Royal Decree 366/2021 developing the procedure for filing and paying Self-Assessments of the Financial Transactions Tax and amending other tax rules

OFFICIAL STATE GAZETTE
No. 125 Wednesday, May 26, 2021 Sec. I. Page 63808
I. GENERAL PROVISIONS
MINISTRY OF FINANCE
8747 Royal Decree 366/2021, of May 25, developing the procedure for filing and paying the Self-Assessments of the Tax on Financial Transactions and amending other tax rules.
Law 5/2020, of October 15, on the Tax on Financial Transactions, introduces this levy in Spain, with the aim of contributing to the objective of consolidating public finances and reinforcing the principle of equity of the tax system.
The application of this Law requires certain regulatory clarifications to develop some issues provided for therein, fundamentally the procedure for filing and paying the Self-Assessments of the tax provided for in Article 8 of the Tax Law, whether carried out through a central securities depository established in Spanish territory or by the taxpayer itself.
This Royal Decree responds to these objectives, structured in ten articles, two additional provisions, one transitional provision, and six final provisions.
The rules contained in this Royal Decree find authorization both in the specific references made by the Law itself and in the general authorization contained in its final provision second, and are issued under the provisions of Article 149.1.14th of the Spanish Constitution, which attributes to the State competence in matters of general finance.
Article 1 defines the object of the Royal Decree, which is the development of the procedure for filing and paying the Self-Assessments of the tax.
Articles 2 to 6 specify the aforementioned procedure for filing and paying Self-Assessments through a central securities depository established in Spanish territory, distinguishing the different situations in which such procedure is applicable and detailing the channeling of information and the amount of the tax debt from the taxpayer to the tax administration.
This is a novel procedure in our tax system, through which the central securities depository will file a Self-Assessment on behalf and for the account of the taxpayer for each taxpayer and pay the amount of the corresponding tax debt.
The adoption of this procedure is justified by the special characteristics of this tax, and has as a precedent the collection system of the analogous French tax.
Presumably, a significant percentage of taxpayers will be non-residents in Spanish territory, with few links to the Spanish tax administration since they are financial intermediaries whose activity in many cases consists of issuing, for execution by market members, buy orders for shares on behalf of their acquiring clients.
To facilitate the filing and payment of Self-Assessments by taxpayers, it is generally provided that the amount of the tax to be paid and the data that must appear in the Self-Assessment be channeled through the subjects participating in the settlement and registration of the acquisition of the shares that gives rise to the accrual of the tax.
In this way, a channel for the payment of the tax is created similar to that already used for the acquisition of shares, in which the entities participating in the central securities depository will be ultimately responsible for delivering the data and monetary flows to it. cve: BOE-A-2021-8747 Verifiable at https://www.boe.es

OFFICIAL STATE GAZETTE
No. 125 Wednesday, May 26, 2021 Sec. I. Page 63809 On the other hand, this procedure will mean more effective management of the tax by the tax administration, as it will allow it to relate to a single interlocutor instead of multiple taxpayers, without prejudice to the tax obligations of these and the exercise of verification powers corresponding to the tax administration.
Taking into account the above considerations, the configuration of the different situations of filing and paying Self-Assessments by the central securities depository aims to channel through it as many Self-Assessments as possible.
Thus, this procedure is established as mandatory for those cases where the taxpayer has a direct relationship with the central securities depository or with any of its participating entities, as it is considered that this proximity allows the possibility of using this channel.
For the remaining cases, filing and payment through a central securities depository is configured as optional for the taxpayer, given that in these cases it may be necessary to formalize an agreement with a third financial intermediary that serves as a link between the taxpayer and any of the entities participating in the central securities depository.
However, with the aim of preventing fragmentation of Self-Assessments by taxpayer and tax period, if the taxpayer were to take advantage of any of the options or if the situation of mandatory filing through the central securities depository occurred, they must use this same channel to declare and pay the tax for all corresponding subject acquisitions for the same period.
