On April 25, 2023, the Central Economic-Administrative Court (TEAC) issued a resolution (RG 04812/2020) regarding the calculation of the days of stay in Spanish territory for the purposes of determining tax residency in Spain. In this resolution, the TEAC reiterates the criteria established in another previous resolution of March 28, 2023 (RG 4045/2020).

The TEAC begins by analyzing article 9.1 of Law 35/20016, on Personal Income Tax (LIRPF). According to this article, a taxpayer has his habitual residence in Spanish territory when any of the following circumstances occur: a) who remains in Spanish territory for more than 183 days during the calendar year, or, b) whose main centre or base of economic activities or interests is located in Spain, directly or indirectly. To interpret this regulation, TEAC also takes into account the Comments on article 15 of the OECD Model Convention in order to interpret article 9.1.a) LIRPF cited above.

The TEAC is based on the assumption that the determination of the number of days of stay in Spanish territory must be based on objective criteria, regardless of any wishes expressed by taxpayers, so that the tax residence of a natural person is established when it has been previously verified that they were in Spanish territory for more than 183 days in a specific calendar year, regardless of whether those days are consecutive or interrupted by continuous entries and exits from our territory.

In this resolution RG 04812/2020, the criteria established in the previous one (RG 4045/2020) are reiterated and it is clarified that the concept of permanence according to article 9.1.a) of the LIRPF is made up of the aggregate computation of three stages: certified presence, presumed days and sporadic absences. The court then redefines each stage as follows:

«Certified presence: the one accredited by unquestionable means of proof. Once the presence of one day has been accredited by the relevant means of proof, it is computed aseptically, without it being necessary for a stay of several consecutive days to be proven (either by the Administration or by the taxpayer). The day is counted in its entirety, without requiring a minimum number of hours. (Commentary 5 to art. 15 of the Model Convention OECD ).

Presumed days: those that reasonably elapse between two certified presences; Although there is no certified evidence that the interested party was in Spain, as this is a reasonable number of consecutive days and falls between days of certified presence, they can be counted as days of stay under art. 9.1.a), unless a certified presence outside of Spanish territory is proven.

Sporadic absences: As a result of the literal wording of article 9.1 a) LIRPF , sporadic absences are an element to be added to the days of effective presence (made up of the addition of the days of certified presence and the presumed days) in order to determine whether the aggregate stay in Spain is greater than 183 days. They are, in short, a reinforcement of the conclusions of permanence in Spanish territory or abroad, but, of course, not strictly essential when the days of effective presence have already reached the minimum threshold required by the Law of 184 days.

The resolution analyses the data and evidence provided by the tax authorities and by the taxpayer and represents an important step towards specifying the way to prove whether or not the taxpayer has had his or her tax residence in Spain.

You can consult the full text of the resolutions in the following links Resolution 4812/2020 and Resolution 4045/2020