Limitaciones del derecho a la deducciónrecuperación del IVA soportado en la adquisición y utilización de los vehículos de turismo

Zusammenfassung

OBJECTIVES The aim of this thesis is the in-depth study of the Spanish rules on Value Added Tax in one of the few aspects where Union legislation has not yet been harmonised. These are the restrictions of the right to deduction, but focused on the scope of application in which most of the controversies have arisen between the Administration and taxpayers. Specifically in restrictions related to the acquisition or use of private vehicles. With this, the objective is to find the key elements allowing for the establishment of minimum homogeneous criteria when interpreting the rules contained, specifically, in section Three, 2 of article 95 of Ordinary Law 37/1992. But, above all, to establish which should be the regulatory changes needed to overcome the conflicts that have been arising in this matter with the different wordings that Spanish internal rules have had. Regulatory changes that could also be the model on which to harmonise the laws of the Member States of the European Union. METHODOLOGY The methodology used is based, first, on the analysis of the few rules contained in this regard in the Union Directives regulating the Value Added Tax, as well as on the different failed harmonising attempts raised by the Commission. Taking into account this lack of harmonisation and the minimum Union rules on this issue, leaving Member States free to maintain their own rules until no common standards are created, the solutions given by every Member State have also been studied, including that of the United Kingdom, as it was issued when it was still a member of the European Union. Secondly, all the interpretative criteria on the analyzed rules contained in the case law of the Court of Justice of the European Union and the Administrative Litigation Chamber of the Spanish Supreme Court have been taken into consideration. The criteria set by the Contentious Administrative Chambers of the National Court and the Superior Courts of Justice of the Autonomous Communities have been taken into account as well. Additionally, this thesis analyses the interpretation given by the Administration itself and that is contained in the Resolutions of the Central Economic Administrative Court and the General Directorate of Taxes. Thirdly, the opinions given by the doctrine have been assessed and incorporated, where appropriate, on many of the most contentious and controversial aspects in relation to the rules analysed and the practical effects of their application. CONCLUSIONS In view of the Union rules and their different harmonising attempts, of the different solutions provided for in the laws of the Member States of the European Union and of the permanent conflict that arises from the Spanish rules on the limitations of the right to deduct in the acquisition and use of tourist vehicles, and which is reflected in the large number of court rulings and administrative resolutions on the issue, it can be concluded that this issue remains unresolved for all the analysed areas. On the other hand, Spanish rules, based on a peculiar system of iuris tantum presumptions, are not in a position to guarantee the perfect neutrality of the Tax, and allow the taxpayer to obtain an unjustified tax benefit. In order to bring the deduction closer to reality and reduce conflict, the configuration of an evidentiary mechanism that offers the Administration sufficient conditions of veracity seems necessary for it to be virtually constituted as a minimally debatable means of proof that offers the greatest security to the taxable person. A mileage record based on satellite tracking systems, with technical characteristics that allow its approval by the Tax Administration, may be the most appropriate means of knowing the journeys made and the kilometers traveled and, based on this reality, setting the deduction percentage of VAT paid on the acquisition or use of private vehicles. This solution could also be the Union-level response to the striking and unjustified failure to comply with the harmonising provisions on this matter contained in Directive 2206/112/CE.