In situations where the filing and payment of Self-Assessments should be carried out by a central securities depository, taxpayers must provide this, either directly if they are a participating entity, or indirectly through a participating entity, the amount of the tax debt as well as certain data of each subject acquisition (exempt or non-exempt), in the manner determined by the central securities depository and in any case before the start of the period for filing the Self-Assessment and paying the tax. Once the information and the amount of the tax debt are received, the central securities depository will file and pay the corresponding Self-Assessments within the time limits indicated in Article 6. Among the options for filing through a central securities depository established in Spanish territory, Article 7 contemplates the possibility that collaboration agreements can be concluded between a central securities depository established in Spanish territory and a central securities depository not established in said territory with the object that, by virtue of such agreements, the central securities depository established in Spanish territory files and pays the Self-Assessments on behalf and for the account of the taxpayer.
Article 8 regulates the filing and payment of the Self-Assessments of the tax by the taxpayer itself when it should not be carried out by a central securities depository established in Spanish territory.
Article 9 provides for the possibility that, for the purposes of the tax assessment, the taxpayer may opt to use the theoretical settlement date, which, in the case of operations carried out in trading venues, will be the second business day following the date of execution of the transaction, without taking into account eventualities that may delay the effective date of the settlement.
Article 10 introduces a procedure alternative to that provided for in Articles 126 to 128 of the General Regulation of Tax Management and Inspection Actions and Development of Common Rules of Tax Application Procedures, approved by Royal Decree 1065/2007, of July 27, which allows for agile rectification in the Self-Assessment itself of incorrectly declared operations that have resulted in payments made in a previous Self-Assessment, without cve: BOE-A-2021-8747
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OFFICIAL STATE GAZETTE
No. 125 Wednesday, May 26, 2021 Sec. I. Page 63810 that, in no case, the result of the Self-Assessment in which the rectification is made can be negative.
The first additional provision refers to the obligations of conservation and maintenance at the disposal of the tax administration of information with tax relevance regarding this tax, which, in development of what is provided in Article 8.5 of the Tax Law, fall upon the central securities depository and its participating entities.
The second additional provision provides that the tax administration will publish, for informational purposes only, the list of companies whose shares are subject to the levy from the list of companies communicated by the Stock Exchange Society.
For the purpose that all participants in the Self-Assessment filing and payment process have a reasonable time to adapt their systems, the sole transitional provision establishes that the filing and payment of the first Self-Assessments of the tax, corresponding to January, February, March, and April 2021, will be carried out within the period provided for the filing and payment of the Self-Assessment corresponding to the month of May 2021. On the other hand, the first final provision includes two modifications in the Regulation of the Value Added Tax, approved by Royal Decree 1624/1992, of December 29, with an eminently technical purpose, to make it possible for taxpayers who sign consignment sales agreements benefiting from the Immediate Information Supply can comply with the obligation of keeping the new section of the register book of certain intra-Community operations provided for in Article 66.3 of the Regulation through the Electronic Headquarters of the State Tax Administration Agency from the day following the publication of this Royal Decree in the "Official State Gazette". In this way, on the one hand, the period for the supply of information of these operations is regulated, and on the other, additional fields necessary to complete the registration information of the goods are established. The second final provision modifies the General Regulation of Tax Management and Inspection Actions and Development of Common Rules of Tax Application Procedures, to introduce a new Article 54 ter that regulates the obligation to inform about the transfer of use of housing for tourist purposes, in the same terms as the previous Article 54 ter, which was approved by Royal Decree 1070/2017, of December 29, which modifies the General Regulation of Tax Management and Inspection Actions and Development of Common Rules of Tax Application Procedures, approved by Royal Decree 1065/2007, of July 27, and Royal Decree 1676/2009, of November 13, which regulates the Council for the Defense of the Taxpayer. The Judgment of the Supreme Court number 1106/2020, of July 23, has annulled and left without effect the previous Article 54 ter of the Regulation for not having been notified as a "technical regulation" to the European Commission, during the processing of the Project of Royal Decree 1070/2017, in compliance with Directive (EU) 2015/1535 of the European Parliament and of the Council, of September 9, 2015, establishing a procedure for information in the field of technical regulations and rules relating to services of the information society. This provision establishes, for the purposes of tax fraud prevention, a specific information obligation for persons or entities, in particular, the so-called "collaborative platforms", that intermediate in the transfer of use of housing for tourist purposes. The rental or sublease of housing as defined in Law 29/1994, of November 24, on Urban Leases, and tourist accommodations regulated by their specific legislation as
