2Central government taxes

2.3 Nonresident income tax

Nonresident income tax is currently governed by the Revised Nonresident Income Tax Law, approved by Legislative Royal Decree 5/2004, of March 5, and the Nonresident Income Tax Regulations approved by Royal Decree 1776/2004, as well as by the amendments included in Law 26/2014, all of which establish the tax regime applicable to nonresident individuals or entities that obtain Spanish-source income.

As a special aspect, the Revised Nonresident Income Tax Law establishes that nonresident individuals who prove that they are habitually resident in another EU country or in a Member State of the EEA with which there is effective tax information exchange, and that they have obtained in Spain salary income and income from business activities that entails at least 75% of their worldwide income, or that have obtained in Spain income below 90% of the personal and family allowances that would have applied to them if they had been tax resident in Spain, and the income obtained outside Spain has also been below that allowance, may opt to be taxed as resident individuals (PIT).

The key factor in determining the tax regime for nonresidents is whether or not they have a permanent establishment in Spain.

2.3.1 Income obtained through a permanent establishment

Nonresident individuals or entities that obtain income through a permanent establishment located in Spain will be taxed on the total income attributable to said establishment, regardless of the place where it was obtained or produced.

The concept of permanent establishment in Spanish law is in line with the OECD Model Tax Convention. In the case of a foreign entity or individual resident in a country with which Spain has a tax treaty, the treaty provisions and, specifically, the exceptions to the definition of permanent establishment, will determine whether there is a permanent establishment in Spain.

One fundamental characteristic of permanent establishments is the lack of legal personality separate from that of the parent. In other words, there are not two economic beings with separate legal personality—as is the case of a parent and a subsidiary—but rather one subject with a single legal personality that operates through different facilities, centers, offices, etc., one or more of which are located in Spain.

According to Spanish legislation—applicable where there is not a tax treaty, otherwise that treaty would apply—a permanent establishment in Spain exists where the nonresident entity:

1. Uses in Spain, under any legal arrangement, on a continuous or habitual basis, any kind of facilities or workplaces where it performs all or part of its activity.
2. Acts in Spain through an agent that has and habitually exercises an authority to conclude contracts in the name and for the account of the taxpayer.

In particular, the following are deemed to constitute a permanent establishment:

1. A place of management, branch, office, factory, warehouse, shop or other establishment.
2. A mine, oil or gas well, quarry.
3. Farming, forestry or fishing operations or any other place of extraction of natural resources.
4. Construction, installation or assembly works lasting more than six months.

In general terms, permanent establishments in Spain are taxed on their net income at the same rate as Spanish companies (in general, at 25%). Nonresident entities or individuals operating through a permanent establishment in Spain are required to withhold taxes or make tax prepayments on the same terms as resident individuals or entities (i.e. on salary income paid, income from movable capital satisfied, etc.).

However, if it is considered that the entity does not have a permanent establishment in Spain, it will be taxed on its income obtained in Spain pursuant to the regime for income obtained other than through a permanent establishment (See section 2.3.2 of this chapter for more detailed information).

There is a 19% tax (branch profit tax) on the remitted profits of nonresidents doing business through a permanent establishment in Spain. However, this tax is not chargeable according to the provisions of most of the tax treaties.

In addition, this tax is not chargeable on (i) the income obtained in Spain by entities that are tax resident in another EU Member State (unless it resides in a tax haven) or (ii) the income obtained in Spain through permanent establishments by entities resident for tax purposes in a State that has signed a tax treaty with Spain which does not expressly provide otherwise, provided that there is reciprocal treatment.

This tax will therefore be additional to that already borne by the permanent establishment on its income (25% on revenues net of expenses).

Nonresidents who operate in Spain through a permanent establishment are generally required to keep accounting records here, in accordance with the rules and procedures established for Spanish companies.

The taxation of the income of permanent establishments envisages three different situations, as follows:

• As a general rule, taxable income is determined in accordance with the same regulations as are applicable to Spanish-resident companies and, accordingly, the tax rate of 25% is applicable to net income. Allocated parent company general and administrative overhead expenses are deductible under certain conditions. The permanent establishment’s tax year will be the calendar year unless stated otherwise.

