The Supreme Court applies the EU Court's ruling on Airbnb for tax advice on tourist housing
The Supreme Court has recently published its order on the transfer of the use of tourist housing. In doing so, it has applied the ruling of the European Court of Justice (ECJ) on the "Airbnb case".
As a result, art. 54 of Royal Decree-Law 1065/2007 has been annulled due to lack of communication to the European Commission. In this case, the European Court analyses whether the failure of a Member State to comply with the obligation of prior notification leads to the impossibility of invoking the regulations in question against individuals.
In view of this, the provisions of art. 54, now annulled, of RDL 1065/2007 must be taken into account. Firstly, the regulations state that: "persons and entities that act as intermediaries between the grantors and assignees of the use of dwellings for tourism purposes, located in Spanish territory, must periodically submit a declaration providing information on the assignments of use in which they act as intermediaries".
On the other hand, those persons who comply with the following profiles will be recognized as intermediaries:
- The persons or entities that provide the service of intermediation between the assignor and assignee of the use referred to in the previous section, whether for payment or free of charge.
- The persons or entities that, constituted as collaborative platforms, intermediate in the cession of use and are considered to be information society service providers.
Finally, it should be noted that this regulation also regulates the following criteria:
- The data that the informative declaration should contain.
- The identification of the owner of the dwelling transferred for tourism purposes, as well as the owner of the right by virtue of which the dwelling is transferred for tourism purposes.
- The identification of the property with specification of the cadastral reference number or in the terms of the Ministerial Order approving the corresponding model of declaration.
- The identification of the persons or entities assigned.
- The number of days of enjoyment of the dwelling for tourist purposes.
- The amount received by the assigning holder of the use of the dwelling for tourist purposes or, if applicable, indicate its free nature.
B Law & Tax
International Tax & Legal Advisors.