Collective Commentary about the New Package Travel Directive

612 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE Having said all this, the rental of tourist homes and apartments (as well as rural houses) is included in the exemption from which the rental of housing benefits, provided that complementary services of the hotel industry are not provided, as the Law on the VAT does not distinguish between habitual housing or other types of housing, such as tourist or rural houses. The question then is whether the exemption of VAT from the rental of apartments and tourist homes where there are no complementary services of the hospitality industry is relevant. The relevance will be made from three premises: from the constitutional right to decent housing, from the European principle of neutrality of VAT and from the postulates of tourism sustainability and principles such as “polluter pays”. The constitutional right to decent housing is a difficult right to perform legally, which makes it not a subjective right as such that can be invoked (for example, it does not allow the filing of the appeal under the protection of the law). However, such a right allows two apparently homogeneous situations to enjoy a different treatment, such as the prosecutor, benefiting the legal regime of habitual housing to the detriment of other situations. In addition, as a social right, we believe with those who believe that regressive measures that fall back in their protection cannot be adopted 14 . The habitual house, in the Income Tax of Natural Persons, does not allocate income, has made possible important deductions such as the deduction of housing (still valid temporarily), and also deductions or other tax benefits to the rent both at the lessor’s headquarters (some current) and at the lessee’s headquarters (repealed at national level, although with temporary validity). In VAT, we consider that if the exemption only covers the lease of habitual housing, the constitutional principle of tax equality would not be violated. The Community principle of VAT neutrality requires, on the one hand, that the tax is not a cost for the employer, but that it ultimately falls on the final consumer, and on the other, that, before homogeneous providers, competition for tax regimes is not altered different that provide advantages of one over the other. It is here to elucidate whether the principle of neutrality of VAT violates the fact that the provision of accommodation and lodging in hotels and related areas is subject and not exempt from VAT (at the rate of 10%), while the rental of apartments and homes tourist and rural houses can get to benefit from the exemption of VAT to the lease of housing. 14 BORGIA SORROSAL, S.: El derecho constitucional a una vivienda digna. Régimen tributario y propuestas de reforma , Colección Fiscalidad de Dykinson, Madrid, 2009, p. 51-104.