  The tax period is also deemed to have ended in the event of the discontinuation of a permanent establishment’s business activities, withdrawal of the investment initially made in the permanent establishment, the change of residence of the head office or the transfer abroad of the permanent establishment’s activity.⁴¹

  The permanent establishment may also take the tax credits and relief that might be applicable, in general, for Spanish resident companies.

  The rules regarding minimum taxation explained in section 2.1.7 also apply.

• In the case of permanent establishments engaging in installation or erection projects with a duration of over 6 months, for those with seasonal or sporadic activity, or for those engaged in the exploration of natural resources, the tax base is determined in accordance with the rules applicable to nonresidents obtaining income in Spain not through a permanent establishment. Such rules also apply in determining the tax return filing and tax accrual obligations of the permanent establishment, which is not obliged to keep books of account (but only documentary support of its transactions).

  However, these nonresidents who operate through a permanent establishment in Spain may also choose to be taxed under the general rules, but such option may only be taken if separate accounts are kept in Spain. This choice must be made at the date of registration in the entities’ index.

• If the permanent establishment does not complete a business cycle in Spain which leads to income in Spain, and the business cycle is completed by the parent company (or the nonresident individual who operates in Spain through a permanent establishment) or by other permanent establishments, the tax liability is determined by applying the general taxation rules, whereby revenues and expenses are valued at market prices.

  However, the tax base will secondarily be determined by applying the percentage established by the Ministry of Finance for this purpose to the total expenses incurred, and by adding any “passive” (unearned) income not obtained in the normal course of business (interest, royalties, etc.) and any other capital gains arising from the assets assigned to the permanent establishment. This percentage has been set at 15%.

  The gross tax payable in this case is determined by applying the standard tax rate, but the tax credits and tax relief provided by the standard CIT system may not be taken.

  The tax period and tax return filing (Form 200) deadlines are those envisaged in the standard tax rules.

• Likewise, expenses cannot be deducted, or their deductibility must be deferred, or otherwise taxable income must be added in certain cases (where there is a relationship of association between the parties involved in the transaction or significant influence is exerted, or they act jointly with respect to voting rights or ownership of capital, and where the asymmetry occurs in the context of a structured mechanism) that affect the deductibility of expenses in the tax base of permanent establishments located in Spain.

  In this regard, the following expenses are not deductible:

  • Expenses relating to transactions carried out between the aforementioned operators which, as a result of a tax difference in their allocation between the permanent establishment and its head office, or between two or more permanent establishments, do not generate income.
  • Those estimated for internal transactions with the head office or with one of its permanent establishments, or those of a related person or entity which, due to the legislation of the country or territory of the beneficiary, do not generate income, in the portion that is not offset by revenues that generate double taxation (where the revenues in question are subject to taxation pursuant to Spanish legislation and to that of the other country or territory).
  • Those relating to transactions of the permanent establishment that are tax deductible in the head office, in the portion that is not offset by revenues of that permanent establishment or related entity that generate double taxation.
  • Those relating to transactions carried out with a permanent establishment of the head office or of a related person or entity which, since it is not recognized for tax purposes by the country or territory of location, do not generate revenues.
• Lastly, there is an obligation to include in the tax base the difference between the normal market value and the book value of assets assigned to a permanent establishment that ceases its activity or transfers its activity abroad, as well as in the case of transfer abroad of the assets used in the activity.

  The payment of the tax debt resulting in the case of assets transferred to a Member State of the EU or of the EEA with which there is an effective tax information exchange will be deferred by the tax authorities at the taxpayer’s request until the assets in question are transferred to third parties, and the provisions of the General Taxation Law 58/2003, of December 17, and its implementing legislation shall apply with regard to the charge of late-payment interest and the provision of guarantees for that deferral, which may not exceed the period of five years from the transfer.

  The tax debt deferral will lose its validity when the activity carried out by the permanent establishment is subsequently transferred to a third State outside the EU or the EEA, and in the case of transfer of assets to third parties, insolvency or lack of payment of the previous taxes owed.

2.3.2 Income obtained other than through a permanent establishment

Nonresident entities or individuals that obtain income in Spain other than through a permanent establishment will be taxed separately on each total or partial accrual of Spanish-source income.

