Spanish Boat Taxes -- A proposed joint legal study

  • Thread starter Thread starter Anonymous
  • Start date Start date
[ QUOTE ]
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.

[/ QUOTE ]

No. According to my lawyer the law is neither ambiguous nor complex. It is clear.

[ QUOTE ]
I see little point in you constantly berating other people for not seeing the world in the way that you see it.

[/ QUOTE ]
If you go back to the very first post in this thread you will see I started it. It is a proposal for a joint study to employ appropriate professionals to get further legal advice. I was 'berating' nobody. jimbaeserlman (one of the authors of the dubious report issued by the Cruising Association) then posted (post #2 in this thread) his admission that the CA report might be incorrect. Unfortunately that then diverted this thread away from the subject -- i.e. would anyone like to join in with a joint study -- and sent us straight back to the bun-fight about what the situation is.

Just take on board that one of the authors of the Cruising Association report now concedes that his report might be incorrect. Yet the CA are still pushing out this report. The RYA report is for all practical purposes identical. Presumably jimbaeselman would agree that the RYA report might also be incorrect? Yet the RYA report is STILL on the RYA website with no caveat whatsoever.

What amazes me is the total lack of due diligence. Both the Cruising Association and the RYA should at the very least acknowledge that their reports could be entirely incorrect leaving people with the potential liability for tax after their yachts have been in Spain for longer than 30 days. Either that, or they should cite the law and the authority.
 
>No. According to my lawyer the law is neither ambiguous nor complex. It is clear.

In the UK my understanding is the a law isn't a law until it has been tested in a court of law. I don't know if that is true in Spain. Purely out of interest, do you know if that is the same in Spain and whether the law being talked about has ever been tested in court?
 
[ QUOTE ]
In the UK my understanding is the a law isn't a law until it has been tested in a court of law. I don't know if that is true in Spain. Purely out of interest, do you know if that is the same in Spain and whether the law being talked about has ever been tested in court?

[/ QUOTE ]Spanish laws are codified -- a big book of codes. Much easier, in principle, than the English system. But you are mistaken about a law not being a law in the UK until tested in a court. For a start, many 'laws' in England are as a result of regulations invoked by a Minister of State under an umbrella law giving them that power.

I am no expert on the law either in England or Spain but that is my understanding.

One other difference is the division between our legal professionals. In the UK we have barristers and solicitors. Solicitors can advise and you can sue them for wrong advice, for damages. English barristers are immune from being sued for their 'opinions'. Spanish lawyers seem to be what we call 'solicitors' but there is another group called 'gestors' who are to lawyers what nurses are to doctors (as a rough analogy). You can't sue a gestor but you can sue a lawyer, so I understand.

The reason for gestors stems from a massive book of rules and a highly bureaucratic system coupled with a population that was barely semi-literate until a generation ago. People had no alternative but to put all their bits of paper into a big bag and take it down to the gestor.

Today, if you wander round the gestors in the local town, you will find that a very high proportion deal with those at the very bottom of the ladder (you just look at the state of the place and the clientele).

When I first wanted to investigate this boat tax issue I was advised to find a gestor. I visited literally dozens, all of whom said that they could not help, and suggested that I consult a lawyer. Eventually I was recommended a lawyer by a fellow Brit yachtsman who had taken advice about setting up a small charter operation -- legally -- with his yacht. It was this lawyer who gave me the advice that I mentioned in my first post in this thread.

However, given that I know personally dozens and dozens of Brits who are keeping their yachts in Almeria province with seemingly no problem, I have to ask why, if the law is so clear? On the other hand, the lawyer said that it is seldom enforced [at this time] my parentheses.
 
But once again, David only according to your lawyer. It is only his opinion of how he thinks the law will be applied. Until it is and the ambiguities that are there in other sources are resolved nothing will happen.

I fail to see how spending yet more money on getting another opinion will help. If it is the same, you are no better off. If it is different which will you believe?

The only way you are going to find out is to take your boat to Spain and wait to see what happens. Then use your money to fight if you feel you are being treated wrongly.

On the other hand you can do what you are doing and wait to see what happens to others.

Spending money on another opinion will not in any way alter any action the authorities may take.
 
Unless you can find a solicitor who would defend you, if 'done' you would be on your own. That is my dilemma. If I could find a solicitor who would advise that this tax is not payable unless resident then if I DID get done, I have a solicitor to defend me. As it stands, 'my' solicitor tells me that I am liable after day 30. How can he defend me? So if we did find a solicitor who agreed that residency is the key, we would have someone to represent us. That would be a real benefit to anyone joining in the proposed study. Suppose that cost us €30 a head -- a pretty good investment.

What we could do is a precis of the advice received by the CA and RYA and a request for them (some suitably qualified solicitors, either UK or Spanish) to re-visit the law. I did ask my chap three times to check (he became a bit irritated in the end) because his advice seemed, shall I say, 'unlikely' given the local knowledge I had. (I had spent three winters in Almerimar, knew many owners, contacts along the coast and was watching this issue closely on this and other forums).

