Spanish Boat Taxes -- A proposed joint legal study

  • Thread starter Thread starter Anonymous
  • Start date Start date
A

Anonymous

Guest
One year ago I paid a reputable firm of Spanish lawyers for advice about paying the IESDMT tax and my status as a resident, or non-resident. The advice was that IESDMT becomes payable thirty days after the yacht has entered Spanish waters. This was clear and unequivocal -- I asked several times for clarification as it seemed surprising.

Much has been written on this forum about the subject and since then a revised document has been produced by the Cruising Association (available to members only, I believe) and the RYA (available to everyone, I think?). Both the CA and the RYA opinions differ from my lawyer's. The CA opinion stems from work carried out by CA members who, as far as I know, are not qualified to carry out legal work. I have offered a copy of the legal opinion from my lawyers to the CA but they have declined -- not interested, period.

After the RYA published their recent report I was in correspondence with one of their officers and sent all of the documents and letters I had received (and paid for). The RYA then refused to show me their advice (which they said was 'legal advice') and refused to tell me even the name of the law firm they used.

I think that is all highly unsatisfactory. I certainly don't know what the law is...all I can do is to take legal advice. However, there does seem to be a difference of opinion and I am proposing that a group of interested yachtsmen could pool resources to obtain either a new legal opinion (from a qualified law firm -- maybe the firm I used or another) and share the cost.

If anyone is interested would they like to email me (NOT a PM, please, as I have a slow connection and email is much better) to ybw2.20.lemain@spamgourmet.com

If we get enough interest we could open a yahoo group, perhaps, and share what information and facts that we have and decide as a group how to proceed. I am hoping that we might get a group of a dozen or so which should keep costs down to less than the cost of a modest lunch, each.

I will send a full copy of the legal opinion I received last year to everyone who decides to join the group.
 
[ QUOTE ]
The CA opinion stems from work carried out by CA members who, as far as I know, are not qualified to carry out legal work. I have offered a copy of the legal opinion from my lawyers to the CA but they have declined -- not interested, period.

[/ QUOTE ] The CA advice is written around facts provided by well qualified advisors. Writers are, I think, allowed to pass information on without being legally qualified.

Please let me know (by PM or by email via my web site) who in CA turned down the offer of your legal opinion. I can then discover why. The way you put it, it sounds like a self defeating snub, which is very unlikely. More likely is a mistake.

As must be clear to you by now, I agree completely with the opinion you express above - that tax is payable within 30 days of entry to Spain. I also point out, however, that entry to Spain has a definition - it occurs after expiry of temporary import permission. I don't know whether your lawyers made this point clear, or perhaps, whether they just answered the question you asked, without quoting conditions and definitions.

Don't get me wrong. I also want to find out the basis for your opinion, because we may be wrong.
 
Jim, go onto the MyCA website and find the following post, that I posted on 12th March. I had actually made previous offers. In one post, a CA member stated that the CA should not view my legal advice because the CA might be liable to pay for it!!! It is all there on the CA website, Jim, as all CA members can see for themselves.

Postings from the CA forum on 12th March 2009 from myself. For CA members you can access this post from http://myca.org.uk/forums/viewtopic.php?t=1953

<span style="color:blue"> Lemain </span>

[ QUOTE ]
I have left these comments on the RATS page but I would like to draw them to the attention of a wider audience so I am re-posting my comments here...

I have some specific questions about this document.

What is 'matriculation tax'? Are you talking about "Impuesto Especial sobre Determinados Medios de Transporte" (literally "special tax on particular means of transport") which is in fact governed by LIE (Ley de Impuestos Especiales)? If so, as I informed the Council in December, I asked my Spanish solicitors, Del Prado & Partners, Malaga, to give me advice on this in May 2008 and their advice is, as I told the Council in December, in almost total disagreement with your 2004 and 2005 papers, and this latest paper.

Assuming that we are talking about the same tax (IESDMT, or ISDMT) it is not actually a matriculation tax so it would be best not to call it one. This does raise questions about the source and competence of the legal advice used in the production of this paper.

I do not understand why the Council has chosen to ignore the offer of seeing the legal advice that I paid for, and then go ahead with the publication of this latest document. It seems, frankly, bizarre and inexplicable to choose to ignore what appears to be the only paid-for legal advice available!

There are some jocular references to citizenship in this document that really make no sense as far as I can see....

"If you live in Spain for over 5 years, then administrative, fiscal and permanent residency rules apply.
You must register your boat under the Spanish flag, obtain a Spanish Certificate of Competence, etc.
That is you become a complete Spaniard (marry local girl, take up bull-fighting?)"

