As a basic principle, Spanish tax residents pay Personal Income Tax, or Wealth Tax where applicable, on their worldwide income or assets, while non-resident individuals are taxed regionally only on their income, assets and rights sourced or located in Spain. A resident taxpayer’s income includes all earnings, profits, capital gains and losses, and attributed income established by law during the calendar year, regardless of where it is obtained. Income tax is due on June 30 of the subsequent year.

In Spain, powers over certain tax matters are partially or fully delegated to the autonomous communities (administrative territories). Personal Income Tax is partially collected by the autonomous communities, while Inheritance and Gift Tax and Wealth Tax are fully collected by them. The autonomous communities can also modify the corresponding share of the tax delegated. Consequently, an individual’s place of residence within Spain requires special attention, as it will directly affect their taxation.

Non-residents apply the tax legislation of the Spanish autonomous community where their highest value assets are located.

The Personal Income Tax base is broken down into two categories with different tax rates:

• The saving tax base, which mainly includes (i) income from movable capital (dividends and interest); (ii) positive and negative capital gains, which arise on transfers of assets. The maximum tax rate for 2023 would be 28% for income above EUR 300,000.
• The general tax base includes employment, business and professional income, imputed income from unrented real estate, imputed income from controlled foreign corporation when applicable.,

Wealth Tax is a direct and personal tax imposed on a taxpayer’s assets and rights as at December 31. Non-residents are taxed on assets located in Spain and rights that can be exercised there. The autonomous communities apply this tax, so it will depend on where an individual is a resident. Madrid and Andalusia have a tax credit of 100% against gross wealth tax (i.e., no wealth tax). In autonomous communities where wealth tax is applied, special attention should be paid to deductions on family-owned business and to the cap on joint Personal Income Tax and Wealth tax, which cannot exceed 60% of income subject to the personal income tax, both in the general and savings tax base, without considering capital gains from assets held for more than one year. When the total sum payable (Wealth tax plus Personal Income Tax) exceeds 60% of the tax base, the wealth tax payable can be reduced by 80% to reach that 60%, so that 20% of the Wealth Tax is always payable.

On 28 December 2022 the Extraordinary High Net Worth Individuals Tax, complementary to the Wealth Tax, was published. It is a tax of a personal nature and complementary to Net Weath Tax (NWT), which is levied on net wealth in excess of EUR 3,700,000 for tax resident individuals and for non-resident individuals in excess of EUR 3,000,000 of assets located in Spain and/or rights that can be exercised in Spain. This tax is a temporary tax with a duration of two years from its entry into force (2022 and 2023). The rules contained in the Wealth Tax, and described above, shall be applicable for the determination of the taxable base of this Extraordinary Tax.

The tax rates are as follows: 

• a tax rate of 1.7% between EUR 3,000,000 and EUR 5,347,998.03; 
• a tax rate of 2.1% between EUR 5,347,998.03 and EUR 10,695,996.06; and 
• a tax rate of 3.5% above EUR 10,695,996.06. 

Again, the joint limit described above for Wealth Tax will also be applicable to this Extraordinary Tax. For these purposes, the amount to be paid under the Extraordinary Tax, together with the amounts to be paid for Personal Income Tax and Wealth Tax and the Extraordinary Tax, cannot not exceed, for Spanish resident taxpayers, 60% of the sum of the taxable bases of Personal Income Tax, without taking into consideration capital gains from assets held for more than one year.

