Platform economy: DAC7 (forms 040 and 238) and the digital services tax (490)

DAC7 is the Directive (EU) 2021/514 on administrative cooperation. In Spain it is applied through the 25th additional provision of the Ley General Tributaria (the General Tax Act, introduced by Ley 13/2023) and Real Decreto 117/2024, and it materialises in two forms approved by Orden HAC/72/2024: form 040 (registration in the platform operators register) and form 238 (annual informative return).

It obliges platform operators that facilitate the so-called relevant activities: temporary rental or assignment of real estate, personal services, sale of goods and rental of any means of transport. It does not matter whether the platform is large or small: there is no turnover threshold for the operator. The thresholds usually cited (30 sales, €2,000) serve to exclude certain sellers, not the platform.

It covers operators with a nexus in Spain (tax residence, incorporation under Spanish law, place of management or permanent establishment) and non-qualified foreign operators that choose Spain as their Member State of registration. The obligation has three legs: registering with form 040, applying due diligence procedures on your sellers and filing form 238 every January. Operators who prove they are excluded also have a duty: to file an annual negative return.

Form 238 communicates to Hacienda (the Spanish tax authority), seller by seller, the information obtained through due diligence: full identification (name or company name, NIF, address, commercial registry or VAT number where applicable), the consideration paid or credited in each quarter, the commissions, fees or taxes withheld by the platform, the identifier of the financial collection account and, in the rental of real estate, the details of the advertised property and the days of lease.

Before declaring, the operator must execute the due diligence of RD 117/2024: collect this data, verify its reliability and require the seller who does not provide it to do so. If the seller still does not respond after two reminders, after 60 days the platform must close their account and prevent them from registering again, or withhold the payment of the consideration until they deliver the information. The documentation of the entire process is kept for 10 years.

Four types of sellers are excluded from the communication: state entities, listed companies, large hotel operators (more than 2,000 leases per commercialised real estate property in the period) and occasional sellers of goods who make fewer than 30 sales in the year for a total not exceeding €2,000. Attention: the rental of real estate and personal services have no minimum threshold, they are reported from the first operation.

The IDSD of Ley 4/2020 is a 3% indirect tax levied on three services when users located in Spain are involved: targeted online advertising, online intermediation (marketplaces and platforms that connect users) and the transmission of data generated by users. The user's location is determined mainly by the IP address of the device, following the rules of RD 400/2021.

Only those who exceed a double threshold on the first day of the settlement period are taxpayers: worldwide turnover exceeding 750 million euros in the previous calendar year and income from subject digital services in Spain exceeding 3 million euros in that same year. In groups, both thresholds are measured at the group level, so a Spanish subsidiary can be a taxpayer even if its individual turnover is modest. The vast majority of digital SMEs and startups are left out.

Not everything digital is taxed: the online sale of own goods or services (retail e-commerce where the supplier does not act as an intermediary) is not subject, nor is the underlying delivery agreed through an intermediary, certain regulated financial services or intra-group operations. Whoever is a taxpayer must register in the census (form 036, boxes 714 and 715) and file form 490 every quarter, even when the tax due is zero (by checking the negative return box).

In DAC7 the penalty regime is in the 25th additional provision of the LGT. Failing to comply with due diligence is a serious infringement with a fixed fine of €200 for each affected seller: on a platform with thousands of sellers the figure scales very quickly. The absolute absence of registration by a non-qualified foreign operator is a very serious infringement, penalised with triple the fine that would have corresponded, and the Administration can agree to the precautionary deregistration from the census after two ignored requirements. Not filing form 238, or filing it incomplete or inaccurate, is penalised under the general regime for informative returns (articles 198 and 199 of the LGT).

In the IDSD, Ley 4/2020 typifies a specific serious infringement: not establishing the systems or mechanisms that allow locating the devices of users in Spain. The fine is 0.5% of the net amount of the turnover of the previous year, with a minimum of €15,000 and a maximum of €400,000 for each calendar year of non-compliance. To this are added, if form 490 is paid late, the surcharges and interest of the general regime.

For the private seller, DAC7 does not create any new tax: the platform communicates their data to Hacienda and these are cross-checked with their tax returns. The practical consequence of not collaborating with the platform is the blocking of the account or the withholding of payments.

For DAC7, Managora manages the census registration in the register of operators with form 040 and prepares and files the annual informative return of form 238: we review your seller file (identification, operations and remunerations), we validate it against the AEAT (the Spanish tax agency) technical scheme and we file it electronically on time. We only need that file and the power of representation; you can see the updated price of the service on the procedure's page.

If your group is an IDSD taxpayer, Managora calculates the quarterly tax due with your detail of income by service and your methodology of imputation to Spain, and files form 490 within each window (April, July, October and January), also when a zero return is due. Start the procedure on the corresponding page and Managora prepares and files it for you.