Spain: Guidance on online “intermediation” subject to digital services tax

Guidance with respect to what constitutes “intermediation” through a digital interface

Guidance with respect to what constitutes “intermediation” through a digital interface

The tax authority published a new binding consultation resolution (V2295-22) providing guidance with respect to what constitutes “intermediation” through a digital interface, which constitutes a service subject to digital services tax (DST).  


Article 4 of Law 4/2020 lists the types of digital services subject to DST, including online intermediation services defined as making "available to users a multifaceted digital interface (that allows interaction with different users concurrently) that facilitates the delivery of goods or underlying service provision directly between users, or that enables them to locate and interact with other users.”

The tax authority subsequently issued guidance intended to clarify the concept of intermediary in which it stated that in order to determine whether a provider sells goods or services online for its own account or provides intermediation services, it will be necessary to take into account the legal and economic substance of the operation. Only those who receive their remuneration based on the conclusion of the contract in which they mediate can be considered as an "intermediary." The fact that the intermediary determines, partially or totally, the commercial and contractual conditions of the operations carried out between the users of the interface will not necessarily imply that an intermediation service is not being provided.

The tax authority issued four binding resolutions during 2021 and one at the beginning of 2022 in which it differentiated between intermediation in one’s own name and own account (which is not subject to DST) and intermediation in the name and on behalf of third parties (which is subject to DST). In particular, the tax authority concluded that travel agencies sell their own services to travelers and thus do not act as intermediaries.

New binding consultation resolution

In binding consultation resolution V2295-22, the tax authority evaluated the provision of online travel services with the following characteristics:

  • The service is provided by the digital platform to travelers, with two contracts, one between the platform and the user and the other between the platform and the hotel service providers.
  • Although the platform reserves on behalf of the traveler, the price set by the platform is always within the margins delimited by the hotels.
  • The platform allows interaction between users and hotel providers through the digital interface (questions and answers).
  • There are two payment flows, from the users to the platform, and from the platform to the hotel, but the recognized income is only the commission.
  • The platform offers other additional services (e.g., loyalty services).
  • The platform assumes certain risks of the service.

Based on these characteristics, the tax authority concluded that the platform was providing online “intermediation” services because there was no meaningful distinction between the platform acting on its own behalf and acting on behalf of the users, even taking into account the flow of payments, the additional services, and the assumption of risks.

KPMG observation

In practical terms, it seems that the tax authority is extending the concept of intermediation for purposes of the DST to any intervention of a platform through which a user can interact in any way to contract for services.

Read a December 2022 report (Spanish) prepared by the KPMG member firm in Spain


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