1. Basic concepts

What is tax residence and why is it the keystone of the Spanish system?

It is the connecting factor that determines whether an individual is taxed in Spain on worldwide income (unlimited tax liability) or only on Spanish-source income (limited tax liability). It also determines liability to Wealth Tax (IP) on an unlimited basis, the position under the Temporary Solidarity Tax on Large Fortunes (ITSGF), taxation under the Inheritance and Gift Tax (ISD) and which Autonomous Community is competent for the ceded taxes.

What for years was treated as an essentially doctrinal matter has, in recent years, moved into litigation. The international mobility of high net worth individuals (HNWIs), the pull of preferential tax regimes in nearby jurisdictions and the spread of international remote work have increased litigation and made tax residence one of the most sensitive areas of Spanish tax audits.

Who determines whether I am a Spanish tax resident?

The Spanish Tax Agency (AEAT). Tax residence follows directly from article 9 of Act 35/2006, of 28 November, on Personal Income Tax (LIRPF). There is no prior formal “grant” of residence: the taxpayer acquires or loses it depending on whether the statutory criteria are met in each tax year.

In practice, residence is usually reviewed in an audit, when the AEAT compares the taxpayer’s return with the material indicators of presence, spending and economic and family ties.

Is tax residence computed by calendar year or over rolling periods?

By calendar year. The 183-day criterion, the economic-centre criterion and the family presumption all refer to the full calendar year. There is no partial residence: the taxpayer is either a Spanish tax resident for the whole year, or not at all.

As a result, changes of residence during the year affect the whole year of the move and require careful analysis of which of the two States ends up being the State of tax residence for Personal Income Tax (IRPF) purposes.

Are “tax residence”, “tax domicile” and padrón registration the same?

No. They are three distinct concepts.

Tax residence determines unlimited liability to IRPF and follows from article 9 LIRPF.

Tax domicile is the place where the taxpayer is located for dealings with the Tax Administration (notifications, competent offices).

Padrón registration (municipal census) is a local administrative register with no direct tax effect. In an audit it is one indicator among others, and it is not conclusive when the material facts point the other way.

2. The three criteria of article 9 LIRPF

What criteria make an individual a Spanish tax resident?

Article 9.1 LIRPF sets out three criteria. They operate alternatively: meeting any one of them is enough for tax residence to be attributed to Spain.

(i) Stay of more than 183 days in Spanish territory during the calendar year.

(ii) Main centre or base of economic activities or interests in Spain, directly or indirectly.

(iii) Family presumption: habitual residence in Spain of the spouse who is not legally separated and of the dependent minor children. This presumption is rebuttable and, in our view, subsidiary to the two previous criteria.

Since any one of the three is enough, a taxpayer who claims not to be resident in Spain must be able to show that none of them is met.

If I am a Spanish national living abroad, does article 9 still apply to me?

Yes. Article 9 LIRPF applies to any individual, regardless of nationality. Spanish nationality does not automatically make a person resident in Spain, and foreign nationality does not exclude it.

That said, article 8.2 LIRPF contains a specific rule for Spanish nationals who move to a tax haven, which we address in its own section below.

3. The 183-day criterion

How exactly are the 183 days counted?

Article 9.1.a) LIRPF treats as resident anyone who stays in Spanish territory for more than 183 days during the calendar year. The Central Economic-Administrative Tribunal (TEAC), in its Resolutions of 28/03/2023 (RG 4045/2020) and 25/04/2023 (RG 4812/2020), builds the period of stay from three types of days:

(i) Certified-presence days: days on which presence in Spain is established by direct evidence (passport, entry stamps, card payments, appointments, medical visits). The day counts in full, with no minimum number of hours.

(ii) Presumed days: days falling between two certified presences, provided they are a reasonable number of consecutive days, unless a certified presence outside Spain is shown.

(iii) Sporadic absences: departures from Spain which, under article 9.1.a) LIRPF itself, are added to the stay in Spain unless the taxpayer proves tax residence in another country. The Supreme Court judgments of 28/11/2017 defined the concept solely by reference to the duration or intensity of the absence.

Does partial presence count as a full day?

According to the TEAC, yes. The Resolution of 28/03/2023 counts the day where there “was physical presence at some point of the day in Spanish territory”, with no minimum number of hours. The arrival day and the departure day therefore both count as days in Spain. In our view, a pure airport transit without entry into the territory could be argued separately; those resolutions do not address it.

It should be noted that the TEAC set out this criterion in a case where it was the taxpayer who claimed to be resident in Spain (rectification of non-resident income tax returns).

And sporadic absences? How is the automatic count rebutted?

Article 9.1.a) LIRPF places the burden on the taxpayer: sporadic absences count as presence in Spain unless the taxpayer proves tax residence in another country. This is primarily done with a certificate of tax residence for the purposes of the double taxation treaty (DTT), issued by the other State. Without that certificate, sporadic absences are added to the stay in Spain.

The scholarship case law (Supreme Court judgments of 28/11/2017) defined the concept solely by an objective test, the duration or intensity of the absence, disregarding any intention to return. An absence exceeding 183 days is not sporadic and is therefore not added to the Spanish stay, irrespective of any certificate. Short absences, by contrast, are added unless the taxpayer proves tax residence in another country.

Do stays for humanitarian or cultural reasons count?

No. Article 9.1.a) LIRPF expressly excludes from the count “temporary stays in Spain resulting from obligations under cultural or humanitarian cooperation agreements, on a gratuitous basis, with the Spanish public administrations”. It is a narrow exception that rarely applies, but we mention it for completeness.

4. The main centre of economic activities or interests

What is this criterion about?

Article 9.1.b) LIRPF attributes tax residence where “the main centre or base of [the taxpayer’s] economic activities or interests is located in Spain, directly or indirectly”. It is the most complex of the three criteria, because it combines quantitative elements (income flows, asset values) with qualitative ones (place of management and administration, nature of the investments).

How is the main centre of economic interests assessed?

The law sets no calculation rule. In our view, the assessment cannot be reduced to the income flows of the year or to the value of the assets; it should weigh both together with qualitative factors: the place from which the assets are managed and administered, the productive or passive nature of the assets, the source of the income and the documentary consistency of the economic activity.

The Directorate-General for Taxes (DGT), for its part, repeats in its rulings that this is a question of fact to be assessed by the AEAT’s management and audit bodies (for instance, in V-0554-24, V-1270-25, V-2197-25 and V-2558-25, cited in this text).

How is it distinguished from the “centre of vital interests” under the DTT?

The main centre of economic interests under article 9.1.b) LIRPF is a strictly economic criterion. The centre of vital interests under article 4.2.a) of the OECD Model Convention, by contrast, is a mixed concept that weighs personal and economic relations together: family and social ties, occupation, the place from which assets are managed.

In our view, the two should not be confused, because the practical consequence matters: a taxpayer whose assets are managed from Spain but whose family and personal life are abroad may be a Spanish tax resident under article 9.1.b) and, at the same time, a treaty resident of the other State under the centre-of-vital-interests rule.

Can the AEAT take into account the place from which assets are managed?

