New Tax on Fluorinated Greenhouse Gases

Next September 1, 2022, the New Tax on Fluorinated Greenhouse Gases (IGFEI), introduced in the Spanish territory since January 1, 2014 through Article 5 of Law 16/2013, of October 29, will come into force.

The configuration and structure of this new tax is regulated by the First Final Provision of Law 14/2022, of July 8, amending Law 19/2013, of December 9, 2013, on transparency, access to public information and good governance, in order to regulate the statistics of micro, small and medium-sized enterprises (SMEs) in public procurement, as well as Royal Decree 712/2022, of August 30, approving the Regulation of the Tax on Fluorinated Greenhouse Gases, and, Order HFP/826/2022, of August 30, approving models 587 and A23.

The main novel element of the IGFEI is the modification of the taxable event of the tax, previously configured as an indirect tax levied on the sale of the fluorinated gas after import, manufacture and/or intra-community acquisition, now directly applicable to the activity of import, manufacture and/or intra-community acquisition of fluorinated gases throughout the Spanish territory.

No less novel is the introduction of the figure of the "stockist of fluorinated gases" and the IGFEI deferral regime, applicable to operators who hold this consideration.

As a consequence of the modification of the taxable event, the rest of the elements of the tax have undergone changes, as follows:

Fluorinated greenhouse gases, classified as hydrofluorocarbons (HFCs), perfluorocarbons (PFCs) and sulfur hexafluoride (SF6), as well as mixtures containing these substances, whose use is carried out throughout the Spanish territory, make up the objective and applicable scope of the tax.

As anticipated in this note, the taxable event of the IGFEI will be the manufacture, importation, intracommunity acquisition or irregular possession of fluorinated greenhouse gases contained in containers or incorporated in products, equipment or apparatus.

The manufacture, importation, intra-community acquisition or irregular possession of gases with a global warming potential (GWP) equal to or lower than 150, as well as the manufacture and shipment of the products subject to the tax with destination outside Spanish territory are not subject to IGFEI.

The regulations governing the IGFEI provide, among other exemptions from the tax, for the manufacture, importation or intra-Community acquisition of goods subject to the tax that are intended to: -i- be used as raw material for chemical transformation, -ii- be marketed for destruction, -iii- be incorporated in ships or aircraft engaged in international maritime or air navigation (not private recreational), and, -iv- be part of travelers' baggage, among others.

It is important to mention that, in order to justify the exemptions provided for in the IGFEI regulations, taxpayers making the first delivery or making available of the gases subject to tax in favor of the purchasers, must obtain a prior declaration stating the destination of such products and keep it during the tax prescription period (4 years).

The accrual of the tax and the special rule of deferral underlying the figure of the "stockist of fluorinated gases", will be applicable, in accordance with the following:

A. Manufacture: IGFEI will accrue at the time the manufacturer makes the first delivery or makes available, in Spanish territory, the gases manufactured or when they are used. If advance payments are made prior to the realization of the manufacturing taxable event, the accrual will occur with the total or partial collection of the price for the amounts actually received.

Special accrual rule: the manufacturer (G1), authorized to operate as a "stockist of fluorinated gases" may defer the accrual of the tax on the gases manufactured, until it delivers or makes the fluorinated gas available to anyone who is not considered a "stockist of fluorinated gases", or when it uses or self-consumes said gas.

B. Importation: the IGFEI will be accrued at the moment in which the accrual of the import duties would have taken place, on the occasion of the release for free circulation of the fluorinated gas coming from a third country, introduced in the Peninsula, Balearic Islands, Canary Islands, Ceuta and Melilla.

Special accrual rule: the importer (G3), authorized to operate as a "stockist of fluorinated gases" may defer the accrual of the tax on imported gases, until it delivers or makes the fluorinated gas available to anyone who is not considered a "stockist of fluorinated gases", or when it uses or self-consumes said gas.

C. Intra-Community acquisition: the IGFEI shall become due on the 15th day of the month following that in which the dispatch or transport of the gases to the purchaser begins. If prior to the aforementioned date an invoice is issued for such operations, the tax shall become due on the date of issue of the invoice.

