Spain - Clarifications and further guidance provided for plastic packaging tax which came into force on 1 January 2023

Executive summary

The Spanish plastic packaging tax entered into effect as of 1 January 2023 amid postponement rumors. The legislative and interpretative package of texts governing the tax is as follows:

• Law 7/2022, published on 9 April 2022, which contains the main features of the tax (see EY Global Tax Alert, Spain introduces new indirect tax on non-reusable plastic packaging as of 1 January 2023, dated 13 April 2022).
• Interpretative guidelines – in the form of frequently asked questions (FAQs) provided by the Spanish General Directorate of Taxes in coordination with the Excise Department (see EY Global Tax Alert, Spanish Tax Authority issues FAQs regarding new plastic packaging tax, dated 28 September 2022).
• Ministerial Order HFP/1314/2022, published on 30 December 2022, covering a number of formal aspects including tax forms, formats of plastic tax ledgers, registration procedures, etc. Most elements were already available following a number of notices published on the Tax Authorities website (see EY Global Tax Alert, Spanish Tax Authority announces the opening of registration site for new plastic packaging tax as of 1 December 2022, dated 28 November 2022).

On 13 January 2023, the Head Officer of the General Directorate of Excise and Green Taxes provided some guidance and clarifications related to formal obligations during a webinar moderated by EY. This Alert summarizes the clarifications and provides an overview of the relevant obligations and deadlines to be considered.
 

Detailed discussion

The new tax applies to non-reusable plastic packaging and is in force as of 1 January 2023. It applies to every company making intra-European Union (EU) acquisitions or imports in Spain of plastic packaged products (or of the empty plastic packages itself), and not only the manufacturers of the products in Spain.

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.
 

Registration

By 30 January 2023, the following companies must register:

• Manufacturers and intra-EU purchasers of taxable products established in Spain (not taxpayers whose only taxable transactions are imports)
• Representatives of foreign taxpayers
• Companies making exempt transactions exclusively (exception for companies using the low-volume exemption – taxable intra-EU purchases below the threshold of 5 kgs of non-recycled plastic in a month)

The authorities have started to issue plastic tax identification cards, including the plastic identification code (CIP) that identifies each taxpayer or representative. Representatives will be assigned with a plastic identification code (CIP) for each foreign taxpayer represented.

Intra-EU purchasers of goods not established in the Spanish territory are not required to register. Instead, the representative appointed will be provided with a CIP that will be linked to the foreign taxpayer and will be used for tax compliance obligations (e.g., filing of tax returns and plastic tax records).

The registration procedure is detailed in Articles 5 and 6 of the Ministerial Order, including electronic filing of the application, information, or documentation to be provided, particularities for non-established taxpayers acting by means of a representative, etc.

In the case of registration non-compliance, a penalty of €1,000 will be payable. More importantly, the taxpayer will not be able to comply with reporting and payment obligations without a CIP, and additional penalties may accumulate.
 

Imports

The Tax is applicable to imports made in Spanish ports/airports as of 1 January 2023. The Tax Authority has published a notice providing guidance on the formalities to be complied by importers, including codes and boxes of the import declaration (SAD) to be used to declare the weight of the non-recycled/recycled plastic content of the products, the applicable exemptions (if any), etc.
 

Appointment of a representative

Taxpayers not established in Spain will be required to appoint a plastic tax representative to represent them with the Spanish tax authorities. Appointments must be formalized before 30 January 2023, as it is required for registration purposes.
 

Tax returns

The Ministerial Order provides the form to be used to file the plastic tax monthly/quarterly returns (Form 592, Annex I of the Order). The deadline to file Form 592 is the 20th day of the month following the end of the monthly/quarterly filing period. Therefore, for taxpayers with monthly filings, the first deadline to file the return and pay the tax will be 20 February 2023 (or 15 February 2023 in the case of bank domiciliation of the payment).
 

Refund applications

The Ministerial Order provides the form to be used to apply for the PT refunds (Form A22, Annex II of the Order).

The deadline to file Form A22 is the 20th day of the month following the end of the quarter where the circumstances enabling for the refund took place. Therefore, taxpayers looking to apply for refunds corresponding to 1Q2023 must do so before 20 April 2023 (e.g., for taxable products sent outside of Spain during 1Q2023 by its importers or domestic purchasers).
 

Records

Annex V of the Ministerial Order contains the formats of the records which manufacturers and intra-EU purchasers need to prepare and submit on a monthly/quarterly basis. The submission deadline is the final day of the month following the end of each monthly / quarterly filing period. To provide for some flexibility, records corresponding to the first half of the year may be submitted in July 2023.

According to the Ministerial Order, intra-EU purchasers are exempt from the obligation to submit records in those filing periods where no tax is payable. However, it has been announced that the records shall be kept and provided where required by the tax authorities within the framework of a potential audit.

It is possible to make a test submission for the records using sample versions on the official website of the Tax Agency.
 

Binding rulings consultations

Due to the complexity of the new tax, there are a number of outstanding interpretative issues, which are not covered by the general guidelines published by the Authorities. As of 1 January 2023, it is possible to submit binding rulings consultations to the General Directorate of Taxes to address outstanding issues. This option may be particularly advisable for taxpayers to gain legal certainty and reduce potential tax exposures.
 

Next steps

Deadlines for registration (30 January 2023) and filing and payment of the plastic tax returns (20 February 2023 for monthly returns) are fast approaching. By this stage, obligations such as import formalities and invoicing requirements should also be considered or already addressed.

Prompt action is encouraged for those taxpayers who have yet to assess their position for plastic tax purposes, considering products covered and relevant flows (inbound and outbound). Elements to focus on include identifying potential gaps in terms of data availability, internal processes, and resources, with the aim to design and implement the appropriate corrective actions promptly.