This tax has raised great legal concerns based on:

• The lack of parliamentary procedures. While affecting the legal framework relating to the financing of the Spanish Regions, the Government has not modified the Law of Financing of the Regions subject to reinforced parliamentary procedures (i.e., specific reports, public information, etc.). 
• Constitutional breach. The new tax has been introduced as an amendment to a Law not relating to the tax, which was introduced once the original Law had already been subject to parliamentary discussion. By doing so the political parties supporting the government impede the remaining members of the Parliament from discussing, proposing amendments to etc., the proposed extraordinary tax.  Accordingly, their constitutional rights as legislators have not been respected. 
• Legal uncertainty. The fact that the new tax was approved and officially published on December 28th 2022, three days before it became due, surprisingly, running over taxpayers and without allowing the taxpayer the opportunity to prepare or adapt (there is an element of retroactivity) affects a very basic principle contemplated in the Spanish constitution – the right to “legal certainty”. By acting as it has done, the Spanish legislator has breached the legitimate expectations of taxpayers with regards to the tax treatment they could expect. 
• Potential breach of EU fundamental freedoms. This new tax may affect the freedom of movement of persons and capitals within the European Union, affecting the internal market. As a consequence of these legal concerns, a great level of litigation is expected once the corresponding tax is declared and paid through the month of July. 

The government has also introduced legislation aimed at promoting startups, with significant changes affecting the venture capital industry, entrepreneurs and impatriates.

Under the impatriate regime, individuals are taxed in Spain only on their Spanish-source income and capital gains, except for income from employment and entrepreneurial activities, which is taxed on a worldwide basis.

This regime applies in the tax period in which the taxpayer acquires tax residence in Spain and for the following five tax periods (i.e., for a total of six years), unless the taxpayer is excluded from the regime or waives its application. This regime also extends — under certain conditions — to impatriates’ spouses and children up to 25 years of age or to children of any age who have disabilities. 

The basic requirements to apply this regime are:

• Not being a tax resident in Spain in the last five years.
• Moving to Spain for work reasons, which are:
  • having an employment contract;
  • people working for a foreign company rendering their services remotely (digital nomads);
  • being the director of a company (if the company is considered a passive company, the company cannot be a related party to the director; i.e., the director must have a shareholding below 25%); 
  • carrying out an entrepreneurial activity in Spain (any activity that is innovative or of special economic interest and obtains a favorable report issued by the state-owned innovation company Empresa Nacional de Innovación SA (ENISA)); and 
  • being a highly qualified professional who moves to Spain to carry out an economic activity that involves providing services to startups or to carry out training, research, development, and innovation activities for which the individual receives remuneration that makes up over 40% of their income from work and economic activities.
• Not to obtain income to be qualified as obtained through a permanent establishment located in Spanish territory.
• Filing Form 149 to notify the Spanish tax authorities of the decision to apply this regime within six months from the date of starting the activity listed in the social security registration in Spain or in the documentation that allows the individual to maintain the social security legislation of the country of origin. 

If the impatriate regime applies, the basic principle is that individuals who become tax residents in Spain are only taxed on their Spanish-source income — as defined in the regulations applicable to non-residents — rather than on a worldwide basis, and they do not pay taxes on foreign-source income, except income from labor or professional activities, which is taxed at 24% on the first EUR 600,000 and, above this figure, at the marginal tax rate of the autonomous community where the individual is a tax resident.

Exit Tax applies when the individual leaving Spain has been considered a tax resident in Spain for at least 10 out of the 15 tax periods before the last tax period in which the individual was subject to personal income tax. For taxpayers who have chosen to apply the impatriate regime, this period will start running from the first tax period in which the impatriate regime is no longer applicable.

With regards to Inheritance and Gift tax, individuals are subject to the legislation of the autonomous community where they reside.

Finally, they will be subject to Wealth Tax only on the assets and rights that are located or that can be exercised in Spain.

The Spanish legal system, figures and institutions all follow the tradition and principles of civil law. 

Within this framework, Spain is a European Union Member State so European legislation directly influences or has preferential application to Spanish international private law. This means that Spanish international private law, as stated in the Spanish Civil Code, has been modified or must be interpreted according to the European Union regulations, directives and its other legislation, even when applied to non-European citizens (sometimes also under the scope of these regulations). This is particularly relevant in cases of dual or multiple citizenship.

