The concept of tax residence in Spain is regulated in Article 9.1 of Law 35/2006, on Personal Income Tax, which establishes two criteria for determining that a taxpayer is a tax resident in Spain: being in Spanish territory for more 183 days during the calendar year or having the main core of their economic interests or activities based in Spain.
In two recent rulings of 28 March and 25 April, the Central Economic-Administrative Court (TEAC) has analysed how the variables that lead to determining that the taxpayer’s tax residence is in Spain should be interpreted based on the criterion of being there for more than 183 days, establishing three different types of days for the purposes of calculation:
1. Days of certified presence: these are days for which direct proof of the taxpayer’s presence in Spanish territory is available.
2. Presumed days: these are days for which the presence of the taxpayer in Spanish territory can be presumed as they are between days of certified presence without there being direct proof of presence abroad. The TEAC clarifies that the qualification of a period as presumed must be made in a reasonable manner without it being possible to use this presumption to prove long periods of stay in Spain.
3. Days of sporadic absences: sporadic absences are regulated in Article 9.1 of the Personal Income Tax Law and are those that are added to the days of certified presence consisting of stays in the territory of another state for a short period of time.
Likewise, in the second ruling, the TEAC also went on to assess how the calculation should be made in cases where the taxpayer has been in the territory of two different countries on the same day, concluding that all those days on which the person was physically present in Spanish territory at some point during the day should be taken into account. Thus, and by virtue of this interpretation, it concludes that if the taxpayer proves their being abroad on the same day on which there is certified presence of their being in Spanish territory, it will be calculated as a day of being in both countries, specifying that the days on which they start or end a trip from a Spanish airport will be calculated as days of being in Spain and in the territory of origin or destination, as the case may be.
Finally, with regard to the aforementioned tax residence criteria, the determination of the number of days the taxpayer has spent in Spain is of particular importance. In this regard, the AEAT is carrying out checks and investigations of taxpayers whose tax residence is in doubt, using all kinds of methods to prove that they have been in Spain for more than 183 days, such as, amongst others, the monitoring of credit cards, analysis of bills paid, household utilities, and even monitoring of social networks and the tracking of digital footprints.
