# Residency Vs Tax Residency



## Pipeman (Apr 1, 2016)

I've had a chat (and due another) with Blewin Franks regarding residency and tax residency.


We've just sold our house in the UK in anticipation of a move to Spain.

As I understand it, if we are in Spain for 183 days in 2020 we are deemed tax resident and would be liable for capital gains tax on the profit on my UK house sale.

I believe I can "apply" for residency after being in Spain for 90 days.

My question is does this 90 day period have to be consecutive? We plan to come to Spain in April and May (60 days) for house hunting and then return mid September and apply for residency in mid December, with an annual total of under 183 days for the calendar year .

I would only be liable for capital gains tax from income from investments from 2021.. so the profit on my house would not attract tax.

Is this correct?

TIA


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## snikpoh (Nov 19, 2007)

Put simply, yes.

The 90 days must be in one 'chunk'.

The 183 days is a total number of days during a tax/calendar year.


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## The Skipper (Nov 26, 2014)

Pipeman said:


> I've had a chat (and due another) with Blewin Franks regarding residency and tax residency.
> 
> 
> We've just sold our house in the UK in anticipation of a move to Spain.
> ...


Have Blevins Franks not given you a copy of their excellent book "Living in Spain?" They usually give it to all their prospective clients and give updated copies to their existing clients as they become available. The book tells you everything you need to know about tax and legal issues as an expat in Spain.


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## tebo53 (Sep 18, 2014)

I think you can apply for residency from day one if you're intending living in Spain and that you have 90 days to sign on the foreigners register and get your NIE number etc, etc.

Correct me if I'm wrong. 

Steve


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## baldilocks (Mar 7, 2010)

*You *do *not* apply for *residency*! As an EU citizen you are required to *register *as a resident within 90 days of arrival to take up residency. Once you are residing in Spain, you should register on the local Padron.

You become a Tax Resident if you spend more than 183 days here OR your centre of economic interest (family/ family home) is in Spain (n.b. this is immediate with no 183 day requirement.)


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## kaipa (Aug 3, 2013)

If you apply for residency after 31st January wont you be subject to the 3rd country requirements for residency? I know there is a year for trade agreements but technically ths 31st will be the day the UK leaves the EU meaning there is a 11 month period for existing residents to be are registered but new residents will be non EU applicants?


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## Overandout (Nov 10, 2012)

kaipa said:


> If you apply for residency after 31st January wont you be subject to the 3rd country requirements for residency? I know there is a year for trade agreements but technically ths 31st will be the day the UK leaves the EU meaning there is a 11 month period for existing residents to be are registered but new residents will be non EU applicants?


No, British citizens can benefit from the EU freedom of movement until the end of the transition period.


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## kaipa (Aug 3, 2013)

So will our residency status be affected again if they fail to reach a deal after year transition?


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## Megsmum (Sep 9, 2012)

kaipa said:


> So will our residency status be affected again if they fail to reach a deal after year transition?


AFAIK. No, this next stage is about trade not about citizens rights.


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## Rich & Wendy (May 28, 2018)

So, if we buy property in Spain in August and sell our UK property in September, then move to Spain, we will only become tax resident in 2021 ?


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## Pipeman (Apr 1, 2016)

Rich & Wendy said:


> So, if we buy property in Spain in August and sell our UK property in September, then move to Spain, we will only become tax resident in 2021 ?


That's as I understand it and my current plan is to move after mid-July.


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## Juan C (Sep 4, 2017)

baldilocks said:


> You become a Tax Resident if you spend more than 183 days here OR your centre of economic interest (family/ family home) is in Spain (n.b. this is immediate with no 183 day requirement.)


That answers your question.

If you move to spain, as opposed to just spend some time there, you are tax resident from day one


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## Rich & Wendy (May 28, 2018)

How can you be tax resident from day one ?
Surely you are still tax resident in the UK until you have been in Spain for more than six months ?


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## Juan C (Sep 4, 2017)

Rich & Wendy said:


> How can you be tax resident from day one ?
> Surely you are still tax resident in the UK until you have been in Spain for more than six months ?



BlevIns Franks was quoted earlier. They and baldilocks show clearly that is the law. 

However many people who move to spain do not declare that initially, ‘pretending’ for a couple of months they are just ‘looking around’ and considering what they will do . That gives them a breathing space


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## Barriej (Jul 23, 2012)

My understanding was, that any large financial transaction like selling a property, cashing in a large investment or in my case taking the 25% out of my private pension was only allowed and would be due no tax in Spain if it was completed in the previous tax year. As long as you were still a UK resident.