Yes, as one indicator among others. In our view, the place of management and administration of the assets is a relevant qualitative factor, which the Administration may cross-check against spending patterns, real-estate ownership and banking activity. A taxpayer who claims that his or her economic centre is outside Spain should be able to document where investment and management decisions are actually taken.

How is the economic centre assessed when income is split between Spain and the destination country?

The DGT analysed a case of this kind in V-2558-25, of 18/12/2025: a taxpayer who moved to the United Arab Emirates for work in April 2025, who would spend no more than 150 days of 2025 in Spain, and who had received EUR 50,000 of employment income in Spain and expected to receive EUR 70,000 in the Emirates. He kept an empty property in Spain, his former main home, and rented a home in Dubai.

The DGT concludes that, if he stays outside Spain for a continuous period of more than 183 days, that absence is not sporadic and the presence criterion is not met. It leaves the assessment of the economic centre to the AEAT, as a question of fact, and adds that the taxpayer provides no information on the family presumption. Any dual residence would be resolved under article 4.3 of the Spain-UAE DTT.

In our view, a higher amount of foreign income does not by itself settle the economic-centre question. Documenting the move is, in our opinion, decisive.

5. The family presumption (art. 9.1 in fine LIRPF)

What does the presumption consist of?

The last paragraph of article 9.1 LIRPF provides that “it shall be presumed, unless proven otherwise, that the taxpayer has his habitual residence in Spanish territory when, in accordance with the previous criteria, the spouse who is not legally separated and the minor children who depend on him habitually reside in Spain”.

It is a rebuttable (iuris tantum) presumption. Its function is to make the taxpayer resident in Spain where the two previous criteria (183 days and economic centre) do not, but the family does live here.

Is it a principal or a subsidiary criterion?

In our view, subsidiary. The words “in accordance with the previous criteria” support the reading that the presumption only comes into play when the criteria in articles 9.1.a) and 9.1.b) do not by themselves establish residence. If either of the first two is met, the presumption is redundant; if neither is met, the presumption is the last criterion available.

How is the family presumption rebutted?

By evidence to the contrary, under article 108.1 of the General Tax Act 58/2003, of 17 December (LGT). In practice, there are two main routes:

(i) Proving the taxpayer’s own tax residence in another country, by means of a certificate for DTT purposes issued by that State, whose weight has been reinforced by the administrative-court case law (STS 778/2023, of 12/06/2023, and STS 971/2025, of 15/07/2025).

(ii) Proving that the taxpayer’s main centre of economic interests is not in Spain, with an evidential file that rules out the place of asset management, the ownership of productive assets and the pattern of economic flows.

In practice, the two routes are combined: a foreign certificate plus a consistent economic and asset file. One situation in which the presumption may be rebutted is that of a taxpayer whose spouse and children move to Spain at a later stage (for security reasons, schooling or a change of personal plans), while the taxpayer keeps his or her working and economic life abroad.

And if only the spouse remains in Spain and the children are already adults?

The wording of article 9.1 in fine refers to the spouse who is not legally separated and the dependent minor children. The DGT has nonetheless accepted that the presumption could apply where only the spouse remains in Spain.

In V-1270-25, of 10/07/2025, a retired Brazilian national, Spanish tax resident since 2018, was about to move to Brazil, where he would spend more than half of the year, while his spouse and his 21-year-old daughter, a student, stayed in Spain. The DGT states that, since the spouse will continue to live in Spain, the presumption “could apply” to him, subject to evidence to the contrary, and leaves the assessment of the economic centre to the AEAT. The ruling says nothing about the daughter.

In our view, the point is not settled, and the presumption is in any event rebuttable.

6. Burden and assessment of evidence

Who bears the burden of proof on tax residence?

Under the general rule of article 105.1 LGT, whoever asserts a right must prove the facts on which it rests. In tax residence matters, the principle of proximity to, or availability of, evidence is also commonly applied: the burden falls on whoever is best placed to provide the evidence.

In practice, this results in a shifting burden. The Administration gathers and puts forward objective indicators (bank movements, notarial records, padrón registration, utilities, flights, card data). The taxpayer must rebut them with counter-evidence: a foreign certificate, lease agreements, children’s schooling in another State, returns filed abroad, healthcare, social ties.

What weight do the presumptions of article 108.2 LGT carry?

Article 108.2 LGT admits as evidence presumptions not established by law, provided there is a precise and direct link, according to the rules of human reasoning, between the proven fact and the fact to be inferred. In tax residence matters, these presumptions are typically built on spending patterns, the actual use of real estate and local banking activity. The assessment is overall: what matters is not an isolated indicator but a consistent set of indicators.

How far can the Administration go with indicators?

It may rely on several indicators, provided they are consistent with each other. The judgment of the High Court of Justice (TSJ) of the Canary Islands of 20/12/2024 (appeal 227/2024) upheld a finding of regional tax residence based on multiple consistent indicators. In that case, the AEAT established residence in the Canary Islands, against a padrón registration in Madrid, through, among other indicators, 253 days of card spending in the Canary Islands, visits to notaries in Las Palmas matching same-day spending, a statement by the doorman of the Madrid building and Wealth Tax returns filed late, already showing a Canary Islands address.

The judgment is relevant for two reasons. The first is substantive: material facts prevail over formal declarations (padrón registration, returns) when the economic reality is different. The second is procedural: the cross-checking of spending data could be reinforced by Form 174 (information return on all types of cards, approved by Order HAC/747/2025 of 27 June, implementing article 38 ter of the General Regulation on tax management and audit procedures), which is filed for the first time in January 2027 for tax year 2026.

7. International conflicts and DTT tie-breaker rules

What happens if two States consider me a tax resident at the same time?

This is dual residence. Where Spain and another State with which Spain has a DTT each treat the taxpayer as resident under their domestic law, the conflict is resolved under the tie-breaker rules of the relevant bilateral treaty, which normally follow article 4.2 of the OECD Model Convention.

Under the Model, the rules apply in sequence. The taxpayer is resident, for treaty purposes, in the State in which he or she has:

(i) A permanent home available. If there is one in both States, the next criterion applies.

(ii) The centre of vital interests, meaning the State with which his or her personal and economic relations are closer. If this cannot be determined, the next criterion applies.

(iii) An habitual abode. If he or she lives habitually in both States or in neither, the next criterion applies.

(iv) Nationality.

(v) If he or she is a national of both States or of neither, the competent authorities settle the question by mutual agreement.

The exact wording varies from treaty to treaty, so the text of the applicable DTT should always be checked. For example, in the Spain-Ecuador DTT the last rule refers the case to agreement between the competent authorities where residence cannot be determined under any of the previous criteria, and in the DTT with the United Arab Emirates the tie-breaker rules are in article 4.3.

What happens if a permanent home is available only in Spain?

The DGT analysed a scenario of this kind in V-0554-24, of 09/04/2024: a taxpayer who lived in Ecuador with his spouse and children, where he held a residence permit, usually stayed more than 183 days a year and earned employment income. He had a permanent home in Spain but not in Ecuador, and stated that his main investments and business assets were in Spain.

