The Spanish National High Court (Audiencia Nacional), in judgment 167/2026 of 15 April 2026 (appeal 1931/2021), has set aside the assessments and penalties issued to a well-known singer of foreign nationality for Personal Income Tax (IRPF) and Wealth Tax for the 2011 tax year. The reason is that the Administration was unable to prove that the taxpayer was tax resident in Spain in that year.

The conclusion is familiar in its formulation. What the judgment contributes is the reasoning that leads to it: who must prove residence, what weight a romantic relationship carries against the statutory family presumption and, above all, how far the so-called sporadic absences may be used to make up the 183 days.

The facts

The Inspectorate of the Spanish Tax Agency (AEAT) opened proceedings on 1 June 2016 covering the 2011 to 2014 tax years. The dispute decided by the Court concerns only 2011. The subsequent years followed a different course and fall outside the appeal.

For 2011, the Inspectorate considered the taxpayer to be tax resident in Spain and, consequently, liable to tax here on her worldwide income, that is, on all her income, wherever obtained. It further took the view that the taxpayer controlled a network of companies located in low-tax jurisdictions through which her income was channelled, and characterised several contracts entered into between those companies as sham transactions.

The figures give an idea of what was at stake. The IRPF assessment amounted to EUR 24,710,636.65, of which EUR 19,941,432.10 was tax liability and the remainder late-payment interest. The penalty was classified as very serious, at a rate of 125% of the tax liability, on the basis of concealment and fraudulent means through the use of an intermediary, and came to EUR 24,926,790.13.

The Catalan Tax Agency, for its part, assessed Wealth Tax at EUR 2,687,585.16 and imposed a penalty of EUR 2,709,894.58. The amount at issue in the judicial appeal was set at EUR 55,034,906.52.

The Spanish Central Economic-Administrative Court (TEAC) dismissed the taxpayer’s claim by resolution of 22 July 2021. It is this resolution that is challenged before the Audiencia Nacional.

The regulatory framework

Article 9.1 of Act 35/2006, of 28 November, on Personal Income Tax (LIRPF), lays down the criteria for attributing Spanish tax residence to individuals. It is sufficient for either of the following to be met: (i) the presence criterion, which means that the taxpayer remains in Spanish territory for more than 183 days during the calendar year; or (ii) the economic criterion, which requires the main base or centre of the taxpayer’s activities or economic interests to be located in Spain, directly or indirectly.

To this is added a family presumption. The taxpayer is presumed, unless proven otherwise, to reside in Spain where the spouse who is not legally separated and the dependent minor children habitually reside here.

The presence criterion in turn incorporates two rules that will be important in this case. In counting the 183 days, sporadic absences, that is, brief and occasional departures from Spanish territory, are included, unless the taxpayer proves tax residence in another country. And if that other country is a tax haven, the Administration may require proof of presence there for 183 days in the calendar year.

Finally, it should be recalled that Act 19/1991, of 6 June, on Wealth Tax, refers to the LIRPF to determine habitual residence. The fate of the Wealth Tax assessment was therefore tied to that of IRPF.

The Administration’s position

The parties disagreed on the exact number of days. According to the Administration itself, the taxpayer was in Spain for 163 days in 2011; she acknowledged 143.

On either figure, the 183-day threshold was a long way off. The Inspectorate bridged that gap by adding the taxpayer’s absences, on the view that her residence in Spain had already begun in 2011. To support that start of residence, it relied on the romantic relationship the taxpayer had with a person resident in Spain.

The taxpayer replied that nothing allowed a transfer of her residence to Spain to be placed in 2011, given that she was of foreign nationality and had not previously resided here. She also produced a tax residence certificate from the Bahamas, issued in September 2016, according to which she had resided permanently in that country since 2007.

The Court’s reasoning

The Court begins with a point of method. The Administration had devoted much of its analysis to disputing whether the taxpayer genuinely resided in the Bahamas and what weight should be given to the certificate. For the Audiencia, however, what is essential, and what the Administration must prove, is whether the taxpayer is tax resident in Spain.

As to the Bahamas certificate, the Court departs from the Administration, which denied it any validity, and treats it as circumstantial evidence. From there it examines, one by one, the criteria of article 9.1 LIRPF.

It starts with the family presumption. In 2011 the taxpayer had no marital bond with a resident of Spain and no minor children resident here. The Court notes that the romantic relationship relied on by the Administration cannot be legally equated with a marital bond. There was therefore no family unit for legal purposes that would trigger the presumption.

Nor was the economic criterion proven. On the contrary, the corporate network that the Administration itself attributed to the taxpayer was located outside Spain, and her economic activity was carried on mainly abroad.

With both criteria ruled out, everything turned on the 183 days. To resolve this question, the Court relies on the TEAC doctrine set out in its resolutions of 28 March and 25 April 2023, which distinguish three categories of days:

  • Days of certified presence, on which it is established by reliable evidence that the taxpayer was in Spain, however brief the stay.
  • Presumed days, which are those falling between two days of certified presence in Spain and may be counted as days of presence, unless presence in another country is proven.
  • Sporadic absences, which are added to the two previous categories to determine whether total presence exceeds 183 days.

The TEAC, following the case law of the Spanish Supreme Court, adds a clarification on this last category that proves decisive in the case. An absence is sporadic only when it occurs occasionally or in isolation and for necessarily short periods. A prolonged absence, for a period exceeding 183 days, cannot be classified as sporadic because, if it were, the concept of habitual residence would be deprived of meaning.