Tax years in Spain being 1st Jan to 31st Dec.

Because we intend to fully move in July which would then become our economic base we would be due to pay tax in Spain on anything we earned from the 1st Jan. Obviously any tax we will have paid in the Uk would be taken into account.
My pension move was completed on the 31st Dec 2019 So by my reckoning I won't owe any tax to the Spanish authorities because it was outside the tax year we move in.

If Im wrong please let me know.


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## High flyer (Jun 22, 2018)

Barriej said:


> My understanding was, that any large financial transaction like selling a property, cashing in a large investment or in my case taking the 25% out of my private pension was only allowed and would be due no tax in Spain if it was completed in the previous tax year. As long as you were still a UK resident.
> 
> Tax years in Spain being 1st Jan to 31st Dec.
> 
> ...


That is correct, as far as house sale proceeds if a property is sold in the U.K. and the completion funds are deposited in a U.K. bank account before 31st December in that tax year, moving them into Spain after 1st January the following tax year no CGT would be due in Spain as they are different tax years.BUT! The Spanish tax authorities are a law to their own and if they believe you did this to avoid the tax they will still come after you. We were advised to put the CGT liability away in a separate account and forget about it, I believe after four years you are safe. Our tax advisor in Spain told us of someone this happened to and they fought for two years and lost!


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## Barriej (Jul 23, 2012)

High flyer said:


> That is correct, as far as house sale proceeds if a property is sold in the U.K. and the completion funds are deposited in a U.K. bank account before 31st December in that tax year, moving them into Spain after 1st January the following tax year no CGT would be due in Spain as they are different tax years.BUT! The Spanish tax authorities are a law to their own and if they believe you did this to avoid the tax they will still come after you. We were advised to put the CGT liability away in a separate account and forget about it, I believe after four years you are safe. Our tax advisor in Spain told us of someone this happened to and they fought for two years and lost!


Thats ok its not from a house sale, we rent. Its my 25% tax free amount from my pension. But as I won't be moving all of it over straight away we should be OK.


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## Pipeman (Apr 1, 2016)

Right, we've had another call with Blewin Franks and have confirmed my understanding of how we need to progress.

For background, we're both 60 and have taken "early retirement" although 6 years to go for state pension and S1 (assuming it's still available post brexit) and we have sold out house and expect to complete around the end of March. I'm also in the process of taking the 25% tax free allowance from my SIPP's. For tax efficiency purposes this means I can't spend more than 183 days in Spain in 2020, but need to be there for at least 90 days for residency registration.

Fortunately I have access to a friends apartment which I plan to use as base from (or after) 6th July (180 days from then to end Dec) for a month or so while I find somewhere to rent (or possibly purchase).

Shortly after arrival we'll get our NIE so we can buy a car and arrange health insurance prior to registering. WeI'll also need a bank account (non resident one initially, then convert to get a resident one) but we only intend to transfer funds sufficient for our requirements prior to 2021.
I may move funds sooner should a UK/EU deal not be approved... 

Any flaws in my logic ir have I omitted anything important?


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## ShoulIStayOrShouldIGo (Oct 22, 2019)

Overandout said:


> No, British citizens can benefit from the EU freedom of movement until the end of the transition period.


Is that comma a typo?


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## Overandout (Nov 10, 2012)

ShoulIStayOrShouldIGo said:


> Is that comma a typo?


No.


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## Rich & Wendy (May 28, 2018)

I too have today spoken with a Blevins Franks partner based in Javea, and he confirmed to me that, as long as we do not apply for residency until the second half of this year, then we will not be liable to pay tax in Spain until 2021 (all assets etc to be declared early 2022). 
So if we buy property in Spain and move over in the latter part of the year, CGT will not be payable if we sell our UK home in 2020.
The overriding deciding factor in establishing tax residency he told me is the 183 day rule - spend most of the year in the UK equals pay your tax in the UK.


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## fortrose52 (Nov 29, 2018)

Thank you. Good to know


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## Juan C (Sep 4, 2017)

It would appear there is some confusion as the internet web page for Blevins franks does not agree with posts here :

https://www.blevinsfranks.com/news/article/spanish-residence-and-taxes

The Spanish tax residence rules 

You are resident for tax purposes in Spain IF ANY OF THE FOLLOWING APPLY

1) You spend more than 183 days in Spain cumulatively in a calendar year, whether or not you are formally registered. Temporary or sporadic absences are ignored for the purpose of this rule unless you can prove you are habitually resident in another country for over 183 days.

