TAXATION OF NON-RESIDENTS. (Non-resident Income Tax) INCOME ACCRUED FROM 1 JANUARY This publication is merely for information purposes.

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1 This publication is merely for information purposes. TAXATION OF NON-RESIDENTS (Non-resident Income Tax) INCOME ACCRUED FROM 1 JANUARY 2011 TAX Agency MINISTRY OF THE FINANCE AND CIVIL SERVICE V.10 4 April 2017

2 S U M M A R Y 1. THE TAXPAYER AND RESIDENCY A. Residency for natural persons B. Residency for legal persons OTHER PERSONAL ELEMENTS A. The representative B. The joint and several guarantor TAXATION OF THE MOST COMMON INCOME TYPES OBTAINED IN SPAIN BY NON-RESIDENT TAXPAYERS A. Income from economic activity: A.1. Income from economic activity obtained through permanent establishment A.2. Income from economic activity obtained without permanent establishment B. Other income B.1. Work income B.2. Pensions B.3. Managerial payments B.4. Income from liquid capital (dividends, interest, royalties) B.5. Earnings from real estate C. Income charged from urban real estate assets D. Capital gains D.1. Capital gains arising from the sale of buildings D.2. Other capital gains WITHHOLDING ON INCOME NOT OBTAINED THROUGH PERMANENT ESTABLISHMENT A. Taxpayers obliged to withhold tax B. Income types subject to withholding of tax C. Documentation D. Amount of the withholding E. Obligation to file a return by taxpayers obliged to withhold DECLARING INCOME NOT OBTAINED THROUGH PERMANENT ESTABLISHMENT BY NON-RESIDENTS A. Obligation to file B. Form and period for filing C. Documentation D. Ways to file using form SPECIAL TAX ON REAL ESTATE ASSETS OF NON-RESIDENT ORGANISATIONS SPECIAL TAX ON PRIZES FROM CERTAIN LOTTERIES AND BETS

3 8. OPTIONAL REGIMES A. Workers who move to Spanish territory B. Taxpayers resident in other Member States of the European Union (EU) or of the European Economic area with operative exchange of tax information SPECIAL PROCEDURE TO DETERMINE THE TAX WITHHELD ON WORK INCOME IN THE CASE OF CHANGE OF RESIDENCE A. Workers who move to Spanish territory B. Workers who move abroad APPENDICES Appendix I. Appendix II. Appendix III. Countries with Agreements Countries and territories with agreements to exchange tax information Coefficients for updating acquisition price Appendix IV. Limits on taxes in the agreements Appendix V. Tax Havens (1) Appendix VI. Member States of the European Union or of the European Economic area with operative exchange of tax information Appendix VII. Regulations

4 1. THE TAXPAYER AND RESIDENCY The way in which natural or legal persons must pay income tax in Spain is determined by whether they are resident or not resident in the country. Residents pay tax through Personal Income Tax (IRPF) or Corporation Tax (IS); however, non-residents, both natural and legal persons, pay tax through Non-resident Income Tax (IRNR). 1.A. Residency for natural persons. INTERNAL REGULATIONS Natural persons (private individuals) are considered to have their usual place of residence in Spain when any of the following circumstances apply: They remain in Spain for more than 183 days during a calendar year. In order to determine the period of stay, the sporadic absences are calculated, except those where the tax residency in another country is proven. In the case of countries or territories labelled as tax havens, the Tax Administration can demand proof of stay in that tax haven over a period of 183 days in the calendar year. In order to determine the period of stay, temporary stays in Spain that are the consequence of contractual obligations in agreements of cultural or humanitarian collaborations performed free of charge with the Spanish Public Administrations are not included. They situate the main base or centre of their activities or economic activities, directly or indirectly, in Spain. Also, it is presumed, except when proven otherwise, that a taxpayer has their usual place of residence in Spain when, using the above criteria, the not legally separated spouse and the underage dependant children are usually resident in Spain. Furthermore, Spanish nationals who prove their new residency in a tax haven (Appendix V), will continue to hold the condition of taxpayers for Personal Income Tax, both in the taxable period in which they change their residence as well as in the four following tax periods. A natural person will be considered as either resident or not resident during a calendar year, as a change of residence does not imply an interruption of the taxable period. Special circumstances Spanish nationals, their not legally separated spouse and their under-age children, who have their usual place of residence abroad, will continue to be considered income tax (IRPF) payers if they are: Members of Spanish Diplomatic Missions, including both the head of the mission and the members of the diplomatic, administrative, technical or service staff. Members of Spanish Consular Offices, including both the head of the office and the civil servants or service staff with the exception of honorary vice-consuls or honorary consular agents and the staff under them. 4