Spanish-source income obtained other than through a permanent establishment, as defined by the Nonresident Income Tax Law, consists mainly of the following items:

• Earnings derived from economic activities pursued in Spain.
• Earnings derived from the rendering of services where such services (i.e. studies, projects, technical assistance or management support services) are used in Spanish territory.
• Salary income, which is directly or indirectly derived from work performed in Spain.
• Interest, royalties and other income from movable capital paid by persons or entities resident in Spanish territory or by permanent establishments in such territory.
• Income from marketable securities issued by companies resident in Spain.
• Income from real estate located in Spain or from certain rights relating to that real estate.
• Capital gains on the sale of assets located in Spain and on the sale of securities issued by residents.

However, certain types of income originated in Spain are not taxable in Spain, most notably the following:

• Income paid for international sales of goods.
• Income paid to nonresident persons or entities relating to permanent establishments located abroad, with a charge to such establishments, if the consideration paid is related to the activity of the permanent establishment abroad.

On the other hand, the following will be exempt:

• Interest and earnings derived from the transfer of equity to a third party, as well as capital gains on movable assets owned by residents of other European Union Member States (except tax havens) obtained other than through a permanent establishment, by EU or EEA residents or by permanent establishments of those residents located in another Member State of the EU or the EEA. However, capital gains on holdings in entities whose assets consist principally of real estate in Spain, or in which the seller has had, directly or indirectly, at least a 25% interest at some time during the twelve months preceding the sale, are taxable (this latter requirement only applies to individuals), or where the transfer does not meet the requirements to apply the exemption to avoid double taxation (domestic and international) established in CIT legislation.
• Gains on transfers of securities or redemptions of participation units in mutual funds on official secondary securities markets in Spain obtained by nonresident individuals or entities without a permanent establishment in Spain that are resident in a State with which Spain has signed a tax treaty and with which there is effective exchange of tax information. The exemption does not apply when the nonresident entity resides in a country or territory classed as a tax haven.
• Yields derived from Spanish Government debt securities accruing to nonresident entities obtained not through a permanent establishment in Spain, unless they are routed through tax havens.
• Income derived from “nonresident accounts” paid by banks or other financial institutions to nonresident entities or individuals (unless payment is made to a permanent establishment in Spain of such entities) as well as that obtained not through a permanent establishment located in Spain and derived from the rental or assignment of containers or bare-boat charters and aircraft dry leases.
• Dividends from a Spanish subsidiary to its parent company resident in the EU or in a Member State of the EEA, provided that certain requirements are met (among others, 5% holding owned for one year).⁴²

  This rule is not applicable if the parent company is located in a tax haven, or when a majority of the voting rights of the parent company is held directly or indirectly by an individual or legal entity not resident in the EU or in a Member State of the EEA with which there is effective exchange of tax information, on the terms established in subarticle 4 of additional provision one of Law 36/2006, of November 29, 2006, on tax fraud prevention measures, unless the formation and operation of the parent is based on valid economic grounds and substantive business reasons.

• Royalties paid by a Spanish resident company (or by a permanent establishment in Spain of a company resident in another Member State of the EU or of the EEA) to a company resident in another European Union Member State (or to a permanent establishment of an European Union resident company in another Member State), where certain requirements are met.

In 1991 the Spanish tax authorities identified 48 territories classified as tax havens. These include such “traditional” havens as the Bahamas, Liechtenstein, Monaco, Gibraltar, etc. The Royal Decree which approved such list is still in force (See regulations on tax havens in the CIT Law).

Spanish law generally sets tax rates lower than the standard rate for residents for income accruing to nonresidents that do not have a permanent establishment in Spain. The tax is normally levied on the gross income, except for income for services rendered, technical assistance and installation and erection projects, in which case the tax is levied on the difference between the gross income and the payroll, material procurement and supplies expenses as defined in the relevant regulations.

Capital gains are generally calculated on the basis of the difference between acquisition cost and sale price, to which the same rules as those established for resident individuals are generally applicable (this law refers to PIT legislation regarding the determination of the tax base for capital gains).

