It should be remembered that Art. 20.1.24 of the VAT law establishes the tax exemption for secondary and subsequent property transfers made after the construction or rehabilitation has been concluded which are then only subject to ITP. However, Art. 20.2 of the Act allows the taxpayer who is entitle to a full deduction for VAT borne and who is acting in their business or professional capacity, to waive the exemption, leaving the transaction subject to VAT.
Up until now, it was understood that the waiver had to be formalized in a public deed in order to comply with the requirement of Art. 20.2 of the VAT Act. However, the Court diverges from the current interpretation in its ruling by deeming that any type of written communication sent to the seller indicating the wish to subject the transaction to VAT will be sufficient.
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