Spain residency without tax residency?

[Xshore]

be careful with doing something such as being there from January to March, and then from September to November, because they will count the absence as temporary

Have you seen any definition on how long an absence can be considered temporary? In your example you write 1 month, however how about 2 months, 3 months etc?

 

[scooterguy]

Have you seen any definition on how long an absence can be considered temporary? In your example you write 1 month, however how about 2 months, 3 months etc?

Basically, if it's in the same calendar year it's temporary. There is no limit.

Generally speaking, however, Hacienda won't even realize this, or they will assume you're a tourist if somehow they run into your file. But if they have a reason to believe that you might not be completely a tourist, then you will have to prove tax residency somewhere else.

 

[Cloudbanck]

Basically, if it's in the same calendar year it's temporary. There is no limit.

Generally speaking, however, Hacienda won't even realize this, or they will assume you're a tourist if somehow they run into your file. But if they have a reason to believe that you might not be completely a tourist, then you will have to prove tax residency somewhere else.

Residency somewhere else, not tax residency! Even though showing tax residency somewhere else definitely helps in this situation.

 

[JustAnotherNomad]

Have you seen any definition on how long an absence can be considered temporary? In your example you write 1 month, however how about 2 months, 3 months etc?

That's my question precisely. There is usually case law for this, such as "not more than 60 days in a row", "after any presence, be gone for at least the same number of days" etc., but those rules are vague.
But also, even if you don't cross the 183 days they can still say it's your center of vital interest - I was wondering if anyone knows what kind of rules they apply.

Of course I understand you can probably fly under the radar, you can protect yourself with a DTA etc. - I am aware of all that. But I was just wondering what the actual rules are.

 

[toums]

"Romania is also an option to get a rental address easily, no proper document checks or anything there," . . . can you confirm a bit more about that , .i know if u do the 90d resident registration there u will get a tax ID . . unsure if u need to pay any taxes if stay less then 183d.

Officially any EU countries you go more than 90days (consecutive), you have to register at the immigration office.
Most of EU countries you can get tax ID without being 90days+ there. Just because you ask for the ID number or because you purchased a flat (in some EU countries, they give you automatically a tax number, even if you reside 0 days there..).

Getting the immigration document for 90days+ (if you asked it and if you were a specific years more than 90days CONSECUTIVE in the country) and have a tax number of this country don't make you tax resident ONLY by these two things...

Basically it's not a bad idea to have 'residency' documents and tax number in many places.. so you can switch / adapt, and it's more complicated for a particular country to say you are tax resident there (except ofc if you wife/kids stay in one particular place, or you spend more 183days in one and/or your main income from one..).

 

[scooterguy]

Residency somewhere else, not tax residency! Even though showing tax residency somewhere else definitely helps in this situation.

Hacienda's wording says 'tax residence':

"Stay in Spain for more than 183 days during the calendar year. To determine this period of stay, your sporadic absences are counted, unless you prove your tax residence in another country."

 

[Xshore]

Basically, if it's in the same calendar year it's temporary. There is no limit.

They do write sporadic, so then there must be some kind of definition or opinion of what sporadic means. For example if you stay 1 month in Spain every year it would be hard fetched to claim that the remaining 11 months are sporadic.

 

[JustAnotherNomad]

Just because you ask for the ID number or because you purchased a flat (in some EU countries, they give you automatically a tax number, even if you reside 0 days there..).

Depends on the country. There are a lot of countries where this would indeed make you tax resident, even if you don't spend time in your apartment (having a place available to you is sufficient).

They do write sporadic, so then there must be some kind of definition or opinion of what sporadic means.

Exactly. There is case law for this for sure, or even some internal instructions for the Hacienda officials, but it doesn't seem like anyone here has detailed knowledge about this.

 

[toums]

Depends on the country. There are a lot of countries where this would indeed make you tax resident, even if you don't spend time in your apartment (having a place available to you is sufficient).