2) Your “centre of economic interests” is in Spain– i.e. the base for your economic or professional activities is in Spain. If you earn more income or have more assets here than in any other single country, Spain will be deemed the centre of economic activity, 

3) Your “centre of vital interests” is in Spain – i.e. your spouse lives here and/or your dependent minor children. In this case you are presumed Spanish resident, even if you spend less than 183 days here, unless you can prove otherwise.

There is no split-year treatment in Spain; you are either resident or non-resident for the whole fiscal year.


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## Pipeman (Apr 1, 2016)

Juan, I think there is a misunderstanding here.

For me, and no doubt several others, moving after the beginning of July means we don't fall foul of point 1) the 183 day rule

Assuming (for those who may be working (not me)) that earnings are less in Spain than the UK then point 2) is moot as there is no split year treatment. I'm certain no one will be transferring all their assets to Spain on day 1 (pensions, SIPP's, ISA's etc are all assets along with any property held in the UK).

Point 3) is based on factors not discussed here and I suspect not applicable to any of us as we would not be seeking answers on this forum as we would have direct access to family in Spain... 

For 99.9% of us seeking to move out of the UK before the end of transition, then only point 1 is of concern.


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## baldilocks (Mar 7, 2010)

Pipeman said:


> Juan, I think there is a misunderstanding here.
> 
> For me, and no doubt several others, moving after the beginning of July means we don't fall foul of point 1) the 183 day rule
> 
> ...


Nope. As pointed out earlier in the thread, if you move your centre of economic interest - family/ family home or employment, you are* immediately* considered tax resident in Spain UNLESS you can prove otherwise. N.B. in that case 183 day rule does not apply.


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## Pipeman (Apr 1, 2016)

So you are saying that if I move to Spain on 30th December and start a new job on the same day I'm tax resident in Spain, even if I'd worked for 11 months and 29 days in the UK.... ?

I don't buy that, there is no split year treatment... and it's obvious in this instance Spain isn't it...


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## baldilocks (Mar 7, 2010)

Pipeman said:


> So you are saying that if I move to Spain on 30th December and start a new job on the same day I'm tax resident in Spain, even if I'd worked for 11 months and 29 days in the UK.... ?
> 
> I don't buy that, there is no split year treatment... and it's obvious in this instance Spain isn't it...


You would have to argue your case, it would not be automatic but I've no doubt that Spain wouldn't be so picky anyway. If you moved in, say October, you may well have more difficulty in getting round the Spanish rule.


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## Rich & Wendy (May 28, 2018)

Juan C said:


> It would appear there is some confusion as the internet web page for Blevins franks does not agree with posts here :
> 
> https://www.blevinsfranks.com/news/article/spanish-residence-and-taxes
> 
> ...


Juan, you quoted Blevins Franks earlier, stating that was the law...I am quite literally quoting a Blevins Franks partner speaking directly to me on the phone today, and you don't believe it...?


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## Juan C (Sep 4, 2017)

Rick Wendy 
I did not say what I believe but as you have been given advice which appears contrary to their web page, maybe it would be wise for you to ask them why that is Both positions cannot be correct I think 

I would be interested to know what their explanation is 

Good luck John


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## ShoulIStayOrShouldIGo (Oct 22, 2019)

I might start a new thread on this as my question is related but different to the thread title. But before I do that I just need to know:

Is official Tax Residency and Residency considered to be the same thing?


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## ShoulIStayOrShouldIGo (Oct 22, 2019)

Overandout said:


> No.


 Great.

Has there been official news on this? If so please can you point me in the direction of the official declaration/confirmation (I suspect it won't include Boris the Hider).


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## Juan C (Sep 4, 2017)

If one is registered as resident in Spain then they are also tax resident 

If one is tax resident then they are obliged to register as being resident. 

So the simple answer to your question is as over and out said is ‘no’. They are not the same but related 

I have not listed the many internet pages which confirm that but the question can be googled and the answers easily found


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## kaipa (Aug 3, 2013)

Yes the idea is you cant claim not to pay tax because you arent registered as a resident as some think. The tax part is first and foremost. If you spend 183 days or more you are liable for tax on all worldwide income. If you haven't registered you should have but it wont save you from the taxman. Note also that if you have your spouse living in spain and property you are deemed to have your principle centre of interest in spain and are liable for tax even if you claim to not live 183 days in spain.


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## snikpoh (Nov 19, 2007)

Juan C said:


> If one is registered as resident in Spain then they are also tax resident
> 
> If one is tax resident then they are obliged to register as being resident.
> 
> ...


Sorry, this is simply incorrect.

One can be resident (have the green card) yet not be tax resident. That is, they are here for more than 90 days in a chunk yet never be here more than 183 days (they may also have their main home elsewhere, work outside Spain etc.).