5 Holders of State official positions or employment as members of delegations and permanent representatives accredited to international organisations or who form part of delegations or missions of observers abroad. Working civil servants exercising an official position or job abroad, which is not diplomatic or consular in nature. However, these considerations will not apply when: a) The people listed above are inactive civil servants or holders of official positions or employment and had their usual place of residence abroad prior to the acquisition of any of the circumstances listed above. b) In the case of not legally separated spouses or under-age children, when their usual place of residence was abroad prior to the acquisition by the spouse, father or mother of any of the circumstances listed above. AGREEMENTS AND DOUBLE RESIDENCY In the agreements to avoid double taxation signed by Spain, to define a person as resident of a State, reference is made to the internal legislation of each State. Bearing in mind that each State can establish different criteria, two States may consider a person as a resident. In these cases, the agreements generally establish the following criteria to avoid a person being considered resident in both States: 1) A person will be resident in the State in which they have their permanent home available to them. 2) If they have a permanent home available to them in both States, they will be considered resident in the State with which they have the closest personal and economic relations (centre of vital interests). 3) If the above criteria could not be determined, they will be considered resident in the State where they usually live. 4) If a person usually lives in both States or does not live in either of them, they will be considered resident of the State of which they are a national. 5) Lastly, if they are a national of both States, or of neither, the responsible authorities will resolve the case by mutual agreement. ACCREDITATION OF TAX RESIDENCY Tax residency is proven by means of a certificate issued by the responsible Tax Authority of the country concerned. The period of validity of these certificates is one year. A person can have a residence permit or administrative residence in a State and not be considered a tax resident therein. 5

6 1.B. Residency for legal persons INTERNAL REGULATIONS An organisation is considered to be resident in Spain when it complies with any of the following criteria: It was incorporated according to Spanish Law. It has its registered address in Spanish territory. Its effective head office is in Spanish territory. An organisation is considered to have its effective head office in Spanish territory when the management and control of the sum of its activities are exercised from said territory. In the case of a change of address, the tax period will end when this change has taken place. The Tax Administration will presume that an organisation located in a country or territory of no taxation 1, or considered to be a tax haven, has its residence in Spanish territory when its main assets, directly or indirectly, consist of assets situated in or rights that it satisfies or exercises in Spanish territory, or when its main activity is undertaken here, except when it proves that its address and effective management take place in that country or territory, and also that its incorporation and operations correspond with valid economic motives and substantive business reasons that are distinct from the simple management of securities or other assets. AGREEMENTS AND DOUBLE RESIDENCY If there is an agreement, when an organisation is considered to be resident in both States, the agreements establish in general that it will be considered as resident only in the State where its effective headquarters is located. ACCREDITATION OF TAX RESIDENCY A legal person proves its tax residence in a specific country by means of a certificate issued by the Tax Authority. The period of validity of these certificates is one year. The certificate shall be valid indefinitely if the entity subject to tax is a foreign country, one of its political or administrative subdivisions or its local entities. 2. OTHER PERSONAL ELEMENTS In addition to the taxpayer, in the non-residents area, the following personal elements are of special importance: The representative Joint and several guarantors 1 There is no taxation when the country or territory does not apply a tax identical or analogous to Personal Income Tax, Corporation Tax or IRNR, as applicable. Taxes considered to be identical or analogous are those intended to tax income, including partially, regardless of whether the taxable amount is income itself, revenues, or any other element indicating income. In the case of Personal Income Tax, social security payments will also be considered in the terms determined by the regulations. An identical or analogous tax is considered to be applied when the country or territory has signed an agreement with Spain to avoid the applicable international duplicate taxation, with the special provisions of each agreement. 6

7 2.A. The representative Non-resident taxpayers are obliged to appoint an individual or organisation resident in Spain to represent them in dealings with the tax administration in the following cases: When they operate through permanent establishment. When the taxpayer is an organisation under the income apportionment system constituted abroad with presence in Spanish territory. When they provide services, technical assistance, installation or assembly works deriving from engineering contracts and, in general, from activities or financial operations performed in Spain not through permanent establishment, where the taxable base is the difference between gross income and the costs of personnel, materials and other supplies. When the Tax Administration so requires. When they are residents in countries or territories with which no effective tax information exchange agreement exists 2, who are holders of assets situated in, or rights that are settled or exercised in Spanish territory, excluding securities traded in official secondary markets. However, taxpayers may voluntarily appoint a representative with residence in Spain who can serve as a communication channel with the Tax Administration. The representatives of non-resident taxpayers who operate in Spain through permanent establishment and of organisations in the special tax regime for income attribution established abroad with a "presence in Spanish territory" will be jointly and severally responsible for the payment of tax liabilities. 2.B. The joint and several guarantor The following will be jointly and severally responsible for the payment of tax liabilities corresponding to the earnings they have paid or the income from assets or the deposit or management of rights they recommended: The payer of the income accrued without permanent establishment The depository or manager of the assets or rights not effected through permanent establishment Additionally, in the case of income payers, and in the case of depositories or managers of assets or rights pertaining to residents in countries or territories considered tax havens (Appendix V), the 2 There is effective information exchange with countries and territories which are not considered to be tax havens, to which the following are applicable: a) An agreement to avoid double international taxation with an information exchange clause, provided that the agreement does not expressly establish that the level of tax information exchange is insufficient for the purposes of this provision; b) an agreement to exchange tax information; O c) he OECD and Council of Europe Convention on Mutual Administrative Assistance in Tax Matters, amended by the 2010 Protocol. Notwithstanding the above, the regulations can define the cases in which this exchange effectively does not exist, due to limitations on information exchange. 7

