Representation and joint and several liability in the case of Non-Resident Income Tax

Obligation to appoint a representative

Regulations:Article 10 Law IRNR (wording given by Article 2 of Law 11/2021 of 9 July on measures to prevent and combat tax fraud, with effect for tax periods beginning on or after 1 January 2021).

Taxpayers resident in another Member State of the European Union (EU) or of the European Economic Area (EEA) that is not a Member State of the EU, in the latter case when there are regulations on mutual assistance in matters of exchange of tax information and collection, (see Annex V) are not obliged to appoint a representative resident in Spain and will act before the Tax Administration through the persons who represent them in accordance with the general rules on legal and voluntary representation.

On the other hand, taxpayers resident in third countries (not resident in another Member State of the European Union or of the European Economic Area that is not a Member State of the EU when there are regulations on mutual assistance in matters of exchange of information) will be obliged to appoint, before the end of the deadline for filing a tax return on income obtained in Spain, a natural or legal person resident in Spain to represent them before the Tax Administration in relation to their obligations for this Tax in the following cases:

• When they operate through permanent establishment.

• When they provide services, technical assistance, installation or assembly works deriving from engineering contracts and, in general, from activities or financial operations performed in Spain not through permanent establishment, where the taxable base is the difference between gross income and the costs of personnel, materials and other supplies.

• When the taxpayer is an organisation under the income apportionment system constituted abroad with “presence in Spanish territory”.

• When, due to the amount and characteristics of the income obtained or the possession of immovable property in Spanish territory, the Tax Administration so requires.

• In the case of residents of countries or territories with which there is no effective exchange of tax information (with effect from 11 July 2021, references to countries or territories with which there is no effective exchange of information shall be construed as references to the definition of a non-cooperative jurisdiction.See Annex IV), who are holders of assets located or rights that are fulfilled or exercised in Spanish territory, excluding securities traded on official secondary markets.