On April 25, 2023, the Central Economic-Administrative Court (TEAC) has issued a resolution (RG 04812/2020) regarding the calculation of the days spent in Spanish territory for the purposes of determining tax residence in Spain. In this resolution, the TEAC reiterates the criteria established in another previous resolution of March 28, 2023 (RG 4045/2020).

TEAC begins by analyzing article 9.1 of Law 35/20016, on Personal Income Tax (LIRPF). According to this article, a taxpayer has his habitual residence in Spanish territory when any of the following circumstances occur: a) that they remain more than 183 days during the calendar year in Spanish territory, or, b) that the main nucleus or base of their activities or economic interests is located in Spain, directly or indirectly. To interpret this regulation, TEAC also takes into account the Comments on article 15 of the OECD Model Convention in order to interpret article 9.1.a) LIRPF cited above.

The TEAC is based on the basis that the determination of the number of days of stay in Spanish territory must take into account objective criteria, regardless of the possible wishes expressed by the taxpayers, so that establish the tax residence of a natural person when it has been previously verified that they spent more than 183 days in Spanish territory in a specific calendar year, regardless of whether those days are consecutive or if they are interrupted by continuous entries and exits from our territory.

In this resolution RG 04812/2020, it reiterates the criterion established in the previous one (RG 4045/2020) and clarifies that the concept of permanence according to article 9.1.a) of the LIRPF is integrates by the aggregate computation of three stages: certified presence, presumed days and sporadic absences. The court then redefines each stage as follows:

«Certified presence: that accredited by means of unquestionable 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) LIRPF , 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 minimum threshold required by the Law of 184 days has already been reached with the days of effective presence. »

The resolution analyzes the data and evidentiary elements provided by the Tax Administration and the taxpayer and represents an important step towards specifying the way to prove whether or not the taxpayer has had tax residence in Spain.

You can consult the full text of the resolutions in the following links Resolution 4812/2020 and Resolution 4045/2020