Beckham regimen vid flytt till Spanien.

Med bakgrund i en mängd frågor avseende beskattning enligt “Becham regimen” vid flytt till spanien lägger vi ut en engelsk översättning från en auktoriserad översättare av det regulatoriska ramvärket.

Kombinationen av denna skatteregimen i Spanien och aveckling av näringsverksamhet i Sverige kan vara mycket gynnsamt.

Section 5. Special scheme for posted workers

Article 93. Special tax scheme applicable to workers posted to Spanish territory.

1. Individuals who acquire tax residence in Spain because of moving to Spanish territory may choose to pay non-resident income tax, with the special rules provided for in section 2 of this article, while maintaining their status as taxpayers for personal income tax during the tax period in which the change of residence takes place and during the following five tax periods, when, under the terms established by regulations, they meet these conditions:

(a) They have not been resident in Spain during the ten tax periods before moving to Spanish territory.

(b) That the move to Spanish territory occurs because of any of the following circumstances:

1) As a consequence of an employment contract, except for the special employment relationship of professional sportspersons regulated by Royal Decree 1006/1985 of 26 June 1985.

This condition shall be deemed fulfilled when an ordinary or special employment relationship, other than that stated above, or a statutory relationship with an employer in Spain is entered into, or when the employer orders the posting, and there is a letter of posting from the employer.

2) As a consequence of acquiring the status of director of a company in whose capital s/he does not hold a shareholding or, otherwise, when the shareholding does not determine its consideration as a related company under the terms set out in Article 18 of the Corporate Income Tax Law.

(c) That s/he does not obtain income classified as obtained through a permanent establishment in Spanish territory.

A taxpayer who chooses for non-resident income tax will be subject to wealth tax by real obligation.

The Minister for Finance and Public Administration shall lay down the procedure for exercising the option referred to in this paragraph.

2. Applying this special scheme shall imply, under the terms established in the regulations, the determination of the personal income tax liability according to the rules established in the consolidated text of the Law on Non-Resident Income Tax, approved by Royal Legislative Decree 5/2004, of 5 March, for income obtained without the intermediation of a permanent establishment, with these special features:

(a) Articles 5, 6, 8, 9, 10, 11 and 14 of Chapter I of the mentioned consolidated text shall not apply.

(b) All the earned income obtained by the taxpayer while applying the special scheme shall be deemed to have been obtained in Spanish territory.

(c) For tax assessment purposes, the income obtained by the taxpayer in Spanish territory during the calendar year shall be taxed cumulatively, with no offsetting being possible between them.

(d) The tax base shall comprise all the income referred to in letter (c) above, distinguishing between the income referred to in Article 25.1. f) of the revised text of the Non-Residents’ Income Tax Law and other income.

(e) For the determination of the total tax liability:

1. The taxable income, except for that part corresponding to the income referred to in Article 25.1.f) of the revised text of the Non-Resident Income Tax Law, shall be subject to the rates stated in the following scale:

 

Tax base Euros	Tax rate Percentage
Up to 600,000 euros	24
From 600,000.01 euros	47

 

2. The rates stated in the following scale shall be applied to the part of the taxable income corresponding to the income referred to in Article 25.1.f) of the revised text of the Non-Residents’ Income Tax Law:

 

Tax base of capital gains Up to (euros)	Total amount euros	Rest of the tax base of capital gains Up to (euros)	Tax rate Percentage
0	0	6,000.00	19
6,000.00	1,140	44,000.00	21
50,000.00	10,380	150,000.00	23
20,0000.00	44,880	Onwards	26

(f) Withholdings and payments on account as payments on account of the tax shall be made, under the terms established in the regulations, and according to the regulations on non-resident income tax.

However, the percentage of withholding or payment on account of earned income will be 24 per cent. When the remuneration paid by the same payer of earned income during the calendar year exceeds 600,000 euros, the withholding percentage applicable to the excess will be 47 per cent.

 

Special scheme applicable to workers posted to Spanish territory

Article 113. Scope of application

Individuals who acquire tax residence in Spain because of moving to Spanish territory may choose to pay non-resident income tax while maintaining their status as taxpayers for personal income tax when they meet these conditions:

(a) They have not been residents in Spain during the ten tax periods before their new move to Spanish territory.

(b) That the move to Spanish territory occurs because of a work contract: This condition will be deemed fulfilled when an ordinary or special employment or statutory employment relationship is entered into with an employer in Spain or when the employer orders the posting, and there is a posting letter from the employer, and the taxpayer does not obtain income classified as obtained through a permanent establishment located in Spanish territory.