This is quite incorrect; a British Citizen does NOT become a Spanish Citizen after any length of time. You have NOT become "a complete Spaniard" and there remain some vital differences between a British Citizen resident in Spain and a Spanish Citizen. The most important difference is the situation regarding wills. British Citizens can, provided this is handled correctly, deal with their inheritance provisions in the British manner. Unlike France, of course, where you are obliged to adopt the French system. I find it incredible that any legally competent person has approved this document.

Has this latest document - Spanish Taxes 2009 - been seen, as a complete document, and approved by a lawyer competent to practice in this field?

[/ QUOTE ]

Are you telling me, Jim, that you NEVER read that? Despite DT having had to lock the thread due to hostility that my post attracted from the authors of your report??

You tell us that you never received my offer?

Humbug. Utter humbug.
 
[ QUOTE ]
it occurs after expiry of temporary import permission

[/ QUOTE ]

1) That is just one of the three defining cases.

2) As far as I can tell, without consulting a lawyer, again, temporary import (really tourist registration) is only available now to non-EU residents (free movement and all that!!!).

3) The other two conditions are:
a) 30 days from arrival or first use in Spain;

b) If a) cannot be determined then when the owner becomes resident for tax purposes (183 days in any calendar year.

Plomong
 
[ QUOTE ]
"If you live in Spain for over 5 years, then administrative, fiscal and permanent residency rules apply.
You must register your boat under the Spanish flag, obtain a Spanish Certificate of Competence, etc.
That is you become a complete Spaniard (marry local girl, take up bull-fighting?)"


[/ QUOTE ]

Whoever dreamt this up is talking through his or her hat !!!!

I have been residing continuously in Spain (Basque Country) since 1977. I am still an Irish citizen, by choice, never officially expressed (no need to do so), am tax resident in Spain, paying my taxes to the Basque Government (really the Bizkaiko Foru Aldundia, a powered-up county council with its own government and fiscal autonomy). You do not become automatically a Spaniard after 5 years. You become tax resident if in Spain for 183 days in any calendar year. Once you become tax resident, your car, caravan and boat must go on the Spanish register, and as a consequence you must hold a skippers qualification recognised by the Spanish authorities, equip your boat to Spanish standards, etc. What qualification? One recognised by .... Would an ICC be acceptable? I don't know, but I cannot see why not, as the EU does insist on mutual recognition of official qualifications (driving permits are one case in mind). It could be that you would have to swap the existing qualification for the equivalent Spanish one, but no more. (This latter is my opinion -- other forumites may have direct experience that contradicts this, or confirms it. I would very much like to hear them).

As for inheritance issues, this even varies in different parts of Spain for the Spaniards themselves, let alone foreigners. Two well-known special cases are the Aragon region and Catalunya. Lesser known but equally different are the inheritance laws applicable in "La Llanura Bizkaina" which covers about 40% of the province (county) of Bizkaia (hence the Bizkaiko Foru Aldundia above) and are substantially different to the basic Spanish laws that cover about 60% of Spain. So any blanket statement about such a matter should be carefully qualified as to where it applies.

Plomong
 
Spain has not signed up to the ICC. They do not require it for their own citizens, they prefer their own system.
As for accepting a foreign qualification, issued by a (royal) yachting association, not a national body: would the UK recognise a qualification from, say, the Royal Yachting Association of Albania, if King Zog had lived ?
 
[ QUOTE ]
Whoever dreamt this up is talking through his or her hat !!!!

[/ QUOTE ] It's a verbatim copy and paste from the Cruising Association's paper on Spanish taxes. It beggars belief that they can publish such stuff, eh?
 
Lemain,

You are an expert at putting people/organisations down with selective quotes. The quote you selected was made as a touch of humour within an otherwise very detailed (but boring and accurate) document.

Yes, I had seen your post above. It was made on a CA forum open to members. You refer in it to an offer you made, which you say was turned down. That's what I'm looking for. Regretfully, several of your previous posts, some on other subjects, had been offensive to many members, in addition to those who put in a lot of voluntary time. You have been using a similar style in the two threads running here - rubbishing people's qualifications, questioning their motives, suggesting indirectly and directly that they were not competent in their areas of expertise.

I also seem to remember that when you started debate on this forum you asked for contributions towards the fees you paid your lawyer as a condition for passing on the opinion, but my memory here may be faulty.

I am not suprised that this proposal was not taken seriously. You say it was already refused. As you say, the complaints about the insulting tone of your posts CA received from many sources led to the thread you contributed to being locked.

If you take a softer, more co-operative approach (the opening page of this thread - without chucking criticisms around) people may listen to you. I do, because I have a thick skin, and I want to learn. But my word, it's uphill work.
 
