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Practical Income Manual 2022.

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 above, 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 the contentious-administrative cassation appeal numbers 934/2017), 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. .

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 habitually reside in Spain. age that depend on it.

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 office, will not be considered taxpayers as a matter of reciprocity. or official employment of foreign States, or for being active civil servants who exercise an official position or employment in Spain that is not diplomatic or consular in nature, provided that, furthermore, the application of specific rules derived from international treaties in which Spain does not apply. be part.

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.