Residence of natural persons
Regulations:Article 6 of Non-Resident Income Tax Law
Natural persons are considered to have their habitual place of residence in Spain when any of the following circumstances apply:
They remain in Spain for more than 183 days during a calendar year.In order to determine the period of stay, the sporadic absences are calculated, except those where the tax residency in another country is proven.In the case of countries or territories labelled as tax havens(1), the Tax Administration can demand proof of stay in that tax haven over a period of 183 days in the calendar year.
In order to determine the period of stay, temporary stays in Spain that are the consequence of contractual obligations in agreements of cultural or humanitarian collaborations performed free of charge with the Spanish Public Administrations are not included.
They situate the main base or centre of their activities or economic activities, directly or indirectly, in Spain.
Also, it is presumed, except when proven otherwise, that a taxpayer has their usual place of residence in Spain when, using the above criteria, the not legally separated spouse and the under-age dependant children are usually resident in Spain.
In addition, individuals of Spanish nationality who prove their new residence in a tax haven(1)(, will continue to be taxpayers for Personal Income Tax, both in the tax period in which they change their residence and in the following four tax periods.
A natural person will be considered as either resident or not resident during a calendar year, as a change of residence does not imply an interruption of the taxable period.
Note (1):With effect from 11 July 2021, references to tax havens shall be understood as references to the definition of a non-cooperative jurisdiction (Annex IV).
Individuals of Spanish nationality, their spouse who is not legally separated and their minor children, who have their habitual residence abroad, are considered as taxpayers of IRPF, due to their condition of:
Members of Spanish Diplomatic Missions, including both the head of the mission and the members of the diplomatic, administrative, technical or service staff.
Members of Spanish Consular Offices, including both the head of the office and the civil servants or service staff with the exception of honorary vice-consuls or honorary consular agents and the staff under them.
Holders of State official positions or employment as members of delegations and permanent representatives accredited to international organisations or who form part of delegations or missions of observers abroad.
Active civil servants holding official posts or employment abroad which is not diplomatic or consular.
However, these considerations will not apply when:
The people listed above are inactive civil servants or holders of official positions or employment and had their usual place of residence abroad prior to the acquisition of any of the circumstances listed above.
In the case of not legally separated spouses or under-age children, when their usual place of residence was abroad prior to the acquisition by the spouse, father or mother of any of the circumstances listed above.
Agreements and double residence
In the agreements to avoid double taxation signed by Spain, to define a person as resident of a State, reference is made to the internal legislation of each State.Bearing in mind that each State can establish different criteria, two States may consider a person as a resident.
In these cases, the agreements generally establish the following criteria to avoid a person being considered resident in both States:
A person will be resident in the State in which they have their permanent home available to them.
If they have a permanent home available to them in both States, they will be considered resident in the State with which they have the closest personal and economic relations (centre of vital interests).
If the above criteria could not be determined, they will be considered resident in the State where they usually live.
If a person usually lives in both States or does not live in either of them, they will be considered resident of the State of which they are a national.
Lastly, if they are a national of both States, or of neither, the responsible authorities will resolve the case by mutual agreement.
Accreditation of tax residency
Tax residency is proven by means of a certificate issued by the responsible Tax Authority of the country concerned.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 therein.