Applying this doctrine, the Court concludes that the Administration proved only 163 days of presence, adding certified days and presumed days. The taxpayer, for her part, proved that she had been outside Spain for more than 183 days, as the Administration itself acknowledged by placing her in Spain for only 163. An absence of that length is not sporadic and therefore cannot be added to make up the threshold.

A consequence follows for the tax haven rule. Whether or not the Bahamas had that status in 2011 was, in the Court’s view, irrelevant, because the taxpayer had proven, beyond dispute, presence of at least 183 days outside Spain.

Without tax residence in Spain, the assessments and penalties lacked any basis. The Court upholds the appeal, sets aside the TEAC resolution and the acts from which it derives, orders the repayment of the amounts paid with statutory interest and awards costs against the Administration.

A preliminary issue: the impatriate regime

The judgment also resolves a preliminary argument raised by the taxpayer that is of practical interest in its own right.

In 2015 the taxpayer had opted for the special regime for workers posted to Spanish territory, known as the impatriate regime or “Beckham Law”. One of its requirements, under the wording of article 93 LIRPF then in force, was not to have been resident in Spain during the ten years preceding the move (it is now five). The Administration issued the document evidencing the exercise of the option and, a few months later, included the taxpayer in an inspection plan precisely to verify her residence in the preceding years.

The taxpayer invoked legitimate expectations and good administration. In her view, if the Administration had accepted the option, it had implicitly acknowledged that she was not resident in the preceding years.

The Court rejects the argument for two reasons. The first is temporal: the act that would have generated that expectation related to 2015 and could not be projected onto 2011. The second goes to substance. The document issued by the Administration following notification of the option, under article 119.2 of the Personal Income Tax Regulations, approved by Royal Decree 439/2007, of 30 March, evidences that the option has been exercised, but not that it has been accepted. It is not an expression of administrative will but the record of a fact.

Note the consequence. That document does not prevent the Administration from subsequently verifying whether the requirements of the regime were met, and in particular the absence of tax residence in Spain in the preceding years.

Our assessment

The judgment applies consistently an idea that the Supreme Court and the TEAC have been upholding: presence under article 9.1.a) LIRPF is a matter of fact built up day by day, and sporadic absences complement that presence; they do not substitute for it. Where the proven physical presence falls well short of the threshold and the time spent abroad is prolonged, there is no presence to complete.

That said, we consider that the Court’s reasoning, sound as it is in its outcome, is brief on two points.

The first concerns how absences are assessed. The Court reasons on the basis of the total time spent outside Spain, which exceeds 183 days, and concludes that it cannot be sporadic. In a touring year, however, that time is usually made up of many separate departures of varying length. Between the 163 days proven by the Administration and the 184 required, there were only 21 days.

The judgment does not analyse whether any of those departures, taken in isolation, could be classified as sporadic. It merely finds that the Administration did not prove the premise on which it based the addition, namely that residence in Spain had already begun in 2011.

The second point concerns the tax haven rule. Article 9.1.a) LIRPF allows the Administration to require proof of 183 days’ presence in the tax haven, not outside Spain in general. The Court considers proof of more than 183 days outside Spain to be sufficient.

In our view, this reading makes systematic sense, because the rule forms part of the computation of sporadic absences and loses its function when there are no sporadic absences to count. It is not, however, the only possible reading, and we do not rule out the question arising again in other cases.

It should also be borne in mind that the judgment could be appealed in cassation before the Supreme Court. We are not aware, at the time of writing, that it has become final.

Practical consequences

For anyone whose residence is in dispute, the judgment offers several guidelines.

The burden of proving tax residence in Spain lies with the Administration. The taxpayer is not obliged to demonstrate where he or she resides: the assessment cannot succeed if the Administration does not prove one of the criteria of article 9.1 LIRPF. That does not, however, relieve the taxpayer of preparing his or her own evidence. The computation of presumed days in practice shifts to the taxpayer the need to prove where he or she was on the days between two certified presences in Spain.

It is therefore advisable to keep a day-by-day calendar of physical presence, with contemporaneous documentary support: tickets, boarding passes, hotel invoices, performance contracts and any other item evidencing presence in another country. In a case such as this, the difference between 163 and 184 days decides the outcome.

It is also advisable to obtain each year a tax residence certificate from the country of residence. The Court recognises evidential value in a certificate issued years after the year under review; foreseeably, a contemporaneous one will carry greater weight.

Personal life matters, but within the limits set by the law. A romantic relationship with a resident of Spain does not trigger the presumption based on the spouse and minor children. The Administration may use it as circumstantial evidence in the context of other criteria, but on its own it is not enough to attribute residence.

Finally, anyone opting for the impatriate regime should bear in mind that the document evidencing the option does not protect them against a subsequent verification of their residence in the preceding years.

In conclusion, what this judgment of the Audiencia Nacional shows is that tax residence by physical presence rests on proven days of physical presence in Spain, and that sporadic absences only complete that presence when they are genuinely brief and occasional. If the Administration does not reach 183 days with the evidence available to it, it cannot make up the shortfall by classifying a prolonged absence as sporadic.

Sources

  • Spanish National High Court (Audiencia Nacional), Contentious-Administrative Chamber, Fourth Section, judgment 167/2026, of 15/04/2026, appeal 1931/2021, ECLI:ES:AN:2026:1851 (Roj: SAN 1851/2026; Id Cendoj: 28079230042026100155): link
  • TEAC, Resolution 00/04045/2020, of 28/03/2023: text in DYCTEA
  • TEAC, Resolution 00/04812/2020, of 25/04/2023: text in DYCTEA