This is quite common in fact.


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## Juan C (Sep 4, 2017)

Yes quite right. I forgot that anomaly 

Although whilst they would have a green certificate they would not really be resident That is they could not register as a resident on a padron 

Thanks for reminding me


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## MataMata (Nov 30, 2008)

Much is made of the 183 day rule yet it's actually more of final determinator of residency which can be brought into play when other factors prove inconclusive, a tie breaker if you will.

As bizarre as it might sound it's possible to be deemed Spanish resident without having ever setting foot in the country!

The piece below whilst written in relation to France can more or less equally be applied to Spain.

https://www.kentingtons.com/are-you-a-tax-resident-of-france/


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## Juan C (Sep 4, 2017)

Mata as you say the183 days is just one way in which tax residency is determined 

CAB have been saying for quite some time that registering on the EU citizen register and or the padron may bring problems from hacienda down the line and that it may be difficult to disprove tax liability


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## ShoulIStayOrShouldIGo (Oct 22, 2019)

Juan C said:


> *If one is registered as resident in Spain then they are also tax resident *
> 
> If one is tax resident then they are obliged to register as being resident.
> 
> ...


Hi. The answer most certainly can not be found easily. 

Just to take the part in bold. I always thought that the rule (even before Brexit) was that you had to register as being a resident if you wanted to spend more than 90 consecutive days in Spain. Like those that have holiday homes and perhaps just spend the winter in sunnier climes. 

So say I want to spend 95 days in Spain. I have to register as a resident, yet that is nowhere near the 183 tax residency status. 
I'm pretty sure that the UK would consider me tax resident if I spent the other 270 days there.

So surely I wouldn't be taxed in 2 different countries? 

So the 91-182 day stay still remains a bit of a mystery with regards to residency.

*From my own point of view I want to know what I need to do if I want to spend 4 consecutive months in Spain - as this is well over the 90 day tourist rule yet it wouldn't be considered tax residency according to the current 183 (just over half the year) rule.* So my original question was trying to ascertain if there are '2 types of residency' - which if there isn't then I think there should be. Otherwise there's a big contradiction there.


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## ShoulIStayOrShouldIGo (Oct 22, 2019)

snikpoh said:


> Sorry, this is simply incorrect.
> 
> One can be resident (have the green card) yet not be tax resident. That is, they are here for more than 90 days in a chunk yet never be here more than 183 days (they may also have their main home elsewhere, work outside Spain etc.).
> 
> This is quite common in fact.


Hi. Sorry I didn't see this before I posted my previous reply (^see up there^).

This is exactly what I want to try and do. Get residency but not (for now at least) be tax resident as I will only spend 4 months (and a few days) in Spain.


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## Barriej (Jul 23, 2012)

ShoulIStayOrShouldIGo said:


> Hi. The answer most certainly can not be found easily.
> 
> Just to take the part in bold. I always thought that the rule (even before Brexit) was that you had to register as being a resident if you wanted to spend more than 90 consecutive days in Spain. Like those that have holiday homes and perhaps just spend the winter in sunnier climes.
> 
> ...


I would say that you should ONLY be paying tax in the country you spend the majority of your time in. From the 1st of Feb 2020 it appears that Uk passports will be stamped in and out so the Spanish customs people may ask why you were in the country longer when you leave.

I'm sorting out my paperwork at the moment for our move in July. The snippet below comes from our solicitor/tax adviser in Spain.
My question is in black the answer is in red.
I understand that once resident I will need to notify HMRC and they will issue me with a zero tax code, so any monies drawn from the new investment would only be subject to Spanish tax. (unlike a personal pension which is taxed in the UK) And this would also be the case once I start to receive my UK old age pension (in 2029): Once you are fiscally resident in Spain you need to obtain a fiscal residency certificate from the Spanish Tax Authorities to submit in the UK together with the “Spain individual form” that I attach. There will be a period in which you will overlap paying tax in the UK and Spain because you will not be able to get a Spanish fiscal residency certificate until the last quarter of 2021. You will be entitled to get a tax refund from the UK .

Because we will be moving after more than 188 days into 2020 the above seems to be correct. Im not going to get into any legal arguments or 'thats not what happens where i live' I'm just quoting what I've been told and will abide by that information.


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## paulhe (Jan 2, 2018)

ShoulIStayOrShouldIGo said:


> Hi. The answer most certainly can not be found easily.
> 
> Just to take the part in bold. I always thought that the rule (even before Brexit) was that you had to register as being a resident if you wanted to spend more than 90 consecutive days in Spain. Like those that have holiday homes and perhaps just spend the winter in sunnier climes.
> 
> ...


