Do you reside in Spain or abroad?
This is an issue that brings many Spanish and foreign freelancers who come to Spain to head because the notion of habitual residence is what motivates the status of a taxpayer by personal income tax.
In this sense, it is understood that the taxpayer has his habitual residence in Spain when either of the following two circumstances occurs:
1) That it remains more than 183 days, during a calendar year, in Spanish territory (they are not required to be consecutive, so they can be alternate, but must be counted independently for each calendar year).
For the calculation of those 183 days, sporadic absences are not counted (that is, if the person leaves Spain for a few days, these are not subtracted from the calculation of the period of stay in Spain), unless tax residence is proven in another country.
In the case of moving the residence of Spain to a territory or country classified as a tax haven, the Tax Administration may require proof of permanence in it for 183 days in the calendar year. And on the other hand, even if a Spanish national proves his new fiscal residence in a country or territory considered as a tax haven, he will not lose his status as a taxpayer by the Spanish personal income tax or in the tax period in which the change is made of residence or in the following four.
It is what has come to be called “Fiscal quarantine”, a measure that seeks to avoid tax evasion.
2) That the main nucleus or the base of its economic activities or interests lies in Spain, directly or indirectly.
In addition, it is presumed, unless proven otherwise, that the taxpayer has his habitual residence in Spanish territory, when the spouse who is not legally separated and the minor children who depend on him reside regularly in Spain.
In a judgment of the TSJ of Murcia dated 09/24/2018, it is related what indications should not be taken into account when determining the tax residence in Spain based on where the taxpayer’s centre of vital interests lies:
1. The fact of owning real estate in Spain, especially if they were acquired before moving abroad.
2. The contribution to the self-employment social security scheme as well as medical insurance payments, provided that they are residual payments without the exercise of any economic activity that justifies them and with an exclusively sanitary purpose.
3. The acquisition of vehicles does not justify the fact that Spain is the centre of vital interest of a taxpayer who has moved to another country but uses temporary trips for his own purpose.
4. The ownership of bank accounts, investment funds, perception of dividends and sale of shares is also not relevant to determine fiscal residence if most of your financial assets are outside of Spain.
5. The electricity consumption of what was the habitual residence in Spain is also not relevant for determining residence, provided that the dwelling was inhabited exclusively during temporary visits.
It is, therefore, a really relevant tax aspect, because depending on where a taxpayer is considered resident, he or she will have to declare in Spain all their world income.