PLEASE HELP! Boat Seized in Spain by Pirates (Policemen)

Read the relevant laws whose references I have given above.

Then accept my apologies on the purchase of assets question and see how the remainder is correct as stated.

There is no need to try to cast aspersions on others who are definitely not lawyers, nor have they represented themselves as such. For my part I am just trying to help forumites understand the current Spanish laws as I understand them. For legal advice forumites should contract a lawyer.

As for the pdf file being a legal document, it has the same value in a court of law as a pamphlet issued by some government department. The court will only consider the law as on the statute books. Such a pamphlet, if misleading or incorrect, could be taken into account as having mislead someone, but as you know ignorance of the law does not release one from fulfilling it, in all its terms and details.
 
[ QUOTE ]
As for the pdf file being a legal document, it has the same value in a court of law as a pamphlet issued by some government department. The court will only consider the law as on the statute books.

[/ QUOTE ]You are very correct. What Lemain et al have consistently failed to understand is that some small tidbit of information found on some single personal webpage is not the truth. They have also seriously overestimated the problem here and imho spread unnecessary pain and anxiety, which this troll has used very intelligently. Lemain; you started this s***!

Lemain et al have failed to correctly understand the complexity of the interaction of local and EU laws. There is no simple truth that you can find on one webpage. You can only seek personal advice based on your personal circumstances. Make sure that advice is from a source that is specialised in this very narrow legal area of EU law. Lemain seem to have made the nominal correct move of seeking advice, but he failed to ensure he got it from a good source. Not any lawyer will do. Be careful who you ask advice of. Don't ask your dentist for advice on your car service.

This brings to mind the advice from the RYA on this issue quoted on a posting earlier here: 'you might be required to pay Spanish tax; seek personal legal advice if you find yourself in this situation'. Good advice.
 
We are in complete agreement that for legal advice one should consult a lawyer. I did so, and paid for it, a year ago and he advised that the vessel becomes liable for tax within 30 days regardless of the residency of the owner. I queried this with him several times and he checked, and confirmed.

All of the other 'advice' from non-lawyers to date, published in this forum and elsewhere (other than one report last summer) has been that what matters is the residence status of the owner. That is also the advice from the RYA and the Cruising Association. We have not been advised of the name of the firm of lawyers consulted.

I still have my doubts about the 30 day issue -- it doesn't feel right.
 
JEFATURA DEL ESTADO
19744 LEY 34/2007, de 15 de noviembre, de calidad
del aire y protección de la atmósfera.
JUAN CARLOS I
REY DE ESPAÑA
A todos los que la presente vieren y entendieren.
Sabed: Que las Cortes Generales han aprobado y Yo
vengo en sancionar la siguiente ley.
PREÁMBULO
.
.
.
.
Disposición adicional octava.
Reestructuración del
Impuesto sobre determinados medios de transporte.
Primero.–Modificación de la Ley 38/1992, de 28 de
diciembre, de Impuestos Especiales.
Con efectos a partir del día 1 de enero de 2008 se introducen
las siguientes modificaciones en la Ley 38/1992,
de 28 de diciembre, de Impuestos Especiales:
Uno. Se modifican los apartados 1 y 2 del artículo 65,
que quedarán redactados de la siguiente manera:
«1. Estarán sujetas al impuesto:
.
.
.
b) La primera matriculación de embarcaciones
y buques de recreo o de deportes náuticos, nuevos
o usados, que tengan más de 7,5 metros de eslora
máxima, en el registro de matrícula de buques, ordinario
o especial o, en caso de no ser inscribibles en
dicho registro, la primera matriculación en el registro
de la correspondiente Federación deportiva.
Estará sujeta en todo caso, cualquiera que sea su
eslora, la primera matriculación de las motos náuticas
definidas en el epígrafe 4.º del artículo 70.1.
Tienen la consideración de embarcaciones y
buques de recreo o de deportes náuticos:
1.º Las embarcaciones que se inscriban en las
listas sexta o séptima del registro de matrícula de
buques, ordinario o especial o, en su caso, en el
registro de la correspondiente Federación deportiva.
2.º Las embarcaciones distintas de las citadas
en el párrafo 1.º anterior que se destinen a la navegación
privada de recreo, tal como se define en el apartado
13 del artículo 4 de esta Ley.