8 Tax Authorities may deal directly with the liable party, without the need for any prior action attributing responsibility. However, joint and several responsibility will not exist when it results from the application of the obligation to withhold tax. The representatives of non-resident taxpayers who operate in Spain through permanent establishment and of organisations in the special tax regime for income attribution established abroad with a "presence in Spanish territory" will be jointly and severally responsible for the payment of tax liabilities. 3. TAXATION OF THE MOST COMMON INCOME TYPES OBTAINED IN SPAIN BY NON-RESIDENT TAXPAYERS Non-resident natural and legal persons will be considered non-resident income taxpayers insofar as they obtain income in Spanish territory, as defined in the tax. In the case where the taxpayer is resident in a country with which Spain has signed an Agreement to avoid double taxation, it will be necessary to be familiar with its provisions as in some cases taxation is less, and in others, income may not be submitted for taxation in Spain if specific circumstances are present. In these cases where income cannot be taxed in Spain (exempted by agreement) or is taxed with a limit, the non-resident taxpayer must prove residency in the country with which Spain has signed the agreement, using the corresponding certificate of residency issued by the tax authorities of their country, which should indicate explicitly that the taxpayer is resident in the sense given in the agreement. The criteria for the most significant income types to be understood as obtained in Spanish territory, taxation according to internal Spanish regulations and agreements to avoid duplicate taxation are given below. 3.A. Income from economic activity: This type of income can be obtained through or without permanent establishment in Spanish territory. 3.A.1. INCOME FROM ECONOMIC ACTIVITY OBTAINED THROUGH PERMANENT ESTABLISHMENT INTERNAL REGULATIONS According to Spanish law, income from economic activity through permanent establishment in Spanish territory is understood to be obtained in Spanish territory. In accordance with Spanish law, a natural or legal person is considered to operate through permanent establishment when they have the following in Spanish territory: 8

9 Head office Branch offices Offices Factories Workshops Warehouses, shops or other establishments Mines Oil or gas wells Quarries Farming, forestry, livestock operations or any other place of exploration or extraction of natural resources. Construction, installation or assembly works whose duration exceeds six months. In short, when a non-resident has available in Spain, in any capacity, facilities or places of work of any type in which they usually perform all or some of their business or when they act in Spain through an agent authorised to contract on behalf of and for the account of the non-resident person or organisation, provided they habitually exercise these powers, they are considered to be nonresidents acting through permanent establishment. AGREEMENT When an agreement to avoid duplicate taxation is applicable, the definition of permanent establishment in the agreement must be taken into account. This is normally more restrictive than in Spanish law. Also, as a general rule agreements confirm the authority of the State where the permanent establishment is located to levy tax, ruling that business profits, if obtained through permanent establishment situated in Spain, or income from professional activity, if obtained through a fixed base, can be subject to taxation in Spain, in which case they will be taxed according to domestic Spanish law. TAXATION According to Spanish law, non-residents who obtain income through permanent establishment in Spain will pay tax on the totality of the income attributable to this establishment, wherever the income is obtained. Attributable income comprises earnings from the economic activities or operations undertaken by this permanent establishment, those derived from elements related to the permanent establishment and the liable capital gains or losses derived from the related elements. Liable capital gains or losses are those linked functionally to the undertaking of the activity. Liable capital gains or losses are considered to be those reassigned within the three tax periods following the time when they were made. The assets representative of holdings in the capital of an organisation are only considered liable capital gains or losses when the permanent organisation is a branch office registered in the Companies Register, these assets are reflected in the accounts of the permanent organisation and, being a permanent organisation that can be considered to be parent organisation, this permanent organisation has a corresponding organisation of material resources and staff available to direct and manage these shares. The taxable base of the permanent establishment will be determined according to the provisions of the general Corporation Tax system, applying the system of compensation for negative taxable bases, with the following special areas of activity: Application of the rules for related party transactions performed by the permanent establishment with the head office, or with another permanent establishment of the same head office and with other individuals or organisations connected to the head office or its permanent establishments, either those situated in Spanish territory or abroad. 9