Moreover, purchasers of property located in Spain from nonresidents that do not have a permanent establishment in Spain must deduct withholding tax at 3% from the purchase price on account of the vendor’s capital gains tax liability.

If the transferred property was acquired by the transferor more than two years prior to December 31, 1996, for withholding tax purposes it should be considered the application of the abatement coefficients described in the section on PIT, with the new limits discussed therein.

There are also certain exceptions to this obligation to make a withholding, such as cases in which the property is transferred as a non-monetary contribution for the formation of, or capital increase at, a company resident in Spain.

The tax rates are as follows:

Type of Income	Rate (%) applicable from 2016 onwards
General.	24 (*)
Dividends. Interest. Capital gains. Income derived from the transfer or redemption of securities representing the capital or equity of collective investment undertakings.	19
Special cases: Income from reinsurance transactions. Income from maritime or air navigation entities. Foreign seasonal workers.
	1.5
	4
	2

1. The rate is 19% for taxpayers resident in another Member State of the EU or of the EEA with which there is effective exchange of tax information.

The tax rates applicable to retirement pensions obtained by a nonresident individual will vary between 8% for amounts of up to €12,000, 30% for the following €6,700 and 40% for amounts in excess of €18,700.

Royalty payments to entities or permanent establishments residing in the EU are subject to a 0% rate.

In the case of nonresidents without a permanent establishment in Spain there is no possibility of offsetting losses against future profits or capital gains. Moreover, a nonresident without a permanent establishment can only deduct from the tax payable the amount of the taxes withheld from its income and the amounts corresponding to gifts and allowances as described in the PIT Law for resident individuals.

Liability for nonresident income tax arises whenever Spanish-source income becomes claimable by the nonresident entity or is paid, whichever is earlier; as for capital gains, liability arises when they are generated and in the case of income attributed to urban real estate, on December 31.

In general, a separate tax return (Form 210, Nonresident Income Tax. Nonresidents without a permanent establishment. Ordinary return) and supporting documentation must be filed within one month from the above date.

At the request of the taxpayer, the tax authorities can place at its disposal, merely for information purposes, draft tax returns (notwithstanding the taxpayer’s obligation to file the return and pay the tax debt), exclusively in relation to the real estate income attributed deriving from urban property located in Spain and not used in economic activities, with the limits and conditions established by the Ministry of Finance.

A draft return will be generated for each property that gives rise to the attribution of real estate income.

The law also establishes a general obligation of making withholdings and prepayments on account of the income paid to nonresidents by entities, professionals and traders who are resident in Spain. Some exceptions to this general rule are envisaged in the law and the regulations.

In cases where there is a withholding obligation, the tax return filed by the withholding agent releases the taxpayer from the obligation to file the return, and vice versa.

In most cases the above-mentioned tax returns can be filed monthly or quarterly grouping together different types of income obtained during the preceding period.

2.3.3 Tax regime for persons assigned to Spain (inbound expatriates)

Spanish PIT legislation contains a very attractive regime for personnel assigned to Spain for work-related reasons, since it allows individuals who become tax resident in Spain as a result of their assignment to Spain to opt to be taxed either under PIT rules or under nonresident income tax rules during the tax period in which their tax residence changes and for the next five tax periods. Under the nonresident income tax rules option, they are only taxed on the income and/or gains that are deemed to have been obtained in Spain, at a fixed rate (which is increased for income of above €600,000).

The requirements necessary to apply this regime, as from January 1, 2023, are as follows:

• The inbound expatriate must not have been resident in Spain during the 5 tax periods preceding his or her move to Spain.
• The move to Spain must be the result of an employment contract — although moves not ordered by the employer are acceptable where the work is performed remotely through the exclusive use of computer, remote and telecommunications technologies and systems — or be due to the person in question becoming a board member or director of a Spanish entity (in this case, if it is an asset-holding entity, the director or board member may not be a person related to it).
• A new feature, as from 2023, is the inclusion under this regime of persons who engage in an entrepreneurial economic activity in Spain, and highly qualified professionals who provide services to start-ups (see section 2.18).
• The individual must not obtain income that would be classified as obtained through a permanent establishment in Spain. This requirement does not apply to persons engaging in an entrepreneurial activity or to the highly qualified professionals referred to immediately above.