The DGT concludes that, if the absence exceeds 183 continuous days, it is not sporadic and the presence criterion is not met. However, the taxpayer could be resident under article 9.1.b), since he states that his main investments and business assets are in Spain, a question of fact that the DGT leaves to the AEAT. Any dual residence would be resolved under article 4.2 of the Spain-Ecuador DTT, which the DGT merely quotes without applying it.

In our view, if a permanent home were available to him only in Spain, the first tie-breaker rule could make him a treaty resident of Spain without any need to examine the centre of vital interests.

Is a tax residence certificate issued by another State valid?

Yes, with qualifications. STS 778/2023, of 12/06/2023 (appeal 915/2022), held that Spanish administrative bodies and courts are not competent to review the circumstances in which a tax residence certificate was issued by the authorities of a State that has a DTT with Spain, where the certificate was issued for treaty purposes. Its validity must be presumed.

STS 971/2025, of 15/07/2025 (appeal 4023/2023), confirmed that position: Spanish bodies are not competent to review the circumstances in which the foreign certificate was issued, its validity is presumed and residence conflicts are resolved under the tie-breaker rules of article 4.2 of the DTT. In that case, however, the Supreme Court dismissed the appeal because the taxpayer had not shown that he had a permanent home available in the United Kingdom, which underlines the importance of documenting the tie-breaker rules.

Consequently, in administrative and administrative-court proceedings the AEAT cannot simply disregard the foreign certificate. What it can do is invoke the DTT tie-breaker rules and, where appropriate, initiate the mutual agreement procedure. Moreover, the presumption of validity of the certificate does not prevent the Administration from questioning whether the taxpayer is a resident for treaty purposes (article 4.1) where he or she is taxed under a regime that does not tax worldwide income.

And certificates issued by States with a territorial or special regime?

Here there is a qualification. The TEAC, in two resolutions of 24/06/2024 (RG 5590/2022 and RG 8325/2022, the latter with a criterion published as doctrine), held, in a case concerning withholding on pension-plan benefits, that a certificate issued to a taxpayer under the Portuguese Non-Habitual Resident (NHR) regime does not allow the Spain-Portugal DTT to be applied because, in the TEAC’s view, article 4.1 of the DTT excludes from the concept of resident a person who is not fully liable to tax on worldwide income in that State. There was also a second ground for dismissal in that case: the certificate provided referred to 2021, not 2022.

STS 1392/2024, of 22/07/2024 (appeal 7744/2022), which we have discussed in the Spanish Tax Journal, did not settle the question for the UK remittance basis. The TSJ of Catalonia had discounted the certificate because the taxpayer was not taxed in the United Kingdom on her worldwide income, but the Supreme Court did not adopt that argument: by reference to STS 1214/2024, it found that the tax authorities had not challenged the certificate and resolved the dual residence in favour of Spain under the DTT tie-breaker rules.

In our view, the reasoning could extend to other territorial or limited-liability regimes, including those that succeed the NHR. The certificate should be provided, but one must be prepared for the AEAT to question whether the taxpayer falls within the personal scope of the DTT.

What about the now-repealed UK non-dom regime?

The UK non-dom regime was repealed with effect from 06/04/2025. It has been replaced by the FIG (Foreign Income and Gains) regime, under which individuals who have not been UK resident in the previous ten years may elect not to be taxed on eligible foreign income and gains during their first four years of residence. In parallel, the TRF (Temporary Repatriation Facility) allows, for three tax years, pre-06/04/2025 foreign income and gains to be designated at a rate of 12 per cent (2025/26 and 2026/27) and 15 per cent (2027/28). The UK inheritance tax regime has also moved from a domicile-based system to one based on long-term residence.

During those four years, a taxpayer under the FIG regime is not taxed in the United Kingdom on all of his or her worldwide income either, so, in our view, the article 4.1 DTT question could still arise.

What did the Sito Pons case say about the criminal dimension of residence conflicts?

Judgment 117/2025 of the TSJ of Catalonia, of 01/04/2025 (criminal appeal 177/2023), upheld the acquittal handed down by the Provincial Court of Barcelona on 12/12/2022 in the proceedings against Sito Pons for offences against the Public Treasury in respect of IRPF and Wealth Tax. The factors weighed by the court include the UK tax residence certificate, the DTT and the in dubio pro reo principle.

However, the Criminal Chamber of the Supreme Court, in judgment 274/2026, of 09/04/2026 (appeal 4481/2023), has made clear that, in criminal proceedings, the foreign certificate is a rebuttable (iuris tantum) presumption, which gives way to sufficient evidence of physical presence in Spain. For that reason, in our view, the acquittal upheld by the TSJ of Catalonia should not be read as a general rule.

8. Special cases

I am a Spanish national moving to Andorra, the UAE or Singapore, which have a DTT with Spain. What additional rules apply to me?

Those of the general framework: article 9 LIRPF, the DTT tie-breaker rules and the foreign certificate. Andorra, the United Arab Emirates and Singapore all have a DTT with Spain, so residence conflicts are resolved under the tie-breaker rules of article 4 of each treaty (article 4.3 in the case of the UAE). The documentary planning is the usual one: a tax residence certificate from the destination State, evidence of presence and day-to-day life there, and no residual economic centre in Spain.

And a worker posted for two years to a country with a DTT, leaving family in Spain?

It is a frequent case: a doctor, executive or consultant who takes a job in another State for a long but limited period, with a spouse and, where applicable, minor children remaining in Spain. The DGT addressed it in V-2197-25, of 17/11/2025, concerning a doctor considering a two-year move to Saudi Arabia, married with three children, one of them aged 17 and living in the family home.

The DGT concludes that (i) if he stays abroad for a continuous period of more than 183 days, the absence is not sporadic, so the article 9.1.a) criterion is not met; (ii) the economic centre is a question of fact for the AEAT to assess; (iii) as regards the family presumption, the taxpayer does not provide enough information for the DGT to rule, and (iv) any dual residence would be resolved under article 4.2 of the Spain-Saudi Arabia DTT, signed in Madrid on 19/06/2007.

In our view, if the spouse and the minor child remained in Spain, the presumption could apply, and it would be advisable to document residence in the destination State: residence certificate, presence and day-to-day life there, and consistency of the material facts.

And if I move to a tax haven?

Article 8.2 LIRPF applies: a Spanish national who proves new tax residence in a country or territory regarded as a tax haven remains an IRPF taxpayer for the year of the move and the following four years. It is an anti-avoidance rule that applies irrespective of the article 9 criteria.

In addition, where the taxpayer claims residence in one of those territories, the Administration may require proof of a stay there of 183 days in the calendar year (article 9.1.a) LIRPF). Although article 8.2 still uses the term “tax haven”, the current term is “non-cooperative jurisdictions”, listed in Order HFP/115/2023, of 9 February, as amended by Order HAC/649/2026, of 21 June.

The exit tax under article 95 bis LIRPF may also apply; we deal with it in our frequently asked questions on the exit tax.

What happens if a Spanish national moves to Gibraltar?

The International Agreement on taxation and the protection of financial interests between the Kingdom of Spain and the United Kingdom in relation to Gibraltar, done on 04/03/2019 and in force since 04/03/2021 (BOE of 13/03/2021), contains specific rules that make certain persons resident in Spain.

