On 1-1-2023 a new indirect tax will come into force with the aim of taxing the use in Spanish territory of packaging containing plastic that is not reusable.
With effect from 1-1-2023, and with the aim of preventing the generation of non-reusable plastic packaging waste and promoting the recycling of plastic waste, the Special Tax on non-reusable plastic packaging is created, the main characteristics of which are as follows:
a) Nature and purpose (L 7/2022 art.67 and 68). The tax is an indirect tax levied on the use, in Spanish territory, of non-reusable packaging containing plastic, whether it is empty or whether it is used to contain, protect, handle, distribute and present goods.
– non-reusable packaging containing plastics;
– semi-finished plastic products intended for the production of packaging, such as preforms or thermoplastic sheeting; and
– products containing plastics intended to enable the closure, marketing or presentation of non-reusable packaging.
For these purposes, packaging is considered to be any product intended to provide the function of containing, protecting, handling, distributing and presenting goods, such as plastic cups or plastic rolls for packaging and to prevent breakage in the transport of products, in addition to all products included in the definition of L 7/2022 art.2.
b) Scope and taxable event (L 7/2022 art.69, 72 and 73). The tax applies throughout Spanish territory, without prejudice to the special provisions foreseen for the foral regimes.
The following are subject to the tax
– the manufacture, importation or intra-Community acquisition of packaging containing plastic which is not reusable; and
– the irregular introduction of the same into Spanish territory.
In no case are the following operations included within the taxable event of the tax – cases of non-taxation – or exempt:
- The manufacture of these products when:
– prior to the accrual of the tax, they have ceased to be suitable for use or have been destroyed.
– they are intended to be sent directly by the manufacturer, or by a third party in his name or on his behalf, to a territory other than that in which the tax applies.
2. The manufacture, importation or intra-Community acquisition:
– of paints, inks, lacquers and adhesives designed to be incorporated into products intended to have the function of containing, protecting, handling or delivering goods or products;
– non-reusable packaging containing plastics which may perform the functions of containing, protecting and handling goods but which is not designed to be delivered together with those goods.
Depending on the use to which the packaging is to be put, certain operations are declared exempt, including (L 7/2022 art.75):
– small imports or intra-Community acquisitions of packaging, i.e. those where the total quantity of non-recycled plastic contained in the packaging which is the subject of the import or intra-Community acquisition does not exceed 5 kilograms; or
– those products intended for the containment, protection, handling, distribution and presentation of medicines, medical devices, foodstuffs for special medical purposes, infant formulae for hospital use or hazardous waste of medical origin, as well as rolls of plastic silage for agricultural and livestock use.
In addition, for a better identification of the taxable event, the regulation includes a series of concepts and definitions; it establishes what is understood for the purposes of this Law by intra-Community acquisition, manufacture, import, management office, semi-finished products and hazardous waste of sanitary origin (L 7/2022 art.71).
c) Taxable person (L 7/2022 art.76). Taxpayers are taxpayers:
- In cases of manufacture, importation or intra-Community acquisition: natural or legal persons and entities which, lacking legal personality, constitute an economic unit or a separate estate liable to taxation (LGT art.35.4), which carry out the manufacture, importation or intra-Community acquisition of these products.
- In cases of irregular introduction of these products into Spanish territory: whoever possesses, markets, transports or uses them.
d) Accrual (L 7/2022 art.74). The tax becomes chargeable in the following cases:
– Manufacture: when the first supply or making available of these products to the purchaser in Spanish territory takes place.
However, if payments are made in advance of the taxable event, the tax becomes chargeable at the time of total or partial collection of the price, for the amounts actually received.
– Imports: when the accrual of import duties has taken place, in accordance with customs legislation.
– Intra-Community acquisitions: on the 15th day of the month following that in which dispatch or transport of these products to the purchaser begins, unless the invoice for these operations is issued prior to that date, in which case the chargeable event shall occur on the date of issue.
– Irregular introduction: at the time of the irregular introduction of the products into the territory of application of the tax. If this time is not known, at the earliest of the non-prescribed tax periods, unless the taxpayer proves that it corresponds to another period.
e) Taxable base, tax rate and tax liability (L 7/2022 art.77 to 79):
The taxable base of the tax is constituted by the quantity of non-recycled plastic, expressed in kilograms, contained in the products subject to the tax.
