Beckham regime: the prior five-year period is measured in tax residence, not in physical presence

Article 93.1.a) of the Personal Income Tax Act (LIRPF), as worded by Law 28/2022, requires not having been a Spanish tax resident during the five tax periods preceding the one of the move. The requirement contains a distinction that is often confused in practice: the requirement does not prevent physical presence in Spain during those five years —through occasional work, holidays or short assignments— but rather the acquisition in any of them of the status of tax resident in accordance with article 9 of the LIRPF. This provision sets out the criteria for attributing Spanish tax residence where, in the alternative, any of the following concurs: (i) the permanence criterion, which implies residence for more than 183 days in the calendar year; or (ii) the main centre of economic activities and interests, together with the rebuttable presumption of residence where the non-separated spouse and dependent minor children habitually reside in Spain.

The practical consequence is relevant for any move under the Beckham regime. Before opting for the article 93 regime (form 149), it is advisable to verify, tax period by tax period over the prior five years, whether any of the criteria of article 9 LIRPF is met. AEAT may review this point in a subsequent verification procedure after the election has been communicated. Occasional stays in Spain during the five-year period do not, by themselves, trigger any of those criteria; what is decisive is whether the residence threshold under that provision was reached in any of the five tax periods. Prior verification and, where appropriate, adjusting the timing of the move avoid the regime being denied ab initio at a later stage.

Full analysis in → The special inbound-expatriates regime requires prior residence outside Spain for five complete tax periods