Guillermo Jiménez Ruiz

Excellent work by Sáez Abogados, the work of its Legal Director Guillermo Jiménez Ruiz, on a subject as fashionable as controversial: the rate of activity in the State Ports.

What is the activity rate?

The activity rate is a tribute paid annually by the Harbour Authorities to those who carry out commercial, industrial and service activities in ports of general interest and subject to authorization.

It is regulated in articles 183 to 192 of Royal Legislative Decree 2 / 2011 of 5 September 2011, approving the Consolidated Text of the Law on State Ports and the Merchant Navy.

What is the amount of the fee?

The regulation provides for a multiplicity of assumptions regarding the different activities that can be developed in Spanish ports (cargo, passage, technical services, waste collection, port services, etc.).

In seaports, the annual amount of the fee is usually between 4% and 8% of the business figure of the concessionaire for the operation and management of the concession. However, in the competitions called by the Harbour Authorities it is possible to offer improvements that increase the amount to be paid.

The recent controversy of State Ports

On 19 July 2017, the State Attorney General issued the Public Entes Report 72 / 17 (R-574 / 17). It was a bomb in the operational of the activity rate, both for the Harbour Authorities and for the concessionaires, licensees and entrepreneurs that carry out their activities in the ports of general interest. In essence, this report established that the activity rate was due on two cumulative levels:

(a) On the income (business figure) of the activity carried out by the dealers in the port, which was out of question previously and had not raised major problems.

(b) The revenue of the activities carried out by the transferees and tenants of certain spaces in the ports.

For example, commercial premises in the area of concessions are often included in sports ports. The concessionaire cites, for rent or for the entire concession period, these premises to third-party entrepreneurs to carry out their business. In return, the concessionaire receives a price or rent from the lease.

So far, the activity rate that the Harbour Authorities liquidated was related to the concessionaire's revenues for these assignments (prices or rent revenues charged). However, the above-mentioned State Attorney & apos; s Report opened the possibility of tax also on the income of third-party assignees or tenants of the concession premises in the course of their activity. In other words, the activity rate (a%) should be paid on the income or price of the assignment (paid by the assignee or lessee to the concessionaire) and, in addition, on the income of the assignee or lessee in the exercise of its own activity.

This automatically raised three difficult problems, which the report does not clarify:

1.Duplicity in the object and share of the tax, significantly increasing the total amount of the activity rate. In fact, many concessions and businesses would be unviable with this rise.

2. Who would have to settle the activity rate for the income of the assignee or lessee? It is doubtful that it was the transferee or lessee, since it has no link to the Harbour Authority and its activity has not been authorized by it. But it is also doubtful that it was the concessionaire, as it would be taxing for an activity that a third party is not in control of and the possibility of having it passed on to the assignee or lessee is not clear, except in the unlikely event that it was agreed on in the contract. The law does not consider it.

3. How would the liquidation of the activity rate be managed? Both the Harbour Authority and the concessionaire do not know the business figure of the assignee or tenant. And, unless agreed contractually, they do not seem to be entitled to demand such information.

The rectification of State Ports

In the light of the flare-up generated, in the State Attorney's Report, Public Entes 13 / 18 (R-123 / 2018), the conclusions of the previous report were quite balanced.

In essence, this new report reflects the lack of clarity of the law and the inadequacy of the tax rules and provisions of the existing administrative authorizations and concessions to address the interpretative problems raised. And a call is made for a regulatory amendment which clearly and precisely sets out the system of the activity rate.

However, as long as this legislative reform does not take place, the report calls for the maintenance of the operation prior to the 2017 report. The conclusions of the Public Entes 13 / 18 report are as follows:

1) Only the concessionaire is obliged to pay the activity rate. He's the only passive subject of the tribute. And it is not the transferee or lessee who carries out business activities in the concession, because they are not linked to the Harbour Authority and do not need to obtain authorization from it.

2) In principle, the tax base of the activity rate to be settled to the concessionaire will depend solely on its own turnover and not on the billing of the transferees or lessees within the concession. The reasons are several:

♪ The figure of the taxable person (concessionaire) cannot be disconnected from the taxable act (business activity authorized by the Harbour Authority that develops a third party).
* The taxable act is done by a third party who is not a taxable subject of the tribute.
* The attribution of the taxable status to the concessionaire for the billing of the third party (assignee or lessee) would be contrary to the constitutional principle of economic capacity and to the very nature of the tax figure of the tax.
* The impact of the concessionaire's tax burden on the assignee or lessee would be virtually impossible: it is not provided for by law (the concessionaire is not a substitute for the taxpayer) nor will it normally be established in existing contracts.

The opinion of Sáez Lawyers

The activity rate cannot be settled on activities carried out by third parties other than the concessionaire. And the concessionaire must only pay the activity rate on own income, its own turnover or business figure. Everything like this. The opposite interpretation means that:

(a) No legal lace.

(b) The economic, administrative and contractual structure of current and operational concessions, business and business activities, which would no longer be viable, is dynamite. You can't change the rules of the game in the middle of the game.

(c) It raises practical management problems that find it very difficult to resolve in the current legal framework.

In Sáez Abogados we are specialized in the advice of port concessions. Therefore, we are at your disposal to attend to any consultation or clarification concerning the object of this article or any other related to the port sector.

Guillermo Jiménez Ruiz, Director, Legal Department
Saez Lawyers