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Practical Income Manual 2023.

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.

Precision: 

Regarding the concept of “permanence” in article 9.1.a) of the Personal Income Tax Law , the TEAC has indicated in various resolutions that it cannot be conditioning permanence to a volitional element for several reasons:

  1. Because tax residence is not an issue that is determined unilaterally (that is, considering oneself a tax resident in some jurisdiction), but rather a legal issue that must be proven and accredited.

  2. Because the Supreme Court has already rejected, in very reiterated jurisprudence, that the desire of a natural person to return to Spain can be taken into account to determine that their time outside Spanish territory is directly classified as “sporadic absence.” See, among others, the Judgments of the TS of November 28, 2017 (numbers 1,829/2017, 1,850/2017, 1,860/2017 and 1,834/2017), of January 16, 2018 (numbers 108/2018, 109/2018, 114/2018, 115/2018, 107/2018, 188/2018 and 305/2018), and of January 18, 2018 (numbers 110/2018 and 183/2018).

    Likewise, presence in Spain cannot be conditional on the taxpayer not having the intention of moving his or her residence abroad.

Starting from the above for the TEAC the concept of permanence of article 9.1.a) of the Personal Income Tax Law is made up of the aggregate calculation of three stadiums: certified presence, presumed days and sporadic absences:

  • Certified presence: that accredited by unquestionable means of proof. Once the presence of one day is proven by the relevant means of proof, it is counted aseptically, without it being necessary to prove (neither by the Administration nor by the taxpayer) a stay of several consecutive days. The day is counted in its entirety, with no minimum number of hours required. (Commentary 5 to art. 15 of the Model Convention OECD ).

  • Presumptive days: those that reasonably elapse between two certified presences; Although it is not known by certified proof that the interested party was in Spain, since it is a reasonable number of consecutive days and is between days of certified presence, they can be counted as days of permanence of art. 9.1.a), unless a certified presence outside Spanish territory is proven.

  • Sporadic absences: As a result of the literal wording of article 9.1 a) Personal Income Tax Law , sporadic absences are an element to be added to the days of effective presence (made up of the addition of the days of certified presence and the presumed days) to, thus, determine if the aggregate stay in Spain is greater than 183 days. They are, in short, a reinforcement of the conclusions of permanence in Spanish territory or abroad, but, of course, not strictly essential when the minimum threshold required by the Law of 184 days has already been reached with the days of effective presence.

See in this regard, among others, the Resolutions of TEAC of March 28, 2023, Claim number 00-04045-2020 and April 25, 2023, Claim number 00-04812-2020.

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 that.

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.