If the accreditation of tax residence could be done by weighing a set of evidence, this flexibility in the provision of evidence does not apply in the same way in all cases, it is a conditioned flexibility.

The regulations issued in development of the RDLeg. 5/2004 (TR IRNR Law) -specifically, Order EHA/3316/2010 (IRNR self-assessment forms 210, 211 and 213)- establishes in some cases the requirement that the test be carried out by providing specific documentation : sometimes “a certificate of residence, issued by the tax authorities of the country of residence, justifying these rights” -cases of application of exemptions from internal regulations- and, in other cases, by providing “a certificate of residence issued by the corresponding tax authority that justifies those rights, in which it must expressly state that the taxpayer is a resident in the sense defined in the Agreement”.

Difference that is reflected in annex IV (“Fiscal residence in Spain”) and in annex V (fiscal residence in Spain. Agreement) of the aforementioned regulatory order that creates two different models for the Spanish Tax Agency to issue, respectively, one or the other certificate.

The application of an exemption from the Convention that requires, in application of art. 7 of Order EHA 3316/2010 (IRNR self-assessment forms 210, 211 and 213), the provision of a tax residence certificate for the purposes of the Agreement.

Thus, the previous regulations show that the Spanish internal regulations require for the application of the tax benefit of the agreement to which the taxpayer accepts in his IRNR 2016 self-assessment (the exclusive taxation of other income in the country of residence, COUNTRY_UE_1) the contribution of a tax residence certificate issued by the competent tax authorities for the purposes of the DTA.

It is the consideration of a person as a resident for the purposes of the Agreement that enables taxation in both countries to adjust to the rules of distribution of taxation powers between both States, to the taxation limits, exemptions or other benefits derived from it. .

To enable the application of a DTA, the taxpayer must provide the certificate that expressly certifies that he has the status of resident for the purposes of the Agreement in one of the signatory States.

(TEAC, 02-23-2023, RG 4129/2020)