10 Generally, non-deductibility of the payments that the permanent establishment makes to the head office for fees, interest, commissions, technical assistance services and for the use or assignment of assets or rights. (See section Estimated outgoings and attributed income from the internal operations of a PE ) Deductibility of part of the general management and administration overheads charged by the head office to the permanent establishment, as long as they are reflected in the accounts of the permanent establishment and are charged continually and rationally. For the determination of these expenses, it is foreseen that the taxpayers can submit proposals to the Tax Administration for the valuation of the part of the general management and administration overheads that will be deductible. From 1 January 2015, the taxable base will include the difference between the market value and the book value of the following assets: a) Assets forming part of a permanent establishment located in Spanish territory which ceases trading. b) Assets which had previously formed part of a permanent establishment located in Spanish territory and which are transferred abroad. The payment of the tax debt resulting from the application of b) above, in the case of assets transferred to a member State of the European Union, or of the European Economic Area with an effective exchange of tax information, will be deferred by the Tax Agency at the request of the taxpayer, until the date on which the assets in question are transferred to third parties. Estimated outgoings and attributed income from the internal operations of a permanent establishment. From 1 January 2015, in the cases where, due to the application of an agreement to avoid double international taxation signed by Spain, the deduction of estimated outgoings from the internal operations of its head office or one of its permanent establishments located outside Spanish territory is permitted for the purposes of determining the income of a permanent establishment located in Spanish territory, the following will be taken into account: 1. The general non-deductibility of the payments that the permanent establishment makes to the head office for fees, interest, commissions, technical assistance services and for the use or assignment of assets or rights, will not be applicable. 2. The income attributed to the head office or any of the permanent establishments located outside Spanish territory which corresponds to the aforementioned estimated outgoing will be considered to be income obtained in Spanish territory, but not through a permanent establishment. 3. The tax corresponding to attributed income will accrue on 31 December each year. 4. The permanent establishment located in Spanish territory will have to make withholdings and interim payments on the attributed income. 5. Article 18 of the Corporation Tax Act will be applicable to the internal operations of a permanent establishment located in Spanish territory with its head office or any of its permanent establishments located outside Spanish territory, to which this additional provision is applicable. Tax Rate Until 31 December

11 The general tax rate: 30% From 1 January 2015 For tax periods beginning on or after 1 January 2015, the corresponding tax rate of those set out in the Corporation Tax regulations will be applied. The general tax rate will be 25%. However, 28% will be applicable in the 2015 tax period. Deductions and refunds Permanent establishments can apply the same deductions and refunds as Corporation Tax payers to their net tax liability. Tax period and accrued amount The tax period coincides with the financial year declared, without exceeding twelve months. The tax becomes payable on the last day of the taxable period. Permanent establishments are obliged to comply with the same accounting obligations, registered or formal, that are required of resident organisations. Supplementary taxation When permanent establishments of non-resident organisations (not natural persons) transfer income abroad, a supplementary tax will be due on the quantities transferred. Year of return and following Tax rate 19% 21% Up to from Up to from % 19,50% 19% However, this tax will not be applicable to those permanent establishments whose head office has its tax residence in another Member State of the EU (Appendix VI), except in the case of a country or territory considered as a tax haven, or in a State that has signed an Agreement for avoiding double taxation with Spain, in which no other situation is expressly established, provided that there exists reciprocal treatment. The supplementary tax will be deposited using form 210 in the first twenty days of the months of April, July, October or January; the payment deadline is that immediately following the close of the natural quarter in which the income was transferred abroad.. Tax withheld (retenciones) and deposits on account (ingresos a cuenta) Permanent establishments are subject to the same regime of tax withheld at source as organisations subject to Corporation Tax. Staged payments (pagos fraccionados) Permanent establishments are obliged to make staged payments towards the tax under the same conditions as the organisations subject to corporation tax. The formal obligations relating to staged payments are: Filing periods: The first 20 calendar days of the months of April, October and December. 11

12 Form: 202 When no deposit need be made as a staged payment, filing of form 202 is not obligatory, except for permanent establishments classified as Large Companies, which must file the form, even if no deposit is required, which will lead to the existence of negative selfassessments. Tax return Permanent establishments must file the return for the tax on the same forms and in the same time periods as resident organisations subject to Corporation Tax. Period: 25 calendar days following the 6 months after the conclusion of the tax period. Form: A.2. INCOME FROM ECONOMIC ACTIVITY OBTAINED WITHOUT PERMANENT ESTABLISHMENT INTERNAL REGULATIONS According to Spanish law, income from economic activity without permanent establishment in Spanish territory is understood to be obtained in Spanish territory in the following cases: When the economic activity is carried out in Spanish territory. However, income obtained from the installation or assembly of machinery or facilities coming from abroad is not considered to be carried out in Spanish territory when these operations are performed by the supplier and their amount does not exceed 20% of the cost price; nor those arising from the international buying and selling of goods, including additional expenses and brokerage fees. When income is from providing services in Spanish territory. When these provisions of services partially support economic activities performed in Spanish territory, only the income supporting the activity performed in Spain will be considered to have been obtained in Spain. When income derives from the personal performance of artists and sports people in Spanish territory, even when they are received by a different person or organisation. AGREEMENT When an agreement to avoid duplicate taxation is applicable, as a general rule, and without prejudice to the particular characteristics of the different agreements, most agreements treat income from economic activities or operations without permanent establishment as follows: Company profits: Normally, company profits obtained without permanent establishment can only be subject to taxation in the taxpayer's country of residence and are exempt in Spain, due to the application of the agreement. Professional activities: In general, as in the previous case, the Agreements attribute the authority to levy taxes on this income, obtained without a fixed base in Spanish territory, to the country in which the taxpayer is resident, and they are exempt in Spain; however, some agreements establish tax authority for Spain under certain circumstances (due to the duration of the stay, the amount of income, etc.). 12

