Recent pronouncements of the CEAC and the Supreme Court regarding new administrative criteria in relation to the determination and accreditation of tax residence in Spanish territory of individuals
The analysis of the tax residence of the taxpayer has become a hot topic in Spanish taxation. Good proof of this are the recent pronouncements of the Supreme Court (hereinafter, “SC”), or the Central Economic Administrative Court (hereinafter, “CEAC”).
The Double Taxation Treaty (hereinafter, “DTT”), refer first to Law 35/2006, of 28 November, Personal Income Tax Law (hereinafter, “PITL”), which establishes - in its article 9 - the criteria for determining when an individual taxpayer is a tax resident in Spain. These are:
- Criterion of staying more than 183 days, during the calendar year, in Spanish territory [Article 9.1.a) PITL]
- Location of the main core or base of economic activities or interests in Spanish territory [Article 9.1.b) PITL]
Days of certified or accredited presence
The CEAC, in its resolution 00/04045/2020/00/00, of 28 March 2023, has determined that certified presence does not require the subject to remain for a certain number of hours, but that when the taxpayer is present in a State for part of a day, no matter how small, the day will be considered as a day of presence in said State for the purposes of calculating the 183-day period.
The CEAC admits circumstances of a varied nature as items that prove certified presence in Spain, such as card transactions (at physical locations), use of means of transport, health and medical visits, performance of actions before a notary, access to sports, banking venues, and any other kind, payments with Via-T, contract signatures, presence in courses, car parking in public car parks, cash withdrawal at physical cash machines, etc.
Presumed days
Predictably, the main areas of conflict will arise in the different assessment of the presumed days by the AEAT and the taxpayer, respectively, due to the high degree of uncertainty that they may present.
The interpretation of the TEAC is that the set of days that “reasonably” elapse between two dates of certified presence in Spanish territory, must – unless otherwise proven – be calculated as days of presence in Spain.
Sporadic absences
With regard to sporadic absences, the TS gave the concept a notably time-based character through its resolutions 1829/2017, 1834/2017, 1850/2017, and 1860/2017, of 28 November 2017. Thus, for any taxpayer, who - temporarily - leaves Spanish territory for a few days, such absences could be counted as time spent in Spain.
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