27-05-16 Although the nationality is a factor that must be considered in order to apply a judiciary regime or other, within the Spanish Tax law the distinction between national versus foreigner is substituted by the principle of fiscal residence in Spain; this means that, once acquired the fiscal residence condition, independently of their nationality, they start paying taxes as any other national citizen.
Regarding the fiscal residence criteria in Spain, this is used for personal taxes, which are those whose taxable source of income refers to a concrete person, for instance, obtaining the taxes or ownership of a patrimony by a natural person and it’s obtained with the effective permanence and not only by the registry (such as the one derived from the inscription at the census, for example) of 183 days in a calendar year. (There’s also an alternative criterion apart from the permanence to consider a natural person a fiscal resident in Spain. Precisely, it will be understood that the taxpayer has the usual residence in Spanish territory when the main core or the base of their activities or economic interests, directly or indirectly, reside in Spain.
You must consider that the continuity of these 183 days isn’t demandable, these can be alternated, but they must be computed in the calendar year. The occasional absences are also counted within those 183 days, if the exit of the territory is produced with the purpose to come back or not changing the residence, unless you prove through a certificate of residence issued by the Tax Authority from other Country [for instance AN, Administrative Litigation Chamber (SP/SENT/805985)]. In this sense, the temporary stays as a consequence of obligations adopted according to human or cultural cooperation won’t be considered.
Maybe the taxes where thos distinction of the residence is more highlighted are the IRPF and its correlative IRNR. Foreigners are applied one or the other according to the number of days that they spend in our country since the day of their arrival until they finish that year.
Thus, in the year of arrival, two assumptions arise, as it’s necessary to wait for the passing of the calendar year:
1. Since the date of the arrival until December 31st more than 183 days are going to pass. In this case, they will be considered as non-residents (bear in mind that this circumstance cannot be determined a priori, but at the end of the year) and they will have to pay taxes for the rents obtained in Spain through the IRNR, whose accrual is immediate. By the end of the year, then with the consideration of fiscal resident, they must do the tax declaration in June of the following year for all the rents obtained included the one already taxed in IRNR, considering them as payments on account of the IRPF, in order to avoid a double taxation.
2. From the date of arrival until December 31st no more than 183 days are going to pass. As they aren’t considered as residents (bear in mind that this circumstance cannot be determined a priori, but at the end of the year), they will be taxed through the IRNR and, the following year, in case they reside more than 183 days, they must pay taxes through the IRPF.
Regarding the rest of duties, the taxation will be basically the same as the fiscal residents, from the first day of their arrival.
What must be considered is that, according to the Taxation Law, in order to establish their own concept of residence differenciated from other branches of the Law, some situations may happen, in which you are a fiscal resident but you lack of authorisation to reside in Spain.
Thus, the fiscal residence doesn’t validate the situations of irregularity and the fiscal residents who obtain rents are obliged to be taxed for these, even being considered as irregular residents.