In addition, Spain is divided into 17 administrative territories, regions or autonomous regions (comunidades autónomas). Some of the regions have the sovereign authority to regulate civil matters, but this is limited to personal relationships (i.e., family and inheritance law) in those regions and does not affect the regulation of contracts. In relation to internal civil law, we can differentiate between the so called “foral regions” (territorios forales), which include the regions of Catalonia, Basque Country, Navarre, Galicia, Balearic islands and Aragón, and the “common law regions” (so-called “territorios de derecho común”) that corresponds to the rest of Spain including the Canary Islands. These differences are due to historical reasons and medieval traditions that have coexisted. Accordingly, the Region within Spain in which a person lives, or dies, will have a direct impact on the applicable law and regulations. 

The region in which a person is resident within Spain will, therefore, have an impact on the applicable civil law.

From a Wealth planning perspective, the main issues with regards to business related participations are the limits for Family owned business to have access to the different exemptions and substantial deductions that are applicable under Spanish Wealth Tax. If the family business meets the requirements to be exempted for Wealth Tax purposes in principle there is a general 95% reduction, which is even higher in some regions, for transfers of participations in family businesses under Spanish Inheritance and Gift Tax both at national and regional levels. With regards to financial investments, the main issue is obtaining the rollover exemption. Under certain circumstances, divestments in collective investment institutions (CIIs) are exempt when the proceeds obtained are reinvested in other CIIs, with the new participation maintaining either the original acquisition cost or the participation being transmitted. 

Following the current wording, the amount obtained by a Spanish tax resident individual as a result of the reimbursement or transfer of shares in Collective Investment Institutions (CIIs) being commercialized in Spain, is used, in accordance with the procedure established by Personal Income Tax Regulations, for the acquisition or subscription of other shares in CIIs, the capital gain or loss shall not be taken into account for Personal Income Tax purposes, and the new shares subscribed for shall retain the value and the date of acquisition of the shares transferred or reimbursed, in the following cases:

• redemptions of units in CIIs which are regarded as investment funds; or
• on transfers of shares in CIIs with corporate form (SICAV), provided that both of the following conditions are met:
  • the number of shareholders of the CII whose shares are transferred exceeds 500; and
  • the taxpayer has not held, at any time during the 12 months prior to the date of the transfer, more than 5% of the capital of the CII.

Finally, a new anti-abuse clause has been introduced under the Wealth Tax, applicable from tax year 2022, according to which securities representing equity interests in any type of entity, not traded on organized markets, of which at least 50% of its assets are directly or indirectly made up of real estate situated in Spanish territory, shall be deemed to be situated in Spanish territory for the purposes of applying this tax. Accordingly, non-residents holding equity in companies whose assets consist directly or indirectly of over 50% of immovable property situated in Spanish regions where the Wealth tax applies will be subject to Wealth Tax. The applications of Tax Treaties in force with Spain should be analysed as they may limit the application of this new provision.
 

Regional authorities have the sovereignty to administrate certain taxes. For Tax and Wealth planning for individuals the relevant taxes would be Wealth Tax and the Inheritance and Gift Tax. These taxes are regulated at national level but administrated by the Regions. 

Wealthy individuals that generate income derived from shares or financial assets (i.e., dividend income, interest income or capital gains), are subject to tax at a maximum tax rate of 28%, applicable to all income above EUR 300,000.

It is important to mention that, with regards to Inheritance and Gift Taxes, significant allowances apply at the national and regional levels, as well as special tax relief in some Autonomous Regions, mostly for mortis causa or inter vivos transfers between close relatives or inheritance of family owned businesses. These allowance can significantly reduce the taxation, applying a 99% deduction to inheritance between direct relatives, which is the case for the Autonomous regions of Madrid and Andalusia. With regards to Wealth tax, both resident and non-resident individuals are subject to Wealth Tax, applying the regulations of the Region in which the individual is resident, or in which the majority of the assets in Spain are located. The Region of Madrid decided not impose the tax and approved a tax deduction of up to 100% of the quota. Therefore Wealth Tax is not applicable in the Madrid Region. The Region of Andalusia has announced that will also limit the application of this tax.