c) is about aircraft.

d) Estará sujeta al impuesto la circulación o
utilización en España de los medios de transporte a
que se refieren los apartados anteriores, cuando no
se haya solicitado su matriculación definitiva en
España conforme a lo previsto en la disposición adicional
primera, dentro del plazo de los 30 días
siguientes al inicio de su utilización en España. Este
plazo se extenderá a 60 días cuando se trate de
medios de transporte que se utilicen en España
como consecuencia del traslado de la residencia
habitual de su titular al territorio español siempre
que resulte de aplicación la exención contemplada
en el apartado 1.l) del artículo 66.
A estos efectos, se considerarán como fechas de
inicio de su circulación o utilización en España las
siguientes:
1.º Si se trata de medios de transporte que han
estado acogidos a los regímenes de importación
temporal o de matrícula turística, la fecha de abandono
o extinción de dichos regímenes.
2.º En el resto de los casos, la fecha de la introducción
del medio de transporte en España. Si dicha
fecha no constase fehacientemente, se considerará
como fecha de inicio de su utilización la que resulte
ser posterior de las dos siguientes:
1’. Fecha de adquisición del medio de transporte.
2’. Fecha desde la cual se considera al interesado
residente en España o titular de un establecimiento
situado en España.

Lemain,
Please read all the above, particularly the last few words: "o titular de un establecimiento situado en España."

The full text may be found by google or other means. Any lawyer worth his fees should be able to find it in 10 seconds flat.
 
Interesting that they use the term 'established situation in Spain' rather than the term 'residency' so that could apply to people who have not been in Spain for very long or, as you said in an earlier post, after buying a property, which would imply some kind of 'established situation in Spain'. In any case, one is obliged these days to make a passage plan and I presume one is obliged to keep a ship's log? Marinas keep records and most people put fuel in boats.

I see that the effective date for these 'significant modifications' was 1st January 2008 and most of the cases we know about were back in 2007 and before. My legal advice was given in May 2008, after this came into effect.

My Spanish isn't perfect and I am not a lawyer so I would still want a lawyer to check over it but it certainly does look from that as though the tax is due immediately and payable after 30 days.

I don't really understand the significance of this....

[ QUOTE ]
1.º Si se trata de medios de transporte que han
estado acogidos a los regímenes de importación
temporal o de matrícula turística, la fecha de abandono
o extinción de dichos regímenes.

[/ QUOTE ]

This relates to tourist usage or tourist registration, which is time-limited. I have never heard of that. Could it be that there is a specific exemption for tourists that needs to be read in conjunction with this law?
 
[ QUOTE ]
term 'established situation in Spain'

[/ QUOTE ]
This translation is not correct -- it should be "establishment situated in Spain".

[ QUOTE ]
and payable after 30 days.


[/ QUOTE ]
No -- payable within 30 days.

[ QUOTE ]
This relates to tourist usage or tourist registration, which is time-limited. I have never heard of that. Could it be that there is a specific exemption for tourists that needs to be read in conjunction with this law?

[/ QUOTE ]

I don't think temporary importation is possible for a European citizen, but I could be wrong. I think European regulations prohibit its use for items moving between EC countries.

As for Tourist Registration, it is only possible if the owner is not resident in Spain. The moment the owner becomes tax resident, end of tourist registration, I think.
 
IEDMT

Well, well, well - thanks plomong - . . . whether or not the O.P is a wind-up we now seem to have unearthed another
can%20of%20worms.jpg
.

This is news to me and maybe we have an answer to our previous 183-30-0 day conundrum. Looks like the original IEDMT law was framed around the 'residency' concept (183 days) but this 'Disposición adicional octava' amends the original importation tax to take in an environmental twist and makes the tax immediately applicable and payable within 30 days.

Am I reading this right?

Or, does it mean that if (and only if) the tax is applicable (under the original 183 day terms) then the amendment means it will then (consequently) be considered to have been liable as from the first day the boat entered Spanish waters and to have been due within 30 days?