In particular, Spanish nationals who move their residence to Gibraltar after the signature of the Agreement are, in all cases, considered tax residents of Spain only. For legal persons, the Agreement makes Gibraltar companies with significant links to Spain (assets, income, management or control) resident in Spain.

The DGT, in V-1310-22, of 09/06/2022, applied this rule of the Agreement to a Spanish national moving to Gibraltar and noted that, at that time, Gibraltar was still on the list of tax havens. Order HAC/649/2026, of 21 June (BOE of 27/06/2026), removed Gibraltar from the list of non-cooperative jurisdictions for taxes whose tax period begins on or after its entry into force on 28/06/2026. For IRPF, therefore, from tax year 2027 article 8.2 LIRPF no longer applies by reason of Gibraltar, but the rule in the Agreement remains.

Spanish diplomats and official missions abroad?

Articles 10 and 9.2 LIRPF lay down specific rules that displace the general criterion. Article 10 keeps as IRPF taxpayers Spanish nationals, their spouse who is not legally separated and their minor children where they live abroad as members of Spanish diplomatic missions or consular offices, as holders of official posts in permanent delegations to international organisations, or as serving civil servants holding a non-diplomatic, non-consular official post abroad, subject to the exceptions in paragraph 2 of that article. Article 9.2, on a reciprocal basis, excludes from IRPF foreign nationals living in Spain on the same grounds, unless a treaty provides otherwise.

And digital nomads and international remote workers?

The general rule is unchanged: if they spend more than 183 days in Spain or have their economic centre here, they are resident. Act 28/2022, of 21 December, on the promotion of the start-up ecosystem, introduced the visa and the regime for international remote work, but tax residence is still determined under article 9 LIRPF. A remote worker for a foreign company may also raise related issues (permanent establishment of the non-resident employer, withholding, social security) that should be analysed together with residence.

Can a family unit file jointly if one spouse is resident in another EU or EEA State?

No. The DGT addressed this in V-0347-24, of 12/03/2024: the applicant, who works and lives in Spain, was married to a Spanish national who had been tax resident in France since 1993, a civil servant and university lecturer with a home in Limoges.

The ruling recalls that each spouse’s residence is determined under article 9 LIRPF and that joint filing is only available to IRPF taxpayers, so the spouse resident in France cannot be included in a joint return. It does, however, refer to the deduction under the forty-eighth additional provision of the LIRPF, available to family units made up of IRPF taxpayers and residents of another EU or EEA State with which there is an effective exchange of tax information, which brings the tax close to what it would have been had joint filing been possible, and to the option under article 46 of the consolidated text of the Non-Resident Income Tax Act.

9. Tax audits on residence

What information does the AEAT gather when it opens a residence audit?

A great deal, and more every year. The audit typically cross-checks entry and exit records (flights, borders), padrón data, utilities (electricity, gas, water), ownership and use of real estate, bank movements and card data, notarial records (purchases, execution of deeds), healthcare data, children’s schooling and returns filed in other States.

The Annual Tax and Customs Control Plan 2026 (Resolution of 11/03/2026 of the Director-General of the AEAT, BOE of 12/03/2026) refers to “conduct that is extremely harmful to the interests of the Public Treasury, relating to the simulation of tax residence outside Spanish territory or the improper use of double taxation treaties, especially in the case of individuals, with the main aim of obtaining lower effective taxation than is due”. Form 174 on cards, filed for the first time in January 2027 for tax year 2026, could reinforce the cross-checking of spending.

How is the day calendar built for the 183-day count?

The calendar combines the three types of days identified by the TEAC:

(i) Certified days: days on which presence in Spain is established by direct evidence (stamps, dated receipts, appointments, inbound flights).

(ii) Presumed days: days falling between two certified days, provided they are a reasonable number of consecutive days, unless a certified presence outside Spain is shown.

(iii) Sporadic absences: departures that are added to the stay unless tax residence in another State is proven.

The risk that is often overlooked lies in the presumed days: a taxpayer who documents two visits to Spain fifteen days apart may see those fifteen days counted as presumed stay, unless he or she proves being outside Spain during that period.

What evidential file should be prepared before an audit?

It is advisable to prepare a consistent evidential file before the audit begins, so that the documentation is already gathered when the procedure starts. Typical items include:

• Passports, boarding passes, entry and exit stamps.
• Tax residence certificates from the declared State.
• Tax returns filed in the other State.
• Lease agreements or title deeds for property abroad.
• Utility bills and evidence of spending in the declared State of residence.
• Children’s schooling.
• Regular healthcare abroad.
• Social ties: membership of clubs, gyms, associations.
• Bank records showing a pattern of spending outside Spain.

Consistency between the various items matters as much as each item on its own. A voluminous but contradictory file is, in our view, weaker than a lean but internally consistent one.

10. Regional tax residence

Is regional residence determined in the same way as State residence?

No, and the difference matters.

At State level (article 9.1 LIRPF), the three criteria apply alternatively: meeting one is enough.

At regional level (article 28 of Act 22/2009, of 18 December, on the financing of the common-regime Autonomous Communities, and article 72 LIRPF), the criteria apply in sequence: (i) presence, that is, the greater number of days in the territory of an Autonomous Community; (ii) main centre of interests, meaning the territory where the greater part of the IRPF tax base is obtained (employment income, real-estate income and gains, and business income), and (iii) as a residual criterion, the last residence declared for IRPF purposes.

There are special rules for individuals who are resident in Spain without spending more than 183 days in Spanish territory (they are resident in the Autonomous Community where their main centre of economic activities or interests lies) and for those resident under the family presumption (the Autonomous Community where the spouse and minor children live).

Does it matter which Autonomous Community I lived in for Wealth Tax and ISD purposes?

Very much. Wealth Tax and Inheritance and Gift Tax are ceded to the Autonomous Communities, which have their own regulatory powers. Some Communities, such as Madrid, grant 100 per cent relief on Wealth Tax, while others still levy it. The ITSGF, a State tax, only allows the Wealth Tax actually paid to be deducted, so regional Wealth Tax relief does not neutralise it. For ISD, the Autonomous Community of residence is determined by presence during the five years before the tax point. This divergence fuels litigation on moves between Communities.

There is also a presumption that the change of residence is not effective (article 28.4 of Act 22/2009). Changes of residence whose main purpose is to achieve lower effective taxation on ceded taxes have no effect. In addition, unless the new residence continues uninterrupted for at least three years, it is presumed that there has been no change, as regards the ceded yield of IRPF and Wealth Tax, where three circumstances concur: (i) the IRPF tax base in the year of the move or the following year exceeds that of the year before the move by at least 50 per cent; (ii) in that year the effective IRPF burden is lower than it would have been in the Community of origin, and (iii) in the following year or the year after, the taxpayer returns to live in the Community of origin.

What recent Supreme Court case law is there on audit competence between Autonomous Communities?

Three rulings from 2022-2024 stand out.

The Supreme Court judgment of 21/03/2022 (appeal 2221/2020) held that acts adopted by a territorially incompetent Administration are voidable but not void ab initio, and interrupt the limitation period where the domicile is corrected with retroactive effect.