There have been important case law developments in Spain with regards to the concept of residency and when an individual is to be considered as a Spanish resident for tax purposes. The Spanish Supreme court has taken a stricter position, benefiting tax payers, than the Spanish Authorities challenging specific cases. 

With regard to reporting obligations, Spanish residents are obliged to annually declare their assets located abroad by filling out Form 720. Therefore, as the assets a Spanish resident settlor transfers to an offshore trust are still considered the settlor’s property, and because the trust should be disregarded, the settlor is obliged to include in Form 720 the assets transferred to the trust as well as, under certain circumstances, the trust’s tax residents’ beneficiaries, 

Previously, there were significant penalties for incorrect, incomplete or late reporting. In addition, rights and assets abroad that had not been reported to the authorities in time could be treated as unjustified capital gains, which would be added to general taxable income and subject to the progressive tax rates discussed above in the earliest tax period among those that are open to a tax audit and subject to a potential 150% penalty. Even if the taxpayer was able to prove that those assets or rights derive from a statute barred year, the taxpayer was not be able to avoid these severe tax implications for personal income tax unless the taxpayer proved that those assets and rights were acquired with disclosed income or with income earned in years the taxpayer was not resident in Spain.

However, the Court of Justice of the European Union issued a judgment on January 27, 2022 (Case C-788/2019) concluding that Spanish legislation regulating tax Form 720 (form regulating the declaration of assets held abroad by Spanish tax residents) is contrary to EU law.

Specifically, it found that restrictions on the free movement of capital are disproportionate with regard to the three issues raised in the proceedings:

• No possibility of benefiting from limitation. 
• The fine of 150% linked to the tax resulting from unjustified capital gains imposed on taxpayers that fail to comply with reporting obligations.
• The flat-rate fines imposed for failure to submit tax Form 720, for submitting it late, and for providing incorrect information. 

Nevertheless, the obligation to provide information on assets and rights located abroad has not been declared contrary to EU law. Therefore, it remains fully in force. 

No relevant local case law developments have taken place in the recent past.

Spain is perceived as a country of high taxes. However, Spanish legislation is also aimed at favouring the development of international activity relating to real businesses and at attracting talent. In addition, its extensive tax treaty network and bilateral investment protection treaties, especially, due to historical reasons, with Latin-American countries, makes Spain a country of choice for establishing international platforms that Spanish multinational companies have enjoyed and that is also available to anyone effectively establishing residence in the country.

A good example is the exemption of the requirement of 10 or 5 years of effective residency prior to initiating the administrative process for obtaining a Spanish passport or citizenship — reduced to two years for nationals of Spanish spoken Ibero-American countries, Andorra, Portugal, the Philippines, Equatorial Guinea and Sephardi Jews.

Investors in Latin-American countries also consider Spain in order to benefit from its special regime for holding companies (Entidad de Tenencia de Valores Extranjeros (ETVE)). The ETVE is defined as a resident company whose corporate purpose is to manage participation in companies that are non-resident in the Spanish territory and that have human and physical means. The Spanish holding regime lies on the following main principles:

• Dividends obtained and capital gains derived in the sale of shares in subsidiaries by the Spanish ETVE are 95% tax exempt if the general requirements for the Spanish participation exemption regime are met.
• Dividends and capital gains obtained by non-resident shareholders of the ETVE are not subject to tax in Spain, to the extent that both originate from foreign-sourced dividends or capital gains that were exempt at the level of the ETVE.

Thus, as to the shares in foreign subsidiaries that develop business activities, this special tax regime allows an almost neutral tax treatment to both the Spanish holding company and its non-resident shareholders. Moreover, the ETVE has access to Spain’s extensive network of double tax treaties and benefits from a consolidated and stable regime. This explains Spain’s attractiveness as a holding company jurisdiction. Finally, the application of Investment protection treaties signed by Spain will also be relevant, especially with Latin-American countries. Spain has the most extensive Tax and Investment Protection Treaty network with countries in Latin-America.

