Los arrendamientos de inmuebles en el IVA: el artículo 13.B.b) de la Sexta Directiva y el Ordenamiento español

Abstract

Article l3.B.b) of the Sixth Directive empowers Member States to except the general rule on tax-exemption of real estáte leasing, set up in the above-said article but only in relation to some marginal and clearly delimitated hypothesis. Consequently, the solution adopted by Spanish law, stating that every real estáte leasing transaction, with the only exception of those concerning land and housing property, is taxed infringes the Sixth Directive. Article 13.B.b) of the Sixth Directive has a direct effect, according to which tax exemption can be claimed by any individual before any national court or judge. National courts are bound to set aside, by their own authority, every national rule inconsistent with the Directive. In the case of taxable leasings, the V.A.T. imposed on account of real estáte purchasing can be immediately deducted, even before the fulfüment of the taxable deed. According to Court decisions, tax deduction is possible even when the real estáte property is bought while being constructed, with the purpose of renting it in future, irrespective of the legal instrument used in that particular purchasing. Spanish law acknowledges this right to deduct V.A.T., but it exeludes from the possibility of deduction the quotas supported prior to the statement of the beginning of the operations, exclusión which lacks of any basis according to the Directive.