Spanish tax law · Non-Resident Income Tax · 06

The EU option, and other provisions

Chapters VII and VIII, articles 46 to 53: the option for individuals resident elsewhere in the EU or EEA to be taxed as though they were Spanish residents, and the remaining machinery — succession to the debt, which assets answer for it, penalties, provisional assessment and the rules on financial assets.

Unofficial English translation from the Spanish by Voixa Consultors S.L. Alexander Baranov is responsible for the translation. Source: Real Decreto Legislativo 5/2004, consolidated text, BOE-A-2004-4527 ↗. Check wording, rates, dates and legal effect against the Spanish original before relying on this reading. Source snapshot: 4 November 2026.

Why article 46 exists

A non-resident taxed under chapter IV pays a flat rate on gross income with no personal allowances. For someone who earns almost everything in Spain but lives across a border, that is heavier than residence would be, and the difference is hard to justify within the single market. Article 46 is Spain’s answer: an option to be taxed by reference to what a resident in the same circumstances would have paid.

Chapter VII. Option for taxpayers resident in other EU Member States

Article 46. Option for taxpayers resident in other Member States of the European Union

1. A taxpayer for this tax who is an individual resident of a Member State of the European Union, provided it is evidenced that his domicile or habitual residence is established in a Member State of the European Union, may opt to be taxed as a taxpayer for Personal Income Tax where any of the following circumstances is present:

a) That he has obtained in Spain during the year, from employment income and income from economic activities, at least 75 per cent of his total income, provided that such income has been effectively taxed during the period under Non-Resident Income Tax.

b) That the income obtained in Spain during the year has been lower than 90 per cent of the personal and family minimum that would have corresponded to him according to his personal and family circumstances had he been resident in Spain, provided that such income has been effectively taxed during the period under Non-Resident Income Tax and that the income obtained outside Spain has likewise been lower than that minimum.

2. The taxable income shall consist of the whole of the income obtained in Spain by the taxpayer availing himself of the optional regime governed by this article. Income shall be computed at its net amounts, determined in accordance with the consolidated text of the Personal Income Tax Act, approved by Royal Legislative Decree 3/2004 of 5 March.

3. The applicable rate of tax shall be the average rate resulting from applying the Personal Income Tax rules to the whole of the income obtained by the taxpayer during the period, irrespective of the place where it arose and whatever the residence of the payer, taking into account the personal and family circumstances duly evidenced.

The average rate of tax shall be expressed to two decimal places.

4. The tax amount shall be the result of applying the average rate of tax to the part of the net taxable base, calculated in accordance with the Personal Income Tax rules, corresponding to the income obtained by the non-resident taxpayer in Spanish territory during the tax period being assessed.

5. For the determination of the tax period and the accrual of the tax, the consolidated text of the Personal Income Tax Act, approved by Royal Legislative Decree 3/2004 of 5 March, shall apply as it does for taxpayers for that tax.

6. Individuals to whom the optional regime governed by this chapter applies shall not lose their status as taxpayers for Non-Resident Income Tax.

7. The optional regime shall in no case apply to taxpayers resident in countries or territories classified by regulation as tax havens.

8. Taxpayers for this tax who form part of a family unit of those established in article 84(1) of the consolidated text of the Personal Income Tax Act, approved by Royal Legislative Decree 3/2004 of 5 March, may request that the optional regime governed by this article be applied to them taking into account the rules on joint taxation contained in title VI of that consolidated text, provided that the conditions laid down by regulation are met.

9. The provisions of this article shall apply equally to taxpayers resident in a Member State of the European Economic Area with which there is an effective exchange of tax information on the terms provided for in paragraph 4 of the first additional provision of Law 36/2006 of 29 November on measures for the prevention of tax fraud.

10. The content of this optional regime shall be developed by regulation.

The option is computed on worldwide income but charged only on the Spanish part. Paragraph 3 takes the average rate that the Personal Income Tax rules would produce on the taxpayer’s entire income, wherever it arose, and paragraph 4 then applies that rate only to the Spanish slice. The practical consequence is that exercising the option means disclosing foreign income to the Spanish authorities even though Spain does not tax it. For someone with substantial income elsewhere, the average rate can exceed the flat 19 or 24 per cent and the option is worse, not better.

Both routes require the income to have been “effectively taxed” under this Act. The condition in letters a) and b) is not merely that the income was Spanish-source but that Non-Resident Income Tax was actually borne on it during the period. Income covered by a treaty exemption, or by an article 14 exemption, does not help the taxpayer reach either threshold.

The option does not change status. Paragraph 6 says expressly that the taxpayer remains a Non-Resident Income Tax taxpayer. It is a method of calculation, not a route to Spanish tax residence, and it does not bring worldwide income into Spanish charge.

Two gates, not one. Letter a) is the familiar 75 per cent test. Letter b) is a separate, easily overlooked route for low earners: Spanish income below 90 per cent of the personal and family minimum, with foreign income also below that minimum. A pensioner or part-time worker who fails the 75 per cent test may still qualify under b).