From a practical perspective, an individual tax resident in Madrid, would be subject to taxation on savings income above EUR 300,000 at a flat rate of 28%; will not be subject to taxation under Wealth Tax and will benefit from a 99% deduction on Inheritance and Gift Tax between spouses and direct line of descendants and ascendants. 

Legislation has been disclosed aimed at promoting start-ups that introduce significant changes affecting the venture capital industry, entrepreneurs and impatriates with the purposes of incentivising investment and attracting the development of new activities in Spain. 

The concept of trust does not exist under Spanish legislation. Spanish legislation does not recognise trusts and has not signed nor ratified the Hague Convention of 1 July 1985 on the Law Applicable to Trusts and on their Recognition. 

In addition, where the term “trust” is used in Spanish legislation it is to clarify the Spanish word ‘fideicomiso’ (fiduciary agreement) in the list of legal agreements to be closely followed, and which would be subject to special scrutiny when used.

As a trust cannot be incorporated under Spanish legislation, in principle, Spanish legislation would be applicable only where, under private international law, the law applicable to the assets within a trust is Spanish legislation or Spanish tax resident individuals are involved, causing uncertainty relating to tax conclusions when analysing particular trust arrangements.

For the Spanish legal system, a trust cannot have rights or obligations, nor can it own assets. This is because the Spanish legal system considers property to be an unlimited right, which cannot be divided into "formal ownership" and "economic ownership" unless a partial disposal of said right takes place. The specific trust arrangement will have to be analysed, and potential tax consequences will follow from the classification of the transactions agreed by the parties under Spanish civil law. 

In general, under Spanish legislation, the legal owner is also the beneficial owner unless a transfer has taken place. Under a simplistic approach, a conclusion might be that in case of a trust, the trustee (as legal owner) is treated as beneficial owner; however, it can also be interpreted that as long as no transfer (presumably to the beneficiary) has taken place it is the settlor who is considered as the beneficial owner. As there is very little administrative doctrine on the taxation of trusts and what exists is inconclusive, Spanish taxation of a trust can be controversial, depending on the regulation and the type of income obtained by the trust.

According to the Spanish tax authorities’ current interpretation, trusts should be disregarded for tax purposes: the relationships established through this figure are considered to take place directly between the individuals involved. Due to this principle, and as a general rule, Trusts, as such, are not subject to taxation in Spain and are not considered taxpayers. 

The Spanish tax authorities have traditionally interpreted the trust’s assets as being directly owned by the settlors until their death and considered that distributions made by the trustee to the beneficiaries while the grantor remains alive are a gift from the settlors to the beneficiaries and, if made upon death of the settlor, constitute an inheritance. According to this interpretation, non-resident trustees are generally treated as mere administrators of the trust funds. 

However, recent tax rulings issued by the Spanish tax authorities have drawn attention to the clauses, facts and circumstances of each trust to determine which of the parties in the trust should be deemed the owner of the assets. In this regard, the Spanish tax authorities have recently considered that the assets in a trust may already belong to the beneficiaries when, for instance, the beneficiaries:

• have a clear right to dispose of the assets in the trust and to request them from the trustees; and 
• are also the trustees and have broad powers to dispose of and distribute the assets. 

Therefore, particular attention should be paid to the clauses of the trust deed and the actual actions of the settlors, protectors, trustees and beneficiaries to determine who should be considered the owner of the assets in trust.

There have been no significant local legislative and regulatory developments. 

The only case law to date is the Spanish Supreme Court decision of 30/04/2008, according to which the trust constitutes a legal institution that establishes a fiduciary relationship both inter vivos and mortis causa. The High court established that this institution is not foreseen under Spanish legislation. The case goes on and recognized that in the case under analysis following International conflict law applicable in the Spanish legal system, the foreign law would have been of application. However, such foreign law was not proved and, accordingly, Spanish law was the one applicable. This statement opens the door for scholars to consider that, if properly proved, the foreign law would have been of application and with the foreign law the trust would have been recognized, provided the specific trust does not go against the Spanish public order (public policy) or constitute a legal fraud.

