, indication of it being free of charge.