Brussels, 3 April 2008
VAT – Commission takes steps against Spain regarding its rules to determine the taxable amount of VAT in case of barter transactions
The European Commission has formally requested Spain to bring its administrative practice regarding the application of certain VAT rules to for determining the taxable amount in case of barter transactions in line with the provisions of the VAT directive. The request takes the form of a reasoned opinion (second step of the infringement procedure provided for in Article 226 of the EC Treaty). If the relevant administrative practice is not aligned with Community Law within two months, in order to comply with the reasoned opinion, the Commission may decide to refer this matter to the European Court of Justice.
Certain rules applied in Spain to ascertain the taxable amount of VAT for barter transactions (in particular, where the transaction involves the acquisition of a future building) are, in the opinion of the Commission, in breach of Community Law.
In Spain, when a future building or part thereof is sold and paid for prior to its final construction, VAT is charged at the time the payment is made, and the taxable amount is the amount actually paid. No additional VAT is levied at a later stage when, upon final construction, the building is delivered to the purchaser. This is in conformity with the VAT Directive.
However, in the same situation, if the advance payment of the planned building is made in kind (for example, if the purchaser of the planned building pays by supplying a piece of real state) the taxable amount for the purposes of VAT is different. In that case:
The Commission understands that the product supplied is identical in both transactions and that only the means of payment are different. According to the European Court of Justice, using different means of payment for acquiring a product cannot lead to a different VAT liability.
For these reasons, the Commission has formally requested Spain to change its administrative practice by means of a reasoned opinion.
The Commission's reference number is 2006/4730.