Days of stay in Spain to be considered a tax resident: How many days are necessary?
In the previous post, we talked about the criteria to be considered a tax resident in Spain. In this article, we delve into one of those concepts: the days of stay in Spain to determine tax residence and tax obligations.
Tax residency in Spain: How many days are required? Counting the days to be considered a tax resident in Spain.
The Central Economic Administrative Court (TEAC) has provided clarity on the calculation of the days of stay in Spain to determine tax residency and tax obligations.
According to the TEAC, the concept of “stay” according to article 9.1.a) of the Personal Income Tax Law (LIRPF) consists of three elements:
- Certified presence;
- Presumed days;
- Occasional absences
Regarding certified presence
The TEAC requires accreditation through an “unquestionable means of proof.” According to the resolution, once the presence of a day has been certified through the corresponding means of proof, it is calculated in a neutral manner without the need to prove (neither by the Administration nor by the taxpayer) a consecutive stay of multiple days.
Thus, the TEAC emphasizes that the day is counted in its entirety without requiring a minimum number of hours (commentary 5 to Article 15 of the OECD Model Convention).
Regarding presumed days
The resolution establishes that presumed days are those that reasonably occur between two certified presences. The criterion states that, even though it is not known through certified proof that the individual was in Spain, if it is a reasonable number of consecutive days and they fall between certified presence days, they can be counted as days of stay according to article 9.1.a), unless certified presence outside Spanish territory is proven.
Regarding the concept of occasional absences
According to the text of Article 9.1.a) of the Personal Income Tax Law (LIRPF), occasional absences are an element that adds to the days of actual presence (composed of the sum of certified presence days and presumed days) to determine if the accumulated stay in Spain exceeds 183 days.
According to the resolution, in essence, they serve as support for the conclusions of stay in Spanish or foreign territory, but they are not strictly necessary when the days of actual presence already reach the minimum threshold required by law of 184 days.
Tax authorities have intensified controls. The Annual Tax and Customs Control Plan for 2021 explicitly included the use of big data by the Tax Agency (AEAT) to detect alleged non-tax resident individuals who, according to the opinion of the tax authorities, should be subject to taxation in Spain as tax residents for both their income and worldwide assets.
The Tax Agency now has increasingly more data and information about taxpayers. The reports present a level of detail that surprises specialists, including social media activity and online purchases.