13 Artistic and Sports activities: As a general rule, income for performances carried out in Spanish territory can be taxed in Spain in application of its domestic law. However, there are special circumstances in various Agreements with respect to this type of income. TAXATION When, in keeping with the internal regulations and, if applicable, the agreement, the income from economic activity carried out without permanent establishment can be subject to taxation in Spain, the general tax rate will be applicable. Year of return Residents in the EU, Iceland and Norway Other taxpayers 2016 and following Tax rate 24% 24,75% Up to 11-07: 20% From 12-07: 19,50% 24% Residents in the EU, Iceland and Norway: 19% Other taxpayers: 24% In general, the taxable base will be the difference between the gross revenues and the costs of personnel, materials used in the work, and supplies. In the case of taxpayers resident in another member State of the European Union, and for accruals from 1 January 2015, in a State of the European Economic Area with an effective exchange of information (see Appendix VI), the following expenses can be deducted in order to determine the taxable base: A) If the earnings have been accrued up to 31 December 2014: Expenses for each income category listed in Act 35/2006 on Personal Income Tax may be deducted from income obtained since 1 January 2010, provided the taxpayer accredits that these are directly linked to income obtained in Spain, and can accredit a direct and indissoluble link to the activity pursued in Spain B) If the earnings have been accrued since 1 January 2015, the following shall be deductible: a) In the case of natural persons (private individuals), expenses listed in Law 35/2006 of 28 November, the Personal Income Tax Act, provided that the taxpayer accredits that these are directly linked to income obtained in Spain, and can accredit a direct and indissoluble link to the activity pursued in Spain b) In the case of corporations, deductible expenses listed in the Corporation Tax Act, provided the taxpayer accredits that these are directly linked to income obtained in Spain, and can accredit a direct and indissoluble link to the activity pursued in Spain. The taxable base corresponding to the earnings deriving from reinsurance operations will be constituted by the amounts of the premiums paid, in reinsurance, to the non-resident reinsurer. This income will be liable for a special tax rate of 1.5%. Deductions: Only the following deductions are allowed from the taxable income: - Deductions for donations, under the conditions described in the Income Tax Act and in the Act on the tax regime of non-profit organisations and of tax incentives for patronage. - Tax withholdings that have been applied on the taxpayer's income. 13

14 3.B. Other income 3.B.1. WORK INCOME INTERNAL REGULATIONS According to Spanish law, work income is understood to be obtained in Spanish territory in the following cases: In general, when this income is derived directly or indirectly from a personal activity performed in Spanish territory. Public remuneration paid by the Spanish Government, except where the work is wholly performed abroad and such income is subject to a personal tax abroad. Remuneration of employees of ships and aircraft in international traffic paid by resident employers or organisations or by permanent establishments located in Spanish territory, except where the work is performed wholly abroad and such income is subject to a personal tax abroad. Also, according to Spanish law, certain income types are exempt: Public grants and grants awarded by non-profit organisations falling under the special regime governed by Section II of Law 49/2002, of 23 December, on the tax regime of non-profit organisations and tax incentives for patronage, and from 1 January 2015, grants awarded by bank foundations governed by Section II of Law 26/2013, of 27 December, on the social work activities of building societies and bank foundations, to be used for official courses of study in Spain or abroad, at all levels of the educational system. Likewise, public grants and those awarded by non-profit organisations, and from 1 January 2015, the bank foundations mentioned above, for research in the field described by Royal Decree 63/2006, of 27 January, approving the Statute of research staff in training, and research grants awarded by those organisations to civil servants and other Public Administration personnel, and to university teachers and research staff. Scholarships and other amounts received by natural persons, paid by Public Administrations, by virtue of international cultural, educational and scientific agreements or treaties or by virtue of the annual international co-operation plan approved by the Council of Ministers. AGREEMENT In the case of residents in countries which have signed an agreement to avoid duplicate taxation with Spain, usually the income earned for employment performed in Spain can be taxed by the Spanish State, except if these three circumstances coincide: That the non-resident does not remain in Spain more than 183 days during the tax year in question, that the remunerations are paid by a non-resident employer and that these remunerations are not supported by a permanent establishment or a fixed base that the employer has in Spain. TAXATION The income obtained from sources other than a permanent establishment must be declared separately for each partial or total accrual of income subject to tax. Generally, the taxable base is the whole amount, i.e. without deduction for any expenses. 14

