The residence of natural persons

Internal regulations

Regulations: Article 6 Law IRNR

It is understood that a natural person has his habitual residence in Spain when any of the following circumstances occurs:

Stay in Spain for more than 183 days during the calendar year. To determine this period of stay, your sporadic absences are counted, unless you prove your tax residence in another country. In the case of countries or territories classified as tax havens⁽¹⁾, the Tax Administration may require proof of permanence in said tax haven for 183 days in the calendar year.

To determine the period of permanence, 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.
That the main nucleus or base of its activities or economic interests is located in Spain, directly or indirectly.

Likewise, it will be presumed, unless proven otherwise, that a taxpayer has his habitual residence in Spain when, in accordance with the previous criteria, the spouse who is not legally separated and the minor children who depend on him habitually reside in Spain.

In addition, natural persons of Spanish nationality who prove their new residence in a tax haven⁽¹⁾, will continue to have the status of taxpayers for the Personal Income Tax, both in the tax period in which they make the change of residence and in the four following tax periods.

An individual will be a resident or non-resident for the entire calendar year since the change of residence does not imply the interruption of the tax period.

Note ⁽¹⁾: With effect from July 11, 2021, references made to tax havens are understood to be made to the definition of non-cooperative jurisdiction ( Annex IV ) ^(Back)

Special assumptions

taxpayers of Personal Income Tax are considered to be natural persons of Spanish nationality, their spouse not legally separated and minor children, who have their habitual residence. abroad, due to their status as:

Members of Spanish diplomatic missions, including both the head of the mission and members of its diplomatic, administrative, technical or service staff.
Members of the Spanish consular offices, including both their head and the official or service personnel assigned to them with the exception of honorary vice-consuls or honorary consular agents and their dependent personnel.
Holders of positions or employment in the Spanish State as members of delegations and permanent representations accredited to international organizations or who are part of delegations or observer missions abroad.
Active civil servants holding official posts or employment abroad which is not diplomatic or consular.

However, these assumptions will not apply when:

The persons listed above are not active public officials or holders of official positions or employment and had their habitual residence abroad prior to the acquisition of any of the aforementioned circumstances.
In the case of spouses not legally separated or minor children, when they had their habitual residence abroad prior to the acquisition by the spouse, father or mother, of the conditions listed above.

Agreement and double residence

In the agreements to avoid double taxation signed by Spain, to define a person as a resident of a State, reference is made to the internal legislation of each State. Taking into account that each State can establish different criteria, two States can agree on considering a person a resident.

In these cases, the agreements establish, in general, the following criteria to prevent a person from being considered a resident in the two States:

You will be a resident of the State where you have permanent housing at your disposal.
If you have a permanent home at your disposal in both States, you will be considered a resident of the State with which you have the closest personal and economic relations (center of vital interests).
If this cannot be determined, you will be considered a resident of the State where you habitually live.
If he habitually lives in both States or does not live in either of them, he will be considered a resident of the State of which he is a national.
If, finally, the person is a national of both States, or neither, the competent authorities will resolve the case by mutual agreement.

Accreditation of tax residence

Tax residence is accredited by means of a certificate issued by the competent Tax Authority of the country in question. The period of validity of these certificates is one year.

A person can have a residence permit or administrative residence in a State and not be considered a tax resident there.