Plomong,

You have been most helpful in this debate. You provided the definitive legal references which, after translation, showed me the way forward. Importantly, the whole law was about 'means of transport' - not differentiating between cars and boats.

I then pursued the whole story of temporary importation of cars by EU citizens not fiscally resident in Spain, nor registered resident (the 90 day rule).

For vehicles (specifically cars, but presumably including boats) I haven't found a Spanish law defining 'tourist plates' or 'temporary import permission'. However, I have found many sites quoting almost identical advice, advice which concurs very closely with the EU norm. It is: [ QUOTE ]
Temporary Importation
If you are a non-resident of Spain but from an EU member state then you can import your vehicle into Spain and use it with its own licence plates without paying any Spanish taxes for up to six months in one calendar year. The vehicle must be road worthy and legal in the country of registration. Your car may remain in Spain indefinitely, provided its UK tax and MOT are maintained, but you may not stay in Spain for any longer than 182 days in any one calendar year and neither you nor anyone else can use the vehicle in Spain during the remaining part of the year. Your car must also be insured in its country of registration under EU Law.

However, you automatically become a resident, from a tax perspective, after being in Spain for 182 days in a year. At this point you are by law required to pay import tax (unless you register as non-resident) and re-register your vehicle with Spanish plates, and can be fined for non-compliance. If you are taking your vehicle out of the UK on a temporary basis, you must take the registration document or certificate with you to present to the Spanish authorities if required.


[/ QUOTE ] I'm aware that it's no longer 'import tax', and that it doesn't mention what happens after after the initial period. But otherwise, this expresses almost exactly what I believe (but don't know certainly) is the reality for cars. If so, it's also the reality for boats. Behind it I'm sure there's a Spanish decree. Would you be able to track it down?
[ QUOTE ]
1) That is just one of the three defining cases.

2) As far as I can tell, without consulting a lawyer, again, temporary import (really tourist registration) is only available now to non-EU residents (free movement and all that!!!).

3) The other two conditions are:
a) 30 days from arrival or first use in Spain ;


[/ QUOTE ]
As you recognise, it's all about the definiton of 'arrival' or 'first use'. If we pursue the story via cars (what is current practice? were these guys right? Does the practice for cars really read through to yachts?) we've got the answers.
 
[ QUOTE ]
.......rubbishing people's qualifications, questioning their motives, suggesting indirectly and directly that they were not competent in their areas of expertise.

[/ QUOTE ] They don't have ANY expertise, qualifications or competence in this legal field. That is what I have been trying to get across, still without success, it seems, as you still think that this is a 'debate'. The law is not a debate...it is the law. To understand the law you need to consult a lawyer or use some purpose-designed information from the Government. Leaflets, websites, etc. from the Spanish Government would be fine.

[ QUOTE ]
...the insulting tone of your posts CA received from many sources led to the thread you contributed to being locked.

[/ QUOTE ] That is utterly untrue. That thread was locked by the moderator, on his own discretion, not after a complaint by me, after someone wrote to me in an insulting manner that the moderator considered inappropriate. I still have a copy of the original message which came through the system automatically, before the moderator removed it, and locked the thread.

So do please get your facts straight....the thread was locked by the moderator after I had been insulted having posted a perfectly 'soft' and reasonable message (already posted here on ybw for anyone to judge) that clearly upset the authors of the report.

What the authors of the report seem unable to understand is that I am not 'attacking' them personally. They have declared publicly that they are not competent in this field yet continue to push out potentially misleading information under the Cruising Association. I think that someone has to make a stand against that sort of thing. If the Cruising Association wants to put out legal advice then it should employ a lawyer with competence in that field.

Now it could be that my lawyer is wrong. Who knows? But it is legal advice from a firm that claims to be competent in this field. I have named the firm I used and have shared the detailed information with many people.

[ QUOTE ]

I also seem to remember that when you started debate on this forum you asked for contributions towards the fees you paid your lawyer as a condition for passing on the opinion, but my memory here may be faulty.

I am not suprised that this proposal was not taken seriously.

[/ QUOTE ] You are not surprised that my suggestion that the CA might like to make a contribution to the legal costs I had paid, in consideration of full access to that information reasonable? I would think it perfectly appropriate for the CA to have made some contribution. In any case, after it became clear that this was not going to happen, I offered the information free of charge....I do have a record. The information was declined and I was told that the authors had all the legal advice they needed. Clearly, they were not interested in any opinion that differed from their original reports despite the fact that there had been a change in the law in the interim.

So the CA solution is to make a few phone calls and do it for free. Fine, but it should be made clear that it is not a legal opinion AND that there is in existence professional legal opinion that contradicts the freebie stuff.
 
[ QUOTE ]
If we pursue the story via cars (what is current practice? were these guys right? Does the practice for cars really read through to yachts?) we've got the answers.

