Tax residency cases in Spain: The devil is in the detail

‘THE devil is in the details’: that oft-repeated proverb implies that it’s the details that can make things fall apart, which is precisely what occurred in these three real test cases.

In each of them, the unfortunate resident thought that by having tax-residence-of-convenience status in Andorra or Switzerland and spending a short time there, they would be shielded from the action of the AEAT, the Spanish tax office.

Test case 1: A man who defined himself as a Swiss tax resident lost a case brought by the AEAT which claimed he was a resident of Spain. The taxpayer had argued that, according to the Spain-Switzerland DTA (Double Taxation Agreement), he could be classed as a resident of both countries.

Indeed, he did have properties in both Switzerland and Spain, as well as a daughter in each country. But according to the Spanish Supreme Court, those facts alone did not conclusively establish dual residency.

The devil in his case was that he had signed up to the Spanish Automobile Club as well as maritime clubs in Ibiza and Marbella, without similar memberships in Switzerland. The taxpayer did point out that there is no sea in Switzerland, to no avail.

Test case 2: Although he was based in Andorra and even married to an Andorran citizen, a Spanish taxpayer was unable to successfully establish his residency there.

The AEAT argued that he had a company in Barcelona, his apartments in Spain were being regularly used, utility bills were being sent there and paid regularly, he had hired domestic employees and had a daily subscription to a local paper.

In its ruling in favour of the AEAT, the Catalonia Supreme Court dismissed the man’s tax residency certificate from the Andorran authorities as irrelevant.

Test case 3: In a similar case, the AEAT proved that a person who claimed Andorra residency was in fact in Barcelona-based, because his medical insurance broker was based there. More conclusively, a hospital in the city reported frequent visits, which the AEAT said was inconsistent with living in Andorra.

But the AEAT does not always get its way and it’s worth remembering that it has no influence over Court decisions. In a subsequent issue, we’ll talk about some taxpayers who challenged the AEAT and won.