Tax residence and sporadic absences
The TSJ Murcia declares that a Spanish natural person, considered a tax resident in another country uninterruptedly for several years, does not become a tax resident in Spain due to having spent more than 183 days in this territory in a tax period in Spain. who had the status of resident in the other country, provided that such stay had occurred due to exceptional family issues, and provided that the tax authorities of the other country had issued a certificate of tax residence in it for that tax period.
In July 2007, a Spanish national moved his residence to Thailand, where he established his permanent home together with his wife, a native and resident of that country, and one of his daughters, Adela.
On the other hand, in the 2008 to 2012 tax periods, the natural person filed self-assessments of the IRPF model 100 and, noting the error, proceeded to submit IRNR model 210 without EP, for each of said years. The Administration admitted its residence outside Spain except in 2010, the year in which it returned to Spain to manage the will of its mother, remaining in this territory, during that year, more than 183 days.
The Administration initially admitted the non-residency in Spain of the natural person, in a data verification procedure, agreeing to the refund requested in form 210 submitted by the taxpayer. However, in that same year, the Administration issued several provisional liquidations by the IRNR, in which it agreed to the non-refoulement that the taxpayer requested, because he considered that he was a tax resident in Spain. These liquidations were confirmed by the TEAR. In front of them, a contentious administrative appeal was filed before the Supreme Court
According to the LIRPF, a natural person is resident in Spain if he stays in this territory more than 183 days during the calendar year, among other assumptions. Sporadic absences are not counted (that is, if the subject leaves Spain for a few days, these are not subtracted from the calculation of the period of stay in Spain), unless the tax residence in another country is proved.
Additionally, the CDI signed between both countries establishes how to proceed in the case that a person can be considered a tax resident in two countries. Thus, if you have a permanent home in one of them, you are considered a resident in it. In case you have a permanent home in both, you will be in the country where you have closer personal and economic relationships.
In this case, given that his wife is Thai and both she and her daughter reside in Thailand, the Court considers the Spanish tax resident there as well.
The Supreme Court of Murcia gives the reason to the taxpayer, on the grounds that tax law is a public right and, therefore, unavailable, so that the elements of the tax obligation can not depend on the will of the parties. Therefore, although the tax declarations are presumed to be true, if a subject made an error and submitted IRPF statements instead of IRNR declarations, he has the right to rectify them, having to prove that his tax residence was not in Spain.
In order to determine the tax residence of a subject in Spain it is irrelevant that he has real estate in Spain, especially if he acquired it before moving abroad. On the other hand, the contribution in the autonomous system or the payment of medical insurance does not justify that the center of vital interests of a subject is in Spain, because they are residual payments with an exclusively sanitary purpose;
The ownership of bank accounts in Spain is not relevant either, if most of the financial assets are outside that country; and the electricity consumption of the habitual residence during the stay in this country does not contribute anything to the controversy, because that dwelling was inhabited precisely in a period of sporadic absence.