Collective Commentary about the New Package Travel Directive

610 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE destinations, while habitual housing is inherent to civilization, with its pros and cons 9 . Going to the current VAT regime, the lease in general is subject to such tax, and thus the lessor, although commercially – or even for the purposes of Income Tax of Individuals or Personal Income Tax – does not have the status of entrepreneur, yes it will have it for VAT purposes, subjecting what is an onerous service provision [art. 5 One c) VATL]. The VAT Law regarding the lease of housing leaves it subject but exempt 10 , which transfers it to the Onerous Property Transfer Tax (OPTT) for the constitution of the lease. For this tax, the taxpayer is the lessee in the VAT, however, the taxpayer is the lessor. We already anticipate that, in order to favour compliance with tax obligations, the authors have proposed that digital contracting or intermediation platforms have the tax status of taxpayer substitutes, freeing tenants from their formal duties, if any, as it happens at OPPTT (it seems that Italy has already embraced this solution) 11 . As we say, in VAT the housing lease is exempt; exemption that does not cover if the lessee is a legal entity, as it would not be destined for housing, nor when the buildings or part of them are used as offices or professional offices. As a limited exemption, it does not allow the lessor to deduct the VAT supported, having to go to the pro-rata rules if they are mixed taxpayers. However, the VAT exemption does not take place if the landlord is obliged to provide complementary services similar to those provided in the catering and lodging activities. The VATL indicates that when the lessor “is obliged to provide some of the complementary services of the hotel industry”, the rental of housing 9 SANZ DÍAZ-PALACIOS, J. A.: Estudios sobre fiscalidad y turismo , Thomson Reuters-Aranzadi, Pamplona, 2017, p. 143-145. 10 According to art. 20 One 23.º VATL, are exempted: “b) Buildings or parts there of intended exclusively for housing or for subsequent leasing by entities managing public housing support programs or by companies under the special regime of Entities dedicated to the lease of housing established in the Corporation Tax. The exemption will be extended to garages and attached attachments to homes and furniture, leased jointly with them. The exemption will not include […] e) Leases of apartments or furnished homes when the lessor is obliged to provide any of the complementary services of the hotel industry, such as restaurant, cleaning, laundry or other similar. f) Leases of buildings or part thereof to be sublet”. 11 Vid. LUCAS DURÁN, M.: “Problemática jurídica de la economía colaborativa: especial referencia a la fiscalidad de las plataformas”, Anuario Facultad de Derecho-Universidad de Alcalá X (2017), p. 157; and ANTÓN ANTÓN, Á.-BILBAO ESTRADA, I.: “El consumo colaborativo en la era digital: un nuevo reto para la fiscalidad”, Documentos Instituto de Estudios Fiscales , n. 26/2016, p. 34. Also the work of ANEIROS PEREIRA J.: “IVA y economía colaborativa: cuestiones fiscales del arrendamiento de inmuebles a través de las plataformas digitales (el caso de Airbnb)”, Revista Quincena Fiscal, n. 5/2018 parte Estudios (BIB2018/6367), p. 12. This author comments on the Italian treatment set forth in Decree-Law of April 24, 2017, n. 50, “Urgent provisions on financial matters, initiatives in favor of local authorities, new actions for areas affected by seismic events and development measures (GU Serie Generale n. 95 del 24-04-2017- Suppl. Ordinario n. 20), converted with amendments to Law June 21, 2017, n. 96 (in SO n. 31, G.U. 23/06/2017 n. 144)”; legislation that the author cites.