The special inbound-expatriates regime requires not having been a Spanish tax resident in the five tax periods preceding the move

Article 93.1.a) of the Personal Income Tax Act (LIRPF), as worded by Law 28/2022 of 21 December on the promotion of the start-up ecosystem, sets the time requirement of the special regime for inbound expatriates (the so-called Beckham Law): the taxpayer must not have been tax resident in Spain during the five tax periods preceding the one in which he moves to Spain. Before that reform, the period was ten tax periods.

Note that the requirement does not rule out having been physically present in Spain during those five years —for occasional work, holidays, short assignments or any other reason—; what it rules out is having become tax resident under article 9 LIRPF in any of them. In other words, the test looks at the taxpayer’s tax residence position in each of the five years, not at isolated physical presence.

It is worth recalling that article 9 LIRPF attributes Spanish tax residence to individuals where either of two criteria is met: (i) presence, that is, spending more than 183 days in Spain in the calendar year; or (ii) Spain being the main centre or base of the taxpayer’s activities or economic interests, directly or indirectly. To these is added the rebuttable presumption in the last paragraph of article 9.1: a taxpayer whose spouse, not legally separated, and dependent minor children habitually reside in Spain is presumed resident, which may attract residence in one of the five years even without a long stay. An occasional stay in Spain during the five-year period does not, by itself, trigger any of these criteria; what matters is that the residence threshold under article 9 was not reached in any of the five years.

The provision therefore does not allow years in which Spanish tax residence was in fact acquired during the five-year period to be disregarded: a single one is enough to close access to the regime. In our view, this requirement is consistent with the purpose of the regime: to attract to Spain people who have had no tax connection with the country for a long period, not those who have alternated years of Spanish tax residence with periods abroad.

A simple recommendation follows. Before exercising the option for the article 93 LIRPF regime —by filing the form 149 notification (articles 116 and 119 of the Personal Income Tax Regulations)—, it is advisable to check, year by year over the preceding five years, whether any of the article 9 LIRPF criteria is met. The tax agency (AEAT) may examine this point when issuing the certificate confirming the option and in later audits. Checking in advance and, where appropriate, adjusting the timing of the move avoids a later adjustment for non-application of the regime.