(c) That the work is carried out in Spain. This condition shall be deemed fulfilled even when part of the work is performed abroad, provided that the sum of the remuneration corresponding to the work mentioned above, whether or not considered as income obtained in Spanish territory according to Article 13.1.c) of the revised text of the Law on Non-Resident Income Tax, approved by Royal Legislative Decree 5/2004, of 5 March, does not exceed 15 per cent of all the consideration for the work received in each calendar year. When, under the terms of the employment contract, the taxpayer assumes duties in another group company, under the terms established in Article 16.3 of the revised text of the Corporate Income Tax Law, approved by Royal Legislative Decree 4/2004, of 5 March, outside Spanish territory, the above limit shall be increased to 30 per cent.

If the amount of the specific remuneration corresponding to work carried out abroad cannot be proven, the calculation of the remuneration corresponding to this work shall consider the days that the worker has actually been abroad.

(d) That such work is carried out for a company or entity resident in Spain or for a permanent establishment located in Spain of an entity not resident in Spanish territory. This condition shall be deemed fulfilled when the services rendered produce or are likely to produce an advantage or profit for the company or entity resident in Spain or for a permanent establishment located in Spain of an entity not resident in Spanish territory. If the posting has taken place within a group of companies, in the terms established in Article 16.3 of the revised text of the Corporate Income Tax Law, and exclusively for these purposes, it will be necessary for the worker to be hired by the group company resident in Spain or for a posting to Spanish territory to be ordered by the employer.

(e) That the employment income derived from this employment relationship is not exempt from taxation for non-resident income tax.

Article 114. Content of the special tax scheme for non-resident income tax

1. The application of this special scheme will imply the determination of the personal income tax liability exclusively for income obtained in Spanish territory, according to the rules established in the consolidated text of the Law on Non-Resident Income Tax, approved by Royal Legislative Decree 5/2004, of 5 March, for income obtained without the intermediation of a permanent establishment, except for Articles 5, 6, 8, 9, 10 and 11 of Chapter I of the consolidated text.
2. Particularly, these rules shall apply:

(a) Taxpayers choosing this special scheme shall be taxed separately for each total or partial accrual of the income subject to tax, with no offsetting being possible between them.

(b) The net base of each income shall be calculated for each according to Article 24 of the consolidated text of the Non-Residents’ Income Tax Law.

(c) The gross tax liability shall be obtained by applying the tax rates provided for in Article 25.1 of the revised text of the Non-Residents’ Income Tax Law to the taxable base.

(d) The differential tax liability shall be the result of reducing the gross tax liability by the deductions from the tax liability referred to in Article 26 of the consolidated text of the Non-Residents’ Income Tax Law. For the purposes provided for in paragraph (b) of the Article 26 mentioned above, in addition to the payments on account referred to in paragraph 3 below, the amounts paid on account of non-resident income tax shall also be deductible.

3. Withholdings and payments on account as payments on account of this special scheme shall be made according to non-resident income tax regulations. However, when the circumstances set out in Article 76.2.a) of these Regulations apply, the resident entities or permanent establishments in which the taxpayers provide services shall have to withhold tax on the income they obtain in Spanish territory.

Compliance with the formal obligations provided for in Article 108 of these Regulations, for the withholdings and payments on account referred to in the previous paragraph, shall be carried out using the tax return forms provided for Non-Resident Income Tax for income obtained without the intermediation of a permanent establishment.

4. Taxpayers to whom this special scheme is applicable shall have to file and sign the Personal Income Tax return, using the special form approved by the Minister of Economy and Finance, which shall establish the form, place and deadlines for its presentation, and whose content shall be in line with the return forms provided for Non-Residents’ Income Tax.

When filing their tax return, taxpayers shall determine the corresponding tax liability and pay it at the place, in the manner and by the deadlines determined by the Minister of Economy and Finance. If the result is a refund, the refund will be made according to Article 103 of the Tax Law.

5. Article 25.2 of the consolidated text of the Non-Residents’ Income Tax Law shall apply to transfers of real estate located in Spanish territory carried out by personal income taxpayers who choose the application of this special scheme.
6. To comply with Article 18.2.a) of Law 21/2001, of 27 December, which regulates the fiscal and administrative measures of the new financing system for the Autonomous Communities under the common system and Cities with a Statute of Autonomy, it shall be understood that the total regional or complementary tax liability is 33 per cent of that provided for in section 2.c) above.

Article 115. Duration

This special scheme will apply during the tax period in which the taxpayer acquires tax residence in Spain, and during the following five tax periods, notwithstanding Articles 117 and 118 of this Regulation.

