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The transfer of a property by a non resident, natural person or legal entity, may involve IRNR (taxation of non residents) accrual of capital gains tax when applicable. In the case of onerous transfers, the amount of the gain or loss is determined by the difference between the transfer and acquisition values (taking into account the costs attached to both, the acquisition and the transmission).

The purchase price will consist of the actual amount the property was purchased for, added to the amount of the expenses and taxes attached to the acquisition, excluding any interests which may have been paid by the seller. Depending on the year of acquisition, this value will be corrected by applying discount rates that are fixed on annual basis, on the annual government Budget.

In the case of natural persons it is important to know that someone is considered a NON RESIDENT when they DO NOT live in Spanish territory. This means that a person or entity will only be subject to IRNR if they are considered a NON taxpayer for income tax purposes or IS (Corporation tax) taxpayer.

To be able to determine the residence of a natural person in Spain, Article 9 of the Revised Personal Income Tax Law establishes several criteria:

  • Staying for over 183 days. A person will be considered to be a habitual resident in Spanish territory if they stay in Spain for more than 183 days during the calendar year. To determine the period of stay in Spain, sporadic absences will be counted, unless the taxpayer proves its tax residence in another country.
  • Centre of economic interests. A person will be considered to be resident in Spain when the core or base of their activities or financial interest is, directly or indirectly, in Spain.
  • Residence of spouse and children. Third, and unless proven otherwise, it it is presumed that the taxpayer has his habitual residence in Spanish territory when, according to the above criteria, the spouse not legally separated and minor children who are dependant on him, are habitual residents in Spain.
  • People with Spanish nationality, their spouse, not legally separated, and their minor children who have their habitual residence abroad, in their capacity as members of diplomatic or consular offices, holding office or employment in the Spanish State or civil servants practising abroad an official position or employment.

Individuals with Spanish nationality who can prove their new residence in a tax haven, will not lose their taxpayer status during the tax period in which the change of residence takes place, or for the following four tax periods, except in the case of employees who become tax residents in the Principality of Andorra, meeting a number of requirements.

In the event that none of the above circumstances are met, the income obtained in Spain will be considered as obtained by a non resident and, as such, they will be taxed as non residents.

In order to secure payment of any tax due, the purchaser (person buying the property from a non resident), resident or non resident natural person or legal entity is required to withhold 3% of the sale price (25.2 IRNR). There is no such obligation in the following cases:

1. When the transferor certifies that is a resident in Spain and therefore is subject to Income Tax or Corporation Tax by the Tax Office.

2. When the property is part of a provision in the constitution or capital increase of a resident company.

In order to request a refund you must submit a form (“Modelo 210”, approved by the Order EHA/3316/2010 of 17 December, stating type of income 28), at the provincial or local authority over the property subject of the transfer.

The tax rate since 2012-2014 is 21%, previously 19% .

The person who acquires the property, whether or not a resident, is required to withhold and pay to the Treasury 3% of the consideration agreed. For the seller, this amount will act as payment on account of any taxes based on the income derived from this transmission. Therefore, the acquirer will give the non resident seller a copy of Form 211 as proof of payment of the retention so that the latter can deduct this amount from the amount payable resulting from the profit statement. If the amount withheld exceeds the tax liability, you can obtain a excess refund.

Should the retention not be paid, the property will remain subject to the payment of whichever amount is lower between the withheld tax or relevant payment on account, and the corresponding tax.

To find out the exact amount, it is advisable that you go to a legal and tax advisor with all the housing data, the latest IBI receipt, date of purchase, the date of the sale so that they can calculate it and thus avoid errors.

Info provided by: WGK Abogados - Plaza Virgen del Carmen, 14 B - 03724 Moraira - +34/ 96 649 07 25