Scope

Regulations: Art. 113 Regulation Personal Income Tax

To apply this special regime, taxpayers must meet the following conditions:

1. That they have not been residents in Spain during the five tax periods prior to the one in which their movement to Spanish territory occurs.

   In relation to the five tax periods to be computed for the purposes of compliance with this requirement, the year of acquisition of residence is taken as a reference and not the year of displacement.

   For these purposes as well, the provisions of article 9.1 of the Personal Income Tax Law, which regulates the tax residence in Spain of natural persons, must be complied with.

   Note: As of January 1, 2023, the previous period of non-residence in Spain is reduced from ten to five years.

2. That the displacement to Spanish territory, either in the first year of application of the regime or in the previous year, occurs as a consequence of any of the following circumstances:

   1. Work contract

      When the displacement is a consequence of an employment contract, with the exception of the special employment relationship of professional athletes regulated by Royal Decree 1006/1985, of June 26.

      This circumstance will be considered met when any of the following conditions is met:

      • When employment relationship, ordinary or special, different from that indicated above (that of professional athletes), or statutory relationship with an employer in Spain, begins ##1##.

        The cessation of the employment relationship with the company that motivated, in a real and effective manner, the movement to Spanish territory, giving rise to a temporary situation of unemployment or inactivity for reasons beyond the control of the taxpayer, and the subsequent beginning of a new employment relationship in which the requirements established in article 93 of the Personal Income Tax Law are also met, does not imply exclusion from the regime given that the purpose of the regime is to attract Spain to the subjects included in the application of the regime and that said purpose is in no way incompatible with the previous fact.

      • When the posting is ordered by the employer and there is a posting letter from the employer.

      • When the displacement, without being ordered by the employer, is due to the work activity being provided remotely , through the exclusive use of computer, telematic and telecommunications means and systems.

        In particular, this circumstance will be deemed to have been met in the case of employed workers who have the visa for international teleworking provided for in Law 14/2013, of September 27, on support for entrepreneurs and their internationalization.

      New 2023: They may apply this regime to workers who travel to Spain to work remotely.

   2. Acquisition of the status of administrator of an entity

      When the displacement is a consequence of the acquisition of the status of administrator of an entity, regardless of its percentage of participation in the share capital of the same, except in the event that the entity is considered a proprietary entity, in which case the administrator may not have a participation in said entity that determines its consideration as a related entity in the terms provided for in article 18 of the LIS (that is, to be able to benefit from this special regime you must have a participation of less than 25 percent in the capital of the company).

      For these purposes, a property entity that, therefore, does not carry out an economic activity, will be understood as one in which more than half of its assets are made up of securities or are not affected by an economic activity, taking into account the average of the quarterly balance sheets for the entity's fiscal year.

   3. Carrying out an entrepreneurial activity in Spain

      When the displacement is a consequence of carrying out in Spain an economic activity classified as entrepreneurial, in accordance with the procedure described in article 70 of Law 14/2013.

      Entrepreneurial activity:

      In accordance with article 70 of Law 14/2013, of September 27, on support for entrepreneurs and their internationalization ( BOE of September 28), it is considered an entrepreneurial activity. that economic activity that meets the following requirements:

      1. That has c innovative character and/or special economic interest for Spain.

         It will be considered to have said innovative character when its purpose is to solve a problem or improve an existing situation through the development of new or substantially improved products, services or processes compared to the state of the art and which carries an implicit risk of technological failure. industrial or in the business model itself. Specifically, this requirement will be deemed fulfilled when at least one of the conditions established by section 3 of article 4 of Order PCM/825/2023, of July 20, is met.

      2. That it has been qualified as such by a favorable report issued by ENISA (National Innovation Company, SA), in the terms provided in the aforementioned article 70 of Law 14/2013.

         In this regard, in the case of EU citizens and foreigners to whom EU law applies because they are beneficiaries of the rights of free movement and residence, they must request the aforementioned report prior to their movement to Spanish territory, through the General Directorate of Industry and Small and Medium Enterprises. This report is mandatory and will be issued within 10 business days from when ENISA receives the corresponding request.

         Likewise, taxpayers who have opted for the application of this special regime must have this report available if they subsequently want to start an economic activity that has an entrepreneurial nature that is different , if applicable, from that which they motivated his displacement to Spanish territory.

      3. That the taxpayer who moves to Spanish territory to carry out said entrepreneurial activity has the residence authorization prior to said move.

   4. Carrying out an economic activity in Spain by a highly qualified professional who provides services in emerging companies within the meaning of article 3 of Law 28 /2022, of December 21, to promote the ecosystem of emerging companies:

      For the purposes of considering emerging company , see the concept provided in Chapter 3.

      Accuracy : Highly qualified professionals will be understood as those professionals who have the qualification referred to in article 71 of the aforementioned Law 14/2013. In particular, this circumstance will be deemed to have been met when the taxpayer has the residence authorization prior to moving to Spanish territory.

   5. Carrying out an economic activity in Spain by a highly qualified professional who carries out training, research, development and innovation activities, receiving a remuneration that together represents more than 40 100% of their entire business, professional and personal work income.

      Accuracy : Training, research, development and innovation activities will be considered to be carried out when any of the assumptions included in article 72 of Law 14/2013, of September 27, on support for entrepreneurs and their internationalization, occur. In particular, this circumstance will be deemed to have been met when the taxpayer has the residence authorization prior to moving to Spanish territory.

3. That they do not obtain income that would be classified as obtained through a permanent establishment located in Spanish territory except in the cases of carrying out an entrepreneurial activity or an economic activity in Spain by highly qualified professionals who give the right to benefit from this special regime.

   Accuracy : In accordance with the provisions of article 93.1 c) of the Personal Income Tax Law , the only economic activities that taxpayers under this regime may carry out are economic activity of an entrepreneurial nature, the provision of services to emerging companies or the planned training, research, development and innovation activities.