Spain. The new VAT e-commerce regulations and the SII obligations for non-resident companies

The so called “Suministro Inmediato de Información” (“Immediate Information Supply”) or SII, consists of the obligation to file electronically through the website of the Spanish Tax Agency (AEAT), in almost a “real time” basis, the data for all the transactions that must be included in the Spanish VAT registers.

This obligation affects those companies operating in Spain which, due to their operative, become taxable subjects for Spanish VAT purposes and must file VAT returns in a monthly basis, as would be the case for companies appertaining to a Spanish VAT Group or, a much usual situation:

• Companies having a turnover for Spanish VAT purposes higher than 6 million Euros during the previous calendar year (“Big companies”).

• Companies having applied to the “Monthly Refund Regime” (the so called “REDEME”).

In any case, it is not a requisite that the company is resident in the Spanish VAT territory nor that it operates through a permanent establishment. So, at present, any non-resident company with a turnover for distance sales to Spanish final consumers exceeding the said figure to be considered a “big company” or having applied for the REDEME comes within the scope of the SII and is obliged to comply with the SII reporting obligations.

The new e-commerce VAT regime applicable since 1^st July 2021 will completely change how the SII affects non-resident companies doing distance sales in Spain.

If assumed that the Spanish SII could only affect those non-resident companies engaged in distance sales when obliged to issue invoices following the Spanish invoicing regulations and having monthly VAT filing obligations in Spain, the following possible scenarios could be envisaged under the new e-commerce VAT regulations:

1. Non-resident companies doing distance sales in Spain which have not applied for any of the e-commerce special VAT schemes. The situation remains as before July 2021. So, for the case that they meet any of the conditions to be included within the scope of the SII, they will have to comply with its reporting obligations.

2. Non-resident companies doing distance sales in Spain having opted for any of the e-commerce special VAT schemes, the member state of identification being Spain. In principle, they would be out of the scope of the Spanish SII, regardless of their obligation to keep the corresponding register regulated in article 63c of Council Implementing Regulation 2019/2026 as implemented by the Spanish VAT ordinance.

As an exception, when not a platform, companies identified for the import special scheme, would have to keep the Spanish VAT register of issued invoices  and, since having the obligation to file monthly VAT returns, will come within the scope of the SII and obliged to comply with its reporting obligations.

Furthermore, it must be remembered that with the exception of platforms, which local supplies are included in the special scheme, for the case that any of these companies were to incur in local sales (those where there is not an intracommunity or international transport involved) to Spanish final consumers, there would be the obligation to register and comply with the formal obligations of the general Spanish VAT regime, including the SII if applicable.

3. Non-resident companies doing distance sales in Spain having opted for any of the e-commerce special VAT schemes, the member state of identification being not Spain. Since not obliged to file Spanish VAT returns, it may be concluded that they would be out of the scope of the Spanish SII, regardless of their obligation to keep any of the registers for the different e-commerce special regimes regulated in article 63c of Council Implementing Regulation 2019/2026, as transposed by the member state of identification.

In any case, given the recent of the transposition of the e-commerce Directive to the Spanish VAT Law and the lack of a development ordinance and implementing regulations, the above comments cannot be other than of a provisional nature, aiming to shed some light and open the discussion about an issue of such important practical implications. Accordingly, any company affected must seek specific professional advice before adopting any decision about its present or future SII status in Spain.