Day 1 of the Spanish Digital Services Tax: and now what? A wave of tax policy, legal interpretation and compliance challenges

Abstract

The Spanish digital services tax came into force on January 16, 2021, after a turbulent process, with the ambition of serving as a provisional measure pending the promising multilateral solution. This article aims to critically analyze the fundamental aspects of the tax and to reveal (and assess) the main challenges that its implementation and daily administration may generate. In particular, these challenges relate to the vague definition of some of its clauses (with the consequent harm to the principle of legal certainty), the (almost) impossible access to the data needed for the correct calculation of the tax base (which may render the tax impracticable), and the tax planning opportunities that may be exploited by taxpayers to minimize their liability, among other challenges. Finally, the article will assess the questionable alignment between the design of the tax and the guiding principle of tax policy (the principle of “value creation”) that the regulation is supposedly intended to follow. In conclusion, one must ask whether this path makes sense: is it worth endangering fundamental principles of our Rule of Law for a provisional measure targeting a small group of multinationals?