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Practical manual for Income Tax 2023.

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.

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 permanence cannot be conditioned on a volitional element for several reasons:

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

  2. Because the Supreme Court has already rejected, in repeated jurisprudence, that the will 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 Supreme Court judgments of 28 November 2017 (numbers 1,829/2017, 1,850/2017, 1,860/2017 and 1,834/2017), of 16 January 2018 (numbers 108/2018, 109/2018, 114/2018, 115/2018, 107/2018, 188/2018 and 305/2018), and of 18 January 2018 (numbers 110/2018 and 183/2018).

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

Based on 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 stages: Certified presence, presumed days and sporadic absences:

  • Certified presence: that proven by unquestionable means of proof. Once the presence of one day has been accredited by the relevant means of proof, it is computed aseptically, without it being necessary for a stay of several consecutive days to be proven (either by the Administration or by the taxpayer). The day is counted in its entirety, without requiring a minimum number of hours. (Commentary 5 to art. 15 of the Model Convention OECD ).

  • Presumed days: those that reasonably elapse between two certified presences; Although there is no certified evidence that the interested party was in Spain, as this is a reasonable number of consecutive days and falls between days of certified presence, they can be counted as days of stay under art. 9.1.a), unless a certified presence outside of Spanish territory is proven.

  • Sporadic absences: As a result of the literal wording of article 9.1 a) of the 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) in order to determine whether 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 days of effective presence have already reached the minimum threshold required by the Law of 184 days.

See in this regard, among others, Resolutions of the 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 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.

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 an official position or job in foreign States, or because they are active civil servants who hold an official position or job in Spain that is not diplomatic or consular in nature, will not be considered taxpayers, provided that, in addition, specific rules derived from international treaties to which Spain is a party are 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.