The special expats tax regime is an optional regime available only to those who move to Spain to work and become tax resident in Spain, in consequence, there are two basic requirements that need to be fulfilled. So, the first step to be able to be qualified is to get the Spanish residency.
1-REQUIREMENTS OF THE TAX RESIDENCE IN SPAIN
The Personal Income Tax Act establishes that there are three different conditions, that may be fulfilled in order to acquire the status of tax resident in Spain.
It should be noted that an individual may be considered a tax resident in Spain if any of the three situations that we will describe are met (it is sufficient if one is met).
a) The 183-day rule
The first condition to become a tax resident in Spain is to stay more than 183 days during the calendar year.
In the case of countries or territories qualified as tax havens, the Spanish Tax Administration may require proof of stay in said tax haven during a period of 183 days within the calendar year.
b) Main economic interests rule
Another condition to be considered as a tax resident in Spain is that the taxpayer base of his activities or economic interests, directly or indirectly in Spain.
This condition should be interpreted as a comparison of the activities between Spain and other countries and also the location of assets or expenses can be taken into consideration in this comparison.
c) The center of vital interests’ rule
Lastly, the final condition that may apply to be considered a tax resident in Spain consists of having a non-legally separated spouse and/or dependent underage children residing in Spain.
2-REQUIREMENT OF MOVING TO SPAIN TO WORK
The second requirement that need to be fulfilled is that the move to Spain takes place for work reasons. It may seem quite simple, but it is usually the most problematic of all.
Possible types of work:
a) New employment relationship with a Spanish company
IF you decide to move to Spain to start a new employment relationship with an employer in Spain. This applies to all types of employment relationships, including ordinary, special relationships (company managers, artists, prisoners, longshoremen, etc.) or statutory relationships (mainly public servants), except for special relationships of professional sportsmen, which are expressly excluded from the tax especial expats regime.
b) Transfer to Spain maintaining the original employment relationship
IF your employer from another country moved you to Spain, without being hired by another company. In this case, in order to fulfil the requirement, you would need a letter from your employer ordering the transfer to Spanish territory. Your employer must register with the Spanish Tax Agency.
c) Becoming the director of a company in Spain
If you moved to Spain because of the acquisition of the status of director of a Spanish company. The governing body of a company is ultimately responsible for the management and representation of the company, in accordance with the provisions of the Spanish Corporations Act and the company’s bylaws. This body may consist of a single member (sole director) or a group of members (board of directors). In both cases, you would become a director (it is not an employment relationship, although it is compatible with one).
If you have acquired the status of director in Spain, or are about to do so, then, in order to comply with the requirement of the RETD, you cannot directly or indirectly own 25% or more of the company’s shares.
The move to Spain
The Expats regime regulations require that the move to Spain takes place as a consequence of the new work in Spain. However, the regulation does not say when this causal link is deemed to exist, so it may be necessary to present evidence to convince the tax authorities.
For example, a long period of time between the two moments (moving to Spain and start working) may be an indicator, among other factors to consider, that there is no such causal relationship; however, there are also different types of evidence to prove causality.