The new environmental taxation.
The Tax on Fluorinated Greenhouse Gases

The IGFEI is configured as an indirect tax that falls on the use in Spanish territory of fluorinated greenhouse gases that are part of the objective scope of the tax, that is, those listed in Annex I of Regulation (EU) No 517/2014 of the European Parliament and of the Council of 16 April 2014.

The tax is applicable throughout the Spanish territory, without prejudice to the specialties derived from the regional concert and economic concert tax regimes of the Basque Country and Navarre.

For the sake of greater simplification, with the new regulation, the taxable event is no longer configured as the sale or delivery of gases to the final  consumer and is directly taxed in a single phase on manufacturing, importation, intra-community acquisition or irregular possession in Spanish territory of such gases, as well as their mixtures.

The tax is produced both if the gases are contained in containers, or if they are incorporated into products, equipment, and devices.

The definition of these activities constituting the different taxable events is carried out by number five of article 5 of the LFMA, according to which:

• Manufacturing: The obtaining of products subject to the tax, without being considered as such the carrying out of recycling and regeneration operations of fluorinated greenhouse gases, nor the obtaining of mixtures.
• Intra-community acquisition is defined in a similar way to VAT regulations, when it refers to those deliveries in which transport is made from another Member State to Spanish territory, excluding the Canary Islands, Ceuta and Melilla, destined for the purchaser. for your availability.

As in VAT, the concept of assimilated operation is contemplated when a delivery does not take place because the owner of the products carries out their intra-community transport.

For its part, the concept of import includes the following assumptions:

• The entry into Spanish territory, except Ceuta and Melilla , with release for free circulation of the products subject to the tax from territories not included in the customs territory of the Union (that is, from third countries and from territories of Member Countries excluded from the territory customs office of the Union as is the case of Ceuta and Melilla or those others mentioned in number 2 of article 6 of Council Directive 2006/112, of November 28, of the common system of value added tax).
• The entry into the Canary Islands of products subject to the tax from territories included in the customs territory of the Union that are not part of the territory of application of the tax (that is, from other Member Countries, unless it is from one of the territories of the same excluded mentioned in the aforementioned number 2 of article 6 of Directive 2006/112 of the Council, of November 28, of the common system of Value Added Tax), when said entry would have given rise to the release for free circulation if said products came from territories not included in the customs territory of the Union.
• The entry into Ceuta and Melilla of products subject to the tax from territories that are not part of the territory of application of the tax (that is, from outside Spanish territory, either from another Member State or from a third country), when said the entry would have given rise to its release for free circulation if Regulation (EU) 952/2013 was applied in said cities establishing the customs code of the Union.

Without prejudice to having to comply with the formal obligations, in case of exemption, and, in any case, of the obligation to prove compliance with the requirements to benefit from the exclusion, the following will not be eligible to the payment of the tax:

• Transactions that are declared not subject: The manufacture, import or intra-community acquisition of fluorinated gases that are going to be used outside Spanish territory, or in the case of gases with a “Global Warming Potential” or “GWP” of less than 150, will not be taxed*.
• Besides, the following operations are declared exempt:
  • The manufacture, import or intra-community acquisition of fluorinated gases:
    • That they are intended to be used as raw material for their chemical transformation in a process in which these gases are entirely altered in their composition.
    • That they are going to be used in military equipment.
    • That they are intended to be incorporated into ships or aircraft that carry out international maritime or air navigation, excluding private recreational activities.
  •  The import or intra-community acquisition of gases subject to the tax:
    •  Let them be marketed for their destruction.
    • Contained in the products that are part of the personal baggage of travelers coming from a third territory, if they do not constitute a commercial expedition.
  • The intra-community acquisition of gases subject to the tax that are sent outside the territory of application of the tax by the intra-community purchaser or by a third party on their behalf and on their behalf prior to the deadline for submitting the self-assessment corresponding to said impossible event.
    
  • On the other hand, temporarily in order for the sector to adapt to the new requirements regarding fluorinated gases, until December 31, 2023, the manufacture, import or intra-Community acquisition of sulfur hexafluoride for the manufacture of electrical products , and until December 31, 2026 , the manufacture, import or intra-community acquisition of gases subject to the tax that are intended to be used in metered-dose inhalers for the supply of pharmaceutical ingredients.

These exemptions are conditional on the actual destination of the gases being accredited. To this end, the regulation contemplates the need to obtain a “prior declaration” from the purchaser on the first delivery or availability, which must be kept during the tax limitation period.

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* In line with the provisions of Annex I of Regulation (EU) no. hundred years of 1 kilogram of greenhouse gas compared to 1 kilogram of CO2”.

Taxpayers are those who manufacture, carry out imports or intra-community acquisitions, as well as those who stock fluorinated gases for the case that, according to the IGFEI Law, the accrual of the tax is deferred until the products leave the warehouse.

Besides:

• In cases of irregular possession of the gases subject to the tax, the taxpayer will be the person who owns, sales, transports or uses said gases.
• In the event of irregularities in the justification of the use or destination given to the gases subject to the tax, the taxpayers who have benefited from an exemption due to their destination will continue to be responsible for the payment of the tax if they do not justify the receipt of the products by a qualified purchaser by means of the required document (“previous declaration”) to be provided by the latter, from which time said obligation will pass to the purchaser.

• In cases of manufacturing, the accrual of the tax will occur at the time the first delivery is made to the purchaser.
  
• When imports of fluorinated gases are made, the accrual of the tax will occur when the accrual of Custom duties takes place in accordance with customs legislation, regardless of whether said imports are subject thereto.
  
• In the cases of intra-community acquisitions, the accrual of the tax will occur on the 15th day of the month following that in which the dispatch or transport of the gases subject to the tax to the purchaser begins, unless prior to said date the invoice for said operations is issued, in which case the accrual of the tax will take place on the date of issue thereof.
  