Special accrual rule: the acquirer (G2), authorized to operate as a "stockist of fluorinated gases" may defer the accrual of the tax on gases acquired intracommunity, until the delivery or provision of the fluorinated gas to a person who is not considered as a "stockist of fluorinated gases", or when using or self-consuming such gas.

D. Irregular possession: IGFEI will accrue when it is found that the fluorinated gases used, marketed or transported lack documentary proof of payment at the time of importation, manufacture or intra-Community acquisition.

Manufacturers, importers or intra-community purchasers of fluorinated gases will be considered taxpayers of the tax and, consequently, they are obliged to register in the territorial registry of the Management Office corresponding to their tax domicile, through the electronic headquarters of the Tax Agency.

Those taxpayers not established in Spanish territory will be obliged to appoint an individual or legal entity to represent them before the Tax Administration in relation to tax obligations. This representative must register with the Management Office using code G5.

The aforementioned taxpayers that choose to operate under the figure of "fluorinated gases warehouseman" must also request authorization from the aforementioned Management Office, through the code G4.

The taxable base of the tax shall be constituted by the weight of the gases subject to the tax, expressed in kilograms.

Section Eleven of Law 14/2022 establishes the specific taxable base for those products, equipment or apparatus containing fluorinated gases whose taxable base cannot be determined according to the previous paragraph, for example:

- household refrigerators: 0.250 kilograms for each unit of refrigeration power expressed in kW

- portable air conditioners: 0.250 kilograms for each unit of refrigeration power expressed in kW

- refrigeration equipment for building air-conditioning systems, heat pumps and dehumidifiers: 0.500 kilograms for each unit of cooling power expressed in kW

- air conditioning for passenger cars: 0.600 kilograms per vehicle

- air conditioning for vans: 1 kilogram per vehicle

Thus, the tax rate will result from multiplying the coefficient 0.015 to the GWP of each product subject to the tax, with a limit of 100 euros per kilogram. When it is not possible to determine the GWP because of gases contained in apparatus, equipment or products, the tax rate will be 100 euros per kilogram.

The regulations governing the IGFEI provide for deductions and refunds in cases where the product subject to the tax is delivered outside Spanish territory.

Among the obligations to which IGFEI taxpayers will be subject are the following:

- registration in the territorial registry and obtaining the CAF code.

- filing of self-assessment through form 587 (manufacturers, purchasers and warehousers),

- stock accounting (except for importers) in electronic form and under the modality of electronic supply of accounting entries (soon to be developed).

Likewise, for the purpose of justifying the legal stay and possession of the product subject to the IGFEI, those who make sales or deliveries of fluorinated gases or of products, equipment or apparatus containing them, must state in a certificate or in the invoice issued on the occasion of such sales or deliveries: -i- the type of fluorinated gas and the amount thereof, expressed in kilograms and, -ii- the amount of tax paid on such gases.

Although the regulations do not require stock accounting for importers, we recommend that importers with commercial activity in the European Union and outside the European Union keep accounts for IGFEI purposes to facilitate the identification of the tax refundable.

We inform those operators interested in operating under the "fluorinated gas stockist" scheme that this regime is subject to authorization by the Excise Duties Office and that such authorization is subject to the provision of plans of the establishment, descriptive report, documentation accrediting the use of the storage facilities, and the maintenance of such authorization requires a volume of sales or deliveries of more than 8,000 kilograms of fluorinated gases in the immediately preceding year.

As with all indirect taxes, the IGFEI is subject to formal obligations, the non-compliance of which will result in the imposition of infractions and penalties set forth in the regulations governing the tax.

How can we assist you?

From Salinas & Partners, we recommend economic operators linked to fluorinated greenhouse gases and products and equipment containing these gases, to carry out the steps required by the regulations governing the tax, as well as to monitor the control activities necessary for the migration of taxable events and CAF's granted prior to the entry into force of the regulations covered by this informative note.