Depends yes, but MOST of EU countries doesnt consider you as tax resident only because you have a available flat. It can be easily your secondary or third home.

Ofc to avoid any trouble, better to have another REAL place, and keep the requirements as explained above. But if all is clear and you really dont spend much time there, you can IMO prove easily. Very far from the 'Shakira case'.

And usually, with the few EU countries who can still consider as tax resident just by having a flat at disposal, it's when it's your Home country. As I understood, OP is a alien from spain..

 

[Xshore]

Exactly. There is case law for this for sure, or even some internal instructions for the Hacienda officials, but it doesn't seem like anyone here has detailed knowledge about this.

After some googling:

Individuals and their tax residency: Specific problems for executives in multinational groups and recent court rulings

One of th

www.osborneclarke.com

The term “sporadic absences” is not expressly defined in the IIT provisions. This gives rise to controversies when interpreting the application of this term and its reach. The Spanish Supreme Court, in its rulings issued on 28 November 2017 (references 1829/2017 and 1850/2017, Appeals 812/2017 and 815/2017), has addressed the issue of sporadic absences as a measure to determine days of permanence on Spanish soil and, therefore, tax residency.

In its rulings, the Spanish Supreme Court does not provide a universal interpretation of this term. The Supreme Court, however, does lay down that the term “sporadic absences” does not allow for such a wide interpretation as to include absences for periods longer than 183 days, since this would imply “counting in” precisely those circumstances which the legal provisions intended to “leave out” when assessing whether a taxpayer is a resident in Spain. Thus, the Supreme Court considers that the term “sporadic absences” should be applied as a criterion additional to that of permanence. Where it is clear that there is no “permanence” as defined by law, any “sporadic absences” would then be irrelevant, since these absences would have no link to a primary presence from which to derive any meaning.

This precedent, which would seem completely logical, was necessary, in light of the position taken by Spanish Tax Authorities. Thus, in one of the cases on which the Spanish Supreme Court ruled, Spanish Tax Authorities considered that an individual should be treated as a tax in resident in Spain in the year 2011, when such individual left Spanish soil on the 1 October 2010 and did not return until the 30 September 2011. The Spanish Supreme Court has now clarified that this 9-month period may not be considered a “sporadic absence”.

The Supreme Court also considers that the term “sporadic absences” must solely and factually address the length of time spent outside of Spain. In other words, “sporadic absences” may not be linked to an intentional or subjective element. These absences should not be linked to the taxpayer’s intention or willingness to relocate outside of Spain on a temporary basis and to return upon expiry of a pre-established term. The precedent established by the Spanish Supreme Court makes it therefore clear that extensive interpretation of the term “sporadic absences” is not to be allowed.

 

[Meta]

I have seen some digital nomads advocate for Spain as a "paper residency" as you aren't automatically considered tax resident, even if you rent a place for the whole year.
So you can get utility bills to show to banks etc. - just make sure you don't spent too much time there and you can prove this if asked. It's basically just your vacation home.

But how much time can you actually spend in Spain with such a setup?
What kind of documentation would they want to see to accept you're not tax resident under Spanish law (which would be much better than hoping for a DTA to save you)?

I guess you would need some other residency (ideally tax residency) to explain to the Spanish tax authority that that's where you really live?
Which is a bit pointless if you really just want a paper residency, with the option to spend some time there when it suits you...

Hi. I'm in the end of the process of getting Spanish residence permit and I was very interested in this question. I had two or three consultations with lawyers in Spain asking this exact questions. They do not know. No kidding. Their position is "Sometimes tax authorities decide that you are a tax resident and send you a letter. Then you need to prove you are not, the proper way is tax residency certificate from other country" They are not sure what triggers that letter, they are not sure what other ways to proof non-residency. They give some meek (different) answers and the common motive is "It just happens sometimes, not often, have tax residency certificate handy".