The Supreme Court judgment of 15/04/2024 (appeal 9082/2022) held that the competence of an Autonomous Community to assess Wealth Tax depends on correctly identifying the connecting factor, the actual habitual residence, without a prior formal change of tax domicile being required under the procedure in articles 148 et seq. of the General Regulation on tax management and audit procedures. This is particularly relevant in disputes between Madrid and other Autonomous Communities.

The Supreme Court judgment of 20/06/2024 (appeal 645/2023), in a dispute between the Basque Country and Cantabria, held that one Administration may not unilaterally assume competence to collect ISD against the declared tax domicile without first initiating the change-of-domicile procedure under the Economic Agreement (Concierto Económico).

In addition, a Supreme Court order (auto) of 23/04/2025 (appeal 2910/2024) admitted for cassation a question similar to the one decided by the judgment of 15/04/2024. The appeal has been decided by STS 417/2026, of 08/04/2026, which, according to its official summary, identifies the Wealth Tax connecting factor with the taxpayer’s place of habitual residence and cites the judgment of 15/04/2024.

11. Acquisition and loss of tax residence

When is Spanish tax residence acquired?

When any of the three criteria of article 9.1 LIRPF is met during the year. Residence is attributed for the whole year, even if the physical move takes place mid-year. A taxpayer who moves to Spain in March and stays more than 183 days during the rest of the year will be a Spanish tax resident for the whole year of the move.

For taxpayers who move to Spain for work (employees, company directors, highly qualified professionals, entrepreneurs), the special regime for posted workers under article 93 LIRPF (Beckham Law) should be considered; it allows taxation under Non-Resident Income Tax (IRNR) rules for the year of the move and the following five years. We deal with it in detail in our frequently asked questions on the Beckham Law.

When is Spanish tax residence lost?

When none of the three criteria of article 9.1 LIRPF is met during the year. Loss of residence follows the same calendar-year logic: there is no partial tax residence.

Where the taxpayer who loses residence holds a significant portfolio of shares or other equity interests, the exit tax under article 95 bis LIRPF comes into play; we analyse it in our frequently asked questions on the exit tax.

And tax residence certificates when I am the one leaving Spain?

If, despite the move, the taxpayer is still a Spanish tax resident (for instance, in the year of departure or under article 8.2 LIRPF) and needs to prove it to another State, the certificate is requested from the AEAT. It should be obtained in its “for treaty purposes” version, rather than the generic residence certificate, so that it is effective before the other Administration.

Tax residence is the most sensitive connecting factor of the system, and the most disputed. The above is a map, not an opinion. Each relocation plan and each audit requires individual analysis.

Sources

• Act 35/2006, of 28 November, on Personal Income Tax: articles 8.2, 9, 10, 72, 93 and 95 bis and forty-eighth additional provision.
• Act 22/2009, of 18 December, on the financing of the common-regime Autonomous Communities: article 28.
• General Tax Act 58/2003, of 17 December: articles 105 and 108.
• International Agreement on taxation and the protection of financial interests between the Kingdom of Spain and the United Kingdom in relation to Gibraltar, of 04/03/2019 (BOE of 13/03/2021).
• Order HAC/649/2026, of 21 June, amending Order HFP/115/2023, of 9 February (BOE of 27/06/2026): removal of Gibraltar from the list of non-cooperative jurisdictions.
• Order HAC/747/2025, of 27 June (BOE of 15/07/2025), approving, among others, Form 174.
• Resolution of 11/03/2026 of the Director-General of the AEAT approving the general guidelines of the Annual Tax and Customs Control Plan 2026 (BOE of 12/03/2026).
• Supreme Court, judgments of 28/11/2017, concept of sporadic absence (scholarships): no. 1829/2017, appeal 815/2017, ECLI:ES:TS:2017:4305: www.poderjudicial.es; no. 1850/2017, appeal 812/2017, ECLI:ES:TS:2017:4306: www.poderjudicial.es; no. 1860/2017, appeal 807/2017, ECLI:ES:TS:2017:4434: www.poderjudicial.es; no. 1834/2017, appeal 809/2017, ECLI:ES:TS:2017:4307: www.poderjudicial.es.
• Supreme Court, judgment 778/2023, of 12/06/2023 (appeal 915/2022, ECLI:ES:TS:2023:2735), validity of the foreign tax residence certificate for DTT purposes: www.poderjudicial.es.
• Supreme Court, judgment 1392/2024, of 22/07/2024 (appeal 7744/2022, ECLI:ES:TS:2024:4219), UK certificate on the remittance basis and the Spain-UK DTT tie-breaker rules: www.poderjudicial.es.
• Supreme Court, judgment 971/2025, of 15/07/2025 (appeal 4023/2023, ECLI:ES:TS:2025:3498), reiteration of the case law on foreign residence certificates and permanent home: www.poderjudicial.es.
• Supreme Court, Criminal Chamber, judgment 274/2026, of 09/04/2026 (appeal 4481/2023, ECLI:ES:TS:2026:1629), the foreign certificate as a rebuttable presumption in criminal proceedings: www.poderjudicial.es.
• Supreme Court, regional competence and change of domicile: judgment 355/2022, of 21/03/2022 (appeal 2221/2020, ECLI:ES:TS:2022:1144): www.poderjudicial.es; judgment 632/2024, of 15/04/2024 (appeal 9082/2022, ECLI:ES:TS:2024:2013): www.poderjudicial.es; judgment 1096/2024, of 20/06/2024 (appeal 645/2023, ECLI:ES:TS:2024:3338): www.poderjudicial.es; order of 23/04/2025 (appeal 2910/2024, ECLI:ES:TS:2025:4200A): www.poderjudicial.es; judgment 417/2026, of 08/04/2026 (appeal 2910/2024, ECLI:ES:TS:2026:1760): www.poderjudicial.es.
• TSJ of Catalonia, Civil and Criminal Chamber, judgment 117/2025, of 01/04/2025 (criminal appeal 177/2023, ECLI:ES:TSJCAT:2025:5842), Sito Pons case, UK certificate in criminal proceedings: www.poderjudicial.es.
• TSJ of the Canary Islands, Contentious-Administrative Chamber, First Section, judgment 602/2024, of 20/12/2024 (appeal 227/2024, ECLI:ES:TSJICAN:2024:4889), regional residence proven by consistent indicators: www.poderjudicial.es.
• TEAC, Resolution of 28/03/2023 (RG 4045/2020), types of days for the 183-day count: criterion in DYCTEA
• TEAC, Resolution of 25/04/2023 (RG 4812/2020), reiterating the previous criterion: criterion in DYCTEA
• TEAC, Resolution of 24/06/2024 (RG 8325/2022), reiterating RG 5590/2022 of the same date: the Portuguese NHR certificate does not allow the Spain-Portugal DTT to be applied: criterion in DYCTEA
• DGT, V-0347-24, of 12/03/2024 (spouse resident in France; joint filing; 48th additional provision LIRPF): ruling
• DGT, V-0554-24, of 09/04/2024 (move to Ecuador; permanent home in Spain; article 4.2 DTT): ruling
• DGT, V-1270-25, of 10/07/2025 (retired Brazilian national; move to Brazil; spouse and 21-year-old daughter in Spain): ruling
• DGT, V-1310-22, of 09/06/2022 (Spanish national moving to Gibraltar; 2019 Agreement): ruling
• DGT, V-2197-25, of 17/11/2025 (doctor posted to Saudi Arabia for two years; family presumption and DTT): ruling
• DGT, V-2558-25, of 18/12/2025 (move to the United Arab Emirates; no more than 150 days in Spain; economic centre and article 4.3 DTT): ruling
• HMRC, 4-year FIG regime: Check if you can claim the 4-year foreign income and gains regime
• HMRC, Temporary Repatriation Facility: RDRM71000 and RDRM73400
• Spanish Tax Journal, Frequently asked questions about the Beckham Law
• Spanish Tax Journal, Frequently asked questions about the exit tax
• Spanish Tax Journal, analysis of STS 1392/2024: UK certificate on the remittance basis
• Spanish Tax Journal, analysis of STS 971/2025: permanent home and tie-breaker rules
• Spanish Tax Journal, analysis of Supreme Court (Criminal Chamber) judgment 274/2026: residence certificates in criminal proceedings