I think that we are misusing the term 'opinion'. What I received was legal advice -- not the equivalent of counsel's opinion. I am not even sure if they have the equivalent of our counsel in the same way, in Spain.
 
I have read through this and the associated topic since we are considering wintering in NW Spain this year, this will clearly take us over the 30 day limit. We will probably also exceed the 183 + 30 days limit if we take our time next spring travelling the Rias on towards Portugal. Hence we are very interested in exactly what the law is and also how it is being applied.

Firstly the advice Lemain has been given by a Spanish lawyer seems pretty unambiguous - ie If the authorities can prove when you and the boat entered Spain you are liable for the tax 30 days after that. It also seems that his lawyer is saying the exemptions others have discussed would not apply if the date of entry was provable and certain.

Now this legal advice may be absolutely correct and it may also be wrong - we have no way of knowing for sure until it is decided by a Court. The other point is that the legal advice is basically giving the "worst case scenario" ie. the tax is due after 30 days. So you could deduce that the lawyer is taking the "safe option" and ignoring the "qualifying phrases" that others have mentioned. By doing this he is unlikely to be found liable if his advice is later proved to be wrong. If you stay in Spain longer than 30 days and are not taxed then there is no problem - the lawyer will say the authorities are not enforcing the law correctly!!! If you are taxed - he will say "I told you so"

Obviously we would all hope that the truth is that you are allowed 183 + 30 days before being liable to the tax. If a Spanish lawyer or Government were prepared to state this to be the unambiguos truth then we would be alot happier. We would then have a Lawyer to sue for wrongful advice or a Government declaration that could be used in Court. So far we have neither of these!!

The common sense attitude is that the 183 + 30 days is a sensible course of action - unfortunately common sense is not always that common when interpreting the Law!!!.

We also know that the law is not being widely enforced at any level yet - this may change for the worse at any time. Friends who overwintered in NW Spain last year said there was absolutely no mention of the tax by any authorities / Customs / Marinas.
In addition I do not recall seeing mention of any case where the tax has been demanded after only 30 days - the few cases I have heard about all seem to be longer term stayers who had also exceeded the 183 + 30 days by a significant margin.

All in all a very unsatisfactory situation for boatowners and Spanish marina operators that does need clarifying. I would certainly consider joining a joint legal study but I would be concerned that any decent Lawyer will also offer the "safe advice" that Lemain has already been given. Perhaps we will just have to consider wintering in France or Portugal to avoid all this hassle.
 
Whether it be "opinion" as we understand it or "professional advice" on which you can rely, I am with flamedos in suspecting that your lawyer has been very selective and just advised the worst case scenario, carefully avoiding the other possible scenarios. As these scenarios do not seem to have been tested he is right in doing this. If you ignore his advice you have no claim against him. As you have taken his advice and have left the country he is in no danger of being sued by you.

From what I see all you have is advice on the "worst" that can happen, and not an opinion as to the other things that might happen. Not surprising because if he is wrong about the "mights" he is exposed.

Frankly, I think you have wasted your money as you could get that situation just from reading the sections of the law as posted by others here.

The only value of getting advice from a lawyer is that he should know how the law is applied. In this case it does not yet seem to have been applied so his advice is no better than your own assessment. As you judge that the "worst case" scenario is not to your liking the only sensible decision is to avoid it. If on the other hand you take the view that the law is unkely to be applied in that way, and the empirical evidence seems to point in that direction you may decide like thousands of others who through either ignoranceor a conscious decision continue to expose themselves to the risk.
 
Thanks for pointing that out AndersG, it just goes to show what a minefield the whole issue is!!!!

If the truth is, as you say, that the tax is due immediately you exceed 183 days (with 30 days to pay) then even overwintering in Spain becomes very risky. If you stay in Spain from 1st Nov to 30th April then you are already at the 183 day time limit and you still have to get out of Spain - not a quick job on a sailboat waiting for weather windows.

The above comment also assumes that the Spanish do actually allow 183 days, not just the 30 that Lemains lawyer states.
 
So you are saying that Nov & Dec 2009 can be ignored when adding up the 183 days for 2010?

If so then it becomes a bit easier to plan because you then have until end June to leave Spain and get to Portugal. Although you then have a further problem if you spend any further time in S Spain in 2010!!!

The other question is "How the hell do they know". As UK citizens we do not have to check in and out of Spain so it must be very difficult, if not close to impossible, for the Spanish authorities to determine if you have exceeded your 183 day quota when you are coast hopping from port to port.

Obviously much easier if you are a permanent liveaboard in one location.
 
[ QUOTE ]
So you are saying that Nov & Dec 2009 can be ignored when adding up the 183 days for 2010?


[/ QUOTE ]
Yes. Only the days in each calender year is used to determine if you are a tax resident or not.

[ QUOTE ]

The other question is "How the hell do they know". As UK citizens we do not have to check in and out of Spain so it must be very difficult, if not close to impossible, for the Spanish authorities to determine if you have exceeded your 183 day quota when you are coast hopping from port to port.