The amount of recycled plastic contained in these products must be certified by an entity accredited to issue certification under the UNE-EN 15343:2008 standard.
However, until 10-4-2023, i.e. during the 12 months following the application of the tax, alternatively, the amount of non-recycled plastic contained in these products can be accredited by means of a responsible declaration signed by the manufacturer (L 7/2022 trans.disp.10ª).
The tax rate is 0.45 euros per kilogram, with the total tax liability being the amount resulting from applying this tax rate to the tax base.
f) The tax incorporates:
A. A system of deductions for the following operations (L 7/2022 art.80):
- Those taxpayers who make intra-Community acquisitions of goods subject to this tax may deduct the tax due:
– products sent outside the territory where this tax applies;
– products which, prior to their first supply or making available, have ceased to be fit for use or have been destroyed; or
– of products which, after being made available or delivered, are returned for destruction or reincorporation into the production process, after reimbursement to the purchaser.
2. Those taxpayers who manufacture the products subject to this tax may deduct from their tax liability those products that have been returned for destruction or reincorporation into the production process, after reimbursement of the amount to the purchaser.
B. A refund system that affects (L 7/2022 art.81):
– The importers of the products in the event that the products: are sent outside the territory where the tax applies; have been destroyed or are not suitable for use; or have been returned to the purchaser by reimbursing him for the amount paid.
– The purchasers of the products, who are not taxpayers of the tax: justify their dispatch outside the territory of application of the tax; their use in the packaging of medicines, medical devices, foodstuffs for special medical purposes, infant formulae for hospital use or hazardous waste of medical origin, or that of obtaining packaging for such uses or that of allowing the closure, marketing or presentation of packaging for medicines, medical devices, foodstuffs for special medical purposes, infant formulae for hospital use or hazardous waste of medical origin.
– The purchasers of the products when: they justify that the product, after modification, has become reusable; or the plastic product will not be used to obtain packaging or to enable the closure, marketing or presentation of non-reusable packaging.
g) Management of the tax (L 7/2022 art. 82).
In cases of intra-Community manufacture or acquisition, taxpayers are obliged to self-assess and pay the amount of the tax debt.
The tax settlement period coincides with the calendar quarter, except in the case of taxpayers whose VAT settlement period is monthly, in which case the VAT settlement period is also monthly.
In the case of imports, the tax is settled in the manner established for customs debt in accordance with customs regulations.
The taxpayer must present the corresponding self-assessment and pay the tax debt in the place, form and by the deadlines established by order of the Ministry of Finance.
Taxpayers who carry out the manufacture, import or intra-Community acquisition of these products are obliged to register, prior to the start of their activity, in the Territorial Register of the Special Tax on non-reusable plastic packaging.
Regarding their accounting obligations:
The manufacturers of these products must keep accounts of these products and, where appropriate, of the raw materials necessary to obtain them. Likewise, those who make intra-Community acquisitions must keep a stock record book, and in the case of imports, the quantity of non-recycled plastic imported, expressed in kilograms, must be recorded.
h) Infringements and penalties (L 7/2022 art.83) Tax infringements shall be classified and penalised in accordance with the provisions of the LGT. The regulation establishes the following tax offences:
– failure to register in the Territorial Register of the special tax on non-reusable plastic packaging;
– failure to appoint a representative for taxpayers not established in that territory;
– false or incorrect certification by the duly accredited entity of the quantity of recycled plastic, expressed in kilograms, contained in the products;
– improper use by purchasers of these products of the exemptions provided for in the tax legislation (L 7/2022 art.75.a) and g); and
– incorrect inclusion in the invoice or certificate of the information provided for in the tax regulations (L 7/2022 art.82.9).
Finally, until such time as the envisaged regulatory development is approved (L 7/2022 final dispos. 4ª), L 11/1997 on Packaging and Packaging Waste remains in force with regulatory rank, insofar as it does not oppose this law, except for its sanctioning regime and the provision relating to the Mixed Commission (L 7/2022 art.19 to 22 and disp.adic.5ª), both repealed by L 22/2011 disp. sole repeal.
The regulation transposes the directives that have been issued in this area (Dir (EU) 2018/851 and Dir (EU) 2019/904), and is in line with other legislation on environmental protection.