Award of Costs and VAT

<<1.- Article 4, section one, of Law 37/1992, of December 28, on Value Added Tax (Official State Gazette of December 29), provides that “deliveries of goods and provision of services carried out within the territorial scope of the Tax by entrepreneurs or professionals for consideration, on a regular or occasional basis, in the course of their business or professional activity, shall be subject to the tax, even if they are carried out for the benefit of the partners, associates, members or participants of the entities that carry them out.”

Additionally, Article 78, section three, number 1, of the same legal text provides that:

“Three. The taxable base shall not include:

1. Amounts received by way of compensation, other than those referred to in the preceding section, which, by their nature and function, do not constitute consideration or compensation for deliveries of goods or provision of services subject to the Tax.”

2.- Additionally, according to the doctrine of this Directorate, the recipient of the transactions must be considered to be the person for whom the entrepreneur or professional carries out the delivery of goods or provision of services taxed by the Tax and who occupies the position of creditor in the obligation (legal relationship) in which the aforementioned entrepreneur or professional is the debtor and of which the aforementioned delivery or service constitutes the performance.

In this regard, it should be recalled that, according to the concept generally accepted by doctrine, an obligation should be understood as the legal bond that links two (or more) persons, by virtue of which one of them (debtor) is bound to perform a service (a certain behavior) in favor of the other (creditor), the latter having the power (right of credit) to demand such performance.

The repeated doctrine of the Directorate General of Taxes regarding the taxation of legal costs is summarized, among others, in the response to the consultation of March 31, 2014, number V0888-14, which establishes that:

“The payment of the amount of the award of costs by the losing party in a proceeding implies compensation to the winning party for the expenses incurred, among others, for legal assistance services that are subject to quantification in judicial proceedings. Given this compensatory nature, no transfer of the tax by the winning party to the losing party is appropriate, since there is no transaction subject to it that supports such transfer. Likewise, there being no transaction subject to taxation, the issuance of an invoice for these purposes is not appropriate, without prejudice to the issuance of any other document with which the collection of the corresponding amount is justified.

What has been stated above must be understood, in any case, without prejudice to the subjection to Value Added Tax of the services that may have been provided to the winning party, which is to receive the amounts as legal costs, by entrepreneurs or professionals acting in the independent exercise of their business or professional activity (for example, lawyers and solicitors), regardless of the fact that it is precisely the amount of such services, where applicable, including Value Added Tax, that must be taken into account to determine the legal costs to be paid by the other party in the proceeding.

In this regard, the judgment of the Supreme Court of November 30, 2005 (Case No. 3027/1999) must be taken into account, which in its First Legal Ground, third paragraph, states the following:

“Having established the foregoing, with regard to the appellant’s argument, it must be dismissed, since the taxable person for VAT purposes, the Lawyer and Solicitor in this case, is obliged to pass on its amount to the person for whom the taxed transaction is carried out, and that person is none other than the respondent who, by virtue of the award of costs, merely obtains reimbursement of what was paid from the party who is defeated in the proceeding. This is not a case of passing on VAT to the State but rather the reimbursement to the litigant who obtains a favorable judgment with an award of costs, by the party who is ordered to pay such costs, of the expenses incurred by the former.”

3.- In accordance with all of the foregoing, in the event that the amount of the assessment of costs is due to a professional legal defense action provided to the person who has won the case, the aforementioned person will be the recipient of such services. It should be noted that the party obliged to pay the costs will not be the recipient of the legal defense service, since such professional services were not provided to them, but to the winning party.

Consequently, the consultant must invoice their services to their client as the recipient of the legal defense services, having to pass on the Value Added Tax at the general rate of 21 percent by invoice, the taxable base being the total amount of the consideration for the transactions subject to it from the recipient or third parties, as established in Article 78 of the Tax Law.

4.- This is communicated to you with binding effect, in accordance with the provisions of section 1 of Article 89 of Law 58/2003, of December 17, General Tax Law.>>