Or, are we talking about two completely different taxes, that have different applicabilities and liabilities?

/forums/images/graemlins/confused.gif
 
[ QUOTE ]
As for Tourist Registration, it is only possible if the owner is not resident in Spain. The moment the owner becomes tax resident, end of tourist registration, I think.

[/ QUOTE ]Yes, but if this is right then all those EU citizens keeping a boat in Spain while living and working in the UK, NL, or wherever (i.e. unquestionably non-resident) are liable for IESDMT after 30 days of importation (which is what my lawyer said in May 2008) BUT if there is a tourist registration available then they would not have to pay. Furthermore, if liveaboard cruisers were to take out tourist registration then they would have immunity all they while they meet the requirements of the tourist registration scheme - maybe 183 days a year. But, as you say, who is this scheme open to and how does one go about registering for it?

I have recently been in touch with an employee in the RYA who was involved in the production of their IESDMT guidance notes. I'll send this off to her later tonight (Sunday) when we have our thinking clear, for her to look at on Monday. She told me that the RYA has taken legal advice so maybe, if that was a lawyer, she can get them to comment.

Meanwhile, any further searching on the tourist scheme or other comments would be useful.

This is quite depressing, really, I was hoping that my lawyer was wrong as we plan to go back to Spain once we leave Rome in a couple of weeks, but I can't risk a tax bill of that size. I can work-around 183 days but not 30 days. There was a similar comment made by, ISTR, an official in Torrevieja in 2008 stating that the tax is not dependant on the owner being a Spanish resident so the prognosis is not good.
 
Re: IEDMT

I've been doing some research and have come up with a Word document covering the same revised legislation but dated December 2007 to come into effect 1st Jan 2008 (the previous version that we discussed above was November). I've no idea whether this is in force, of course, or whether it was an earlier discussion paper. I could download the entire document but would have to subscribe to a legal service, VLexLex. Since I am not a lawyer and my Spanish isn't perfect, I would rather point a lawyer to the questionable areas and get him to comment. Anyway for those whose Spanish and knowledge of law is better than mine, you can get the document here....

http://vlex.com/promos/ppv/38458770

Meanwhile, the Word document is available at.....

http://78.129.179.180/~testbenestar/files/Lei%2051-2007%20de%2026%20de%20decembro.doc

One obvious difference is that 7.5m has been replaced by 8m. I haven't compared the documents line by line. This Word document seems to give the full story and what we were missing above is the fact that the tax rates depend on the CO2 emissions. Motor boats are clearly included in the upper scale along with aircraft but I cannot see where sailing yachts fit into the tax scheme, unless a sailing yacht with auxiliary becomes a motor boat? If sailing yachts have been removed from the tax net because the emit less than a certain CO2 level then we would not expect to hear of any more yachts assessed from 1st Jan 2008, yet we know of well-publicised cases during 2008, in Torrevieja.

We really need a lawyer to confirm which document is in force, what it actually means (both documents refer to other documents) and, especially, whether there are any work-arounds.
 
Re: IEDMT

Several points:

1. I don't know enough about Tourist Registration to comment any further, but from what I know about its application to cars and what I've read about boats, it would only seem of use to a non-resident. Once resident, end of Tourist Registration.

2. The word document you reference is not in agreement with the law as published in the Boletin Official del Estado (BOE), from which the text abstracts in my earlier post were taken. I would be inclined to trust the BOE more than someones word document.

3. The amount payable as tax depends on the motor fitted in the vessel and the value of the boat. Really the tax amount is calculated as the sum of two values: one based on value of the boat, the second on motor ("fiscal", I think) power. A further complication is that the table published in the law (BOE) is only applicable in those autonomous regions in which a separate regional law has not been passed. Where such has been passed, it is in force in that region, so maybe someone could try to compare regions and see which is "better" !!! ???

[ QUOTE ]
makes the tax immediately applicable and payable within 30 days. /quote]
That is clear from the text as quoted.

[ QUOTE ]
Or, does it mean that if (and only if) the tax is applicable (under the original 183 day terms) then the amendment means it will then (consequently) be considered to have been liable as from the first day the boat entered Spanish waters and to have been due within 30 days?