hotel establishments, rural accommodations, hostels, and tourism camps, among others, are excluded from this concept. Likewise, the right to use real estate on a timeshare basis is excluded. The third final provision modifies Royal Decree 1021/2015, of November 13, establishing the obligation to identify the tax residence of persons who cve: BOE-A-2021-8747 Verifiable at https://www.boe.es

OFFICIAL STATE GAZETTE
No. 125 Wednesday, May 26, 2021 Sec. I. Page 63811 hold the ownership or control of certain financial accounts and to inform about them in the scope of mutual assistance, to introduce a new paragraph in Article 4. This modification is due to the need to maintain the obligation to present the information declaration, even when there is no specific information to communicate, to facilitate the control of compliance with the obligation to present the aforementioned information declaration. The fourth final provision refers to the competence title by virtue of which this Royal Decree is issued. The fifth final provision empowers the Minister of Finance to issue the necessary development rules. Finally, the sixth final provision regulates the entry into force of this Royal Decree. This Royal Decree, in accordance with what is prescribed in Article 129 of Law 39/2015, of October 1, on the Common Administrative Procedure of Public Administrations, has been drafted in accordance with the principles of necessity, effectiveness, proportionality, legal certainty, transparency, and efficiency. In this way, the principles of necessity and effectiveness are met, as the regulation contained in this Royal Decree is of an indispensable nature and requires its incorporation into the legal system through a regulatory rank norm. The principle of proportionality is also met, as it contains the necessary and limited regulation to achieve the objectives sought with the Royal Decree. Regarding the principle of legal certainty, a clear, certain, and consistent normative framework has been guaranteed for the different affected subjects. As for the principle of transparency, the Royal Decree has been submitted to the public consultation procedure and the public hearing and information procedures, established in paragraphs 2 and 6 of Article 26 of Law 50/1997, of November 27, of the Government. Finally, in relation to the principle of efficiency, the norm has been configured in such a way as to generate the least administrative burdens for citizens, as well as the lowest indirect costs, fostering the rational use of public resources and full respect for the principles of budgetary stability and financial sustainability. By virtue thereof, upon proposal of the Minister of Finance, in agreement with the Council of State, and after deliberation of the Council of Ministers in its meeting of May 25, 2021, I HEREBY ORDER:
Article 1. Object.
This Royal Decree aims to develop the procedure for filing and paying the Self-Assessments of the Tax on Financial Transactions by the taxpayers in accordance with what is established in Article 8 of the Tax Law, both in the situations where such Self-Assessments are filed and paid through a central securities depository established in Spanish territory and in those where the filing and payment is carried out directly by the taxpayers before the tax administration.
Article 2. Situations for filing and paying Self-Assessments through a central securities depository established in Spanish territory.

1. The filing and payment of the Self-Assessments of the tax will be carried out by the taxpayers through a central securities depository established in Spanish territory in the situations and with the requirements provided for in this article and in Articles 3 and 4.
   In particular:
   a) When the annotation of the acquisition of the securities is made in the account of a depositary entity that, in turn, keeps said securities deposited, directly or indirectly, in a registration system managed by a central securities depository established in Spanish territory, entrusted by the issuing entity with the keeping of the accounting register of said securities or acting as a depositary by virtue of a direct or indirect link with another central securities depository established outside Spanish territory entrusted with the keeping of said accounting register, the filing and payment of the Self-Assessments will be carried out in accordance with what is provided in Article 3. For these purposes, it will be considered that a depositary entity keeps securities indirectly deposited in a registration system managed by a central securities depository established in Spanish territory when said securities are successively deposited through a chain of financial intermediaries, and the last of them has them custodied in a central securities depository established in Spanish territory or in any of its participating entities, including those participating entities that are a central securities depository established outside Spanish territory. b) When the annotation of the acquisition of the securities is made in the account of a depositary entity that, in turn, keeps said securities deposited, directly or indirectly, in a registration system managed by a central securities depository established outside Spanish territory, unless the latter acts as a participating entity of a central securities depository established in Spanish territory, the filing and payment of the Self-Assessments will be carried out in accordance with what is provided in Article 4.