15 In the case of taxpayers resident in another member State of the European Union, and for accruals from 1 January 2015, in a State of the European Economic Area with an effective exchange of information (see Appendix VI), the following expenses can be deducted in order to determine the taxable base: A) If the earnings have been accrued up to 31 December 2014: Expenses for each income category listed in Act 35/2006 on Personal Income Tax may be deducted from income obtained since 1 January 2010, provided the taxpayer accredits that these are directly linked to income obtained in Spain, and can accredit a direct and indissoluble link to the activity pursued in Spain B) If the earnings have been accrued since 1 January 2015, the following shall be deductible: a) In the case of natural persons (private individuals), expenses listed in Law 35/2006 of 28 November, the Personal Income Tax Act, provided that the taxpayer accredits that these are directly linked to income obtained in Spain, and can accredit a direct and indissoluble link to the activity pursued in Spain b) In the case of corporations, deductible expenses listed in the Corporation Tax Act, provided the taxpayer accredits that these are directly linked to income obtained in Spain, and can accredit a direct and indissoluble link to the activity pursued in Spain. When, according to Spanish law, and if applicable the agreement, work income can be subject to taxation in Spain, it will be paid at the general tax rate. Year of return Residents in the EU, Iceland and Norway Other taxpayers 2016 and following Tax rate 24% 24,75% Up to 11-07: 20% From 12-07: 19,50% 24% Residents in the EU, Iceland and Norway: 19% Other taxpayers: 24% Special cases: Earnings from work by non-resident individuals in Spanish territory, provided that they are not income tax payers, who perform their services in Diplomatic Missions and Spanish Consular Representations abroad, when there are no specific rules deriving from International Treaties to which Spain is party, are taxed at a rate of 8%. Work income received by non-resident natural persons by virtue of a fixed term contract for seasonal workers, in accordance with labour regulations, will be taxed at a rate of 2%. Deductions: Only the following deductions are allowed from the taxable income: Deductions for donations, under the conditions described in the Income Tax Act and in the Act on the tax regime of non-profit organisations and of tax incentives for patronage. Tax withholdings that have been applied on the taxpayer's income. 15

16 3.B.2. PENSIONS INTERNAL REGULATIONS According to Spanish law, pensions and other similar benefits are understood to be obtained in Spanish territory in the following cases: When these derive from employment in Spain. When they are paid by a resident person or organisation or by a permanent establishment situated in Spanish territory. Also, Spanish law includes some cases of exempt pensions: - Old age pensions recognised by Royal Decree 728/1993, of 14 May, establishing old age pensions in favour of Spanish emigrants. 3 - Pensions which are exempted for residents by the Personal Income Tax Act, such as: Pensions recognised by Social Security as a consequence of absolute permanent disability or severe disability or for retired public servants as a consequence of being unfit for work or permanent disability. AGREEMENT If an agreement to avoid duplicate taxation is applicable, it must be taken into account that pensions, understood as payments due to formerly performed employment, are treated differently if they are public or private. A public pension is understood to be that received for being a former public employee; i.e. that which is received for services provided to a State, to one of its political subsections or a local organisation. A private pension is understood to be any other type of pension received by being a former private employee, as distinct from that defined as a public employee. - For private pensions, most of the Agreements establish the right to impose taxation exclusively in favour of the State of residence of the taxpayer. - In general for public pensions, the State where the pension comes from has the right to tax it, except in the case of residents and nationals of the other State, in which case the right to tax will correspond to that State. However, the particular characteristics of each agreement should be consulted. TAXATION When, according to Spanish law and, where applicable, the agreement, the pension is subject to Spanish tax, tax will be paid according to the following tax rate scale: Annual pension amount --- Up to (euros) 0 12,000 18,700 Charge --- euros Remainder of pension --- Up to (euros) Rate applicable --- Percent ,970 12,000 6,700 and over 8% 30% 40% 3 The present regulations for old age pensions are contained in Royal Decree 8/2008, of 11 January, regulating benefits according to need for Spanish citizens resident abroad and returned, derogating Royal Decree 728/1993, of 14 May, which established old age pensions for Spanish emigrants. 16

