New Spanish tax on non-reusable plastic packaging

On Jan. 01, 2023, a new tax on non-reusable plastic packaging shall enter into force in Spain and it will levy the use in the Spanish territory of non-reusable packaging containing plastic, whether these are empty or containing goods.

It is a tax measure to foment circular economy whose purpose is to avoid generating waste, within the framework of the Sustainable Development objectives included in the Agenda 2030.

Unfortunately, we are in a situation of great uncertainty and confusion given that the legislation that will regulate the self-assessment and refund application forms, the deadlines for submission, and, if there are any, the exceptions to this obligation, has not yet been approved. Moreover, the supermarket, manufacturing, distribution, hotel and catering, and textile employers’ associations have jointly asked the government to delay the application of the tax for at least one year (as has already happened in Italy), but so far there has been no response to this request.

• For the purposes of this tax, packaging is considered any product intended to provide the function of containing, protecting, handling, distributing and presenting goods, such as plastic cups or plastic rolls for packaging and preventing breakage in the transport of products, in addition to all the products contained in the law itself.
• Packaging shall only be taxed on the amount of plastic when it is composed of additional materials.
• The taxable event will be manufacturing, importing, or carrying out inter-community acquisitions of non-reusable plastic packaging.
• Given that different economic agents may participate in the manufacturing of these containers and in order to reduce the number of taxpayers, the manufacturing, import, and inter-community acquisitions of semi-finished plastic products used to manufacture containers, such as preforms or thermoplastic foils, as well as other plastic products that permit fastening, commercializing or presenting them shall be taxed. Hence, entities providing a final form to the packaging or incorporating to it other components that have already been levied (such as the fasteners) shall not be considered taxpayers.
• The amount of recycled plastic in products falling within the scope of this tax shall not be levied.
• No tax shall apply, either, when the total quantity of non-recycled plastic contained in the packaging that is the object of the importation or intra-Community acquisition does not exceed 5 kilograms.
• The taxable base will be formed by the non-recycled plastic expressed in kilograms. The tax rate will be € 0.45 per kilogram.
• This is an indirect tax by nature and implies additional tax and accounting compliance obligations that companies will need to meet.

Although the Ministerial Order that shall establish the particularities of these obligations is pending approval, we summarise their general guidelines.

• In order to pay the tax quote, a tax return will need to be filed in the event of manufacturing or carrying out an intra-community acquisition, to be approved by the Ministerial order, in a monthly or quarterly liquidation period based on the VAT liquidation period. If products are imported, this tax will be settled at the Customs.
• Manufacturers, as well as intra-community acquirers of products subject to this tax, will need to be registered in a territorial registry, as well as the representative of non-established intra-community acquirers and importers. Once the representative is inscribed, the represented entity will not need to be registered.
• If the activity started before January 1, 2023, the term to register will be 30 calendar days following the entering into force of the Ministerial Order. However, this inscription can be applied since December 1, 2022, with effects from January 1, 2023. In the case of the representative, the inscription must be carried out before the first transaction constituting a taxable event for this tax.
• The manufacturer of products subject to this tax will need to keep the accounts of the manufactured products. In the case of intra-community acquisitions, the taxpayer will need to keep a registry of stocks. The procedure and terms to comply with this obligation will be ruled with the corresponding Ministerial Order.
• When the product’s manufacturer subject to this tax sells them, it will have to charge the tax quote to purchasers. The tax quote will be reflected separately on the invoice.
• The non-established taxpayer will be obliged to appoint a tax representative before the Spanish tax authorities to comply with these obligations, prior to carrying out the first transaction subject to this tax.

We would like to emphasize the importance of complying with these obligations in order to avoid committing any infringement subject to penalties.