[/ QUOTE ]
No. The tax is due from the first arrival of the boat (note: of the boat, not the owner). 30 days to pay up. If arrival date cannot be determined, the day the owner becomes tax resident (183 day rule or fixed asset purchased) is the date to use. This closes a loophole where someone could be here for several years undetected!!!!

[ QUOTE ]
Or, are we talking about two completely different taxes, that have different applicabilities and liabilities?

[/ QUOTE ]
No. Only one tax.

[ QUOTE ]
Yes, but if this is right then all those EU citizens keeping a boat in Spain while living and working in the UK, NL, or wherever (i.e. unquestionably non-resident) are liable for IESDMT after 30 days of importation (which is what my lawyer said in May 2008) BUT if there is a tourist registration available then they would not have to pay.

[/ QUOTE ]
That sounds correct, from what little I know about Tourist Registration, but I could be wrong.

[ QUOTE ]
Furthermore, if liveaboard cruisers were to take out tourist registration then they would have immunity all they while they meet the requirements of the tourist registration scheme - maybe 183 days a year.

[/ QUOTE ]
Can an EC citizen as live-aboard take out a Tourist Registration?? Only if non-resident. But that appears to conflict with the statement that the tax is due on arrival of the boat, not the owner. However, it could be the way to allow short stays without becoming liable for the tax. But it does bring up the point of compliance with Spanish regulations for equipment, etc and for skippers permits, etc. I don't know what the situation could be in those areas.

[ QUOTE ]
This is quite depressing, really, I was hoping that my lawyer was wrong as we plan to go back to Spain once we leave Rome in a couple of weeks, but I can't risk a tax bill of that size. I can work-around 183 days but not 30 days. There was a similar comment made by, ISTR, an official in Torrevieja in 2008 stating that the tax is not dependant on the owner being a Spanish resident so the prognosis is not good.

[/ QUOTE ]
I don't like the law any more than you do. The only suggestion I could make would be to take it up with your MEP, complain to the EC, work through your embassy or consul (fat chance, I think), or get some official organisation (RYA, CA) to act on behalf of UK citizens in Spain, pointing out the fact that a vessel whose registration is forcibly changed may then leave the country some time later and forever have the unwanted Spanish registration, unless you again pay to have it re-registered in the UK!!!! Looks daft to me. That daftness is, to me, the only weakness I can see in the law.

The fact that the well-publicised case(s) you mentioned are from Alicante (Comunidad de Valencia) does not surprise me. The only other cases I know of outside that area are Spanish citizens or long-term residents in a different situation altogether, not casual short-term live-aboards. I would consider a 1-year stay, or a long over-wintering plus two cruising seasons along the Mediterranean coast of Spain as being a reasonable time to be free of such a re-registration requirement. And it is that re-registration requirement that brings all the hassle: Must comply with Spanish regulations, requires Spanish "drivers" license, etc etc. Not at all reasonable, IMHO. But then maybe Tourist Registration .....
 
Re: IEDMT

[ QUOTE ]
Well, well, well - thanks plomong - . . . whether or not the O.P is a wind-up we now seem to have unearthed another
can%20of%20worms.jpg
.

[/ QUOTE ]From my distant perspective, I am giving up on any notion of staying in Spain, simply because I can't see the wood from the trees in these threads.
 
Re: IEDMT

[ QUOTE ]

2. The word document you reference is not in agreement with the law as published in the Boletin Official del Estado (BOE), from which the text abstracts in my earlier post were taken. I would be inclined to trust the BOE more than someones word document.

[/ QUOTE ]Would you be kind enough to post here the actual link to that document from BOE?
 
Re: IEDMT

[/ QUOTE ]From my distant perspective, I am giving up on any notion of staying in Spain, simply because I can't see the wood from the trees in these threads.

