The regulations of the Beckham Law or Special Expats’ Tax Regime (“SETR”), from Spanish Régimen Especial para Trabajadores Desplazados, state that certain requirements have to be met in order to apply the special tax regime (it is not for everyone). The first and most important is that you must acquire tax resident status in Spain. Once it is clear that you are or will be a tax resident in Spain, there are a few more requirements that must be met.
In addition to these requirements of the Beckham Law, in order to apply the special tax regime it is also necessary to make a formal application in which you must provide a series of documents.
The regulations are not always clear enough to know for sure whether the requirements are met, so an official body of the Spanish Tax Agency regularly publishes “binding consultations” that clarify how the regulations should be interpreted.
The requirement of the tax residence in Spain
The first aspect to be analysed is whether you are or will be considered tax resident in Spain. Why is it important? Because the SETR is an optional regime available only to those who move to Spain to work and become tax residents in Spain. Therefore, it only makes sense to talk about the SETR if you are or will be considered tax resident in Spain.
The question then is, what determines whether someone can be considered tax resident in Spain?
The 3 ways to become tax resident
Each country establishes its own ways to become tax resident. In the case of Spain, this is regulated by the Personal Income Tax Act (“PIT”). This act establishes that there are three different ways in which an individual can acquire the status of tax resident in Spain:
a) The 183-day rule
One way to become tax resident in Spain is to stay more than 183 days in Spanish territory during the calendar year. Sporadic absences are included in order to determine permanence in Spanish territory, unless the taxpayer proves his tax residence in another country by means of a certificate of tax residence.
In the case of countries or territories qualified as tax havens, the Spanish Tax Administration may require proof of stay in said tax haven during a period of 183 days within the calendar year;
b) The rule of the center of economic interests
Another way of becoming tax resident in Spain is for the taxpayer to have in Spain the main nucleus or base of his activities or economic interests, directly or indirectly.
This should be interpreted as a comparison between Spain and other countries. The position of the Spanish Economic-Administrative Court has been that the comparison should be country by country. That is, not of Spain versus the sum of the rest of the world.
On the other hand, the General Directorate of Taxes seems to have suggested by means of a binding consultation that not only income but also the location of assets or expenses can be taken into consideration.
c) The centre of vital interests rule
The last way to become tax resident in Spain consists of having your non-legally separated spouse and/or dependent underage children residing in Spain. This situation accepts evidence to the contrary.
It should be noted that an individual may be considered a tax resident in Spain if any of the three situations mentioned above are met (it is sufficient if one of the above is met).
The speciality of the Beckham Law
The rules in the previous section are the general rules for acquiring tax residence in Spain. However, the SETR is only applicable if the tax residence is acquired through the first way, that is to say, to stay more than 183 days in Spanish territory. The reason for this requirement is that the SETR is intended for those who actually move to Spain. This is why the legislator included this requirement to try to prevent abusive use of the SETR.
The truth is that this can lead to absurd situations. For example, an individual who spends less than 183 days in Spanish territory during the calendar year, but who becomes a Spanish tax resident by any of the other means mentioned (subparagraphs (b) and (c)), would not be entitled to apply for the SETR.
Double Taxation Agreements
The previous sections defined the Spanish internal rules to determine whether someone can be considered a tax resident in Spain. But it could for example happen that, according to the internal rules of another country, that person was also a tax resident in that country. In these cases, Double Taxation Agreements (“DTA”), which are international treaties between two countries in which, among other things, the so-called “tie-break rules” are established. These rules serve to define in which of the two countries you are considered to be a tax resident. These “tie-breaker rules” only come into play when you are considered a tax resident in both countries according to the internal rules of each of them.
In addition to the above, DTAs also establish a series of tax benefits for those tax residents in one of the signing countries who generate incomes in the other country.
The requirement of moving to Spain to work
One of the requirements of the Beckham Law is that the move to Spain takes place for work reasons.
