Habitual residence in Spanish territory

Regulations: Art. 9 Law Personal Income Tax

It will be understood, in accordance with article 9 of the Personal Income Tax Law , that the taxpayer has his habitual residence in Spanish territory when any of the following circumstances occur:

1. Stay more than 183 days, during the calendar year, in Spanish territory .

To determine this period of permanence, sporadic absences will be counted, unless the taxpayer proves his tax residence in another country. In the case of countries or territories legally classified as tax havens, the Tax Administration may require proof of permanence there for 183 days in the calendar year.

Notwithstanding the foregoing, to determine the period of stay in Spanish territory, temporary stays in Spain that are a consequence of the obligations contracted in cultural or humanitarian collaboration agreements, free of charge, with the Spanish public administrations, will not be counted.

Note: To delimit "sporadic absences", take into account the interpretative criteria that the Supreme Court has established on articles 8.1.a) and 9.1.a) of the Personal Income Tax Law in its Judgments of November 28, 2017 (numbers 1,829/2017, 1,850/2017, 1,860/2017 and 1,834/2017, resolving, respectively, contentious-administrative appeals numbers 815/2017, 812/2017, 807/2017 and 809/2017) and March 1, 2018 (no. 334/2018), in relation to taxation of scholarship beneficiaries from the Spanish Institute of Foreign Trade (ICEX) with a stay in a foreign country to develop their own activities.

Covid-19: in relation to the aforementioned criterion of permanence of more than 183 days within the calendar year in Spanish territory, if there is no agreement double taxation with the country of initial residence, the days spent in Spain due to the state of alarm will be computed for the purposes of determining tax residence, so, if you had stayed more than 183 days in Spanish territory in the year 2020, the person could be considered a taxpayer of Personal Income Tax . Unlike the above, s there is a double taxation agreement with the country of initial residence, in cases of temporary confinement in Spanish territory due to COVID-19 , the application of a double taxation agreement makes it unlikely that the person can be considered a resident in Spain instead of the other country. In any case, the criteria established in the corresponding agreement will be sufficient to resolve the dual residence conflict that may arise.

2. That the main core or base of its economic activities or interests is located in Spain, directly or indirectly .

It will be presumed, unless proven otherwise, that the taxpayer has his habitual residence in Spanish territory when, in accordance with the previous criteria, his non-legally separated spouse and minor children who depend on him habitually reside in Spain.

Foreign nationals who have their habitual residence in Spain due to their status as members of diplomatic missions or foreign consular offices, or because they hold positions or official employment in foreign States, or because they are civil servants, will not be considered taxpayers, by way of reciprocity. active who hold an official position or employment in Spain that does not have a diplomatic or consular nature, provided that, furthermore, the application of specific rules derived from international treaties to which Spain is a party does not apply.

Remember:The tax residence of a natural person is not only determined based on the first criterion of permanence (more than 183 days), but the taxpayer may also be considered a tax resident in Spain if he or she has in this country, directly or indirectly, the main core or basis of its activities or economic interests.