Special regime for impatriates art. 93 Ley IRPF (Personal Income Tax Law)

Regulations:Article 93 and Transitional Provision 17 Law IRPF;articles 113 to 120 of the Personal Income Tax Regulation;Order HAP/2783/2015, of 21 December, approving forms 151 and 149.

(With effect from 1 January 2023, Article 93 of the Personal Income Tax Law, which regulates the special tax regime applicable to workers, professionals, entrepreneurs and investors moving to Spanish territory, has been amended by the third Final Provision of Law 28/2022, of 21 December, on the promotion of the start-up ecosystem (BOE of 22 December).This amendment reduces the previous period of non-residence in Spain to five years and extends the possibility of opting for the special regime to new groups of people, teleworkers, entrepreneurs and professionals, as well as their family members, under certain conditions.Consequently, in the new regulation of the special regime there will be two figures, a main taxpayer and other taxpayers associated with him, from his family nucleus, linked to the main taxpayer in terms of the periods of application of the regime).

Individuals who acquire their tax residence in Spain as a result of moving to Spanish territory may opt for to pay non-resident income tax, maintaining their status as taxpayers for personal income tax (IRPF), during the tax period in which the change of residence takes place and during the following five tax periods, when the following conditions are met:

• Until 31 December 2022:

  1. That they have not been residents in Spain for the ten tax periods prior to the period in which they transferred to Spain.

  2. That the transfer to Spain took place as a result of any of the following circumstances:

     1. As a consequence of an employment contract, with the exception of the special employment relationship of professional sportsmen and women regulated by Royal Decree 1006/1985 of 26 June 1985.

        This condition will be deemed to have been met when an ordinary or special employment agreement is entered into, other than the one mentioned above, or a statutory relationship with an employer in Spain, or when the transfer is ordered by the employer or a transfer letter from the employer exists.

     2. As a consequence of acquiring the status of director of an entity in whose capital it does not have a shareholding or, otherwise, when the shareholding in the same does not determine the consideration of a related entity under the terms of article 18 of the Corporate Income Tax Act.

  3. That he/she does not obtain income that would be classified as obtained through a EP located in Spanish territory.

• From 1 January 2023 (the new regulation of the regime applies to taxpayers who acquire their tax residence in Spain from 2023 and includes taxpayers who acquire their tax residence in Spain in 2023 as a result of a move to Spanish territory in the second half of 2022):

  1. Who have not been resident in Spain during the five tax periods prior to that in which they move to Spanish territory.

  2. That the move to Spanish territory takes place, either in the first year of application of the scheme or in the previous year, as a result of any of the following circumstances:

     1. As a consequence of an employment contract, with the exception of the special employment relationship of professional sportsmen and sportswomen regulated by Royal Decree 1006/1985 of 26 June 1985, which regulates the special employment relationship of professional sportsmen and sportswomen.

        This condition shall be deemed to be fulfilled when an ordinary or special employment relationship, other than that indicated above, or a statutory relationship with an employer in Spain is entered into.Likewise, this condition shall be deemed to be fulfilled when the posting is ordered by the employer and there is a letter of posting from the employer or when, without being ordered by the employer, 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 understood to be fulfilled in the case of employees who have the visa for international teleworking provided for in Law 14/2013, of 27 September, on support for entrepreneurs and their internationalisation.

     2. As a consequence of acquiring the status of director of an entity.In the event that the entity is considered an asset-holding entity under the terms provided for in article 5, section 2, of the Corporate Income Tax Act, the director may not hold an interest in said entity that determines its consideration as a related entity under the terms provided for in article 18 of Corporate Income Tax Act 27/2014, of 27 November.

     3. As a consequence of carrying out in Spain an economic activity classified as an entrepreneurial activity, in accordance with the procedure described in article 70 of Law 14/2013 of 27 September.

     4. As a consequence of the performance in Spain of an economic activity by a highly qualified professional providing services to start-ups within the meaning of Article 3 of Law 28/2022 of 21 December on the promotion of the start-up ecosystem, or carrying out training, research, development and innovation activities, receiving remuneration representing in total more than 40% of the total business, professional and personal income.

  3. That he/she does not obtain income that would be classified as obtained through a permanent establishment located in Spanish territory, except in the case provided for in letter b).3.º and 4.º of this section.

     The spouse of the taxpayer referred to in the previous section and their children, under the age of twenty-five or whatever their age in the case of disability, or in the event of there being no marital relationship, their parent, may also opt to pay non-resident income tax, while maintaining their status as taxpayers for personal income tax, provided that the following conditions are met:

     1. Who move to Spanish territory with the taxpayer referred to in the previous paragraph or at a later time, provided that the first tax period in which the special scheme applies to the taxpayer has not ended.

     2. That they acquire their tax residence in Spain.

     3. They meet the conditions referred to in points (a) and (c) of the previous paragraph.

     4. That the sum of the taxpayers' taxable bases in each of the tax periods in which this special system applies to them is less than the taxpayer's taxable base referred to in the previous section.

        The special scheme shall apply during the successive tax periods in which, if these conditions are met, it also applies to the taxpayer referred to in the previous paragraph.

Taxpayers choosing this option are not classified as residents for the purposes of applying a double taxation agreement, as they are subject to taxation only for the income they obtain from sources located in Spain.

The option, renunciation or exclusion from the special regime is made by means of the form 149.The documentation described in section 119.1 of the Income Tax Regulation must be attached to the notification of joining.

Taxpayers opting for the special regime must file a special personal income tax return at form 151, adapted to the content of the regime.

Tax withheld (retenciones) and account deposits (ingresos a cuenta)

Withholdings and interim personal income tax (IRPF) payments will follow the regulations for Non-Resident Income Tax.

However, the percentage of withholding or payment on account on earned income will be 24%.When the payments made by a single payer for income from work during the natural year exceed 600,000 euros, the withholding percentage applicable to the excess will be that of the current accrual year (see table).