In a recent Court resolution of 06 November 2018, the Spanish Central Economic-Administrative Court (TEAC) has resolved on who is obliged to prove the exemption of the per diem allowances obtained by employees.
In relation to locomotion expenses, it distinguishes between whether the employee used a public or a private mean of transport. The burden of proof corresponds, in the first case, to the employee while it corresponds to the employer in the second case, if the employee uses a private mean of transportation.
Maintenance expenses must be proven by the employer whilst the proof of accommodation expenses corresponds to the employee. Let’s understand the reasons for this.
The importance of this substantiation relies on the fact that, despite these allowances are qualified as taxable income on the first stage, they can benefit from an exemption in the employee’s Personal income tax, subject to compliance of the following requirements:
With respect to maintenance and accommodation expenses:
- They must be incurred: (i) in a municipality different from the one where the employee’s working place and permanent home are situated, providing the employee’s permanence in the same municipality does not exceed 9 uninterrupted months; (ii) in hotel premises.
- The days, the reasons for travelling and the locations visited must be proven.
- There is a maximum per diem allowances which are considered as tax exempt, providing that the rest of the requirements are met.
With respect to locomotion expenses, these are exempt depending on whether the employee uses:
- Public transportation: the amount paid by the employer must be evidenced with the corresponding invoice or similar documents such as train or plane tickets, for example.
- Private transportation: the amount resulting from computing 0.19 € per kilometer is tax exempt, in so far as the reasons for travelling and the travel itself are proven.
Based on this background, the TEAC concludes that the burden of proof relies on:
- The employer: with respect to locomotion expenses, when a private vehicle is used by the employee, as well as to maintenance expenses, given that it is the payor who must prove the day and place of the travel as well as the labour reasons for such travel so that the amounts can be exempt from Personal income tax. In this case, the TEAC also accepts that the employee voluntarily substantiates these expenses.
- The employee: with respect to locomotion expenses, if a public mean of transportation is used, and to accommodation expenses, given that the Personal income tax rules do not shift the burden of proof to the employer, the expenses have been paid by the employee and the evidencing documentation is issued in the employee’s name.
It is important taking into account that if in the course of a tax audit process, the employee invokes that the evidencing documentation is in the hands of the employer, the Spanish tax authorities shall be obliged to obtain such documentation from the employer prior to regularizing the applied exemption in the employee’s Personal income tax return.