Article 93 of the Income Tax Law and articles 123 to 120 of the Income Tax Regulations regulate a special income tax regime aimed at facilitating companies based in Spain to hire foreign workers, especially those with higher talent or qualifications who frequently receive high salaries, who may choose to apply this regulation that offers them an attractive taxation for the first €600,000 of gross salary they obtain in Spain.
The regulations and requirements were modified as of January 1, 2015, but those who registered before that date have been allowed to voluntarily opt to apply the previous taxation (a general tax rate of 24.75% with the exception of dividends, interest and capital gains which were taxed at the rate of 21%) if they consider it more beneficial.
Who can opt for this regime?
Those who move to Spain and stay in Spain for more than 183 days in a year, acquire the status of tax residents and meet the following requirements, are eligible for this regime:
a) They must not have been residents in Spain in the 10 years prior to the year in which they intend to opt for this tax regime.
b) They must have moved to Spanish territory for any of the following two reasons:
1) When an employment contract has been formalized (with the exception of the special regime for professional sportsmen and women) with an employer located in Spain.
2) When acquiring the position of administrator of a Spanish company, even participating as a shareholder in it, as long as such participation does not confer the character of a related person. (This will mean that he/she is the direct or indirect owner of less than 25% of the capital).
c) They must not obtain income in Spain that is considered a “Permanent Establishment” (which would mean that the person moving to Spain exercises an economic activity on their own account).
Does it have effects on the Wealth Tax?
Yes, he/she will pay Wealth Tax by real obligation, as if he/she were a non-resident, being obliged only to declare the wealth he/she owns in Spain.
Is it a mandatory or voluntary regime?
Totally voluntary, those persons who, meeting the requirements, consider that the application of the special regime is beneficial to them, may opt for this regime.
What is the tax rate applicable to those who opt for this special regime?
The tax rate of 24% for the first 600,000 euros obtained in the year and 45% for those exceeding 600,000 euros will be applied to all types of income except those qualified as dividends, interest or capital gains to which the rate of 19% will be applied to the first 6,000 euros obtained, the rate of 21% to those obtained between 6,001 and 50,000 euros and 23% for income exceeding 50,000 euros.
To the resulting amounts, the deductions of art. 26 of the Non-Resident Income Tax Law will be deducted, which are the deductions for donations of article 69.3 of the Income Tax Law, which are the donations made to non-profit organizations and foundations, and the withholdings and payments on account may also be deducted. In addition, a deduction for international double taxation will be applied (in this case with respect to salaries) with a limit of 30% of the total tax liability corresponding to the income from work.
What happens with the income obtained outside Spain?
They will not be taxed in Spain, except for the income from work obtained abroad, which will be considered to have been obtained in Spain.
To whom is it convenient to apply this regime?
As we have mentioned, it is necessary to analyze case by case, but based on our experience, the application of the regime is attractive for gross salaries from €60,000 per year.
Are there any disadvantages?
It must be taken into account that the application of the Non-Resident Income Tax (IRNRN) regulations will mean that some incomes cannot be offset with others, that expenses cannot be deducted (as would occur with the contributions made to Trade Unions by the workers), and that some incomes that would be exempt in Personal Income Tax, such as severance payments, are not exempt in this regime, Furthermore, it supposes the non-application of the Double Taxation Agreements (DTA) which can hypothetically suppose a higher taxation of some incomes abroad, the non-application of the double taxation agreements is coherent with the fact that the taxpayer is considered a tax resident in Spain and therefore it would be totally inappropriate for him/her to show a certificate of tax residence in another country.
Can spouses apply the special tax regime?
It will depend entirely on whether they meet the requirements for its application and opt for it voluntarily. The application of the special tax regime for one spouse does not condition the application of the regime for the other spouse.
Let us remember that the fact that one spouse resides legally in Spain (considering him/her a tax resident), will mean that the other spouse will be considered a tax resident, unless there is evidence to the contrary.
Can this regime be applied in an unlimited way?
No, this special regime can only be applied during the year in which the spouse moves to Spain and becomes a tax resident and during the following 5 years, therefore, a maximum of 6 years.
What happens with the income obtained prior to the relocation?
Therefore, a person resident in Germany, who has moved to Spain on March 1st to formalize an employment contract with a company located in Spain, will not have to declare the salaries received outside Spain until February 28th.
When does the option for the special regime have to be filed?
The deadline to present the option by means of the presentation of the form 149 is 6 months from the beginning of the labor activity or of acquiring the condition of administrator of the Spanish company.
Form 149 is also used to communicate the end of the application of the regime when the worker ceases to meet the requirements or leaves Spanish territory.
Will the administration respond to the presentation of form 149?
The tax authorities must issue within 10 days a document certifying that the taxpayer has opted for this regime, which will be used, among other things, for the payer of the income (the employer) to apply the withholdings based on this regime.
The deadline is 10 days, but our experience is that sometimes there is a delay of 1 or 2 months in issuing this document.
Can the special regime be waived?
Yes, in November and December of each year with respect to the following year.
Is the right to apply the regime lost if I am dismissed or voluntarily change jobs?
No, the regime can be maintained if the employee is dismissed, and a new employment contract is formalized sometime later, also those who voluntarily resign from their job and take up a different position maintain the regime. It is also accepted the case of the worker who has formalized an employment contract and later acquires the condition of administrator of the company if he does not have the character of a related person (he participates directly or indirectly in less than 25% of the capital stock).
Can the tax authorities exclude those who have opted for this regime?
Yes, it can if they do not comply, for example, if they carry out an economic activity on their own account or if they are administrators of a company and have a shareholding in the entity of more than 25%.
Can they participate in a company or acquire real estate in Spain?
Yes, they can do so and without any limitation, therefore, they can have shares in Spanish companies and receive dividends for their condition of shareholders, they can also acquire real estate in Spain and even receive income for their possession (rental income).
What happens with dividends obtained abroad or income obtained from real estate located abroad?
As we have commented above, income obtained abroad will not be taxed with the exception of salaries that will be considered as obtained in Spain, so dividends obtained from a company domiciled abroad or income from the rental of real estate located outside Spain will not be subject to taxation.
does the holding of real estate generate imputation of income to declare in the income tax?
Effectively, the holding of non-rented real estate generates the imputation of income in the terms of the Non-Resident Income Tax (IRNR) including the main residence which, when the IRNR is applied, is by definition excluded from the concept of main residence.
How is the income tax return filed?
By means of form 151, although those posted workers who opted to apply the regime before January 1, 2015 may continue to apply the previous regulations (especially with regard to tax rates) by filing form 150.
Other points to take into account
The Directorate General of Taxes (DGT) has interpreted in several binding consultations the regulations of the special regime for workers posted to Spanish territory and from them we can highlight some important requirements:
V2777-16 Necessity of causal link between the posting to Spain and the acquisition of the status of worker or administrator.
V0275-14 Non-application of the regime to the spouse or children who do not meet the requirements.
V0432-17 Effects in the case of dismissal.
V2918-17 Non-applicability of the benefits of the double taxation agreements CDI.
Tax issues are always very complex and therefore we recommend that you contact our firm so that we can advise you properly for the application of this special tax regime firstname.lastname@example.org