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Practical manual for Income Tax 2023.

Scope

Regulations: Art. 113 Regulation 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 they move to Spanish territory.

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

    For these purposes, the provisions of article 9.1 of the Personal Income Tax Law, which regulates the tax residence of individuals in Spain, must also be observed.

    Note: As of January 1, 2023, the prior period of non-residence in Spain will be 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 deemed to be fulfilled when any of the following conditions are met:

      • When a labor relationship begins, ordinary or special, other than the one indicated above (that of professional athletes), or statutory with an employer in Spain.

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

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

      • When the transfer, without being ordered by the employer, is due to the fact that the work activity is carried out remotely , through the exclusive use of computer, telematic and telecommunication means and systems.

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

      New in 2023: They will be able to apply this regime to workers who travel to Spain to work remotely.

    2. Acquisition of the status of administrator of an entity

      When the transfer is a consequence of acquiring the status of director of an entity, regardless of the percentage of participation in the share capital of the same, except in the event that the entity is considered a patrimonial entity, in which case the director 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 eligible for this special regime, he must have a participation of less than 25 percent in the capital of the same).

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

    3. Carrying out an entrepreneurial activity in Spain

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

      Entrepreneurial activity:

      According to article 70 of Law 14/2013, of September 27, on support for entrepreneurs and their internationalization ( BOE of September 28), an entrepreneurial activity is considered to be any economic activity that meets the following requirements:

      1. That it has an innovative and/or special economic interest Spain.

        It will be considered to have such 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 implies a risk of technological, industrial or business model failure. Specifically, this requirement will be deemed to have been met 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 for 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 to apply this special regime must have this report if they want to start an economic activity of an entrepreneurial nature that is different where appropriate, from that which motivated their move to Spanish territory.

      3. That the taxpayer who travels to Spanish territory to carry out said entrepreneurial activity, has the residence permit prior to said travel.

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

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

      Accuracy : Highly qualified professionals shall be understood to be 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 be fulfilled when the taxpayer has a residence permit 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 for this a remuneration that represents in total more than 40% of the total of his/her 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 set out 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 be fulfilled when the taxpayer has a residence permit prior to moving to Spanish territory.

  3. That he does 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 that give the right to benefit from this special regime.

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