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LAW CHANGES IN THE NAUTICAL FIELD BENEFIT RECREATIONAL VESSELS WITH SPANISH FLAG

Recreational boating in Spain has undergone many changes in the last years. These changes have been geared towards the purpose of invigorating the recreational sector by simplifying the strict requirements previously demanded for the registration and navigation of the pleasure boats, increasing the competitiveness of this sector regarding other countries of the European Community.

Among the more meaningful changes before mentioned, it can be pointed out the Royal Decree 1435/2010 November 5th, which regulates the flagging and registration of pleasure boats listed in the sixth and seventh vessel register.

This Decree simplifies a lot the registration process of certain pleasure boats and has approved the non-registration of pleasure boats with commercial ends, like chartering. It also simplifies the requirements related to radio communications of pleasure boats.

This Royal Decree introduced changes the scope or interpretation of which were not clear enough for the recreational boating sector, which is the reason why the interested parties (Harbour Master, ANAVRE, citizens) raised an official query to the organisms whose criterion was vital in order to clarify the doubts and to explicitly indicate the scope and interpretation of this Law.

Thus, the General Direction of Merchant Marine, in Query dated 12.03.13, and the Tax Agency, in binding Query COSG-2013-007-DMji, officially confirmed that a pleasure boat with Spanish flag, Spanish Owner and used in Spanish waters is allowed to change the Spanish flag to any other from a European country, as long as the VAT tax and the registration tax have been paid.

A.     FLAG CHANGE BENEFITS:

As for the flag change, the Law applied to a pleasure boat in navigation matters will be the Law of the flag country and not the previous flag country (Spain), which is stricter than other European countries and implies much more expensive costs.

 1. TECHNICAL BENEFITS:

With this new Law change, the situation of mainly Spanish flag pleasure boats has been improved.

Among the benefits that can be mentioned and which apply to pleasure boats only in private use and below 24 meter length, the pleasure boat does no longer have to follow the Spanish requirements such as, for example, going through an annual technical inspection, having on board safety equipment and mandatory navigation title for pilots. However, flag changing does not avoid tax payment for the purchase of the vessel to the Tax Agency, as well as the registration tax to the new flag country, if any.

2. TAX BENEFIT:

The benefit obtained by flag changes is not fiscal because both taxes (VAT and Registration tax) are mandatory if you are a Spanish resident and the pleasure boat is used in Spanish waters.

-          SPANISH RESIDENT:

Fiscally, if you are a Spanish resident, you are not allowed to have a pleasure boat with foreign flag in Spain without having complied with the fiscal requirements, because due to the residence factor and the place-of -use factor, taxes must be paid in Spain.

The foreigners who reside in Spain have to pay registration tax also.

-          NON RESIDENTS IN SPAIN

Usually a pleasure boat is registered where the Owner resides, but if the Owner does not reside longer than 183 days in Spain, he/she will not be considered a resident and there will be no need of registration.

If you are a European resident, you can permanently have a vessel in Spain, if the corresponding taxes have been paid in your country.

If you are member of another European country who would like to change your residence to Spain (since taxes in your country have already been paid), you can bring your pleasure boat to Spain and ask for the registration tax exemption. The requirements to ask for this are to have a usual residence in a European country during the previous 12 months, to have acquired the pleasure boat in regular tax conditions, without exemptions, and to have used this pleasure boat (by the person who asks for the exemption) during the previous 6 months in your former country of residence. The exemption has to be asked in a maximum period of 30 days as from the moment you are considered a Spanish resident. After registration, the vessel cannot be sold during the following 12 months. There is no need to change flag, you can keep the original or previous flag (these are changes done to the Law in 2011).

If you are resident of a non-European country, the maximum period to have an embarkation in Spanish waters is 18 months. This period can be extended if the embarkation is sealed.  After this period, VAT tax must be paid.

In summary, recreational embarkations with foreign flag and owned by non-residents in Spain, can only be in Spain 183 days and do not have to pay any tax, whether individuals or companies. What generated the obligation to pay the tax is the fact to become a Spanish resident.

-          OTHER OPTIONS

Another option is to ask for a touristic registration and this way you will be exempted to pay registration tax having a Spanish flag. If a person does not reside in Spain, European or non- European, but uses his/her embarkation in Spain, he/she can put the Spanish flag and not pay matriculation tax, by using this touristic matriculation system. The original vessel flag can be kept.

The acquisition of an embarkation abroad with foreign flag is also possible since the Law change of 2011 and there is no need of registration, because even if the embarkation is used by a Spanish resident, the registration will not be necessary if the payment, exemption or non- application of this special tax is justified. This is an important change introduced in 2011 that must not be forgotten.

CONCLUSION

 In summary, all the Law changes undergone by the Recreational boating sector mainly benefit Spanish flag embarkations, because the registration, radio communication and nautical titles requirements have been softened and because by the approval of flag changing to a flag of other European countries, the navigation regime that will be applied will be less strict than the Spanish in navigation matters and annual costs. There will be no benefits in fiscal matters.