At a turnaround to treatment. The judicial body has failed in favor of a taxpayer who exploited a rural house in Tenerife, canceling an IRPF settlement imposed by the Tax Agency, which argued that the management of this house was an economic activity. The judgment revokes the decision of the Regional Administrative Economic Court (TAAR) and forces the Administration to return 2,016.08 euros plus interest to the plaintiff, in addition to assuming the coasts of the process.
Until now, income obtained for the rental of these rentals, as well as holiday homes, have been considered real estate capital and, therefore, are subject to the Income Tax of natural persons (IRPF). This consideration, in fact, has served the pressure groups that fight the regulation of vacation homes to ensure that holiday homes are, above all, homes, non -tourist establishments such as hotels or apartment complexes. The sentence, however, clarifies that the provision of certain additional services can determine its fiscal qualification as an economic activity, even in the absence of full -time employees.
The income obtained by the appellant as “real estate capital yields”, instead of “economic activity yields.” According to the administration criteria, the exploitation of the Rural House lacked the requirements to be considered an economic activity, such as having a full -time employee. However, the Court has determined that the extrahotheler accommodation activity with complementary services – as periodic cleaning, attention to guests and tourist equipment – meets the requirements to be taxed as economic activity. Finance spokesmen have refused to comment on the document.
The ruling, dated in July, but recently released, emphasizes that the activity was duly registered in the Census of Tourism Companies and in the Economic Activities Tax (IAE), in addition to having authorizations of the Cabildo de Tenerife since 2001. Likewise, the Court stresses that the Tax Agency had recognized this same tax regime in previous years, which reinforces the protection of the legitimate confidence of the taxpayer. “The AEAT had arbitrarily changed its criteria since 2016,” tax sources point out in this sense, “after having recognized for more than 15 years the existence of economic activity in these cases”, which emphasizes that the sentence is a “firm step towards legal certainty in the taxation of tourist rental” and an “important precedent for all owners of holiday housing and tourist accommodations in the Canary Islands and in the rest of Spain.”
Not all fiscal advisors agree with the possible significance of the ruling. Another professional based in Gran Canaria who asks not to be identified explains that the sentence addresses the rural rent under the tourist regulations of the Canary Islands and that it is considered to the holiday rental and rural houses as an extra-hotel activity that when it has complementary services it goes beyond the strictly real estate, so in these cases it could be understood that it is not necessary to have a hired person. However, it clarifies that extrapolation is difficult in a generalized way, because in this judgment it analyzes a specific case, in which there is also the key element that, in an earlier liquidation, the Tax Agency had given no matter how good that it had been tourist activity and not merely real estate and this influences the theory of its own acts. This judgment does not create jurisprudence, since it is from a superior court of justice of one community and that of another (or even another room) can make a different decision.
The administration can still resort to the decision before the Supreme Court, an organ that on several occasions has been manifested on several occasions about the fiscal qualification of tourist rentals as economic activity. In November 2023, whose statutes expressly prohibit the use of homes to exercise economic activities. In this case, the high court analyzed the cases of two homes in Oviedo and San Sebastián. Sitting this premise, the Chamber understood that the activity deployed by the defendant in the two properties has “business and commercial nature, provided by a commercial company.”
This sentence coincides with the processing in the Parliament of the Canary Islands by means of an urgency of the draft law that will regulate holiday housing. Autonomic, which can be dedicated a maximum of 10% of the “planned residential buildability” of a population core to holiday housing. In the palm, gomera and iron that percentage will be 20%. In addition, homes must be at least 35 square meters of surface and ten years old. One of the central aspects of the law is that new holiday homes cannot be implemented until each municipal urban planning expressly enables it for the next five years.
This process account and the resolution of the TSJC fully rebates one of its main arguments: precisely, the fact that the Tax Agency considers the holiday rent as a real estate capital yield. The organization has repeatedly assured that these owners do not carry out economic activities in the strict sense and are not obliged to register as self -employed or to comply with as complex regulations as the classification of activities, and underlines that the use of VV remains residential. Therefore, in his opinion, he does not negatively impact municipal management (PGO) plans.