1. Basic concepts

What exactly is the exit tax?

It is the regime that taxes, as a capital gain, the positive difference between the market value and the acquisition value of the taxpayer’s shares or equity interests when the taxpayer ceases to be subject to Spanish Personal Income Tax (IRPF) because of a change of residence. The rationale is to prevent the latent gain accrued during the period of residence from escaping Spanish tax.

It is regulated in article 95 bis of Law 35/2006, of 28 November, on Personal Income Tax (hereinafter, the LIRPF), introduced by Law 26/2014, of 27 November, with effect from 1 January 2015.

Why is it called exit tax and not “departure tax”?

The technical name in Spanish is régimen especial de ganancias patrimoniales por cambio de residencia. The exit tax label comes from the European debate on exit taxation, which several States already applied before the Court of Justice of the European Union (CJEU), in Lasteyrie du Saillant (C-9/02, 11/03/2004), held that the French taxation of latent gains on a change of residence was contrary to the freedom of establishment.

The European Commission then published Communication COM(2006) 825, of 19/12/2006, on exit taxation and, for companies, Council Directive (EU) 2016/1164 of 12 July 2016 (the ATAD, art. 5) introduced a harmonised exit tax for legal entities. The label has become settled in professional usage.

When does it accrue?

The gain is allocated to the last tax period that must be declared for IRPF purposes and is included in the savings tax base, under article 46.b) LIRPF.

If the return for that period has already been filed, a supplementary self-assessment is filed, without penalties, late-payment interest or surcharges (art. 95 bis.2 LIRPF).

Is “loss of residence” the same as “exit tax”?

No. Loss of tax residence is the prerequisite: ceasing to meet every criterion of article 9.1 LIRPF (presence in Spain for more than 183 days; main centre or base of business activities or economic interests in Spain) and rebutting the family presumption, normally by proving residence in another State.

The exit tax is only one of the tax consequences that this loss may trigger, and only if the thresholds of article 95 bis are exceeded. A taxpayer may lose residence and pay no exit tax because the portfolio is below the threshold; and a taxpayer may pay exit tax without the tax authorities questioning the loss of residence at all.

2. Scope: personal requirements and economic thresholds

How many years of prior tax residence are required?

The taxpayer must have been subject to IRPF for at least ten of the fifteen tax periods preceding the last period that must be declared for IRPF purposes. If that count is not met, the exit tax does not apply, whatever the size of the portfolio.

What are the economic thresholds?

There are two alternative tests; meeting either is enough.

The first is the aggregate threshold: the market value of all the taxpayer’s shares or equity interests, calculated under paragraph 3 of article 95 bis, exceeds EUR 4,000,000.

The second is the qualifying-holding threshold: on the accrual date of the last period that must be declared, the holding in a given entity exceeds 25 per cent and the market value of that holding exceeds EUR 1,000,000. In this case the regime applies only to that holding, not to the rest of the portfolio.

Which assets count? Only listed shares?

The rule covers “shares or equity interests in any type of entity”. The concept is broad: listed shares, interests in limited companies, interests in foreign companies and units or shares in collective investment undertakings (investment funds, SICAVs).

Real estate, bonds, deposits and, according to the most recent administrative doctrine, cryptocurrencies such as bitcoin fall outside.

Do cryptocurrencies count?

It depends on the asset. The Directorate-General for Taxes (DGT), in binding ruling V-0666-25, of 14/04/2025, concluded that bitcoin and similar cryptocurrencies fall outside article 95 bis, as they are not shares or equity interests in any type of entity.

The reasoning relies on the DGT’s own earlier doctrine, which in rulings such as V-0999-18, V-1948-21 and V-0648-24 had characterised virtual currencies as intangible assets.

The DGT warns, however, that other cryptoassets that do confer rights over an entity (for example, tokens representing equity interests) could fall within the exit tax. Each asset must be analysed on its features. In our opinion, what matters is the content of the rights the asset confers, not its name.

3. How is the tax calculated?

What is the tax base?

The positive difference between the market value of the shares or equity interests on the accrual date of the last tax period that must be declared and their acquisition value.

Negative differences are disregarded: the regime taxes latent gains and does not take latent losses into account.

How are unlisted holdings valued?

Paragraph 3 of article 95 bis sets different rules depending on the type of asset.

Securities admitted to trading on regulated markets as defined in Directive 2004/39/EC (known as MiFID I, which harmonises European markets in financial instruments) are valued at their market price.

Unlisted securities are valued, unless a different market value is proven, at the higher of: (i) the net equity attributable to them according to the balance sheet for the last financial year closed before the accrual date; or (ii) the result of capitalising at 20 per cent the average profits of the three financial years closed before that date, counting as profits the dividends distributed and the allocations to reserves other than revaluation or restatement reserves.

The clause “unless a different market value is proven” matters in practice. A family holding company whose book equity understates its operating subsidiaries, or a startup founder with a recent valuation in a funding round, may prove the real market value with an external report, recent term sheets (preliminary investment agreements setting the price per share) or documented comparables.

Units in collective investment undertakings are valued at the net asset value applicable on the accrual date or, failing that, at the last published value.

At what rate is it taxed?

At the savings scale rates for the year of accrual. For 2026 the scale is progressive, from 19 per cent to 30 per cent; the top rate applies to the base exceeding EUR 300,000.

4. Relocation to the EU, the EEA or Switzerland: the paragraph 6 regime

What special rule does paragraph 6 of article 95 bis lay down?

Where the change of residence is to another Member State of the European Union (EU), or to a State of the European Economic Area (EEA) with which there is an effective exchange of tax information, the taxpayer may opt for a special regime.

The gain must be self-assessed only if, within the ten years following the last year that must be declared for IRPF purposes, one of the circumstances listed below occurs. If the period elapses without any of them, the gain no longer has to be self-assessed.

