# Residency and Tax Residency (one and the same)



## SonicToo (Sep 19, 2020)

Hi. Residency and Tax residency, they are the same thing right?

I keep reading posts in various social media groups that state they are NOT the same thing.

BUT, I can't see how you can apply for residencia if you are spending 183 days (or more) outside of Spain.

Or am I missing something?


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## SonicToo (Sep 19, 2020)

I can't seem to edit posts here. So for clarity 183 days out of 365 days in a year outside of Spain would mean you are not classed as tax resident. But surely you wouldn't be classed as being resident in Spain if you were spending more than half of the year outside of Spain, right?


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## davexf (Jan 26, 2009)

Hola 

The Spanish tax man appears to believe that if you have residency, then you must pay tax. I think that in law, it is for you to prove that you are NOT here for the requisite days. 

Davexf


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## NickZ (Jun 26, 2009)

SonicToo said:


> I can't seem to edit posts here. So for clarity 183 days out of 365 days in a year outside of Spain would mean you are not classed as tax resident. But surely you wouldn't be classed as being resident in Spain if you were spending more than half of the year outside of Spain, right?


Tax resident would be covered by the tax treaties.

Residence would be covered by the local Spanish laws.

Being outside of Spain doesn't mean you aren't tax resident. It can make it less likely but it's easy enough to think about situations that people are out of the country for most of the year but are still tax resident. 

Imagine you're on a round the world walking trip. Years away from home. But your domicile is still Spain. Your personal possessions are still in Spain. Your friends and family are still in Spain.


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## snikpoh (Nov 19, 2007)

davexf said:


> Hola
> 
> The Spanish tax man appears to believe that if you have residency, then you must pay tax. I think that in law, it is for you to prove that you are NOT here for the requisite days.
> 
> Davexf


Not quite.

I know people who are legitimately tax resident in UK as that is where their home is, and their centre of economic interests are, yet because they stay in Spain for more than 90 days at a time, are residents (with green card etc.)

This is quite legal and the tax people in both countries are happy.


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## xabiaxica (Jun 23, 2009)

The other issue is that if you don't spend 6 months a year in Spain, Spain can rescind your right to residency.

Then it would be up to you to prove that you had been here for those 6 months each year. In doing that, you would essentially be tax resident.


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## SonicToo (Sep 19, 2020)

xabiaxica said:


> The other issue is that if you don't spend 6 months a year in Spain, Spain can rescind your right to residency.
> 
> Then it would be up to you to prove that you had been here for those 6 months each year. In doing that, you would essentially be tax resident.


Yes. This is the point I was getting at.

Is there an 'official' document that states the residency law with regards to the number of days spent in Spain?
As it all seems to be rumour and supposition on the various expat groups (as is normal). It's always difficult to find anything official.


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## Lynn R (Feb 21, 2014)

SonicToo said:


> Yes. This is the point I was getting at.
> 
> Is there an 'official' document that states the residency law with regards to the number of days spent in Spain?
> As it all seems to be rumour and supposition on the various expat groups (as is normal). It's always difficult to find anything official.


https://www.agenciatributaria.es/AE...ncia/Persona_fisica_residente_en_Espana.shtml


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## xabiaxica (Jun 23, 2009)

SonicToo said:


> Yes. This is the point I was getting at.
> 
> Is there an 'official' document that states the residency law with regards to the number of days spent in Spain?
> As it all seems to be rumour and supposition on the various expat groups (as is normal). It's always difficult to find anything official.


It's based upon the requirements for permanent residency at the five year mark. 

Although 'automatic' for EU citizens, you can be asked to prove the continued residency, which is stated on govt websites as not having any absenses of more than 6 months a year. 

With tax residency, if the govt decides that you're tax resident you have to prove that you're not. 

With continued residency, if the govt decides that you haven't spent enough time in Spain to qualify, you have to prove that you have. If you've been tax resident elsewhere & spending more than 6 months a year away, then you'd have a hard time proving that Spain is in fact your home. 


Although they are seperate issues, they are inextricably linked. Being tax resident in the context of the link Lynn has posted, is one proof of being 'resident'.


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## trotter58 (Feb 8, 2017)

SonicToo said:


> I can't seem to edit posts here. So for clarity 183 days out of 365 days in a year outside of Spain would mean you are not classed as tax resident. But surely you wouldn't be classed as being resident in Spain if you were spending more than half of the year outside of Spain, right?


AFAIK....
If you're spending longer than 90 days in Spain then you should register as a resident, even if you intend to leave at some point in the future. The only form of registration currently available for UK citizens is the TIE. 

If you leave Spain before 183 days, have no family in Spain and your income is derived from the UK, then you remain a UK tax resident. When you leave spain you should sign off the padron and return your TIE card. You can't legally retain your TIE and remain non resident for tax.

If you want to return to Spain for longer than 90 days again, after Jan' 2021, you will you will need to apply again, unless Spain introduces some other kind of long stay visa.


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## kaipa (Aug 3, 2013)

After you have permanent residence you will now be able to live outside of Spain for 5 years but still retain your residency rights on return.


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## trotter58 (Feb 8, 2017)

kaipa said:


> After you have permanent residence you will now be able to live outside of Spain for 5 years but still retain your residency rights on return.


That's interesting. So you could become tax resident in the UK again after 5 years residency in Spain? 
Would your new address in the UK become your new primary residence? and, if so, could you then sell it without attracting CGT in Spain or UK?


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## kaipa (Aug 3, 2013)

trotter58 said:


> kaipa said:
> 
> 
> > After you have permanent residence you will now be able to live outside of Spain for 5 years but still retain your residency rights on return.
> ...


I see no reason why not.


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