With the end of the deadline for submitting amendments, which ended yesterday and resulted in the rejection of number 57 relating to deductions for investments for decarbonization presented by the Popular Group, Vox and Citizensthe Congress of Deputies has given the green light to the controversial tax that will be levied for two years share of income of banks and large energy companies with sales of more than one billion euros per year. In this way, the bill passes to the Senate and its approval and entry into force on January 1, 2023 is taken for granted.
Although the affected companies have been pressured for the tax to be applied to profits and not to income, as stated in the European Regulation that plans to deduct extraordinary benefits companies to reduce the cost of energy bills to consumers during the crisis, the Government has remained in its thirteen. Of course, through various amendments led by the PNV, it agreed last week to leave income from regulated businesses (grids, extra-peninsular systems and subsidized renewables from the so-called Recore) as well as those obtained outside of Spain.
Endesa has had no qualms about publicly revealing that, if applicable, the tax will have a impact of 600 million euros (300 million annually). On the other hand, according to business sources, It will mean another 500 million for Iberdrola. In the case of the third electricity company, Naturgy, the impact will be less than its competitors, perhaps half, while for Repsol, which keeps its figure secret, it would be 800 million. In any case, the Government will guarantee a collection much higher than 2,000 million euros.
cook the results
This is so because of the effort of the Treasury to not give in on his proposal to tax income and not profits, because, although the collection in one case or another would not have been very different, “by doing it on income, the collection is assured, since the benefits can be cooked by the companies”, assure political sources. Among others “tricks and makeup”the provisions, devaluations of assets or amortizations appear, add the same sources.
On the other hand, although within the Government there have been supporters of applying the Regulation to the letter, finally, the positions of the Treasury technicians and the arguments of the State Attorneywhich considers that the Spanish tax is in accordance with said Regulation.
This sets as the tax base profits that exceed by 20% the annual average registered by each company in the last four years, with a rate of 33%. Since the Regulation allows fiscal measures “equivalent or similar” To this, the Government has chosen to apply it to those considered by the CNMC as main operators of the different energy markets (electricity, gas and hydrocarbons) that have this excess of benefits, but taxing 1.2% of the annual turnover obtained in Spain, except for regulated assets.
Materially, the result or the tax burden is the same, but, the sources insist, “net income is a tax base easier to apply than the profit”.
By leaving regulated businesses out of the tax, the TSOs have gotten rid of it: operators of the electrical and gas systems and carriers (REE and Enagás), who will only see their few liberalized businesses taxed, as long as they exceed 1,000 million annual income. Also the non-mainland systems (the generation and distribution of the two archipelagos, Ceuta and Melilla) operated by Endesa, and the rest of the distribution networks in the hands of the large electric companies and the small ones integrated into Cide.
Also the Recore renewable facilities that receive compensation through the charges of the electricity bill that is around 6,000 million of euros per year.
A difficult legal route for companies
authority. In addition to what is contained in the European Regulation that provides for deducting extraordinary benefits from energy companies to alleviate the effects of the crisis, the Government reminds that it has the power to continue creating taxes, in accordance with the regulations, without this power being limited by said Regulation.
Courts. Therefore, the energy companies, which have advanced that they will appeal the tax through the courts, have a difficult time winning any lawsuit. At least in the short and medium term. In the first place, because norms with the force of law cannot be appealed directly. From the outset, they can denounce the liquidations before the National Court and get the Supreme Court to agree to submit a preliminary ruling before the Court of Justice of the EU (CJEU), a process that would take between five and six years. Nobody doubts, however, the patience of the companies and their powerful legal services.
User. Although the regulation prevents the cost of the tax from being passed on to the consumer, sources in the sector assure that this will be the case, since the Government will have a difficult time demonstrating said transfer to the final price.