There has been much confusion in the sector with the new changes in the port tariffs for commercial services for the repair and maintenance of ships and vessels introduced last 1st of July by the Balearic Port Authority Autoridad Portuaria de Baleares (APB) which affects Palma, Alcúdia, Maó, Eivissa and La Savina and we want to explain you in this article what they are about.
Let me first of all make a small introduction in order to explain what exactly the port taxes and the port tariffs are. We need to go to Art. 246 Real Decreto Legislativo 2/2011, Texto Refundido de la Ley de Puertos del Estado y de la Marina Mercante (“Port´s Act 2/2011) in which it is said that the Port Authorities are entitled to levy:
- port taxes (“Tasas Portuarias”) as consideration paid by the taxpayers for the exclusive or special use of the port public domain facilities and for the provision of non-commercial services rendered by the Port Authorities. These are mainly divided in four groups:
- occupancy taxes: for the occupancy of the port public domain, and that of its flight and subsoil, under the protection of an authorization
- activity taxes: for the services rendered of commercial or industrial services subject to authorisation of the Port Authority
- use taxes: ship tax (T-1), passage tax (T-2), merchandise tax (T-3), fisheries tax (T-4), pleasure crafts tax (T-5) and special tax for the use of transit area (T-6)
- navigation taxes for the services of maritime signals
- port tariffs (“Tarifas portuarias”) is the price or consideration satisfied by private third parties authorised for rendering commercial services under free competition being considered as Private Prices (“Precios Privados”) and are documented in official invoices. The port tariffs accrue from the moment of the application for the service requested and will be payable to 20 calendar days from the notification of the corresponding invoice; however under warranty of the payment of the fees, the Port Authorities may require the constitution of a prior deposit or a guarantee that ensures payment, without prejudice to its subsequent settlement
The port tariffs might be freely adopted by each Port Authority and so the APB adopted last 18 of November 2019 the new Specific Terms and Conditions of the Commercial Service for the repair and maintenance of ships and vessels in the ports of the APB (Pliego de Condiciones Particulares del Servicio Comercial de reparación y mantenimiento de buques y embarcaciones en los puertos de Palma, Alcúdia, Maó, Eivissa y La Savina). Although the new regulation was foreseen to enter in force on the 1st of January 2020 it was postponed till the 1st of July 2020.
In the past this port tariff for companies and entrepreneurial rendering repair and maintenance services in vessels and ships lying or moored in any of ports consisted in a fixed annual amount paid regardless of the size of the company. However, from the 1st of July 2020 onwards it will be paid based on different aspects like the activity – , specifically, 1.5% or 3% of the gross turnover of the company – the type of works and services, the port or marinas where the task is carried out etc. It affects any work carried out on board the boat in the water or in dry dock. Although at this point it is quite uncertain if services rendered in a premise outside the Port Authority area – let say the repair of a motor or canvas that has been previously taken out from the vessel and transported to the atelier or mechanical workshops out of the port in the Poligono for example – should be included or not.
In addition, companies based outside the port but carrying out tasks within the area managed by the APB will also have to pay this tariff.
The authorisation must be applied online in Ports de Balears web page https://seu.portsdebalears.gob.es/ in which any company or the entrepreneurial must be recorded, apply the authorisation and in which the invoice will be sent.
It is possible to claim against this tariff at the ordinary jurisdiction in a civil proceeding and not at the administrative jurisdiction as by the taxes. However it is compulsory to file previously the claim at the Board of Directors of the Port Authority before starting the judicial claim. If afterwards the PA rejects such previous claim or, where appropriate, after the period of 3 months from its filing without a resolution, the civil process might be launched. In any case, the previous claim at the PA will not suspend the obligation of the payment.
Finally, we must lament again that this new increase of burdens and expenses in the nautical activity, especially in this difficult times, means another obstacle for the developing of the sector and as not all the Port Authorities are implementing in the same way and at the same time this port tariff it will surely cause many companies to reconsider their location.
Solicitor & Tax Adviser
+34 627 41 32 01