Another point. A friend of mine has digital nomad visa. An agency helped him to get it almost a year ago and now they sent a notice saying something like:
"Some our clients who got the permit a year ago received letters from tax authorities warning that mandatory social security (RETA) registration was not completed, monthly social security payments obligations not fulfilled and you have 10 days to explain that or we are going to initiate the cancellation of residence permit"
So it's not exactly saying of tax residency, just social security (probably specific to digital nomads), but still.

I don't know much regarding the second point (it was friend, not me), but the first one was me personally. I found it very frustrating talking to lawyers to hear "Ah we are not sure, it just happens sometimes". I plan to keep my ties to Spain to absolute minimum, staying at monthly tourist rentals for example.

Cheers.

 

[JackAlabama]

Hi. I'm in the end of the process of getting Spanish residence permit and I was very interested in this question. I had two or three consultations with lawyers in Spain asking this exact questions. They do not know. No kidding. Their position is "Sometimes tax authorities decide that you are a tax resident and send you a letter. Then you need to prove you are not, the proper way is tax residency certificate from other country" They are not sure what triggers that letter, they are not sure what other ways to proof non-residency. They give some meek (different) answers and the common motive is "It just happens sometimes, not often, have tax residency certificate handy".

Another point. A friend of mine has digital nomad visa. An agency helped him to get it almost a year ago and now they sent a notice saying something like:
"Some our clients who got the permit a year ago received letters from tax authorities warning that mandatory social security (RETA) registration was not completed, monthly social security payments obligations not fulfilled and you have 10 days to explain that or we are going to initiate the cancellation of residence permit"
So it's not exactly saying of tax residency, just social security (probably specific to digital nomads), but still.

I don't know much regarding the second point (it was friend, not me), but the first one was me personally. I found it very frustrating talking to lawyers to hear "Ah we are not sure, it just happens sometimes". I plan to keep my ties to Spain to absolute minimum, staying at monthly tourist rentals for example.

Cheers.

get rid of the spanish residence permit and do what most do there.

 

[Roo]

I know that you can fly under the radar there if you don't stand out, even better don't get a NIE, don't get empadronamiento and don't get a bank account although not sure how you would rent without one, utility bills there are direct debit almost exclusively, even rent may be required by the real estate agent to be on direct debit. Never tried a foreign account for that it may or may not work.

I know people who spent years there without having any local income or declaring anything, never been asked a question about what they live from and how they pay their bills, it's normal for people to be unemployed and in debt over there. Unless you have a lot of bad luck just go for it and behave like you're a tourist that wants to keep say water sports gear and other stuff there so you rent a place

The rules are not 100% clear and things can be interpreted, talk to a few accounting offices (gestorias) about foreign income, international dividends and stuff and you will see what I mean, maybe in the biggest cities it will be different but in general they don't know and don't want to deal with you because they don't want any risks of doing something wrong and coming back to bite them. They won't say it but many will delay you answers or never get back to you at least if they have enough clients.
I'm sure tax residency goes the same way as most things in Spain.

 

[JustAnotherNomad]

Thank you all, that makes sense.

 

[Benzouser]

I'm only talking about having an EU passport and showing up and renting a place, no idea about registering, I am aware the ANAF is desperate to milk money from anyone they can but not very competent. If you do need to register, I know the rules say you should but loads of people don't do between countries inside the EU unless they need paperwork for some specific reason. Owner or real estate agents there are very happy to take your money and rent you a place, you can probably even pay cash month to month, often owners skip registering rentals for skipping tax unless the tenant needs it to be done (like company pays his rent and needs proper legal documents). The bureaucracy there is bad and keeps changing every few years.

Thank u for the reply. . I prefer not to register, as im having my taxed income allrdy from my native country and there is DTA between our countries worst case, and i dont need local bank etc.. was planing to stay less then 183d also as i do winters in Asia. . . so u think ANAF wount bother if a keep a low profile . ., im from EU.