This requirement may seem quite simple at first glance, but it is usually the most problematic of all. There are, in essence, two elements that must be considered:
Possible types of work
The concept of “working” in the context of the SETR is specifically defined in the regulations, which establish 3 situations in which it will be understood that the individual has started to work in Spain:
a) New employment relationship with a Spanish company
You would be in this situation if you moved to Spain to start a new employment relationship with an employer in Spain. This applies to all types of employment relationships, including ordinary, special relationships (company managers, artists, prisoners, longshoremen, etc.) or statutory relationships (mainly public servants), except for special relationships of professional sportsmen, which are expressly excluded from the RETD.
b) Transfer to Spain maintaining the original employment relationship
You would be in this situation if your employer from another country moved you to Spain, without being hired by another company. In other words, you would keep the same employment contract that you had (without prejudice to the corresponding modifications to take into account the circumstances of the transfer).
In this case, in order to fulfil the requirement, you would need a letter from your employer ordering the transfer to Spanish territory. Your employer must register with the Spanish Tax Agency.
c) Becoming the director of a company in Spain
You would be in this situation if you moved to Spain because of the acquisition of the status of director of a Spanish company.
The governing body of a company is ultimately responsible for the management and representation of the company, in accordance with the provisions of the Spanish Corporations Act and the company’s bylaws. This body may consist of a single member (sole director) or a group of members (board of directors). In both cases, you would become a director (it is not an employment relationship, although it is compatible with one).
If you have acquired the status of director in Spain, or are about to do so, then, in order to comply with the requirement of the RETD, you cannot directly or indirectly own 25% or more of the company’s shares.
The move to Spain
The SETR regulations require that the move to Spain takes place as a consequence of the new work in Spain. However, the regulation does not say when this causal link is deemed to exist, so it may be necessary to present evidence to convince the tax authorities.
For example, a long period of time between the two moments (moving to Spain and start working) may be an indicator, among other factors to consider, that there is no such causal relationship.
However, there are also different types of evidence to prove causality. For example, according to the binding consultation V1163/2017 of the General Directorate of Taxes, if the transfer to Spain occurred due to the acceptance of a job offer from a Spanish company, and it can be demonstrated that the job offer was received before the transfer to Spain, that would be sufficient to prove the causal link. Even without a job offer, if the job starts one or two weeks after the move to Spain, the chances of convincing the tax authorities are considerably high.
As mentioned above, this requirement is often the most problematic, as the reality is often more complex than what is provided for in the regulations. This is why the application of the rule sometimes requires interpreting concepts and entering the realm of subjectivity.
That is why there is an official body (the General Directorate of Taxes), which reports directly to the State Tax Administration Agency, and whose main purpose is to interpret the regulations in those points where it is not clear enough.
The requirement of not having been tax resident in Spain in the last 10 years
You don’t only have to become tax resident in Spain to apply the SETR, it also has to be the first time in 10 years you become tax resident in Spain. In other words, it is not possible to apply for the SETR if you have been tax resident in Spain in any of the last 10 years.
The fact that you may have been paying taxes as a non-resident in Spain, i.e. subject to Spanish Non-Resident Income Tax, is not an obstacle to applying for the SETR.
The requirement of not receiving income through a permanent establishment in Spain
It is absolutely incompatible with SETR for you to receive income through a permanent establishment located in Spain. Please note that this is not the same as working for a permanent establishment.
In this respect, it is worth mentioning that the term “permanent establishment” means a fixed place of business through which all or part of a business activity is carried out. In other words, it is like doing business on your own.
Although it may seem fairly easy to determine whether or not there is a permanent establishment, the truth is that the limits of the concept can become blurred depending on the case. For example, a website is not a fixed place and yet it is a case where experts often disagree.
If you don’t have any assets in Spain and you don’t receive income (in addition to your employment income) from Spain, then it shouldn’t be a problem. Otherwise, the safest option would be for a professional to analyze your case.
The requirement of presenting the correct documentation in the application process
This is not one of requirements of the Beckham Law per se, but it is essential to correctly complete the application to apply the SETR. That’s why we recommend that you make sure all the necessary documentation is submitted and done correctly.
If you want to know more about how to apply for the SETR, go to the How to apply for the SETR page.
How to make sure you meet the requirements of the Beckham Law
Depending on your circumstances, the analysis to determine if you meet all the requirements of the Beckham Law can be relatively complex.
If you are not sure if you meet all the requirements and would like your case to be reviewed by an attorney, we can offer you help with that: