non resident tax: stay in Spanish territory for habitual residence

It is about determining if, as the Inspection considers, the taxpayer had his tax residence in Spain in the verified period.

The Inspection has requested a series of data and evidence that indicates that the taxpayer continued to reside in Spain during the years under review.

For his part, the interested party claims to have been a resident of COUNTRY_1, as evidenced by the residence certificates issued by the tax authorities of said state, and the large number of documents and evidence provided in the verification.

Pursuant to art. 9.1 of Law 35/2006 (IRPF Law), a taxpayer has his habitual residence in Spanish territory when any of the following circumstances occurs: that he remains more than 183 days during the calendar year in Spanish territory, or, that he resides in Spain the main nucleus or the base of its activities or economic interests, directly or indirectly.

In accordance with the first of the criteria, the Inspection has collected data with reference to the days of effective stay of the taxpayer in Spain.

A calendar was prepared in which the days in which the presence of the interested party is accredited are distributed between Spain, COUNTRY_1 and the rest of the world – information provided by flight companies, traffic fines, clinics, hotels, credit card statements , news in the press about attendance at public and promotional events, information extracted from social networks, etc-, with the exception of the 2017 financial year, the permanence of a greater number of days in Spain than in COUNTRY_1 is verified.

The Inspection has differentiated three types of days that must be taken into account in order to determine whether the criterion of permanence of tax residence is met:

The days for which there is direct proof of the presence or location of the taxpayer, without any doubt, either in Spanish territory or abroad.

Once the days in which the taxpayer is surely in Spain and those in which he is surely abroad, the Inspection determines the location of the interested party, in Spain or abroad, for the rest of the days based on indirect evidence or presumptions.

It understands that the taxpayer is in Spain when he has shown, through direct evidence, that the taxpayer is in Spain for two non-consecutive days and there is no proof of his presence abroad; likewise, when, through direct evidence, the Inspection has shown that the taxpayer is one day in Spain and until the day on which there is evidence of his presence abroad.

Days of sporadic absences. art. 9.1.a) of Law 35/2006 (IRPF Law), sporadic absences are an element to be added to the days of effective presence (made up of the days of certified presence and presumed days) in order to determine if the aggregate stay in Spain is greater than 183 days.

They are a reinforcement to the conclusions of permanence in Spanish territory or abroad but, of course, not strictly essential when with the days of effective presence the minimum threshold required by the Law of 184 days has already been reached.

This differentiation of the three levels of previous days is correct and declares that the permanence of the first paragraph of art. 9.1.a) of Law 35/2006 (IRPF Law) is made up of three levels of days: the “days of certified presence”, the “presumed days” and, finally, the days of sporadic absences.
(TEAC, of 04-25-2023, RG 4812/2020)