A recent report by the Tax Agency of 19/11/2015 (Inf. A/4/59/15) explains the correct application of VAT for acquisitions of inter-community goods for those subjects subject to the Special Regime of equivalence surcharge, and mainly defines the treatment to be applied for taxpayers who make acquisitions of inter-community goods (hereinafter, AIB), have not previously complied with the requirement to register in the Registry of Intercommunity Transactions (hereinafter, ROI) to obtain the necessary NIF / Community VAT.
Previously, before delving into the matter, it is convenient to summarize what this type of Special Regime of equivalence surcharge consists of.

What is the Special Equivalence Surcharge Regime?

It is a Special VAT Regime obliged for all those retail merchants who do not carry out any type of transformation of their products and who sell them to the final public, understanding that the sale is to the final public when more than 80% of their sales are made to this group.

This Regime applies both to self-employed and to communities of goods, not being applicable to those who carry out industrial, service, or wholesale trade activities, and in any case would be exempt, those who are dedicated to the trade of jewelry, fur, art objects, car dealers, sale of boats and / or aircraft, gas stations or establishments that market industrial or mineral machinery.

How does it work?

It consists of the payment of a higher VAT by means of the application of a surcharge on the supplier’s invoice, in return, the merchant will not be obliged to present the vat self-assessment, nor pay the tax, except for the deliveries of real estate that will be subject and not exempt, and therefore, it will have to be passed on, settle and pay the fees.

It is the supplier who applies the corresponding equivalence surcharge on his invoices, in addition to VAT, and the acquiring merchant, when making the sale to the final consumer, will apply VAT on his invoices, but not the surcharge.

Procedure in the Acquisitions of Intra-Community Goods (AIB) for those subjects covered by the Special Regime of equivalence surcharge.

Taxpayers covered by the Special Regime of equivalence surcharge who make inter-community acquisitions of goods (AIB), must obligatorily present the special non-periodic self-assessment, Form 309, entering the VAT, and the corresponding equivalence surcharge, but without having the right to deduct the input VAT.

For them, as a prerequisite they must comply with the obligation to apply for the Community NIF/VAT and register in the Registry of Inter-Community Operators (ROI), through the declaration of Form 036.

Likewise, the trader must also comply with the existing obligation for companies and professionals, for the effective exchange of inter-community information, to submit the recapitulative declaration of intra-community operations (form 349), in which the supplies and acquisitions of goods and services are declared, and must be presented by any entrepreneur or professional who makes inter-community supplies or acquisitions of goods, whatever your vat regime for VAT purposes.

Consequences for traders who carry out AIB, but have not requested the COMMUNITY NIF/VAT or the inclusion in the ROI.

The general system of taxation that applies to the AIB, when we are in the effective territory of application of the tax, consists in that the seller of the other Community State, who makes the delivery of goods, will consider the operation exempt from VAT when a series of requirements are met, among which is the obligation of the Spanish entrepreneur acquiring the goods, to previously communicate your NIF/VAT (Art. 15 and 25 LIVA).

It is on this last point, for which there is controversy, considering if possible the exemption from VAT in the inter-community supply of goods, when the Spanish acquirer does not provide the identification number for VAT purposes (NIF / VAT).

On this case, the CJEU (SSTJUE 6-9-2012, As C-273/11, and 27-9-12, As C-587/10) has ruled, and in particular, in the judgment in Vogtländische Straben-, Tief- und Rohrleitungsbau GmbH Rodewisch, C-587/10 of 27 September 2012, which defines that the NIF/IVA is nothing more than a formal requirement, and that it cannot condition the exemption from VAT by the Community seller, provided that the other requirements of the inter-Community supply of goods (EIB) are met, thus not allowing the Member States to refuse exemption from VAT in the EIB merely because the purchaser does not communicate his NIF/VAT, where, in any event, sufficient information has been provided to be able to correctly identify the Community acquirer.

In this way, the possible fraud that would exist in case of conditioning the AIB is avoided, due to the lack of communication of the NIF / VAT, which would have as a consequence the non-exemption of the VAT of the European seller, coming this one obliged to apply his national VAT, and thus preventing the Spanish merchant from being able to declare, and enter the VAT with the corresponding equivalence surcharge. It may be assumed that Spanish entrepreneurs could take advantage of this situation, looking for European companies from member states with lower VAT rates, to sell them these goods applying a VAT lower than the Spanish, to later sell these products in Spain at cheaper prices due to the difference in the VAT applied.

Therefore, the Spanish merchant subject to the Special Regime of equivalence surcharge who makes inter-community acquisitions of goods (AIB), without having registered in the ROI, or obtained the corresponding NIF / VAT, will be obliged to present Form 309, declaring and entering the VAT, together with the equivalence surcharge, and without having the right to deduct the fees incurred.