This was the point of my post in another thread on post Brexit stay in spain (or any EU schegen states for that matter). Why the need to be a resident , if bilateral visa waiver arrangements are place to allow a stay of 90 + 90 days then one remains a tourist for that period of time. Australia has such a bilateral arrangement with Spain. Perhaps such an arrangement will be negotiated/is being negotiated and if not the we should lobby for such.

paul


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## paulhe (Jan 2, 2018)

Is it the case then that if a UK national registers on the padron before 31 December 2020 after 90 days but only stays in Spain for four or five months and returns to UK can then be regarded as resident in Spain to be able to take advantage of the EU passport?

Certainly , post Brexit without such bilateral arrangement in place for extended tourist visas one cannot overstay beyond 90 days and to so would require applying for a long stay visa, the non-lucrative version of requires annual income of approx 31000 Euros
paul


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## snikpoh (Nov 19, 2007)

paulhe said:


> Is it the case then that if a UK national registers on the padron before 31 December 2020 after 90 days but only stays in Spain for four or five months and returns to UK can then be regarded as resident in Spain to be able to take advantage of the EU passport?
> 
> Certainly , post Brexit without such bilateral arrangement in place for extended tourist visas one cannot overstay beyond 90 days and to so would require applying for a long stay visa, the non-lucrative version of requires annual income of approx 31000 Euros
> paul


Being on the padron is absolutely nothing to do with residency - there is also no 90 day rule regarding it.

I think you mean that you have to sign on the list of foreigners (aka - wrongly - 'residencia') within 90 days if you intend staying longer.

Being on the padron is a local town hall issue and nothing to do with immigration


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## baldilocks (Mar 7, 2010)

With regard to the "90-day rule" leaving the country after 90 days resets the clock. So you could pop over to France or Italy for a week once you have been here for 90 days and come back and the 90 day clock would start afresh.,


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## Pipeman (Apr 1, 2016)

baldilocks said:


> With regard to the "90-day rule" leaving the country after 90 days resets the clock. So you could pop over to France or Italy for a week once you have been here for 90 days and come back and the 90 day clock would start afresh.,


Would this not fail on the "90 days within 180 days" regulation?


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## baldilocks (Mar 7, 2010)

Pipeman said:


> Would this not fail on the "90 days within 180 days" regulation?


You are confusing with the Schengen rules for non-EU people.


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## paulhe (Jan 2, 2018)

baldilocks said:


> You are confusing with the Schengen rules for non-EU people.


Hi baldilocks 
thats the point though, we will be after 31 jan . 90 in 180 unless 1. we negotiate bilateral visa waiver arrangements (as Australia has) or 2. we apply for long term visa. i prefer to stay 180 days in Spain and the rest of the year in Aus when I retire, i don't want to live in Spain and become a tax resident. Many people living in uk will prefer to spend blocks of time, say 4 months as the poster above or 5 months some of summer and over the winter etc and would like the flexibility to do so.

can they register as a resident before the cut off but not remain in Spain beyond the 183 days and still benefit from the EU 'passport' or is it necessary to register as a resident before the cut off and live all year round in Spain to do so?

paul


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## xabiaxica (Jun 23, 2009)

paulhe said:


> Hi baldilocks
> thats the point though, we will be after 31 jan . 90 in 180 unless 1. we negotiate bilateral visa waiver arrangements (as Australia has) or 2. we apply for long term visa. i prefer to stay 180 days in Spain and the rest of the year in Aus when I retire, i don't want to live in Spain and become a tax resident. Many people living in uk will prefer to spend blocks of time, say 4 months as the poster above or 5 months some of summer and over the winter etc and would like the flexibility to do so.
> 
> can they register as a resident before the cut off but not remain in Spain beyond the 183 days and still benefit from the EU 'passport' or is it necessary to register as a resident before the cut off and live all year round in Spain to do so?
> ...


If you register as resident & register on the padrón, you are stating that Spain is your home. That you live here.

If you spend more time out of Spain than in Spain, it would be up to you to convince the tax office that you're not tax resident should they decide that you are, regardless of how much or little time you are physically in Spain.


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## kaipa (Aug 3, 2013)

Listen you can argue away as much as you like but if you register as a resident then the spanish tax authority will expect you to make your declaration. If you dont they will contact you. You would then need to employ a lawyer to argue your case and if you weren't successful you would face fines. There is really no point in trying to convince forum members to agree with you. At the end of the day the Hacienda will decide and they, like most tax authorities, are pretty efficient. So your choice


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## paulhe (Jan 2, 2018)

xabiaxica said:


> If you register as resident & register on the padrón, you are stating that Spain is your home. That you live here.
> 
> If you spend more time out of Spain than in Spain, it would be up to you to convince the tax office that you're not tax resident should they decide that you are, regardless of how much or little time you are physically in Spain.