[/ QUOTE ]The RYA have very recently put it in writing on their website that Residency is the key issue and they say that they have taken legal advice. i.e. The RYA say that you only become liable for this tax if you become Resident. Maybe their legal liability insurance will cover them if they are wrong? /forums/images/graemlins/wink.gif
 
Re: IEDMT

I cannot post the document itself -- it is a pdf on my hard drive, but the file can be found on the web using google by searching for:

ley 34 BOE calidad aire

It comes up at the top of the search results on my computer with the following URL:

www.boe.es/boe/dias/2007/11/16/pdfs/A46962-46987.pdf

The earlier law that is modified by the above Disposicion Adicional is at:

www.boe.es/aeboe/consultas/bases_datos/doc.php?coleccion=iberlex&id=1992/28741

Try these links and let me know what you get.
 
Re: IEDMT

That's kind of you, thank you, it works. I am sending this over to the RYA this evening.
 
Re: IEDMT

[ QUOTE ]
From my distant perspective, I am giving up on any notion of staying in Spain, simply because I can't see the wood from the trees in these threads.

[/ QUOTE ]Of course, there may be smoke without fire, but it seems like there are enough straws in the wind to make your conclusion . . . inescapable. As they say.
Is all this stuff consciously intentional on Spain's behalf, i.e to confuse and deter cruising boaters, hit (some of) those that do venture in with unexpected taxes, spread uncertainty . . ? Or is it cock-up, not conspiracy, the effects of these measures not having been fully thought through?
 
Re: IEDMT

I think there is some un-necessary worrying going on. The tax paper quoted by Plomong was most illuminating, and its careful differentiation between tax residence of individuals, and the need to be tax resident if you have any sort of business activity in Spain, produces two different circumstances. Of course, my Spanish is pretty crummy, so I may have some of this wrong, so the following (with links kindly supplied above) has been sent to my Spanish contacts to check their views.

----------------------

My take on this is that there have been mis-understandings about tax residence in Spain, since protagonists have been unaware that it applies to two classes of people:

1. Individuals who have no taxable business in Spain, but may own property, and will become tax resident if they stay longer than 182 days per calendar year

2. Those who conduct taxable business in Spain (with a variety of definitions) and thus are automatically taxable in Spain irrespective of period of residence (this, of course, applies to any casual work - sailmaking, whatever - which you are paid for).

Both are subject to the need to re-register cars, boats (whatever) that we have been talking about, within a 30 day period of the 'import' of the vessel. However, import is defined as after 182 day in case 1; and immediately in case 2.

In case 2, there is reference to owning 'an establishment' in Spain as a definition of doing business. Many protagonists have been inferring that this applies to any property (case 1 properties included), whereas I noted that the only reference to 'establishment' in the tax code (as in UK) is under the business section.

Your views please.

-------------------------------
 
Re: IEDMT

[ QUOTE ]
My perception is ta third option in that the 'implementation of these measures has not been fully thought through'. Or more accruately, not even partly thought through.

[/ QUOTE ] It's difficult to know. On the one hand, Spain's tourist industry is in dire straits and quite a few Spanish companies are developing (and operating) marinas that have up to 30% foreign yachts. On the other hand, talking to Spanish yachties, many do feel that other EU citizens who keep their boats in Spain should be paying the same and subject to the same rules as they are.

183 days and residency seems understandable -- if you are resident in a country you live by their rules and pay their taxes. 30 days is incredibly short. Suppose you arrive in a Spanish port and have a breakdown or a crew illness and find that you have to pay 12% tax on the yacht and re-flag it Spanish!!! It practically makes Spain a no-go area as a destination of any kind. For example, some friends of ours arrived in Almerimar a few years ago to spend the winter and within a day the skipper had a heart attack. He was patched up in Spain then went back to the UK for many months before he was fit to return. Imagine returning to a precinto and a tax demand and the requirement to re-flag your yacht -- and sit Spanish exams, in Spanish (having first had to learn to speak Spanish) just in order to be legal to leave the country -- a country you may never intend to visit again in your life.

If -- and that this stage it must be a very big IF -- this really is the case then insurance companies will have to include special cover for Spain to allow for professional crew or road hauliers to move the yacht to a suitable alternative country until the yacht and owners are fit to continue their cruising.
 
Re: IEDMT

I think we need a Spanish lawyer or a British lawyer specialising in Spanish law for an opinion. I don't think that any of us could be happy about an opinion arrived at by tossing this around between non-legal, non-Spanish-speaking forumites. Too much is at stake for that.
 
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