2. The filing and payment of Self-Assessments through a central securities depository established in Spanish territory will be mandatory for all subject acquisitions of securities, including exempt ones, that must be subject to Self-Assessment and payment of the tax by the taxpayer in the tax period, when any of the following circumstances occur:
   a) That the securities resulting from some of the acquisitions have been registered in an account of the taxpayer referred to in letter a) of Article 3. b) That the taxpayer has taken advantage of any of the options for filing and paying Self-Assessments through a central securities depository established in Spanish territory provided for in letter b) of Article 3 and in Article 4. If the taxpayer has not opted for filing through a central securities depository established in Spanish territory regarding some of the acquisitions included in the scope of letter b) of Article 3 or letters a) to c) of paragraph 1 of Article 4, but according to what is indicated in the previous paragraphs, the Self-Assessment and payment of tax corresponding to all acquisitions of the tax period through said central securities depository is mandatory, the taxpayer will designate as a participating entity for the purposes of providing the information and making the payment referred to in Article 5 regarding such acquisitions, any of the participating entities to which they provide the information and the payment of the tax in relation to the acquisitions included in letters a) and b) above. When all acquisitions made corresponding to a tax period are included in the scope of Article 4 and the taxpayer has only taken advantage of the filing option provided for in letter a) of paragraph 1 of said article, they must designate a participating entity in the central securities depository established in Spanish territory for the purposes of providing the information and making the payment referred to in Article 5 regarding those acquisitions that are not included in the scope of said letter a). The designation of the participating entity referred to in the two previous paragraphs will not be necessary for taxpayers who have that condition.
3. In the filing and payment of Self-Assessments, it will be understood that the central securities depository, as well as its participating entities, if applicable, act on behalf and in the name of the taxpayer.
   cve: BOE-A-2021-8747
   Verifiable at https://www.boe.es

OFFICIAL STATE GAZETTE
No. 125 Wednesday, May 26, 2021 Sec. I. Page 63812
Article 3. Filing and payment of Self-Assessments when the acquisitions of securities are annotated in accounts linked to a registration system managed by a central securities depository established in Spanish territory.
In the situations provided for in letter a) of paragraph 1 of Article 2, the filing and payment of the Self-Assessments of the tax will be carried out through the central securities depository established in Spanish territory in the following cases:
a) When the taxpayers, whether acting on their own account or on behalf of others, have an account in the central register of the central securities depository established in Spanish territory or have an account in the detail registers of any of the participating entities in said central securities depository. b) When the taxpayers not included in the previous letter a) opt for this procedure. Taxpayers who exercise this option must designate at least one participating entity in the central securities depository for the purposes of providing the information and paying the amount of the tax debt in accordance with what is provided in Article 5. Such participating entity will be that whose accounts in the central securities depository participate in the custody chain of the securities subject to acquisition. In the case of securities registered in the accounts of different participating entities, the taxpayer may designate all of them or a single one of said entities, at their choice, for the purposes of providing all the information and making the payment referred to in said Article 5. The option will be exercised by communication by the taxpayer to the designated participating entity, carried out by any means that leaves evidence of its receipt, and will take effect at least in the next monthly tax period following the month in which said communication was made and in the subsequent monthly periods while its revocation is not communicated by the same means.
Article 4. Filing and payment of Self-Assessments when the acquisitions of securities are annotated in accounts linked to a registration system managed by a central securities depository established outside Spanish territory.

1. Taxpayers may opt p