The tax debt will be determined according to the provisions of the Revised Nonresident Income Tax Law for the income obtained other than through a permanent establishment with various particularities:

1. The exemptions established in nonresident income tax legislation will not apply.
2. All of the taxpayer’s salary income will be deemed obtained in Spain.
   Also taken into account is income from economic activities classed as entrepreneurial. The criteria applicable as regards the exemption of earned income in kind are those set out in the PIT Law.
3. The income items obtained in the calendar year will be taxed on a cumulative basis, without the possibility of offsetting them against each other.
4. Dividends, interest and capital gains derived from the transfer of assets will be taxed separately from the rest of income, according to the scale specified previously for savings income: 19%, 21% and 23%, 27% and 28%.
5. The rest of income will be taxed according to the following scale:

   Net taxable income	Rate 2021 onwards
   Up to €600,000	24%
   From €600,000 onwards	47%

6. The withholding rate on salary income will be 24%. However, where the income paid by the same payer during the calendar year exceeds €600,000, the withholding rate applicable to the excess will be 47% (45% in tax periods commenced prior to January 1, 2021).

In order to exercise the option to be taxed under this regime, it is necessary to notify the tax authorities within six months following the date of commencement of the employment that is stated in the notice informing the social security authorities that the employee was hired.

As from January 1, 2023, the option to apply this special regime is also available to the taxpayer´s spouse and children who are under 25 years of age (or of any age if they are disabled), subject to certain requirements.

Lastly, personal income taxpayers that elect to apply this special regime can request a tax residence certificate in Spain (although this is not the residence certificate required for the purposes of the corresponding double tax treaties subscribed by Spain).

2.3.4 Capital gains due to a change of residence (“exit tax”)

For PIT payers who lose taxpayer status due to a change of residence, positive differences between the market value of shares held by the taxpayer in any type of entity and their acquisition value will be deemed capital gains (in the savings base), provided the taxpayer has had taxpayer status for at least 10 of the 15 tax periods prior to the latest tax period for which PIT must be declared and any of the following circumstances concur:

1. The market value of the shares must exceed a total of €4,000,000 for all the shares considered as a whole.
2. Otherwise, on the accrual date of the latest tax period for which PIT must be declared, the stake in the entity must exceed 25%, provided that the market value of the shares in that entity exceeds €1 million. In this case, this scheme will only apply to the shares held in these entities.

In the case of taxpayers that have opted to apply the special tax scheme for workers relocated to Spain (for more information, see section 2.3.3 above), the 10 tax periods referred to above will begin as from the first tax period in which the special scheme is not applicable.

Capital gains will be allocated to the final tax period for which PIT must be declared; if applicable, a supplementary tax return must be filed, without any default interest or penalty.

The capital gain will be calculated using the market value of the shares which (i) in the case of listed shares will be their listed price; and (ii) in the case of unlisted shares will be the higher of the equity value in the latest balance sheet closed prior to the accrual date and the result of capitalizing at 20% the average results for the three financial years closed prior to the accrual date (including in the calculation dividends paid out and amounts apportioned to reserves, barring regularization or fixed asset restatement reserves). Additionally, (iii) shares in collective investment institutions will be valued at their cash value on the accrual date of the latest period for which PIT must be declared or, failing this, at the latest cash value published (in the absence of this value, at the equity value in the balance sheet for the latest financial year closed prior to the accrual date, barring evidence of a different market value).

Certain special rules are provided for cases in which (i) the change of residence is the consequence of a temporary work posting to a country or territory that is not classed as a tax haven or for any reason provided that, in this case, the worker is posted temporarily to a country or territory with which Spain has concluded an international double taxation treaty containing an information exchange clause (in this case, payment of the liability may be deferred for a maximum period, which may be extended); or (ii) residence is changed to a different EU Member State or a country within the EEA with which there is effective exchange of tax information (in such cases, the company may opt to self-assess the gain only in certain circumstances).

This regime will also be applicable when residence changes to a country or territory classed as a tax haven and the taxpayer does not lose resident status in accordance with the residence rules stipulated in the PIT law.

