Exemption from value added tax (VAT) on those supplies of services directly related to the export of goods of a company, in which these services are performed by one of the participating partners of the company, acting in his name and on his own account.
Those companies that carry out export operations of their goods, if said export operations are carried out by one of the participating partners acting in their name and on their own account, that operation may be exempt from the payment of VAT, as is clear from article 21.6 of the Law on Value Added Tax (LIVA).
Based on this assumption, the first requirement that must be treated to analyze if we are in this case of exoneration, is to verify if the action of the partner participating in the export operations is carried out on his own account as an entrepreneur or professional, as established in articles 4 and 5 of the LIVA, that is, carrying out the activity in such a way that it implies the organization on his own account of material factors of production and / or humans, in order to intervene in the production or distribution of goods or services.
Self-employment as an entrepreneur or professional
In this way, a particular analysis of each case must be carried out to see if the necessary requirements are met to understand that the partner’s action is on his own account acting as an entrepreneur or professional, since otherwise we would be facing a socio-company relationship that could be described as labor.
Organization of material and/or human resources
It is a question of differentiating those cases in which the intermediation of the partner is independent of the company, in such a way that its services are carried out by applying a relevant human factor in the provision of services, services “intuitu personae”, in this way it must be analyzed if the means used for the provision of services reside in the company or in the person of the partner.
Thus, the analysis will be based on finding out if the means, both material, such as computer equipment, databases, such as human training, knowledge, professional prestige, administrative and support personnel, belong to the company or to the partner himself, analyzing each specific case to see if there is the independent exercise of an economic activity.
Independence, autonomy and remuneration for services
In order to understand that this is not a case that could be classified as an employment relationship, the conditions agreed between the partner and the company must be analyzed, in the sense of verifying the subjection of the latter to the organizational criteria or guidelines of the company, as well as the remuneration agreed for the provision of services, and whether this is linked to the results of operations or is a fixed monthly amount.
Assumption of liability to third parties
Finally, we will not be faced with an independent professional activity when it is the company itself that is responsible for the risk and adventure of export operations carried out against third parties.
Transactions exempt from VAT taxation within the scope of the export of goods.
Once the above requirements of action by the partner as an entrepreneur or independent professional have been met, it will be necessary to comply with the provisions of article 21 of the LIVA and article 9 of the Regulation that develops it to know what are the operations of export of goods and the requirements that have to be given for the exemption from VAT taxation.
Requirements for services to be understood directly related to exports
- a) That they are lent to those who carry out the exports or shipments of the goods, to the acquirers of the same, or to the intermediaries or customs representatives who act on behalf of one or the other.
- b) That they are carried out on the occasion of such exports.
- (c) they are made from the moment the goods are dispatched directly to a point outside the Community or to a point in the port, airport or border area where the operations of aggregation or consolidation of the loads are carried out for immediate dispatch outside the Community; even if intermediate stops are made elsewhere.
The condition referred to in this point shall not be required in relation to the services of leasing of means of transport, packing and conditioning of the cargo, recognition of the goods on behalf of the acquirers and other similar services whose prior realization is essential to carry out the shipment.
- (a) The goods must be disposed of from the Community within three months of the date of provision of the service.
- b) The departure of the goods will be justified with any means of proof admitted in Law.
- c) The documents justifying the departure must be sent, where appropriate, to the service provider, within three months of the date of departure of the goods.
- (d) The services covered by this number shall include: transport of goods; loading, unloading and storage; custody, storage and packaging; rental of means of transport, containers and materials for the protection of goods and other similar
Intermediation services with third parties.
In accordance with article 21.6 of the LIVA, exemption from VAT is allowed on“The supply of services by intermediaries acting in the name and on behalf of third parties when they intervene in the exempt transactions described in this article“.
In this way, the exemption provided for in number 6 of Article 21 is applicable to intermediation services in specific operations of export of goods, consisting of putting the Spanish exporter in contact with the foreign acquirer, provided by the consulting company, on the other hand it will not be applicable to services that are different from those of the intermediation itself, such as carrying out management services, specialized consultancy in foreign trade (representation and logistical support, collaboration in the preparation and presentation of the technical, commercial, economic and legal aspects of the offer, commercial monitoring, assistance during the contracting phase, assistance in monitoring the execution of the contract and collaboration in solving the incidents that may arise) and services of a nature financial or financial management, not even where such services are directly related to specific operations of export of goods.