We inform you that in the Official State Gazette (BOE) of January 31, 2024, Royal Decree 117/2024, of January 30, , which develops the rules and procedures of due diligence in the field of the mandatory automatic exchange of information communicated by platform operators, with which the regulatory development of the transposition of EU Directive 2021/514, known as DAC 7, is completed, and which came into force on February 11, 2024.
On the other hand, the BOE of February 5th has published model 040 "Census declaration of registration, modification and deregistration in the register of non-qualified foreign platform operators and in the register of other platform operators obliged to communicate information" and model 238 "Informative declaration for the communication of information by platform operators", which establishes the conditions and the procedure for its presentation.
This will affect sellers who, using transactional services on platforms like Wallapop or Vinted, have sold 30 or more items in a year, with sales exceeding €2,000. The regulations also apply not only to short-term rentals but to all forms of leases, including long-term rentals. For example, a long-term booking (28 nights or more) on a platform like Airbnb would also be subject to the reporting requirements. Platforms will be required to report various details regarding the transactions they facilitate, such as the identification of platform operators and sellers; the activities carried out by the sellers; the payment received and the financial accounts used for payment; taxes, commissions, fees, and other amounts withheld or collected by the operator, among other information.
Two types of obligations are established:
- Platform operators required to report information must apply due diligence rules and procedures regarding sellers using digital platforms in order to obtain specific information from these sellers, which will then be reported to the Spanish Tax Authorities. Once the seller information is obtained, the operators will verify it before submitting it to the Tax Authorities.
- Once the information has been obtained and verified by the operator, he has the obligation to declare it to the Spanish tax administration.
Attention. These procedures must be applied by the "platform operators required to report information" of the "sellers" who, in turn, will be subject to the communication of such data to the aforementioned operators under these due diligence rules.
Finally, this obligation will be exchanged by the Spanish tax administration with the Member State of the European Union where the 'seller' resides or, in the case of a lease, with the Member State where the property is located.
The rule provides that the information may also be exchangeable with "partner jurisdictions" outside the EU, within the framework of the Multilateral Agreement signed at the OECD.
Who is obligated?
Platform operators registered in Spain are required to provide certain information to the Spanish tax authorities, specifically information relating to the sellers who use their platforms, insofar as the platform allows sellers to contact other users to carry out a relevant activity.
On the other hand, operators must apply due diligence rules and procedures regarding these sellers for the purpose of obtaining and verifying this information.
For their part, "sellers" will be subject to these due diligence rules and procedures. However, there are a number of excluded sellers.
Excluded sellers: Prior to checking and verifying data, the operator must consider whether the seller has the status of an "excluded seller," a designation given to any seller who is (i) a "state entity"; (ii) a listed "entity"; (iii) an "entity" to which the "platform operator" has facilitated, in the reference period, more than 2,000 "relevant activities" through leases or temporary transfers of use with respect to a "marketed property"; or (iv) an entity to which the "platform operator" has facilitated, through the sale of "goods," fewer than 30 "relevant activities," for which the total amount of "consideration" paid or credited has not exceeded 2,000 euros during the "reference period." For these purposes, verification instruments are established that vary depending on whether the exclusion is based on the configuration of the excluded entity itself -public or listed-, or on the activity carried out by the seller.
What should they report on?
Information must be provided regarding what are called "relevant activities." These include:
- The lease or temporary transfer of use of real estate.
- Personal services.
- The sale of goods.
- The rental of any means of transport.
Specifically, they must communicate various data relating to the operations in which they intermediate, such as the identification of platform operators and sellers; activities carried out by them; consideration and identification of the financial accounts used for its collection; taxes, commissions, fees and other amounts withheld or collected by the operator, among other data.
New models 040 and 238
Form 040 is a mandatory electronic form that must be submitted online using a valid electronic certificate. This form is used by digital platform operators to comply with their registration obligations to the relevant authority. These obligations include initial registration, subsequent modifications, and deregistration in two specific registries:
- Registration of non-qualified foreign platform operators: This registration includes foreign operators that facilitate relevant activities carried out by sellers resident in Spain or another EU Member State, or the leasing of properties located in Spain or another EU Member State, but do not meet the connection criteria in Spain. These operators must choose Spain as their Single Registry Member State.
- Registration of other platform operators required to report information: This register includes platform operators that are tax residents in Spain, have been incorporated under Spanish law, have their registered office in Spain, or have a permanent establishment in Spain. "Qualified platform operators from outside the EU" are excluded.
The census declaration must be submitted to the corresponding registry when starting the activity as a platform operator, in case of modifications or when ceasing to comply with the established conditions.
On the other hand, Form 238 is also submitted electronically through the Electronic Office of the Spanish Tax Agency (AEAT) annually, during the month of January of the year following the year to which the information being reported refers. This form is used for reporting information from the following platform operators:
- Excluded platform operators: Those who have demonstrated that their business model does not include sellers subject to information reporting. They must submit a negative declaration.
- Platform operators required to report information: A declaration of platform data and information on sellers subject to reporting who have carried out relevant activities on the platform is required. The declaration may also include information about the reporting platform and another platform that assumes responsibility for reporting sellers on its behalf.
The first submission of Form 238 for the year 2023 can be made between February 6 and April 6, 2024.
You can contact this professional office for any questions or clarifications you may have.
Warm regards,
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A Àmbit Assessor, SL has 40 years dedicated to the tax, comptable and labor consultancy of the Pime.
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