2.3.5 Tax treaties⁴³

Tax treaties may reduce, or even completely eliminate, the taxation in Spain on the income earned by entities which do not have a permanent establishment here.

Companies without a permanent establishment in Spain which are resident in countries with which Spain has a tax treaty are generally not taxed in Spain on their business income earned here, nor for capital gains (other than on real estate).

However, capital gains on the sale of shares of companies can be taxed in Spain under the special clauses of certain treaties (including most notably shares of real estate companies, transfers of shares when a substantial interest is held, etc.).

Certain other types of income (royalties, interest or dividends) are taxed at reduced treaty rates in force.

Currently, there are various treaties which are at different stages of negotiation or coming into force. Among them, the treaties with Bahrain, Montenegro, Namibia, Peru and Syria. Additionally, certain treaties are currently being renegotiated.

Finally, Spain has signed up to the Multilateral Instrument or MLI, meaning that the application of the clauses of a treaty signed with another State that has also endorsed it is subject to the provisions of the Multilateral Instrument. In summary, the changes introduced by the MLI are basically aimed at expressly limiting the possibility of abusive use being made of treaties, both generally and specifically in relation to certain situations or circumstances (permanent establishments, hybrid instruments, etc.), at reinforcing the possibilities of taxing certain income at source (dividends, capital gains) and, lastly, at reviewing the methods for avoiding double taxation based on residence.

Tax sparing arrangements

Due to the existence under Spanish regulations of relief from the tax on certain types of income (mainly interest income), the tax sparing arrangements contained in many of Spain’s tax treaties are relevant.

Under these arrangements the lender resident in one State can deduct in that State not only the tax effectively withheld from the interest in the other State but also the tax that would have been payable had relief not been provided.

2.3.6 Tax on property in Spain of nonresident companies

Companies resident in a country or territory classed as a tax haven that own real estate in Spain are subject to an annual tax of 3% on the cadastral value of the property at December 31 each year.

This tax does not apply to:

• International bodies and foreign States and public institutions.
• Companies that pursue in Spain, on a continuous or habitual basis, economic activities other than the simple holding or lease of real estate.
• Companies that are listed on official secondary securities markets.

2.3.7 Tax representative

Nonresident taxpayers are, in certain cases, obliged to appoint a representative in Spain (individual or entity)⁴⁴. Specifically, this obligation applies to:

1. Those operating in Spain through a permanent establishment.
2. Those performing economic activities in Spain other than through a permanent establishment and which permit the deduction of certain expenses.
3. Those which are entities subject to the pass-through regime formed abroad and which carry on business activities in Spain, where all or a portion of those activities are carried on by them, continuously or habitually, through installations or workplaces of any kind, or which act in Spain through an agent authorized to conclude contracts in the name and for the account of the entity.
4. Those which are persons and entities resident in countries or territories with which there is no effective exchange of information, that there are owners of property situated or rights which are fulfilled or exercised in Spain (except for securities listed on organized secondary markets).

The appointment of a representative must be done before the end of the period for reporting income obtained in Spain. The appointment must be notified to the authorities within two months. Failure to appoint a representative or to notify the authorities can lead to a fine of €2,000 (€6,000 for those taxpayers residing in countries or territories with which there is no effective exchange of information).

The tax representatives (if residents) of permanent establishments are deemed to be the persons registered as their representatives in the Commercial Register, or the persons empowered to contract on their behalf.

Persons who, pursuant to the Revised Nonresident Income Tax Law, are:

1. Tax representatives of permanent establishments of nonresident taxpayers.
2. Tax representatives of pass-through entities.

Shall be jointly and severally liable for paying over the tax debts corresponding to such establishments or entities.

The payer of income accrued other than through a permanent establishment by nonresident taxpayers, or the depositary or manager of the assets or rights of nonresident taxpayers not used by a permanent establishment, will also be jointly and severally liable for the payment of tax debts relating to income paid by him or to income and/or gains from assets or rights whose safekeeping or management has been entrusted to him.

This liability will not exist where the payer or manager is subject to the obligation to withhold and prepay tax (since they already have such specific obligation and the responsibility that from it could eventually derive).