# A wrinkle on the 183 day question



## elijahs (Feb 20, 2015)

Hi folks! My family and I are from the US and are looking at visiting Spain this coming year; we have a son in grade school, and would like to stay for the school year -- September to June or thereabouts.

This forum has been extremely educational and inspiring, but I think I have a question that hasn't been specifically answered here. 

I've been trying to determine tax residency rules for our situation. I will be working remotely as a full-time regular employee for a US corporation (as I do now; my company has no relationship to this relocation), maintaining our household in the US, and simply renting temporary accommodations in Spain.

However, I have found references to the US-Spain tax treaty considering "183 days in any 12-month period" to be sufficient for determining residency. This is subtly different than what I've seen a lot around this forum. The UK tax laws seem to refer to a calendar year, not any 12-month period.

Our initial plan was to spend less than 183 days in Spain in both 2015 and 2016 (but more than that in aggregate), but now it seems that may be in jeopardy.

I have a couple questions:

- can anyone speak to this question directly? If we spent more than 183 days in Spain, but split across two years, would we still be considered tax residents?

- how likely would that be to be enforced, considering that overall, our stay will be ultimately temporary and with a light footprint? please understand, I don't know how our existence would be tracked in Spain anyway, beyond the passport stamps.

Thanks in advance!

Elijah


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## xabiaxica (Jun 23, 2009)

elijahs said:


> Hi folks! My family and I are from the US and are looking at visiting Spain this coming year; we have a son in grade school, and would like to stay for the school year -- September to June or thereabouts.
> 
> This forum has been extremely educational and inspiring, but I think I have a question that hasn't been specifically answered here.
> 
> ...


:welcome:

You say you're from the US, so I'm working on the assumption that you are non-EU citizens. Since you're asking tax questions, I guess you have the sticky issue of a working visa sorted out? 

If not, then you can only stay 90 days in every 180 & can't legally work at all while you're here, not even remotely

Assuming you have that in hand though, since you will be resident here & working while _you are physically here_, you will have to declare all your income whilst here, probably by registering as autónomo (self-employed) since you say that your employer isn't involved in the visa process. You would pay Social Security every month & income tax every 3 months. If at the end of your time here, you were due any tax back, it would be refunded when you submit your tax return in June. Any tax treaty is irrelevant in this case, since you would be working in Spain, so would pay income tax in Spain.

As for how your 'existence would be tracked in Spain'..... the air tickets would be the first thing of course. You'd need NIE numbers for all kinds of things & of course the working visa would be on record - so you'd be in the system, as it were

If you _didn't _have that working visa, & stayed more than the permitted time, when it came time to leave, you run the risk of a permanent ban. And of course at anytime during your stay, if you came to the attention of the authorities for any reason at all, even a traffic violation, you could well be deported.


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## kalohi (May 6, 2012)

:welcome:

As Xabiachica mentions, the first thing you need to think about is fulfilling residency requirements, because this is the major obstacle for Americans wishing to spend time in Spain. Do you or your wife hold an EU passport? If not then your plan is pretty much a no go because there is no visa that would allow you to stay here for 9 months. You could only come as a tourist and stay for a maximum of 90 days. But if you do have that EU passport then your family can come, assuming you can prove you have sufficient income and Spanish healthcare in place. Since you'd be considered self-employed here you'd have to pay into the self-employment scheme, which would automatically give your family access to government healthcare, and which would get you paying income tax here too. So the 183 day/year question is moot. (BTW, it's 183 days per _calendar_ year.)


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## kalohi (May 6, 2012)

kalohi said:


> :welcome:
> 
> As Xabiachica mentions, the first thing you need to think about is fulfilling residency requirements, because this is the major obstacle for Americans wishing to spend time in Spain. Do you or your wife hold an EU passport? If not then your plan is pretty much a no go because there is no visa that would allow you to stay here for 9 months. You could only come as a tourist and stay for a maximum of 90 days. But if you do have that EU passport then your family can come, assuming you can prove you have sufficient income and Spanish healthcare in place. Since you'd be considered self-employed here you'd have to pay into the self-employment scheme, which would automatically give your family access to government healthcare, and which would get you paying income tax here too. So the 183 day/year question is moot. (BTW, it's 183 days per _calendar_ year.)


Just to clarify, there are a few visas, but I'm assuming you don't qualify. One type is if you get a Spanish job offer and the Spanish company sponsors your visa. Another is if you invest huge amounts of money in Spain (more than 1/2 million euros). And then there's a retirement visa. That's about it.


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## larryzx (Jul 2, 2014)

elijahs. You mention the UK / Spain Double Taxation Agreement, that of course does not apply to you. As you may know , every agreement is different so you would need to consult that between USA and Spain. Example, I understand USA citizens must pay USA tax no matter where they are in the world. That does not apply to UK citizens.

183 day rule, is just one rule under which one becomes tax resident in Spain, and as an alien you would probably not be able to stay for more than 90 days in 180,

The Spanish consulate in USA should be able to give you clear advice, or you might try the USA consulate in Spain, or a lawyer in USA who understands Spanish legislation. 

Good luck


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