• In cases of irregular possession of fluorinated gases, the accrual of the tax will occur when said irregular possession is verified, unless proven otherwise.
  
• However, to avoid the possible financial cost resulting from the storage of products subject to the tax, the figure of the “fluorinated gas storekeeper” is created who can benefit from a deferral in the accrual of the tax on the products he stores until the moment in which he carries out the first delivery to anyone who does not have such condition, or when the stored gases are used.

The concept of “fluorinated gas storekeeper” is defined in section 1.b) of number five of article 5 of the LFMA as the natural or legal person or entity, authorized by the managing office, in the terms established by law, to acquire the gases subject to the tax with application of said deferral regime.

The taxable base will be the weight of the gases subject to the tax, expressed in kilograms.

However, in the case of products, equipment or devices that contain gases within the objective scope of the tax, and the required data to determine the taxable base section is not available, the number 2 section eleven of article 5 of the LFMA introduces a list of assumptions about the amount of gas contained in said goods that, unless proven otherwise, will be applicable so to calculate the taxable base.

The tax quota results from applying the tax rate to the taxable base, the former being the result of multiplying the coefficient 0.015 to the PCA (“global warming potential”) that corresponds to each gas subject to the tax in the moment of realization of the taxable event in accordance with the regulations in force at that moment, with the maximum limit of 100 euros per kilogram.

In the case of products, equipment or devices that contain gases subject to tax and their PCA is unknown, it will be presumed, unless proven otherwise, that the tax rate to be applied is 100 euros per kilogram .

However, for the determination of the tax debt of the tax return corresponding to each assessment period the taxpayer may deduct from the tax quotas accrued in said period the amount of the tax paid with respect to the gases that have been sent, by himself or by a third party acting in his name or on his account, outside the territory of application of the tax provided that the conditions established by are met.

The application of this deduction is conditioned to the taxpayer being able to prove before the tax authorities by any of the means of proof admitted by law the shipment of the gases outside the territory of application of the tax and that the tax debt has been paid.

If, in a declaration period, the amounts subject to deduction exceed the tax quotas accrued, giving rise to a balance to be returned:

• The excess may be offset in subsequent tax returns, provided that four years have not elapsed from the end of the period in which said excess occurred.
  
  We understand the four years do not constitute expiration period, so it would extend beyond if any of the cases that according to the General Tax Law, imply the interruption of the prescription occur.

• In any case, the taxpayer may opt for a refund when filing the tax return for the last settlement period of the calendar year, provided that the amounts of the deductions exceed the amount of the tax quotas accrued.

II.8.1 Tax return

In the cases of intra-community acquisition or manufacturing, taxpayers will be obliged to self-assess and pay the resulting tax debt by filing form 587.

Regarding frequency, the settlement period will coincide with the calendar quarter, except in the case of taxpayers whose settlement period for the Value Added Tax is monthly, in which case the settlement period for this tax will also be monthly.

The deadline for submission is from the 1st to the 20th (the 15th in the case that payment has been bank domiciled) of the month following the end of the settlement period.

In imports, the tax will be liquidated as provided for the Customs duties in accordance with the provisions of the Custom regulations.

II.8.2 Special cases of refund

In addition to the refund mechanism resulting from the current tax returns, section fifteen of article 5 of the LFMA recognizes certain refund cases which procedure is subject to the appropriate regulatory development, as follows:

• To the importers of the gases forming part of the objective scope of the tax when they have been sent, by them, or by a third party in their name or on their behalf, outside the territory of application of the tax.
• To the purchasers of the gases subject to the tax that, not having the status of taxpayers, in the following cases:
  • When there is proof of their having been send outside the territory of application of the tax.
  • When there is proof that the destination of said gases is the one that would have given rise to the application of the exemption for the cases of international maritime or air navigation.

The refund is conditioned to the fact that the existence of the mentioned circumstances can be proven before the tax authorities by any of the means of proof admitted by law, as well as the payment of the tax.

For these cases there is a specific A23 form, whose submission period is from the 1st to the 20th of the month following the end of the quarter in which the events giving rise to said refund application occurred, to which they must accompany the corresponding supporting documents.

II.8.3 Registration and formal obligations

• Registration in a territorial census
  
  Prior to the starting of operations, taxpayers and their representatives in the case of non-established entities must register in the Territorial Registry of the Tax on Fluorinated Greenhouse Gases, in order to obtain an identification code (CAF) that designates the type of activity to be carried out which, in the case of manufacturers and fluorinated gas storekeepers, will refer to each of the different types of activity and to each establishment from which they are carried out.
  

• Product accounting obligations
  
  Manufacturers or taxable payers carrying out intra-community acquisitions of fluorinated gases, as well as their storekeepers, are obliged to keep accounting records of the products subject to the tax in accordance with the electronic format that appears in Annex V of Order HFP/826/2022, of August 30.
  
  These accounting records must be electronically filed at the site of the State Tax Administration Agency between the 1st and 20th of the month following the settlement period to which they refer.
  
  Taxable payers carrying out intra-community acquisitions of gases subject to the tax are exempted from this obligation in those settlement periods in which there is not a tax payable for such operations.
  

• Obligation of non-established taxpayers to designate a representative
  
  Prior to the completion of the first operation that constitutes a taxable event for this tax, taxpayers not established in the Spanish territory will be obliged to designate a natural or legal person to represent them before the Spanish Tax Administration in relation to their obligations.

Without prejudice to the provisions of the General Tax Law, section seventeen of article 5 of the LFMA establishes specific rules in relation to the tax offenses resulting from breach of the obligations established therein, also indicating the corresponding sanctions.