[/ QUOTE ]
They probably don't know. I find it very unlikely that they will become suspicious of someone cruising around but if they do become suspicious they will probably let you prove that you have not stayed 183 days! That is the way tax laws usually work.
 
You guys are completely missing the point. My lawyer says that the tax is due ****REGARDLESS OF THE RESIDENCY STATUS OF THE OWNER****. Forget 183 days. 183 days is tied up with residency.

i.e. If you live in the UK 364 days of the year and only one day a year in Spain, if you leave your yacht in Spain then this tax becomes due after 30 days.

This is getting tedious...I have repeated this now for the umpteenth time!!!
 
You may repeat what your lawyer says if it makes you feel good about the amount of money you have spent.

However, nobody, but nobody least of all yourself can confirm that what he says has actually happened.


What has become tedious is youyr constant statements that you are the only one that is right on this issue when all the evidence points in exactly the opposite direction.

Of course you may well be right, but to convince others you need to do more than just shout!

I think until you can point to clear examples that you and your lawyer are right you should shut up.
 
Don't be silly. This has nothing to do with what I have spent on legal advice or even whether the advice is correct.

The advice (be it right, be it wrong, be it expensive or be it cheap) is that this tax becomes due 30 days after the vessel arrives into Spanish waters regardless of the residency status of the owner.

Please let me ask you to go back to the original post of this thread, which I started to enquire as to whether there are people who would like to embark on a joint study. The thread has drifted (as threads do, of course) to the point where the original point had been completely turned upside-down.

Now, if you are bored with the subject can I suggest that you avoid threads on the subject? It certainly seems that you have nothing whatsoever to contribute to the matter other than hurling buns. You have made it clear that you have no intention of taking your yacht to Spain anyway, so why not drop out of such discussion threads?

Or is it just due to your pro-RYA thing since you always seem to pop-up whenever anyone says anything less than flattering about the RYA and it is certainly true that on this matter my comments about the RYA are very short of 'flattering'.
 
I know what your lawyer says. I responded to llameda who also knows what your lawyer says. My advice is obviously only valid if your lawyer is wrong.
Your lawyer is the only one with his opinion. All enforcement is against owners that are likely to be tax resident. What would it take for you to realize that your lawyer is wrong?
Personally I'm almost certain that your lawyer is wrong and I wold have no problem taking my boat to Spain for 182 days. After that I would keep a very low profile or leave.
 
Yes, I have always been very surprised at my lawyer's advice. It went against what I had seen (i.e. nobody being prosecuted who was not clearly a resident), and everything I had read about the subject. Furthermore, it sounded almost Draconian and should, if true, have been explained at harbours and marinas by way of leaflets in the major EU languages. That is, indeed, why I would like a second opinion....which is what this thread is about. Meanwhile, like it or not, that is professional legal advice.

We should bear in mind that this 30 days rule (if true) is fairly recent. It is possible that local agencies are not fully aware of it yet. It is also possible that they are too busy catching up with the thousands of British and other EU flagged yachts that belong to residents. It is also possible that even if this is the law, there is a deliberate policy of non-enforcement.

I don't know any more than I have shared with you. It might be the case, on the other hand it might not but for the time being it would be wise for people to keep in mind this possibility. The problem is that you don't get any warning. They just turn up and put an embargo sticker on your yacht telling you not to leave the harbour until further notice. The harbour authorities are also notified and would call the aduana if you left (many harbours and marinas have aduana vessels moored there, with a crew). The aduana vessels would catch a yacht within minutes rather than hours. So there wouldn't be any escape. The best one could hope for is for some other poor folks to be done first giving the rest of us time to get out. We should also bear in mind that the majority of yachtsmen with yachts in Spain do not follow YBW forums. Fewer than 10% of those I meet even know about this place. We shouldn't, therefore, assume that no reports here means that nothing is happening out there.

Meanwhile, if we can get enough people together to share the cost, we can obtain another legal opinion. Maybe a firm of London solicitors specialising in Spanish law could be found? We could brief them with the existing legal advice, the information presented in recent threads in this forum and the advice given by the RYA and CA.
 
When have I mentioned RYA in this thread? My observations are to suggest there is little point in trying to get another legal opinion at this stage for the reasons I have stated. The wording of the legislation is freely available and is ambiguous and open to interpretation. As yet there does not seem to be any evidence of if or how the Spanish authorities will implement it.

Unlikely that any lawyer, no matter how well qualified and expensive can tell you any more. You could, of course ask the Spanish government directly, but guess you are unlikely to get an answer.

This unsatisfactory situation is just the way it is when government brings in new legislation that affects individuals. They do not always make their intentions clear and there is nothing you can do as an individual to change that.

The pragmatic route is what most people do, if it concerns them, which is to collect as much information as possible and make their own decision, just as you have done. This does not require a lawyer other than perhaps to help with the translation of the text as they know no more than you until there are signs of implementation.

This seems to be the approach adopted by others including the representative bodies which all come up with broadly the same advice. This advice is also consistent with the current situation. If you choose to believe your lawyer that is your concern, but as I say don't go on at people who don't have the same view as you.
 
You must log in or register to reply here.

Share this page

Top