In a recent resolution (TEAC 25-4-23), it is established that the concept of stay for more than 183 days during the calendar year in Spanish territory is made up of three levels of days.
In a recent resolution (TEAC 25-4-23), it is established that the concept of permanence for more than 183 days during the calendar year in Spanish territory is composed of three levels of days: certified presence, presumed days and sporadic absences. This definition is crucial to determine the tax residence of taxpayers in Spain.
According to the TEAC, the determination of the number of days of stay must be based on objective criteria, avoiding the consideration of the wishes expressed by the taxpayers. The objective is to achieve a clear determination of the presence of taxpayers in the country.
In this sense, it is proposed that a calendar be drawn up that complies with the principles and rules established in the applicable regulations (LIRPF art.9 and OECD Model Convention art.15), as well as with the relevant administrative interpretations. This calendar would allow to configure the stays of taxpayers in a precise and reasonable manner.
The concept of stay for more than 183 days during the calendar year in Spanish territory is divided into three levels of days:
- a) Certified presence: any day on which there is evidence that the taxpayer was in Spanish territory, even if only for a short period of time, is considered as a day of stay. This presence can be proved both by the Administration and by the taxpayer himself and constitutes a solid proof against which no evidence to the contrary is admitted. It is important to note that if proof of certified presence in Spain is presented, the taxpayer may provide evidence of his certified presence in another country on the same day, without this invalidating the day of stay in Spain.
- b) Presumptive days: these are the days on which there is certified evidence that the taxpayer was in Spain on a specific day (day X) and on the subsequent day (day X+Y). The intermediate days (Y) between the two can be considered as days of effective stay.
- c) Sporadic absences: the tax regulations establish that sporadic absences must be computed to determine the period of stay in Spanish territory unless the taxpayer proves his tax residence in another country. These sporadic absences reinforce the conclusions on the permanence in Spain or abroad, although they are not strictly necessary if the minimum threshold of 184 days of effective presence required by the LIRPF has been reached.
This resolution provides clarity and guidelines for determining the tax residence of taxpayers in Spain, ensuring an objective criterion and an unequivocal definition of their presence in the country. It is important for taxpayers to be aware of these provisions to comply with their tax obligations properly.
For further information, please consult with Tax consulting