Unlike the paragraph 4 deferral, discussed in the next section, no guarantee is required and no late-payment interest accrues. It is the most favourable regime.

It was originally designed to bring Spanish exit taxation into line with CJEU case law on freedom of establishment and free movement.

Does Switzerland fall within paragraph 6?

Yes, even though Switzerland is neither an EU nor an EEA Member State. The DGT confirmed this in binding ruling V-1781-22, of 27/07/2022, relying on the Agreement on the free movement of persons between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, signed in Luxembourg on 21/06/1999.

The reasoning builds on the Wächtler judgment (CJEU, C-581/17, 26/02/2019), which held contrary to the Agreement the legislation of a Member State taxing latent gains when the taxpayer moves to Switzerland, whereas a taxpayer who stays is taxed only when the gain is realised.

The DGT concludes that paragraph 6 applies equally to a move to Switzerland. In V-1781-22 the taxpayer was a Swiss national; in our opinion, the extension covers anyone within the personal scope of the Agreement (EU and Swiss nationals). The DGT reiterated the criterion in ruling V-1648-26, of 18/06/2026, adding that a gift of the holdings to the spouse during the period requires the gain on the gifted holdings to be self-assessed. We have commented on it in Exit tax and relocation to Switzerland (V1648-26).

If Switzerland fits both paragraph 4 and paragraph 6, which should be chosen?

Switzerland has a double taxation treaty (DTT) with Spain, signed on 26/04/1966 and subsequently amended, with an exchange-of-information clause; a temporary relocation to Switzerland could therefore also qualify under paragraph 4. But paragraph 6 is more favourable: ten years (instead of five), no guarantee, no late-payment interest and no requirement that the move be temporary.

Save in unusual cases, the option we recommend for a move to Switzerland is paragraph 6. The communication to the Spanish Tax Agency (AEAT) should expressly state the election for the paragraph 6 regime, relying on rulings V-1781-22 and V-1648-26.

Which circumstances require the gain to be self-assessed within the ten-year period?

Paragraph 6.a) lists three.

(i) An inter vivos transfer of the shares or equity interests: sale, gift or contribution to a company. If the shares are sold within the period for less than their market value on departure, the gain is reduced by that difference (paragraph 6.b).

(ii) Ceasing to be resident in an EU or EEA State: if, after settling in France, the taxpayer moves to Dubai four years later, the gain must be self-assessed.

(iii) Failure to comply with the reporting obligation of paragraph 6.c), which covers the election for the regime, the gain arising, the State to which residence is moved with the address and any later changes, and continued ownership of the shares or equity interests.

What about a transfer on death during the period?

A transfer on death is not among the circumstances in paragraph 6.a). In our opinion, it does not require the deferred gain to be self-assessed. If the heir is an IRPF taxpayer, the heir’s acquisition value will be the one resulting from the Inheritance and Gift Tax (ISD) rules (art. 36 LIRPF).

We are not aware of any express administrative ruling, so the degree of certainty is medium. Where the amounts justify it, a binding ruling request is advisable.

5. Relocation to third countries: the paragraph 4 deferral

If the move is to a country outside the EU and the EEA, other than Switzerland, is deferral available?

It depends. Paragraph 4 of article 95 bis provides a second deferral regime, which in all cases requires the change of residence to result from a temporary relocation and applies in two situations.

The first is a temporary relocation for work reasons to a country or territory that is not a tax haven.

The second is a temporary relocation for any other reason, provided the destination country has a DTT with Spain containing an exchange-of-information clause.

Unlike paragraph 6, paragraph 4 requires an application and a guarantee, which may be constituted wholly or partly over the securities themselves, and late-payment interest accrues under Law 58/2003, of 17 December, General Tax Law (LGT). The period is five years; only for work-related relocations may an extension of up to five additional years be requested where the circumstances justify a longer temporary relocation.

Its logic is that of a deferral conditional on return, hence the temporality requirement. If the taxpayer becomes subject to IRPF again within the period without having transferred the shares, the deferred tax debt is extinguished, together with the interest accrued.

Which countries fit paragraph 4?

In the work-related case, any country or territory that is not a tax haven. In the “any other reason” case, States with a DTT containing an exchange-of-information clause: among them, the United States, the United Kingdom, Singapore, Andorra, Switzerland (which also falls within paragraph 6), the United Arab Emirates, Canada or Australia. In both cases, the relocation must be temporary.

The Ministry of Finance publishes the list of treaties in force. The practical filter is to check that the treaty text contains the exchange-of-information clause.

DGT ruling V-0474-25, of 25/03/2025, concerns a taxpayer holding 43.74 per cent of a Spanish limited company who moved her residence to the United States in 2018 and obtained the paragraph 4 deferral with a bank guarantee, later extended. The ruling does not state the reason for the relocation.

What if the move to a treaty country with exchange of information is not work-related?

Paragraph 4 allows this second route: it applies “for any other reason” provided the temporary relocation is to a country with a DTT containing an exchange-of-information clause. Temporality is a requirement here too; in our opinion, a move intended to be permanent falls outside the wording of the provision.

What happens with a corporate reorganisation (demerger, merger, share exchange) during the deferral?

In the same ruling V-0474-25, the DGT concludes that a total demerger under the tax-neutrality regime of Chapter VII of Title VII of Law 27/2014 on Corporate Income Tax (the FEAC regime) does not cause the paragraph 4 deferral to lapse.

The interests received in the beneficiary companies are treated, for article 95 bis purposes, as subrogated to those of the demerged company, and the deferral continues on the terms granted. The taxpayer proposed to notify the AEAT of the transaction and identify the resulting interests for the purposes of the guarantee.

The ruling concerns the paragraph 4 deferral. We consider it reasonable to extend the subrogation criterion to the paragraph 6 regime, although the DGT has not addressed the point.

Andorra, a specific case.

Andorra has a DTT with Spain, signed on 08/01/2015 and in force since 26/02/2016, with an exchange-of-information clause.

Paragraph 4 nevertheless requires the move to be a temporary relocation; in our view a move intended to be permanent falls outside its wording. Andorra is not an EU or EEA State, so paragraph 6 does not apply either. On this reading, a permanent move to Andorra requires the exit tax to be paid in the self-assessment for the last period of residence, without prejudice to the paragraph 5 refund if residence is recovered without the shares having been transferred.

In ruling V-0666-25, discussed above in relation to bitcoin, the move to Andorra was permanent and the DGT did not address deferral.

6. Relocation to a tax haven: paragraph 7

What happens if the move is to a jurisdiction classified as a tax haven?

There is no deferral: a Spanish national who moves to a tax haven remains an IRPF taxpayer in the year of the move and the four following years (art. 8.2 LIRPF), and paragraph 7 requires immediate allocation. Paragraph 6 does not apply either, as it is limited to the EU and the EEA (and, according to the DGT, Switzerland).

Paragraph 7 applies article 95 bis even though the taxpayer does not lose that status under article 8.2 LIRPF. The gain is allocated to the last tax period in which the taxpayer had habitual residence in Spain. If the shares are later transferred in a period in which the taxpayer is still subject to IRPF, the acquisition value is the market value used to compute the article 95 bis gain, which avoids double taxation.

