The Spanish Supreme Court confirms a restrictive interpretation of article 93.1.a) of the Personal Income Tax Act (LIRPF), which requires not having been a Spanish tax resident during the five tax periods preceding the one of the move. The doctrine clarifies a distinction that is often confused in practice: the requirement does not prevent physical presence in Spain during those five years —through occasional work, holidays or short assignments— but rather the acquisition in any of them of the status of tax resident in accordance with article 9 of the LIRPF. This provision sets out the criteria for attributing Spanish tax residence where, in the alternative, any of the following concurs: (i) the permanence criterion, which implies residence for more than 183 days in the calendar year; or (ii) the main centre of economic activities and interests.
The practical consequence is direct for any move to the Beckham regime. Before applying for the application 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 concurs. AEAT examines this point both when resolving the application and in subsequent reviews. Occasional stays in Spain during the five-year period do not, by themselves, trigger either of the two criteria; what is determinative is whether in each of the five tax periods the residence threshold under the cited provision has been reached. A prior verification and, where applicable, an adjustment of the timing of the move, prevent the unforeseen loss of the regime.
Full analysis in → The special inbound-expatriates regime requires prior residence outside Spain for five complete tax periods