That makes sense to me. I think the transitional arrangements that were negotiated under Mrs May's deal allowed so many visits home (UK or from UK to Europe if EU citizens were living in UK at time) but of course that presupposes the main home State is Spain (or UK for EU citizens) and the expectation would be that such persons would therefore be tax resident. 

Clearly therefore if, like me, one wants to do the right thing but not live full -time in Spain then, though we have purchased a holiday home, we can only spend up to 90 days in a (rolling) 180 days unless a bilateral arrangement is in place to allow 90+90

Paul




Paul


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## paulhe (Jan 2, 2018)

kaipa said:


> Listen you can argue away as much as you like but if you register as a resident then the spanish tax authority will expect you to make your declaration. If you dont they will contact you. You would then need to employ a lawyer to argue your case and if you weren't successful you would face fines. There is really no point in trying to convince forum members to agree with you. At the end of the day the Hacienda will decide and they, like most tax authorities, are pretty efficient. So your choice


Did you read my posts? I am trying to understand if, like Australia , there is any chance of a bilateral agreement to allow tourists (TOURISTS just in case you didn't understand me) to stay longer than 90 days in 180. I do not (DO NOT again for your benefit) want to do anything underhand, unlawful. i do not want to overstay my visa or live under the radar. live as a nomad, travelling for sufficient periods of time in non Schegen countries to reset the period of 180 days. I simply want, like many people in UK, to use my holiday home for longer than 90 days in any 180.

At the moment I can do so because of the agreement Aus has. I wanted to alert people that this sort of arrangement is worth lobbying for. When more and more UK owners of holiday homes who had in mind their retirement in years to come spending more time in blocks at their holiday home but not wanting to live in Spain full - time I am sure there will be a drive then to have this arrangement. Does anyone know if this is being contemplated?
Paul


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## Juan C (Sep 4, 2017)

Paul 

Look up / google `Spain Long term visas' that will / should answer your question.


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## kaipa (Aug 3, 2013)

Sorry I thought you were proposing arguments to effectively interpret the laws to your tax advantage not spearheading an new tax agreement


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## paulhe (Jan 2, 2018)

Juan C said:


> Paul
> 
> Look up / google `Spain Long term visas' that will / should answer your question.


I am aware of the terms of Spains long term visas. I don't want a long term visa. I want a extended tourist visa waiver. long term visas after Brexit for UK citizens will be the same for Australians viz., non - lucrative = 31000 Euros annual income required per couple. But, as i said , I will be one of many thousands of people stuck with a holiday home that doesn't want a long term visa


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## kaipa (Aug 3, 2013)

As has been pointed out. You can now come and stay in spain for 90 days. More and you become a resident that the authorities assume means you wish to make spain your home and therefore the place you pay tax


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## paulhe (Jan 2, 2018)

kaipa said:


> Sorry I thought you were proposing arguments to effectively interpret the laws to your tax advantage not spearheading an new tax agreement


it is not a tax agreement. it is a visa waiver agreement. this exists. since the 1950/60s Australia has had numerous visa waiver agreement with for example Germany - this allow 90 days schegen stay then provided one leaves Germany into a non schegen state one can immediately return to Germany and stay a further 90n days. Spain allow one to actually stay a further 90 days after the schegen visa period


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## paulhe (Jan 2, 2018)

kaipa said:


> As has been pointed out. You can now come and stay in spain for 90 days. More and you become a resident that the authorities assume means you wish to make spain your home and therefore the place you pay tax


no, this not correct if one is a tourist. Currently because of freedom of movement this may be an accurate statement . If one is a tourist one cannot become resident by overstating a visa. UK citizens visiting Spain or any other EU state post brexit will do so as tourists unless they have a long term visa or residence status. All non - EU citizens (including uK after brexit) will from 2021 have to apply for a visa waiver under the ETIAS system. this is introduced so as to have a similar system to that used by US and Canada. All flights and points of entry to EU will be recorded. As will returns.
Paul


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## kaipa (Aug 3, 2013)

Again sorry but I am not sure what you are posting about? Are you simply saying that you think that post Brexit a new visa agreement should be negotiated similar to the one you outline vis a vis Australia ? Or did you want to know how the law determining residency relates to tax?


