Central Court Criteria for Spanish Territory Stay

Juan Carlos Cuesta Jun 6, 2023

Income Tax Residence

The Central Economic Administrative Court has once again ruled on the criteria outlined in the Personal Income Tax Law regarding the calculation of an individual's period of residence in Spanish territory. In their Resolution dated 25 April 2023, the Court has unified the doctrine previously established in their ruling of 28 March 2023. This new doctrine defines three key elements for the calculation of the 183-day requirement:

  1. Certified presence: Any day's presence must be supported by suitable evidence, with the entire day being counted regardless of the number of hours. There is no requirement to prove consecutive days of stay in the country. This element aligns with Commentary 5 to Article 15 of the OECD Model Convention.
  2. Presumed days: These are the days that reasonably elapse between two certified stays. In other words, consecutive days within a reasonable interval between two certified stays can be counted towards the 183-day requirement under Article 9.1(a) of the Personal Income Tax Law, unless certified presence outside Spanish territory is proven.
  3. Sporadic absences: In accordance with Article 9.1(a) of the Personal Income Tax Law, sporadic absences are considered alongside the days of effective presence (comprising certified presence and presumed days) to determine whether the total stay in Spain exceeds 183 days. However, sporadic absences are not strictly required if the minimum threshold specified by the law has already been met through the days of effective presence.
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