Collective Commentary about the New Package Travel Directive

THE TAX IMPLICATIONS OF COMBINED TRIPS 613 We consider in this respect that the exploitation of tourist homes and apartments constitutes in any case a real economic activity comparable to hotels and restaurants. Our opinion is reinforced by the fact that the tax on tourist stays in the Balearic Islands taxes both hotels and apartments and tourist households, thus considering them homogeneous and demonstrators of the same taxed economic capacity. Starting from the fact that the motivation of those who spend the night in accommodation can be diverse, in both cases (hotels and tourist apartments) concurs that it is occasional, and generally holiday. Perhaps for this reason, so that they are not understood as homogeneous activities, the autonomous legislation has been demanding a minimum number of days of accommodation in the case of apartments and tourist households; but these minimum deadlines in some cases have been declared void by the jurisprudence because it supposes a limitation that violates the competition between accommodation-oriented establishments 15 . The nullity of these provisions, with the arguments used based on community law, leads us to think that tourist apartments and dwellings are quite homogeneous with the rest of hotel accommodations, which moved to the fiscal sphere should mean that the legal regime should not be configured so separately so as not to violate the principle of VAT neutrality, unless there is convincing motivation, which we cannot see 16 . Finally, it is appropriate to address the issue from the aims or postulates of environmental and tourism sustainability and from the beginning of “polluter pays”, which we referred to at the beginning of this work. We believe that, from these purposes, the leasing of apartments and tourist homes and rural houses should not fall within the scope of the VAT exemption for housing rental. Tourist apartments involve the use of tourist resources, contributing in certain overcrowded areas to their deterioration and exhaustion. These problems are not inherent or circumstantial in the usual homes. In addition, coherence requires it: it makes no sense to subject the stay in apartments and tourist dwellings to special taxes, as in the Balearic tourist tax (arguing that they contribute to the generation of negative externalities that must be internalized through this type 15 The art. 17.3 of Decree n. 79/2014, 07/10/2014, of Madrid, stated that tourist dwellings could not be hired for a period of less than five days. This provision has been declared void by STJ of Madrid n. 291/2016, of May 31, which is followed by the Judgment of the same day n. 292/2016 and the Judgment of June 2, 2016, n. 303/2016. 16 And so, the STSJ of Madrid n. 291/2016, 06/31/2016, FJ. 5th, which we mentioned, seems to believe that tourist homes and apartments and the rest of the somewhat homogeneous accommodation establishments are when, in order to declare void the disposition of the Community of Madrid that imposed that for housing and tourist apartments the accommodation does not it could be less than 5 days, he argues.