Posed in the present article the problem of many workers, particularly seasonal in the agricultural sector, being Spanish, have found a job in a european country and have migrated there to work, whether permanent or temporary. Where do you file your income TAX return, in Spain or in another country?
the usual residence is the concept that determines the condition of a taxpayer by the Tax on the Income of Physical Persons, with the exception of the possible special rules of international conventions and treaties.
It is considered that a taxpayer, for the purposes of the personal income TAX, has its habitual residence in Spain when you go any of the two following circumstances: “
- it Is considered that a taxpayer resident in Spain if you stay more than 183 days within the calendar year in Spanish territory.
there is No requirement that these days be consecutive, i.e. they can be alternate, but must be computed independently for each calendar year. The sporadic absences of the taxpayer is considered to remain in Spain, unless one proves its tax residence in another country.
For the computation of the period of permanence in the Spanish territory, it does not compute the temporary stays in Spain that are a consequence of the obligations undertaken in agreements on cultural cooperation or humanitarian, to free title, with the Spanish Public administration.
THE USUAL RESIDENCE IS THE CONCEPT THAT DETERMINES THE CONDITION OF the TAXPAYER FOR income TAX
it IS CONSIDERED THAT A TAXPAYER resident IN SPAIN IF you STAY MORE THAN 183 DAYS WITHIN THE calendar YEAR IN SPANISH TERRITORY
it IS NOT NECESSARY THAT they BE CONSECUTIVE DAYS, CAN BE ALTERNATE
- so that it refers to the countries or territories classified as tax havens, the tax Administration may require that you try to stay in the same during 183 days of the calendar year, in order to benefit from their tax advantages. That root in Spain the core or base of their activities or economic interests, directly or indirectly. You can also qualify as the place in which get most of their income. Complementing the above conditions are introduced two rules:
- it Is presumed, unless the contrary is proved, that the taxpayer has his habitual residence in Spanish territory, when persons habitually residing in Spain, the spouse not legally separated and underage children who depend on him.
- When the physical person of Spanish nationality, accredit their new tax residence in a country or territory considered as a tax haven, will not lose its contributing status by the Spanish income TAX or in the tax period in which the change of residence or in one of the following four.
The presumption of residence must be justified by evidence:
- Of the usual place of residence in another country through the certification of residence issued by the tax authorities of the country concerned.
- Of the non-existence in Spain of the centre of economic interest in the subject.
THE SPORADIC ABSENCES ARE CONSIDERED AS resident IN SPAIN
it IS CONSIDERED THAT A TAXPAYER is a resident of SPAIN IF IS HERE THE MAIN CORE OR BASE OF THEIR ACTIVITIES OR ECONOMIC INTERESTS, DIRECTLY OR INDIRECTLY
To the above rules, add the special cases of the members of diplomatic missions of spain in the overseas, members of the consular offices of spain in the foreign countries, members of delegations, and representations of spain in foreign countries and other officials who exercise in the foreign office or employment official. For these cases, and for the purposes of the personal income TAX, are subject to tax as a resident in Spanish territory, the people of Spanish nationality, his / her spouse not legally separated and minor children who had their habitual residence abroad for the reasons mentioned above.
Therefore, and for the particular case that occupies us, we’d have to see the case specific of this Spanish worker who emigrates to a european country to work. Let’s look at some examples:
the Example 1.- The worker finds a job for 18 months in Italy in February 2016 and decides to emigrate to this country. The job turns out to be as stable as it seemed, and remains in Italy during this period of 18 months, starting his employment relationship, the 01-03-2016 and giving it terminated the 31-08 – 2017, returning to Spain.
the Solution. In this case, this worker, for the purposes of the personal income TAX, does not have his habitual residence in Spain in 2016 (he has remained in Spain for a period of 2 months), nor in 2017 (he has remained in Spain for a period of 4 months). Therefore, for the two years mentioned, you will have to make your declaration of personal income TAX in Italy and not in Spain.
THE CORE INTERESTS OF the TAXPAYER, IS UNDERSTOOD AS THE PLACE WHERE to FOCUS THE majority OF THEIR INVESTMENTS, BUSINESS OR PROPERTY
IS PRESUMED to be the HABITUAL RESIDENCE IN SPANISH TERRITORY, WHEN persons HABITUALLY RESIDING IN SPAIN, THE SPOUSE NOT LEGALLY SEPARATED AND MINOR CHILDREN WHO are DEPENDENT ON ONE
SENIOR OFFICIALS (DIPLOMATS, CONSULS, ETC…) the EXERCISE of PUBLIC OFFICE ABROAD, IS CONSIDERED TO RESIDE IN SPAIN for the PURPOSES OF personal income TAX
the Example 2.-Imagine the same previous case, but the contract and the stay in Italy it is only 12 months, starting the 01-03-2016 and ending the 28-02-2017.
the Solution. The declaration of income TAX in 2016 has to perform in Spain, but in Italy, as it has not been in Spain more than 2 months, well below the 183 days required for your residence to common compute, for the purposes of income TAX in Spain. For its part, the declaration of income TAX in 2017 will have to be made in Spain, given that there remained in Italy only 2 months, and the remaining 10 months will have been in Spain.
the Example 3.-Imagine the initial case, but the worker, within 1 month, is not in accordance with the general conditions of the job, and you choose to submit your opt-out the same, ending their employment relationship and stay in Italy the 31-03-2016.
the Solution. The declaration of income TAX in 2016 you will have to perform in Spain, given that it has remained in Spain for 11 months and only 1 month in Italy. Example 4.-A worker who is hired, every year, for a period of 45 days, to working as a waiter for a catering company in germany. The worker only moves to Germany for a period of 2 months, to be able to carry out this work and to perform the corresponding trips and moves necessary. Solution. In this case, the declaration of income TAX in 2016 will do so in Spain, given that this will be your country of residence, having been outside this country only for a period of 2 months.