November 28, 2022
Spanish Tax Authority announces opening of registration site for new plastic packaging tax as of 1 December 2022
As introduced in April this year, Spain is implementing a new tax on non-reusable plastic packaging as of 1 January 2023 (see EY Global Tax Alert, Spain introduces new indirect tax on non-reusable plastic packaging as of 1 January 2023, dated 13 April 2022). There have been some further developments during the second half of the year. In July 2022, the Spanish General Directorate of Taxes Law in coordination with the Excise Department issued a set of interpretative guidelines in the form of a frequently asked questions (see EY Global Tax Alert, Spanish Tax Authority issues FAQs regarding new plastic packaging tax, dated 28 September 2022). Now, just one month ahead of the entry into force of the new tax, the Tax Authority has announced the immediate opening of the registration site and has provided some clarifications on the formal and compliance obligations associated with the tax. The secondary legislation (Ministerial Order) is still in draft, but immediate approval and publication is expected.
The new tax applies to non-reusable plastic packaging and will take effect as of 1 January 2023. Not only the manufacturers of the products in Spain, but every company making intra-European Union (EU) acquisitions or imports in Spain of plastic packaged products (or of the empty plastic packages itself) will be deemed to be taxpayers. Domestic purchasers will assumedly bear the cost as a higher price of the products. Credits (exemptions, refunds, deductions) may be obtained for taxable products shipped outside of Spain. A wide set of formal and compliance obligations will be applicable to taxpayers, especially for the manufacturers of the taxable products and for the intra-EU purchasers of the same into Spain.
This Alert provides an overview of the latest developments published by the Tax Authority. The comments below are based mostly on the notices published by the Tax Authority on its official website, assuming that the content will be confirmed by the Ministerial Order. It is important to note that it the following elements may be modified in the final wording of the Ministerial Order, not approved yet.
Manufacturers and intra-EU purchasers of the taxable products will be obliged to register prior to the entry into force of the tax (not the companies who qualify as taxpayers exclusively as importers). The representatives of foreign taxpayers will be required to register too. In this regard, the Tax Authority has published a notice confirming that the registration site will be opened from 1 December.
Companies making exempt transactions also will be required to register. The only exception refers to those companies taking benefit of the low-volume exemption (taxable intra-EU purchases below the threshold of 5 kgs of non-recycled plastic in a month).
The registration application is to be filed electronically and requires a description of the activity (manufacturers will need to describe the installations too). As a result, the authorities will assign a Plastic Identification Code (CIP).
As the CIP number identifies an activity, manufacturers of products in Spain making intra-EU acquisitions also will be required to obtain separate CIP numbers for both activities. In addition, separate numbers may be required for different relevant installations of a same manufacturer of taxable products.
Foreign taxpayers will be required to appoint a representative in Spain. The representative will need to register and be granted with its own CIP number. Companies acting as representatives of several taxpayers will be required to obtain different CIP numbers for each of the foreign taxpayers represented.
Lack of compliance with the registration (where mandatory) will lead to a penalty of €1,000. More importantly, in the absence of a CIP number the taxpayer will not be able to comply with the regular reporting and payment obligations, so additional penalties may accumulate.
The Tax Authority has also published a notice including some guidelines regarding the requirements applicable to imports made as from 1 January 2023. The information refers to codes and boxes to be used to declare the taxable weight of the non-recycled plastic content of the products (box 47 of the customs declaration) and the non-taxable weight of the recycled content (box 44). In this latter case, it will be mandatory to provide the evidence used to prove the recycled nature (total / partial) of the plastic content.
It also will be mandatory to declare the non-recycled content of the products benefitting from exemptions (article 75 of the Law, e.g., those applicable to the pharma industry), but not for the products eligible for non-taxability according to article 73 of the same Law. Special rules apply for the low-volume exemption.
It is important to be aware that for imports, contrary to what happens with intra-EU acquisitions, the information of the plastic content of the products needs to be available upfront, as it needs to be included in the Customs import declaration. In the case of using the services of a Customs representative in Spain, a procedure to make the information available to that representative should be in place prior to the first imports to be made in January 2023.
Plastic Tax (PT) records
The Tax Authority has also published a notice with some technical details which are relevant for the preparation and submission of the PT records every manufacturer/intra-EU purchaser must submit electronically to the Tax Office on a monthly/quarterly basis. As a matter of flexibility, records corresponding to the first half of the year may be submitted in July 2023. However, the deferment of the obligation to submit the records does not extend to the obligation to file (and pay) the periodical PT returns.
Contrary to what happens with the accounting reporting for Value Added Tax (Immediate Supply of Information) or for other excise taxes, the PT taxpayers will not be required to comply with real-time reporting obligations. Manufacturers and intra-EU purchasers will be allowed to submit a consolidated record with the monthly/quarterly reportable movements, during the month following the end of the monthly/quarterly filing period.
The Tax Authority has also enabled a test environment, accessible on the Tax Agency official website, where the taxpayers or its PT representatives may access and make test submissions of sample versions of the PT records required for manufacturers and intra-EU purchasers.
The Tax Agency website also provides the draft forms of the PT periodical returns (form 592), the refund applications (form A22) and the draft formats of the plastic records required for manufacturers and intra-EU purchasers. These forms and formats are substantially the same as the ones included in the Proposal of Ministerial Order published in April 2022.
While some interpretative issues were clarified by means of the FAQs document published in July 2022, others persist. Some of them are very relevant as they refer to critical aspects such as the identification of the company obliged to act as the taxpayer in manufacturing processes with several parties involved, or the rules for taxability of the labels (adhesive or not). Unfortunately, the authorities are not expected to update the FAQs document prior to the entry into force of the Law, but to start responding to binding rulings consultations as from January 2023.
The tax will be effective as from 1 January 2023 and despite of the complaints made by different business associations and other stakeholders, no delay is expected.
The window to assess the potential impact of this new tax is narrowing for companies. Prompt action is required in this regard, as the analysis of the products covered, the relevant flows (inbound and outbound) and the associated obligations is necessary to understand whether registration (and the type) is necessary. Ideally the assessment should also focus on identifying potential gaps in terms of data availability, internal processes, and resources, with the aim to design and implement the appropriate corrective actions urgently.
For additional information with respect to this Alert, please contact the following:
Ernst & Young Abogados (Madrid, Barcelona, Sevilla)