17 Deductions: Only the following deductions are allowed from the taxable income: Deductions for donations, under the conditions described in the Income Tax Act and in the Act on the tax regime of non-profit organisations and of tax incentives for patronage. Tax withholdings that have been applied on the taxpayer's income. Example: Mr. J.C.G., resident in Paraguay (a country which does not have an agreement with Spain) during 2011, receives a retirement pension paid by Spanish Social Security, which yields a gross monthly amount of 1,100. He receives 12 payments in the year. Determine the amount of the corresponding tax on the pension obtained by this taxpayer. Solution: 1. Determination of the annual pension amount for the application of the tax scale. 1,100 x 12 = 13, Application of the tax scale. Up to 12,000 at 8% Remainder 1,200 (13,200 12,000) at 30% Resulting charge... 1, Determination of the average tax rate. Average tax rate = (1,320 / 13,200) x 100 = 10% 4. Determination of the amount of tax corresponding to the monthly pension. 1,100 x 10% = 110 Note: As this is income subject to and not exempt from non-resident income tax, the organisation making the pension payment (Social Security), as the Withholder organisation, should withhold tax of an amount equivalent to the tax due by the taxpayer. i.e. on the gross amount of the pension ( 1,100), a withholding percentage of 10% ( 110) will be applied, resulting in a net amount to be received by the taxpayer, once the tax has been deducted of B.3. MANAGERIAL PAYMENTS INTERNAL REGULATIONS According to Spanish law, payments to managers and members of boards of directors, of boards that either representative bodies of an organisation, are understood to be obtained in Spanish territory when paid by an organisation resident in Spanish territory. AGREEMENT In general, agreements to avoid duplicate taxation rule that shares, per diems and other similar benefits which taxpayers obtain thanks to being members of a board of directors of a company resident in Spain, can be subject to taxation by the Spanish State. TAXATION These benefits are taxable at the general tax rate. 17

18 Year of return Residents in the EU, Iceland and Norway Other taxpayers 2016 and following Tax rate 24% 24,75% Up to 11-07: 20% From 12-07: 19,50% 24% Residents in the EU, Iceland and Norway: 19% Other taxpayers: 24% Deductions: Only the following deductions are allowed from the taxable income: Deductions for donations, under the conditions described in the Income Tax Act and in the Act on the tax regime of non-profit organisations and of tax incentives for patronage. Tax withholdings that have been applied on the taxpayer's income. 3.B.4. INCOME FROM LIQUID CAPITAL (DIVIDENDS, INTEREST, ROYALTIES) INTERNAL REGULATIONS According to Spanish law, the following work income is understood to be obtained in Spanish territory: Dividends and other income derived from participation in funds belonging to organisations resident in Spain. Interest and other income obtained by assignment to others of own capital paid by resident individuals or entities or by a permanent establishment situated in Spanish territory or repayments of loans of capital used in Spanish territory. Royalties 4 paid by resident individuals or organisations or by permanent establishments situated in Spanish territory or which are used in Spanish territory. In relation to this type of income, Spanish law provides several cases of exemption. For example, in the case of interest, the following are exempt: Those obtained by residents in a European Union country, as long as they are not obtained through a tax haven. Income from Public Debt. Income from non-resident accounts. Dividends are exempt (except when received through a tax haven): The dividends and shares in profits obtained by individuals resident in another Member State of the European Union or in countries or territories with which there exists an effective exchange of tax information, with a limit of 1,500, which will be applicable to the totality of the earnings obtained during the calendar year. (This exemption applies exclusively to dividends accrued up to 31 December 2014.) 4 Royalties are understood to be the sums paid for the use or licence to use rights to works of literature, art, science, or cinema, patents, trademarks, secret drawings, plans, formulas or procedures, computer programmes, information relating to industrial, commercial or scientific experiments, personal rights which can be ceded such as image rights, industrial, commercial or scientific equipment, and any similar right. 18

19 Those distributed by subsidiary companies resident in Spain to their parent companies 5 resident in other EU Member States (appendix VI) or to the PEs of the parent companies located in other EU Member States, or to parent companies resident in the States of the European Economic Area or the PE of these parent companies located in other States with operative exchange of tax information (appendix VI), provided that certain conditions are met. For this exemption to be applicable, the parent company must not have its residence or the permanent establishment must not be situated in a country or territory defined as a tax haven (Appendix V). The dividends and shares in profits obtained from pension funds equivalent to those regulated in the Pension Plans and Funds Act, by residents in another member State of the European Union or by permanent establishments of these institutions located in another member State of the EU or residents in the States forming the European Economic Area with operative exchange of tax information (appendix VI). Dividends and profit sharing obtained by unit trust institutions regulated by Directive 2009/65/EC of the European Parliament and of the Commission; or residents of the States comprising the European Economic Area with operative exchange of tax information (appendix VI); this is a partial exemption, given that the taxation cannot be less than the result of applying the tax rate paid by Unit Trust Institutions based in Spanish territory. Effective from 1 July 2011, in the particular case of royalties between associate companies paid to a company resident in a European Union Member State or to a permanent establishment of said company in another EU Member State, these will be exempt provided that certain requirements are fulfilled. AGREEMENT When an agreement is applicable, in relation to dividends, interest and royalties, this must be consulted specifically. In general, the regime followed is of shared taxation between Spain and the State where the taxpayer is resident; in this case, Spain has the right to impose tax on these earnings, but with the limitation on tax indicated in each Agreement (Appendix IV). TAXATION The income obtained from sources other than a permanent establishment must be declared separately for each partial or total accrual of income subject to tax. Generally, the taxable base is the whole amount, i.e. without deduction for any expenses. In the case of taxpayers resident in another member State of the European Union, and for accruals from 1 January 2015, in a State of the European Economic Area with an effective exchange of information (see Appendix VI), the following expenses can be deducted in order to determine the taxable base: A) If the earnings have been accrued up to 31 December 2014: Expenses for each income category listed in Act 35/2006 on Personal Income Tax may be deducted from income obtained since 1 January 2010, provided the taxpayer accredits that these are directly linked to income obtained in Spain, and can accredit a direct and indissoluble link to the activity pursued in Spain 5 A parent company is, from 1 January 2011, a company which holds a share in another company of 5%, or (as from 1 January 2015) where the purchase value of its holding exceeds 20 million euros. The investee company is the subsidiary. 19