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## kaju (Oct 31, 2011)

paulhe said:


> it is not a tax agreement. it is a visa waiver agreement. this exists. since the 1950/60s Australia has had numerous visa waiver agreement with for example Germany - this allow 90 days schegen stay then provided one leaves Germany into a non schegen state one can immediately return to Germany and stay a further 90n days. Spain allow one to actually stay a further 90 days after the schegen visa period


While Spain used to have a bilateral visa waiver agreement with Australia, I've read in an unofficial blog that this was rescinded in the 1970's. 

You can do the longer stay (if you meet the country's specific conditions) in some Schengen countries, but not all:
https://www.smartraveller.gov.au/before-you-go/the-basics/schengen#bilateral

Even then, the different countries involved can have different conditions to each other.

With regard to Spain and Australia, both the Australian Smart Traveller website and the Spanish Embassy website in Australia do not include any information about the old bilateral visa waiver (rather than the current Schengen variety) and the Aus site does list all the countries that still have that agreement - and unfortunately Spain is not there.

I doubt very much whether such an agreement would be permitted in future either - more likely, those Schengen countries with it may gradually shut that option down sometime in future, just like Spain apparently has.


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## ShoulIStayOrShouldIGo (Oct 22, 2019)

kaipa said:


> Listen you can argue away as much as you like but if you register as a resident then the spanish tax authority will expect you to make your declaration. If you dont they will contact you. You would then need to employ a lawyer to argue your case and if you weren't successful you would face fines. There is really no point in trying to convince forum members to agree with you. At the end of the day the Hacienda will decide and they, like most tax authorities, are pretty efficient. So your choice


If the actual law is 183 days. Then surely you wouldn't need to argue anything? You could just show them the passport information of exactly when you entered and left (as this is all recorded). If not a physical passport stamp then surely there should be some way you can access this officially?
The days of glancing at your passport and waving you on are long gone. Jaja.


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## paulhe (Jan 2, 2018)

kaju said:


> While Spain used to have a bilateral visa waiver agreement with Australia, I've read in an unofficial blog that this was rescinded in the 1970's.
> 
> You can do the longer stay (if you meet the country's specific conditions) in some Schengen countries, but not all:
> https://www.smartraveller.gov.au/before-you-go/the-basics/schengen#bilateral
> ...


Australians like i believe 60 nations do not have to seek a formal schegen visa for stays of 90 days or less. For visa waiver agreement countries including for example germany nd spain one must apply first for the Schegen visa - that is the visa that other non-EU countries must apply for. Then and only then can you stay longer than the 90 days 

see here for spain

https://www.etiaseurope.eu/etias-requirements/australian/spain/

Germany requires you to leave and re-enter from a non schegen state spain does not. france has slightly different rules again 

in answer to whether i am talking of a tax regime no, i am not. i appreciate this is a thread about tax but there was a query above about wanting to stay for four months and so i thought this information might be useful to that poster 
paul


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## kaju (Oct 31, 2011)

paulhe said:


> Australians like i believe 60 nations do not have to seek a formal schegen visa for stays of 90 days or less. For visa waiver agreement countries including for example germany nd spain one must apply first for the Schegen visa - that is the visa that other non-EU countries must apply for. Then and only then can you stay longer than the 90 days
> 
> see here for spain
> 
> ...


Spain is NOT a visa waiver country any more. You can't stay 90 days + 90 days like you can with some other Schengen countries.

You don't have to "seek" or "apply for" a Schengen visa - in fact you can't - you get it automatically on arrival, you are deemed to have applied because you are an Australian Citizen - you have up to 90 days to stay in Spain, as you are given a Schengen visa. 

You will have to apply for an ETIAS clearance to visit Spain (even for less than 90 days) after ETIAS comes into place next year, but that's really to enable a security check and get a little income, you'll still effectively be getting a 90 day Schengen visa even then, and the ETIAS approval will cover the next 5 years. So you could then come and go for 90 days in 180 repeatedly if you wanted to, for up to 5 years, but that 90 days is for both Spain and the other Schengen countries combined.

The website you quote is a private website, it is not official. It says _"A Schengen visa is mandatory for all nationals of Australia who stay in the country for a period greater than 90 days.
For short stay visits (less than 90 days within a period of 180 days), the visitors are exempted from obtaining a valid Schengen visa."_

This statement is clearly incorrect - even if there was a visa waiver agreement in place with Spain, most Australians would simply arrive and stay for up to 90 days with no visa application needed, and are automatically entitled to a Schengen visa on arrival - a Schengen visa is granted with no application, simply on the basis that you are an Australian Citizen.