For these purposes, the tax period in which residence is acquired shall be considered the first calendar year in which, once the move has taken place, the stay in Spanish territory exceeds 183 days.

Article 116. Exercising the option

1. The option to pay tax under this special scheme must be exercised with a communication addressed to the tax authorities within six months from the date on which the activity commenced, as stated in the registration with the Social Security in Spain or in the documentation that allows them, where applicable, to maintain the Social Security legislation of origin.
2. The option shall be exercised by submitting the communication form referred to in Article 119 of this Regulation.
3. This option may not be exercised by taxpayers who have availed themselves of the special procedure for determining withholdings or payments on account on earned income provided for in Article 89.B) of these Regulations.

Article 117. Waiver of the scheme

1. Taxpayers who have chosen this special scheme may waive its application in November and December before the start of the calendar year in which the waiver is to take effect.
2. The waiver shall be carried out according to the following procedure:

(a) S/he shall first submit the communication of information provided for in Article 88 of this Regulation to his/her withholder (employer), who shall return a stamped copy thereof.

(b) Secondly, he/she shall submit the communication provided for in Article 119 of these Regulations to the tax administration, attaching a stamped copy of the communication referred to in the previous paragraph.

3. Taxpayers who waive this special scheme will not be able to choose its application again.

Article 118. Exclusion from the scheme

1. Taxpayers who have chosen to apply this special regime and who, after exercising the option, fail to comply with any of the conditions determining its application shall be excluded. The exclusion shall take effect in the tax period in which the non-compliance occurs.
2. Taxpayers excluded from the scheme must notify the Tax Administration of this circumstance within one month of non-compliance with the conditions that determined its application, using the notification form referred to in Article 119 of these Regulations.
3. Withholdings and payments on account shall be made according to the rules of Personal Income Tax, as soon as the taxpayer notifies his/her withholder that s/he has failed to comply with the conditions for applying this special regime, attaching a copy of the notification referred to above. At the same time, s/he shall submit to his withholder the communication of information provided in Article 88 of this Regulation.

However, when the withholder learns of non-compliance with the conditions set out in paragraphs (c), (d) or (e) of Article 113 of these Regulations, withholdings and payments on account shall be made according to the rules of Personal Income Tax as of the non-compliance.

The new deduction rates shall be calculated according to Article 87 of this Regulation, considering the total amount of annual remuneration.

4. Taxpayers excluded from this special scheme will not be able to choose its application again.

Article 119. Communications to the tax authorities and accreditation of the scheme

1. The option to apply the scheme shall be exercised by notifying the Tax Administration, using the form approved by the Minister of Economy and Finance, who shall establish the form and place of submission.

The mentioned notification shall state, among other details, the identification of the worker, the employer and, where applicable, the company or entity resident in Spain or the permanent establishment for which the services are provided, the date of entry into Spanish territory and the date of commencement of the activity as stated in the registration with the Social Security in Spain or in the documentation that allows, where applicable, the maintenance of the Social Security legislation of origin.

The following documentation shall also be attached:

(a) When an ordinary or special employment or statutory employment relationship is entered into with an employer in Spain, a supporting document issued by the employer stating the recognition of the employment or statutory relationship with the taxpayer, the date of commencement of the activity as stated in the registration with the Social Security in Spain, the place of work and its address, the duration of the employment contract and that the work will actually be carried out in Spain.

(b) For a posting ordered by the employer to provide services to a company or entity resident in Spain or a permanent establishment located in Spanish territory, a supporting document issued by the latter expressing the recognition of the provision of services for them, to which a copy of the employer’s letter of posting shall be attached, the date of commencement of the activity as stated in the registration with the Social Security in Spain or in the documentation that allows, where applicable, to maintain the Social Security legislation of origin, the work centre and its address, the duration of the posting order and that the work will actually be carried out in Spain.

2. The tax administration, given the notification submitted, shall issue the taxpayer, if appropriate, within a maximum period of 10 working days following the submission of the notification, a document certifying that the taxpayer has chosen the application of this special scheme.

This accreditation document shall justify to the persons or entities obliged to make withholdings or payments on account, their status as taxpayers under this special scheme, for which purpose they shall be given a copy of the document.

Article 120. Certificate of tax residence

1. Personal income taxpayers who choose applying this special scheme may apply for the certificate of tax residence in Spain regulated in the second additional provision of Order HAC/3626/2003, of 23 December, which appears in Annex 9 of the said Order.
2. The Minister of Economy and Finance may indicate, subject to reciprocity, the cases in which certificates will be issued to accredit the status of resident in Spain, for the purposes of a double taxation avoidance agreement signed by Spain, to taxpayers who have chosen to apply this special scheme.