20 B) If the earnings have been accrued since 1 January 2015, the following shall be deductible: a) In the case of natural persons (private individuals), expenses listed in Law 35/2006 of 28 November, the Personal Income Tax Act, provided that the taxpayer accredits that these are directly linked to income obtained in Spain, and can accredit a direct and indissoluble link to the activity pursued in Spain b) In the case of corporations, deductible expenses listed in the Corporation Tax Act, provided the taxpayer accredits that these are directly linked to income obtained in Spain, and can accredit a direct and indissoluble link to the activity pursued in Spain. The tax rate applicable to dividends and interest is. Year of return and following Tax rate 19% 21% Up to from Up to from % 19,50% 19% The tax rate applicable to royalties is the general. Year of return Residents in the EU, Iceland and Norway Other taxpayers 2016 and following Tax rate 24% 24,75% Up to 11-07: 20% From 12-07: 19,50% 24% Residents in the EU, Iceland and Norway: 19% Other taxpayers: 24% Particular case: In the case of royalties between associate companies, paid to a company resident in a European Union Member State or to a permanent establishment of said company in another EU Member State, until 30 June 2011, 10%, provided that certain requirements are fulfilled (exempt from 1 July 2011). Deductions: Only the following deductions are allowed from the taxable income: Deductions for donations, under the conditions described in the Income Tax Act and in the Act on the tax regime of non-profit organisations and of tax incentives for patronage. Tax withholdings that have been applied on the taxpayer's income. Reduction under agreement: If an agreement is applicable which sets a limit on the taxation of dividends, interest or royalties, the taxpayer can take this limit into account by reducing the liability. 3.B.5. EARNINGS FROM REAL ESTATE INTERNAL REGULATIONS According to Spanish law, income derived directly or indirectly from property assets in Spanish territory or rights relating to them is considered to be obtained in Spanish territory. 20

21 AGREEMENT The Agreements signed by Spain attribute power to tax the income from real estate assets to the State where the real estate is situated. In accordance with the agreements, income from property assets can be subject to taxation in the State where they are located, whether the income derives from direct use or usufruct, from leasing or from any other way in which they are exploited. Therefore, the income derived from real estate assets situated in Spain can be taxed in accordance with Spanish law. TAXATION The income obtained from sources other than a permanent establishment must be declared separately for each partial or total accrual of income subject to tax. Generally, the taxable base is the whole amount, i.e. without deduction for any expenses. In the case of leased properties, the earnings are calculated by taking the gross income that is received from the tenant, including all the assets transferred with the building and excluding the Value Added Tax. If the building is only let for part of the year, the income must be determined as in the previous paragraph for the months during which it is let and for the rest of the year, the income will be the proportional part of the assessed value (1.1%, or 2% of the rateable value, if applicable). In the case of taxpayers resident in another member State of the European Union, and for accruals from 1 January 2015, in a State of the European Economic Area with an effective exchange of information (see Appendix VI), the following expenses can be deducted in order to determine the taxable base: C) If the earnings have been accrued up to 31 December 2014: Expenses for each income category listed in Act 35/2006 on Personal Income Tax may be deducted from income obtained since 1 January 2010, provided the taxpayer accredits that these are directly linked to income obtained in Spain, and can accredit a direct and indissoluble link to the activity pursued in Spain D) If the earnings have been accrued since 1 January 2015, the following shall be deductible: a) In the case of natural persons (private individuals), expenses listed in Law 35/2006 of 28 November, the Personal Income Tax Act, provided that the taxpayer accredits that these are directly linked to income obtained in Spain, and can accredit a direct and indissoluble link to the activity pursued in Spain b) In the case of corporations, deductible expenses listed in the Corporation Tax Act, provided the taxpayer accredits that these are directly linked to income obtained in Spain, and can accredit a direct and indissoluble link to the activity pursued in Spain. The applicable tax rate is the general. Year of return Residents in the EU, Iceland and Norway Other taxpayers 2016 and following Tax rate 24% 24,75% Up to 11-07: 20% From 12-07: 19,50% 24% Residents in the EU, Iceland and Norway: 19% Other taxpayers: 24% 21