The latter part of the statement on the website _"For short stay visits (less than 90 days within a period of 180 days), the visitors are exempted from obtaining a valid Schengen visa."_ is simply not true, as normal Australian visitors/tourists automatically receive a Schengen visa, although they may never realise that. In fact, the Schengen visa they are given is the reason they are allowed to stay 90 days.

The author of the private website is getting confused, and they are certainly mistaken. It would have been true a long time ago that an Australian could arrive and use the visa waiver agreement to get 90 days and then get an (automatic) Schengen visa for another 90 days, but since the agreement was rescinded, you can only stay for 90 days in Spain (with an automatic Schengen visa) in 180 days. To stay longer you'd need a another different visa.

It's generally better to check with officialdom, rather than using private websites. The link I gave you shows that there is visa waiver agreements in place with some countries, but Spain is not listed. The Spanish Embassy in Canberra does not include it in the list of possible visas either.

The upshot is however, that you can just arrive on an Aus passport and stay in Spain for 90 days with no visa application - you get a 90 day Schengen visa when you arrive. There is no visa agreement with Spain anymore to extend that period to 180 days.


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## Juan C (Sep 4, 2017)

Kaju

Thanks for your post, but do you mean this Spanish government web page 

http://www.exteriores.gob.es/Portal...tranjeros/Paginas/VisadosDeLargaDuracion.aspx

is incorrect 


Quote:- 

Long-Term Visas

These visas entitle their holders to reside, work, study or research in Spain.
31/12/2012

Procedures and conditions for issuing these visas can be found in Organic Law 4/2000 and in its Regulations, approved by Royal Decree 557/2011.

These visas entitle their holders to reside, to reside and work, to study, or to research in Spain. All foreigners wishing to enter Spain to reside, reside and work, or study, need to hold a visa of this kind, unless they are citizens of the European Union, Iceland, Liechtenstein, Norway or Switzerland

Applications for long-term visas must be submitted through a duly completed application form (original and copy), which may be downloaded for free on this website or may also be obtained for free at Spain's Diplomatic Missions or Consular Posts abroad.

Visas must be applied for in person or through a duly accredited representative at the Spanish Diplomatic Mission or Consular Post of the district in which the applicant legally resides. 

When submitting an application for a visa, an established fee must be paid (generally € 60), which shall not be refunded in the event of the application being denied. In certain cases, which should be consulted at Spanish Diplomatic Missions or Consular Posts, current legislation sets forth a reduction or waiver of the fee. Other requirements should be consulted at the Diplomatic Mission or Consular Post where the visa is to be applied for, because they can vary depending on the reason for the trip and the applicant's country of origin.

Persons wishing to reside in Spain must obtain prior information about the procedures from the relevant bodies, mainly from the Ministry of the Interior and the Ministry of Employment and Social Security.

The deadline for processing long-term visa applications is one month after the application has been submitted, except for the case of non-lucrative residence visas, in which the deadline shall be three months. In the event that a visa is issued, it must be collected personally at the relevant Diplomatic Mission or Consular Post, although it is possible for a duly authorized representative to collect it, within a month after notification of issuance. 

In the event that a visa is refused, the applicant shall be notified by means of a standard form indicating the grounds for refusal. In this case, a contentious-administrative appeal may be lodged before the High Court of Justice of Madrid within two months after the notification date, or, optionally, an appeal for reversal before the same Diplomatic Mission or Consular Post within a month after the refusal notification date.


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## kaju (Oct 31, 2011)

Juan C said:


> Kaju
> 
> Thanks for your post, but do you mean this Spanish government web page
> 
> ...


No, it's not incorrect - that webpage refers to permanent visas for Spain. 

I was referring to paulhe's post, where, because he is Australian, he was hoping to stay more than 90 days in Spain, using the 90 day Schengen visa and 90 days allowed by a bilateral visa waiver agreement with Australia. 

However that visa waiver agreement no longer seems to exist, so he is limited to 90 days stay using a Schengen visa, unless he was to apply for some other form of visa.

Those other forms of visas are talked about on the webpage you linked to - however they do of course require more conditions than a simple 90 day Schengen visa, and are harder to get.

The short-term 90 day Schengen visa simply requires that he has an Australian passport, as did the now-dead bilateral visa arrangement between Spain and Australia which would have given him an extra 90 days when that agreement existed.


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## Juan C (Sep 4, 2017)

Kaju. 

Thanks for that. 

I had not read the incredibly long “Organic Law 4/2000 and in its Regulations, approved by Royal Decree 557/2011.” Have skimmed part of it I now understand. 

Thanks again.
Juan


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