The list of non-cooperative jurisdictions is the one in Order HFP/115/2023, of 9 February, as amended by Order HAC/649/2026, of 21 June. The latter removes Barbados, Dominica, Gibraltar, Seychelles, Trinidad and Tobago and Samoa’s offshore regime from the list, with effect for tax periods beginning on or after 28/06/2026 (for IRPF, from 2027), and adds Russia’s international holding companies regime, with effect for periods beginning on or after 28/12/2026.

7. Interaction with the inbound workers’ regime (Beckham Law): paragraph 8

If the taxpayer opted for the Beckham regime, does the exit tax apply on departure?

Paragraph 8 of article 95 bis lays down a specific rule for taxpayers who opted for the special regime for workers posted to Spain (article 93 LIRPF, known as the Beckham regime).

The ten-period count in paragraph 1 starts from the first period in which the special regime no longer applies. The years under the regime therefore do not count towards the ten out of fifteen.

The practical consequence is clear: a taxpayer who uses the full six years of the regime and leaves in the seventh does not reach ten periods as a resident under the general rules. The exit tax does not apply on this ground, unless the taxpayer remains a resident under the general rules long enough to complete the ten.

On the general operation of the regime (eligibility, prior non-residence requirement, grounds for exclusion), we refer to our Frequently asked questions about the Beckham Law in this Spanish Tax Journal.

If the taxpayer returns to Spain after some years abroad and opts again for the Beckham regime, what happens to the exit tax paid or deferred?

The Beckham regime requires the taxpayer not to have been resident in Spain in the five preceding tax periods. If that period elapses after departure and the taxpayer opts again for the regime, the exit tax position may have been closed in one of two ways.

If the taxpayer paid the exit tax, a rectification may be requested under paragraph 5 on becoming an IRPF taxpayer again, as explained in the next section.

If the taxpayer opted for the paragraph 6 regime and none of the circumstances in paragraph 6.a) has occurred, the provisions of article 95 bis cease to have effect when the taxpayer becomes subject to IRPF again (paragraph 6.d).

In any event, a sequence of departure, return and renewed election for the regime requires the period of non-residence to be carefully documented.

8. Return rule: paragraph 5

If the taxpayer leaves and returns to Spain without having transferred the shares, what happens to the exit tax paid?

If the taxpayer becomes subject to IRPF again without having transferred ownership of the shares or equity interests, a rectification of the self-assessment may be requested in order to obtain a refund of the amounts paid under article 95 bis.

The refund is governed by article 31 LGT, with one special feature: late-payment interest accrues from the date of payment until the date on which the refund is ordered. The request may be filed once the filing period for the first tax period that must be declared for IRPF purposes after the return has ended.

Paragraph 5 sets no deadline for the return: unlike the five years of paragraph 4 or the ten years of paragraph 6, it only requires that the shares not have been transferred. However, from the moment the request can be filed, the four-year limitation period for the right to obtain the refund begins to run (arts. 66.c and 67.1 LGT).

What if part of the shares was transferred during the period of non-residence?

In our opinion, the rectification is available for the holdings retained on return; the part transferred remains definitively taxed on the terms in which the regime was applied on departure. It is advisable to document clearly what was transferred, when and for what value.

9. Edge cases

Unvested stock options or RSUs: do they count for article 95 bis?

Unexercised options (stock options) and restricted stock units (RSUs) pending vesting are not, strictly speaking, shares or equity interests.

In our opinion, they do not count until exercise or vesting, as they are not shares or equity interests (the objective scope of art. 95 bis). A distinction should nevertheless be drawn: if the options are deep in the money and exercise is practically automatic, or if departure coincides with a contractual acceleration clause that makes them exercisable, the AEAT might attempt a recharacterisation.

In ordinary conditions the risk is low. In complex remuneration packages or with vesting schedules linked to departure, the point should be analysed in detail.

Interposed holding company in Luxembourg, the Netherlands or Switzerland: does it take the assets out of the regime?

No. The taxpayer’s interests in a holding company, resident or not, are themselves shares or equity interests in an entity and count for article 95 bis purposes at their market value. In ruling V-1648-26, the DGT includes in the computation the taxpayer’s shares in a Swiss company wholly owned by him.

Interposing the holding company before departure does not take the assets out of the regime either: contributing the holdings to the holding company is a transfer, and only a share exchange under the FEAC regime with a valid economic reason defers the gain, without excluding the new interests from the computation. Outside that route, articles 15 (conflict in the application of tax rules) and 16 (sham transactions) LGT apply.

Startup founder with a debatable valuation: how is the declared market value defended?

Paragraph 3.b) of article 95 bis allows a market value different from the one resulting from the default rules (net equity or capitalisation at 20 per cent) to be proven.

The defence rests on documentation: recent signed term sheets, valuations of comparable transactions, a valuation report by an independent expert, the capitalisation table (cap table, with percentages and prices per share) and the shareholders’ agreements.

A recent funding round is usually the strongest reference when it coincides in time with departure.

Assets held in fiduciary structures (trusts, private-interest foundations): who is the owner for article 95 bis purposes?

For the DGT, the trust is not recognised in Spanish law: contributions to a trust, whether revocable or irrevocable, have no effect and the settlor remains the owner of the contributed assets (V-1991-08, of 30/10/2008; V-0022-25, of 09/01/2025, which specifically concerns irrevocable trusts). The contributed shares are therefore, in principle, counted in the settlor’s assets for article 95 bis purposes.

The DGT allows one exception: where, under the trust arrangements and the facts, the beneficiary’s powers of disposal amount to ownership, the transfer is deemed to take place on contribution. That assessment is for the tax authorities and requires review of the trust deed, the letters of wishes and the rest of the documentation.

On the treatment of trusts in Spanish taxation, we refer to our commentaries on trusts in this Spanish Tax Journal, including the analysis of the DGT criterion on the tax transparency of foreign trusts.

The exit tax is one of the most sensitive IRPF provisions when planning the departure of a significant estate. The above is a general map, not an opinion: each case requires a review of the facts and the documentation before any decision is taken.

Sources

• DGT, Binding ruling V-0666-25, of 14/04/2025 (cryptocurrencies and exit tax; permanent move to Andorra): link
• DGT, Binding ruling V-1781-22, of 27/07/2022 (move to Switzerland, applicability of paragraph 6): link
• DGT, Binding ruling V-1648-26, of 18/06/2026 (move to Switzerland, Swiss holding company in the computation and gift to the spouse during the period): link
• DGT, Binding ruling V-0474-25, of 25/03/2025 (total demerger under the FEAC regime during the paragraph 4 deferral): link
• DGT, Binding ruling V-0022-25, of 09/01/2025 (contribution of shares to irrevocable trusts): link
• DGT, Binding ruling V-1991-08, of 30/10/2008 (non-recognition of the trust in Spanish law): link
• CJEU, Case C-581/17, Wächtler, judgment of 26/02/2019 (exit tax and the EC-Switzerland Agreement on the free movement of persons): link
• CJEU, Case C-9/02, Lasteyrie du Saillant, judgment of 11/03/2004 (exit taxation and freedom of establishment): link