The Spanish Supreme Court has confirmed a restrictive interpretation of the temporal requirement of article 93.1.a) of the LIRPF: in order to access the special inbound-expatriates regime (the so-called Beckham Law), the contributor must not have been a Spanish tax resident during the five tax periods immediately preceding the move to Spanish territory.
Note that the requirement does not prevent physical presence in Spain during those five years —through occasional work, holidays, short assignments or any other reason—, but rather the acquisition in any of them of the status of tax resident in accordance with article 9 of the LIRPF. That is, the examination falls on the tax-residence position in each of the five tax periods, not on isolated physical presence.
To that effect, it is helpful to recall that article 9 of the LIRPF sets out the criteria for attributing Spanish tax residence to natural persons where, in the alternative, any of the following two criteria concurs: (i) the permanence criterion, which implies residence in Spain for more than 183 days in the calendar year; or (ii) the criterion of the main centre of economic activities and interests. Occasional stays in Spain during the prior five-year period do not, by themselves, trigger either of these criteria; what is determinative is that in each of the five tax periods the threshold of residence under the cited provision has not been reached.
The judgment thus rejects a reading of article 93.1.a) of the LIRPF that would allow specific tax periods in which Spanish tax residence had been acquired during the five-year period to be neutralised. In our view, this interpretation is consistent with the purpose of the regime: to attract to Spain persons who have not had a tax tie with this country for a prolonged period, not those who have alternated tax periods of Spanish tax residence with periods abroad.
The practical consequence is relevant. Before applying for the regime of article 93 of the LIRPF, it is advisable to verify, tax period by tax period of the prior five-year period, whether any of the criteria of article 9 of the LIRPF concur. AEAT examines this point both when resolving the application and in subsequent reviews. A prior verification and, where applicable, an adjustment to the timing of the move, prevents the unforeseen loss of the regime.