Habitual residence in Spanish territory

Regulations: Art. 9 Law 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. That you remain more than 183 days, during the calendar year, in Spanish territory .

To determine this period of stay, sporadic absences will be taken into account, unless the taxpayer proves his tax residence in another country. In the case of countries or territories that are regulated as tax havens, the tax authorities may require proof of residence there for 183 days in a calendar year.

Notwithstanding the above, temporary stays in Spain that are a consequence of obligations contracted in cultural or humanitarian collaboration agreements, free of charge, with the Spanish public administrations will not be taken into account when determining the period of stay in Spanish territory.

Note: In order to define "sporadic absences", the interpretative criteria established by the Supreme Court on articles 8.1.a) and 9.1.a) of the Income Tax Law must be taken into account are established by the Supreme Court in its judgments of 28 November 2017 (numbers 1,829/2017, 1,850/2017, 1,860/2017 and 1,834/2017, respectively, resolving administrative appeals numbers 815/2017, 812/2017, 807/2017 and 809/2017) and 1 March 2018 (number 334/2018), in relation to the taxation of beneficiaries of scholarships from the Spanish Institute of Foreign Trade (ICEX) who stay in a foreign country to carry out the activities of said scholarship.

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

2. That the main core or base of its activities or economic 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 above criteria, his legally non-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 foreign diplomatic missions or consular offices, or because they hold official positions or jobs in foreign States, or because they are active civil servants who hold official positions or jobs in Spain that are not diplomatic or consular in nature, will not be considered taxpayers on a reciprocal basis, provided that, in addition, the application of specific rules derived from international treaties to which Spain is a party is not applicable.

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 base of his or her economic activities or interests.