The services provided by an “Influencer” consisting of uploading videos or photographs to a platform are qualified as advertising, and as such, are affected by the effective use rule.
Faced with the doubt of how she should pay VAT for the services rendered, she raises a tax query to the tax authorities
In this case, the taxpayer is an “influencer” and publishes photos and videos that she makes herself on a platform. For this activity, she receives payments from a company based in the United Kingdom.
Faced with the doubt of how she should pay VAT for the services rendered, she raises a tax query to the tax authorities, who in their reply reminds her that:
1-Regarding the location:
A). The general rule of localization of the tax establishes that services are understood to be rendered in TIVA when the recipient (LIVA art.69.One):
– is a businessman or professional acting as such and has in that territory the seat of his economic activity, or has in that territory a PE or, failing that, the place of his domicile or habitual residence, provided that the services are for recipients of such seat, PE, domicile or habitual residence, regardless of where the supplier of the services is established and the place from which he provides them.
– is not a businessman or professional acting as such, and the services are rendered by a businessman or professional and the place of business or PE from which he renders them or, failing that, the place of his domicile or habitual residence is in that territory. Therefore, the advertising services provided by the “influencer” to the non-resident entity (UK) in application of the general rule, will not be subject to Spanish VAT.
B). However, we must take into account in these operations the economic taxation criterion based on the effective use or exploitation of certain services, among which are those of advertising (LIVA art.69.Dos.c and 70.Dos). For the invalidation clause of the criterion of legal taxation or based on the contractual route to apply, the transaction must meet the following requirements (CJEU 19-2-09, Athesia Druck case C-1/08):
1º. It must be a service expressly mentioned in LIVA art.70.Dos.
2º. They must be services rendered to businessmen or professionals acting as such, except in the case of services rendered by electronic means, telecommunications, radio or television broadcasting or leasing of means of transport, in which case the recipients may also be private individuals. In any case, the actual recipient of the service must be taken into account.
3º. The application of the general rule of location of the tax (LIVA art.69.Uno.1º), extrapolated to the whole Community, must lead to the location of the same taking place outside the said Community, with the exception of the Canary Islands, Ceuta or Melilla.
4º. The services must be effectively used or exploited from an economic point of view in TIVA. This last requirement must be assessed individually according to the nature of the service in question. Likewise, in the case of transactions between businessmen or professionals, the service in respect of which the applicability of the rule is questioned must be a service that, in some way, directly or indirectly, is related to the transactions carried out in TIVA. The application of the effective use and exploitation clause is independent of the tax regime established in the third country (CJEU 15-4-21, SK Telecom case C-593-19).
C). In these cases, action should be taken in two phases:
1ª. The operations to which it serves or in relation to which the effective use or exploitation of the service in question takes place are located. Only if this localization leads to consider such operations carried out in TIVA shall the effective use clause be applicable.
2ª. The relationship of such operations with the rendering of services to be localized must be determined, for the purpose of assessing whether or not the effective use or exploitation of the same actually takes place in the performance of the operations referred to in the preceding paragraph. This relationship may be direct or indirect.
2-Regarding the invoicing of these servicesThe consultant is obliged to issue an invoice charging VAT when the services are located in TIVA (LIVA art.164.Uno.3º; Rgto Fac art.2.1).
This obligation is also required in cases where the operation can be understood to be carried out outside the Community and not subject to VAT (Rgto Fac art.2.3).
Likewise, the regulations governing invoicing obligations allow the customer or a third party to issue the invoice, provided that (LIVA art.164.Dos; Rgto Fac art.5):
– there is an agreement between the parties;
– the document is accepted by the businessman or professional who carried out the operation;
– a copy is sent to the service provider; and,
– the invoices are issued in the name and on behalf of the businessperson who carried out the transaction.
For further information, please consult with Tax Consulting.