Recovery of Spanish VAT quotas by non-established UK companies after Brexit

As advanced in a former entry, a significant practical implication of the Brexit for UK companies operating in other member states is how to recover the input VAT they may incur since the 1^st January 2020 in these countries when there is no local VAT charged and, as a result, there are no periodical VAT returns where such input VAT can be compensated.

Since the said date and due to the Brexit the special procedure regulated in Directive 2008/9/EC of the Council laying down detailed rules for the refund of value added tax, to taxable persons not established in the Member State of refund but established in another Member State, will no longer apply since the UK will be treated as a third country.

As a result, an UK company that incurs VAT quotas in any EU member state where it is non-established nor is obliged to file periodical VAT returns, would have to apply for their refund following the special procedure of Directive 86/560/EEC of the Council (the so called Thirteen Directive).

When compared with Directive 2008/9/EC, the main differences of the procedure regulated in said Thirteen Directive are that the refund can be conditioned by the member state of refund to:

• The appointment of a local tax representative.
• The reciprocity of treatment given by the UK regulations to the tax residents on this member state, when applying for the VAT refund of the VAT quotas incurred in the UK as non-residents.

Spain has introduced both conditions in article 119bis of the Spanish VAT Law that transposes said Directive, so:

• As third country applicants, UK companies are obliged to appoint a Spanish representative so to apply for the reimbursement of VAT quotas incurred in Spain formerly to their filing of their application through the special procedure of the Thirteen Directive. We understand this obligation to be different from the similar arising from article 164. One. 4º of the Spanish VAT Law, for the case that the third country non-established company must comply with the VAT obligations of the general VAT regime (for this case the obligation to appoint a local tax representative is not necessary when, as contemplated in the Trade and cooperation agreement subscribed between the EU and the UK and North Ireland, there is a mutual assistance procedure in place).

• The requisite of a formal recognition by the Spanish General Tax Directorate of the reciprocity of treatment has been fulfilled by the publication in the Official Gazette of 5 January of Resolution of 4 January 2021, where the terms of such a reciprocal treatment are stated. According to the resolution:
  • Companies established in Northern Ireland: While the protocol agreed for this territory in the Trade agreement remains in force, companies established in Northern Ireland will remain to be treated as EU companies for the purposes of being eligible for the special procedure of Directive 2008/9/EC of the Council but only as regards Spanish VAT quotas related to acquisition of goods and imports (so, the procedure being the one regulated by mentioned article 119 of the Spanish VAT Law transposing the same would apply).
  • Companies established in in the rest of the UK and companies established in Northern Ireland as regards Spanish VAT quotas incurred on services: They would need to follow the special VAT refund procedure of the Thirteen Directive would apply (as transposed by article 119bis of the Spanish VAT Law) and so limitations mentioned in heading I, point 4, 2º of the Resolution declaring reciprocity would be applied, meaning that the following VAT quotas will not be reimbursed:
    • VAT incurred in purchases of goods and services which are not fully? affected to the business activity of the company.
    • VAT incurred in purchases of goods and services to be resold.
    • VAT incurred in purchases of goods and services related to entertainment or services of a recreational nature.
    • Purchase of an automobile vehicle.
    • VAT incurred in the hiring or leasing of an automobile vehicle.

The Spanish Tax Agency (AEAT) has launched a specific heading  at its site about this topic where further information can be found. From the part of the UK tax authorities the following sites can be of help:

• A new N723A to implement the terms of the Withdrawal Agreement: https://www.gov.uk/guidance/refunds-of-uk-vat-for-non-uk-businesses-or-eu-vat-for-uk-businesses
• Guidance on claiming VAT refunds in Northern Ireland or EU (Northern Ireland ‘Protocol’): https://www.gov.uk/guidance/claim-vat-refunds-in-northern-ireland-or-the-eu-if-youre-established-in-northern-ireland-or-in-the-eu
• Northern Ireland Force of law notices containing the NI refunds codes: https://www.gov.uk/government/publications/notice-made-under-the-value-added-tax-regulations-1995-as-amended-by-the-value-added-tax-miscellaneous-amendments-northern-ireland-protocol-and-savi