In addition, Act 29/2015, of July 30, on international legal cooperation in civil matters, forces the Spanish courts to:

• recognize an unknown legal institution (e.g., a trust); and 
• adapt its effects to those of an institution under the Spanish legal system. 

The EU Succession Regulation (EU 650/2012) contains a similar rule. However, the application and legal development of these regulations remains to be seen. 

There have been no local case law developments.

It is worth mentioning life insurance contracts of the unit linked type under which the policy holders bear the risk of the investments under the policy as are extensively being used as an alternative to trusts and private foundations for the structuring and administration of a person’s assets.

Spanish Inheritance and Gift Tax provides that the amounts received by individuals (both Spanish-residents or, under certain conditions, non-residents) who are beneficiaries of life insurance contracts are taxable under Inheritance and Gift Tax, either as a gift or as an inheritance (depending on the circumstances), if the beneficiary is a person different from the policyholder.

For Personal Income Tax purposes, income deriving from life insurance contracts and obtained by Spanish tax-resident individuals is considered to be “movable capital” and is included in the “savings income taxable base” and taxed at the marginal rate of 28% for income above EUR 300,000.

There have been no developments relating to the COVID-19 pandemic.

As trusts are disregarded under Spanish law, there is no trust litigation and controversy in Spain. The general approach from a tax perspective to disregard the arrangements under the trust, although the tax authorities are increasingly paying attention to the clauses, facts and circumstances of each trust to determine the party in the trust that should be considered the owner of the assets and to ascertain the tax implications deriving therefrom.

Spanish regulation on the legal capacity of persons with disabilities have been amended extensively. The aim of the new legislation is for people with disabilities to make their own decisions. For this purpose, the law establishes support systems that aim to respect their will and preferences. This legislation is changing the approach of legal advice when dealing with persons with disabilities, particularly in civil, corporate or litigation matters.

There have been no relevant local legislative and regulatory developments. 

There have been no relevant national case law developments. 

There have been no relevant local case law developments. 

None.

There have been no developments relating to the COVID-19 pandemic. 

1. Spain is a member of the European Union and has signed the Schengen agreement under which 27 European countries have abolished their borders. Does Spain offer a golden visa program? 

Yes, Spain offers residence permits for investors to non-European Union citizens who invest in Spanish territory and have sufficient means to sustain their living in Spain. This residence permit does not require actual residence in Spain and entitles the holder to work as an employee, be self-employed and hire third parties. The investment required is one of the following: 

• real estate in Spain with a value equal to or greater than EUR 500,000, free of taxes, liens and encumbrances; 
• EUR 1 million in bank deposits in Spain; 
• EUR 1 million in shares in Spanish companies with a real business activity; 
• EUR 1 million in investment funds, closed-end investment funds or venture capital funds incorporated in Spain; or 
• EUR 2 million in Spanish public debt. 

This permit does not require actual residency and allows the holder to choose between residing in Spain, becoming a Spanish tax resident or using the permit as a multiple-entry visa.

2. Is the golden visa program a pathway to Spanish citizenship? 

Individuals who are residents in Spain can apply for Spanish citizenship. The general requirement is 10 years of continuous residency before applying, although this requirement is reduced to two years for individuals from Latin America, Andorra, Philippines, Equatorial Guinea, and Portugal, as well as for Sephardic descendants. This possibility is one of the reasons Spain is such a popular European destination for Latin Americans. 

3. Is Spain still an attractive jurisdiction for tax purposes in the international environment? 

Spain’s culture, infrastructure, health system, and climate make it an attractive destination, as do its golden visa programs, citizenship legislation, impatriate regime, regional inheritance tax regime, tax regime for holding companies, and investment protection agreements with Latin American countries. However, each case must be analyzed on an individual basis.