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The Spanish Lawyer Online

Antonio Flores’ Blog

Thoughts about laws and regulations which affect foreigners in Spain


Archive for June, 2014

Proving Spanish Residency: The case of a British Tax Resident of Spain Who does Not Exist for the Spanish Tax Office

June 5th, 2014

The title of the post is confusing, contradictory and appears to make little sense; I will admit to that. But at times, the idiosyncrasy of Spanish bureaucracy lends itself to these situations.

The case relates to a client who was selling his property, had been a resident of Spain for 20 years but, because he was not legally obliged to file annual tax returns (he was retired) he did not exist for the Spanish Tax Office and so, he would not be given a Tax Residency Certificate, necessary to avoid the 3% CGT retention on the proceeds when a property is sold.

And because he was so adamant that Spain was his place of retirement, and of his tax residency, he was not going to let the Tax Office get away with it.

So in the knowledge that in the Costa del Sol, if you submit a query to 3 different tax/legal professionals you end up with 4 different opinions, we told him about Hacienda’s Binding Consultation Service, the ultimate official opinion on a tax matter: the case was submitted to the Directorate General of Tax (DGT) for a definitive confirmation of what he had previously read on the subject.

And this was their response:

  1. The main document that proves tax residency in Spain is the Tax Residency Certificate.
  2. The issuance of an individual Tax Residency Certificate is subject to the applicant proving his/her residency in Spain.
  3. Where the above certificate cannot be obtained, the onus of proving Spanish residency lies with the taxpayer who will be able to submit, in support of his claim, alternative evidence: Certificate of “empadronamiento”, children’s school enrollment applications, rental payments, water and electricity receipts etc…).
  4. The Spanish Tax Office, based on the widely accepted judicial `principle of free evaluation of the evidence´, will determine whether the applicant is, or isn’t, a tax resident of Spain.

By experience, I will add a fifth item: a certificate of non-residency from the Tax Office of the country of origin. This is not mentioned but we have had it submitted on a prior case and adds considerable weight to the application.

Finally, it is worth noting that the Spanish Tax Office has not commented on the EU residency forms issued by National Police Stations; this is probably because its relevance is relatively low.

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Trials and Tribulations of our Spanish Immigration Lawyers

June 1st, 2014

 The outcome of some Spanish residency cases never cease to surprise us. Even considering that we have successfully processed over one hundred and fifty applications in the last years, and that these cases are the exception -not the norm- both Spanish immigration civil servants and consular staff keep throwing at us, periodically, challenging decisions and behaviours that appear to mimic the antics of Spanish officials in this film, as opposed to an always simpler -and obviously preferable- direct application of the law on the matter.

I refer to a couple of inexplicable resolutions to residency applications (Investor’s and Non-Lucrative) that we thought were water-tight.

CASE 1: Russian couple that buy a property for €750,000 to obtain Investors Residency.

The case involves a couple that bought property over the threshold of €500,000 to qualify for residency. Spanish Consulate staff, on receiving our application, worked round the law to reject the applicants, verbally. Firstly, they argued that because the law said that “an investor who wishes to become a resident shall apply…”, it was not possible that a married couple applied together, unless they reached €1,000,000 the threshold. In this case they had invested €750,000 together. Secondly, they argued that the application should be filed within 3 months of purchasing the property.

In respect to the first ground for rejection, we argued that the law states that the investor the law refers can bring his wife and children under 18 years of age, within the same application. So, in practical terms, there is no difference between our application and what the law says. But to add more mystery to the Consulate’s decision, it so happens that Russian law states that, by default, assets acquired by the spouses during marriage are their community property, which means that regardless of whether either spouse buys in his/her name, or buy jointly, the property will be their community property.

The response of the Spanish Consulate in Moscow is: “…we will be guided by future case law in the matter”. That is, case law that will be produced in the next 5 years. That, or have either applicant transfer its 50% to the other so that, after thousands of Euros of costs, they can achieve the same result: have the property owned by both, through their “Community Property”.

CASE 2: Moroccan single applicant who applies for non-lucrative residency.

The lady in particular has 12 properties in Tangiers giving her just under €12,000 in monthly income (well above the €2,000/month minimum required to apply), €170,000 in cash in a Moroccan bank account and €130,000 in Spain, a jointly owned property in Estepona and no need to work for the rest of her life. The application included original documentary evidence of the above (duly translated) and so, according to the precepts of the law, should have been be plain sailing.

But it was not: the Spanish Consul, Arturo Reig Tapia, seemingly wanting to stamp his authority over his staff but lawmakers too, rejected the application on the following not-so-elaborate excuse: “…applicant did not show enough income”.

And in a fit of remorse, he inmediately called her in -following the rejection- to get a 4-year visa multiple entry visa to travel to Spain, whenever she felt like; it was clear to us that the Consul had decided that he would not apply the law in force to this case, for reasons he only knows.

Two cases that fortunately are the exception to the rule but, nevertheless, worth commenting on.

Have you had any experience with Spanish Consular staff worth mentioning? We would love to hear about your experience.

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