[/ QUOTE ]

No. You've got the answer when you have a professional legal opinion. Period.
 
James, that link does not seem to state whether it refers to the law as amended effective 2008. I wasn't aware of the precintos in the Balearics. However, we were warned or tipped-off early in 2008 by a forumite here (I forget who) that he had heard that Madrid had given orders to get the tax collected.

Some of the problem, according to some Spanish friends of mine, is a fair amount of anger from Spanish yachtsmen who have to comply with rules, regs and taxes in excess of the multitudes of Brits and other N Europeans. Of course, that attitude might be an own-goal but it is out there.
 
There are two recent threads on the Mobo forum where this is being reported:

http://www.ybw.com/forums/showflat.php/Cat/0/Number/2333757/page/11/fpart/1/vc/1

http://www.ybw.com/forums/showflat.php/Cat/0/Number/2345093/page/0/fpart/1/vc/1/nt/2

As I have a long lease berth in Spain and a boat without great value, I won't worry too much, but will await further developments with interest.

If and when there is any attempt to proceed against a non-resident private owner, I would hope that the marina concerned would pick up the legal bill to establish a proper test case.

Unless that happens there can only be an opinion and that could be wrong anyway.
 
[ QUOTE ]
There are two recent threads on the Mobo forum where this is being reported:
As I have a long lease berth in Spain and a boat without great value, I won't worry too much, but will await further developments with interest.

If and when there is any attempt to proceed against a non-resident private owner, I would hope that the marina concerned would pick up the legal bill to establish a proper test case.

Unless that happens there can only be an opinion and that could be wrong anyway.

[/ QUOTE ]Ah, I knew about the first but not the second. Unfortunatly I am using a slow 3G connection so my forum interaction is not as smooth as usual.

When I raised this issue with Almerimar, they didn't want to know. When we left in May 2008, several other long-stays had gone for the same reason and I was told that they had plenty of space and would be sorry to see us leave.
 
[ QUOTE ]
You've got the answer when you have a professional legal opinion. Period.

[/ QUOTE ]

I've paid a lot more than you have for legal opinions that were clearly rubbish from the moment they were given. What is it about paying money that makes you think you are getting something for it?
You have paid money for an opinion that doesn't seem to be supported by evidence of what is actually occurring. I agree that theroretical arguments are of some interest, but I'm a lot more interested in what is actually happening.
 
[ QUOTE ]
I've paid a lot more than you have for legal opinions that were clearly rubbish from the moment they were given.

[/ QUOTE ]How do you know that?

[ QUOTE ]
What is it about paying money that makes you think you are getting something for it?

[/ QUOTE ] If you pay a qualified professional for legal advice you have some redress. If you download your legal advice from the Internet, you are on your own.

[ QUOTE ]
You have paid money for an opinion that doesn't seem to be supported by evidence of what is actually occurring.

[/ QUOTE ] As I have said repeatedly, my lawyer said that the law seldom seems to be enforced but stood by his opinion.

It's up to you, isn't it? Take a risk -- I might. But it clearly is a risk.

What is "actually happening" is that more people are being "done" under this tax that became effective just a year ago. Your risk and good luck to you.
 
[ QUOTE ]
If you pay a qualified professional for legal advice you have some redress.

[/ QUOTE ]
What do you mean? If you are charged with this tax do you expect not to have to pay the tax because of your lawyers opinion or do you expect your lawyer to pay it for you?
 
[ QUOTE ]

What do you mean? If you are charged with this tax do you expect not to have to pay the tax because of your lawyers opinion or do you expect your lawyer to pay it for you?

[/ QUOTE ]You can sue the lawyer. You could sue any organisation that put out incorrect information as well, of course. All professionals carry insurance as do most organisations, if they are properly managed.
 
Would like to see you try suing a Spanish lawyer! You have an OPINION from him, no more. Others claim to have received opinions from other lawyers that are different from yours. This is hardly surprising in an area of law which is new, complex and from what we have seen ambiguous. Until it is tested by the authoriites taking action to enforce you will not know which opinion is "correct" and even then there may be a challenge.

I don't have any direct interest in the issue as I have no intention of taking my boat to Spain. However, like you I don't think I would take the risk based on the opinion you have. But thousands of people do keep their boats in Spain and have not been affected so far.

But if the authorities do enforce whatever they see as the law, your "opinion" is not going to stop them.

I see little point in you constantly berating other people for not seeing the world in the way that you see it. You have made your decision based on the information you have - which you seem to believe is superior because you paid for it. Others have different views based on the information or experience they have.

Just leave it at that.
 
You must log in or register to reply here.

Share this page

Top