Chapter VIII. Other provisions

Article 47. Succession to the tax debt

In the event of the death of the taxpayer, the successors of the deceased shall be obliged to meet that person’s outstanding tax obligations under this tax, excluding penalties, in accordance with article 39(1) of Law 58/2003 of 17 December, the General Tax Act.

Article 48. The taxpayer’s patrimonial liability

Tax debts under Non-Resident Income Tax shall have the same status as those referred to in article 1365 of the Civil Code and, accordingly, community property shall answer directly to the public Treasury for debts of that kind incurred by either spouse.

Article 48 reaches the other spouse’s share of community property. A Spanish tax debt of one spouse under this Act can be enforced directly against assets held in community, without the Treasury having to pursue the other spouse personally. For couples married under a community-property regime who hold Spanish assets jointly, this is a materially different exposure from a debt that binds one spouse alone.

Heirs inherit the tax but not the penalties. Article 47 passes outstanding obligations to the successors and expressly excludes penalties, which die with the taxpayer.

Article 49. Infringements and penalties

Tax infringements under this tax shall be classified and penalised in accordance with Law 58/2003 of 17 December, the General Tax Act.

Article 50. Jurisdiction

The contentious-administrative jurisdiction, after the economic-administrative route has been exhausted, shall have exclusive competence to settle disputes of fact and of law arising between the authorities and taxpayers, withholding agents and other persons with tax obligations in relation to any of the matters covered by this Act.

The courts come last, and only after the internal route. A dispute cannot be taken straight to the administrative courts: the economic-administrative tribunals must be exhausted first. That sequencing, and its own deadlines, is as capable of ending a case as the substance.

Article 51. Provisional assessment

1. The tax management bodies may issue such provisional assessment as is appropriate, in accordance with articles 133 and 139 of Law 58/2003 of 17 December, the General Tax Act.

2. The provisions of the preceding paragraph shall be without prejudice to any subsequent verification and investigation that the tax authorities may carry out.

Article 52. Deduction of payments on account of Personal Income Tax

Where a taxpayer acquires that status through a change of residence, the payments on account of Personal Income Tax made from the beginning of the year until the change of residence is evidenced to the tax authorities shall be regarded as withholdings or payments on account of this tax, where those payments on account correspond to income subject to this tax received by the taxpayer.

Article 52 stops tax paid in the wrong column from being lost. When someone becomes a non-resident mid-year, the Personal Income Tax withheld before the change was evidenced is credited against this tax instead. It is also the reason the notification in article 32 matters: until the change is evidenced, the payer keeps withholding under the wrong regime.

Article 53. Rules on withholding, transfer and formal obligations relating to financial assets and other securities

1. On transfers or redemptions of shares or units representing the capital or assets of collective investment undertakings, the management, administration, depositary, marketing entities or any other entity in charge of those operations shall be obliged to make the withholding or payment on account for this tax, in the cases and in the manner laid down by regulation.

The obligation to make payments on account borne by the transferor of shares and units in collective investment undertakings may be laid down by regulation, subject to a limit of 20 per cent of the income obtained on those transfers.

2. For the purposes of the obligation to withhold on implicit investment income, on account of this tax, that withholding shall be made by the following persons or entities:

a) For income obtained on the transfer or redemption of financial assets in respect of which the obligation to withhold has been laid down by regulation, the withholding agent shall be the issuing entity or the financial institutions in charge of the operation.

b) For income obtained on transfers relating to operations not documented in certificates, and on transfers entrusted to a financial institution, the withholding agent shall be the bank, savings bank or entity acting on behalf of the transferor.

c) In cases not covered by the preceding paragraphs, the intervention of a public notary shall be compulsory, and that notary shall make the corresponding withholding.

3. In order to dispose of, or obtain the redemption of, certificates or assets with implicit income which are subject to withholding, their prior acquisition with the intervention of the notaries or financial institutions mentioned in the preceding paragraph must be evidenced, together with the price at which the operation was carried out.

The issuer or the financial institutions in charge of the operation which, in accordance with the preceding paragraph, are not to make the redemption to the holder of the certificate or asset must place that amount on deposit at the disposal of the judicial authority.

4. Public notaries who intervene or act as intermediaries in the issue, subscription, transfer, exchange, conversion, cancellation and redemption of public instruments, securities or any other certificates and financial assets, and in operations relating to rights in rem over them, shall be obliged to report such operations to the tax authorities, filing a list by name of the persons involved indicating their domicile and tax identification number, the class and number of the public instruments, securities, certificates and assets, and the price and date of the operation, within the periods and in accordance with the form determined by the Minister for Finance.

The same obligation shall fall on financial credit entities and establishments, securities companies and agencies, other financial intermediaries and any individual or legal person habitually engaged in the intermediation and placement of public instruments, securities or any other financial asset certificates, indices, futures and options on them, including instruments held in book-entry form, in respect of operations involving, directly or indirectly, the raising or placing of funds through any class of securities or instruments.

Likewise, management companies of collective investment undertakings and marketing entities shall be subject to this reporting obligation in respect of the shares and units in those undertakings included in their registers of shareholders or unit-holders.

The reporting obligations laid down in this paragraph shall be regarded as met, in respect of the operations subject to withholding mentioned in it, by filing the list of recipients in the official form of the corresponding annual summary of withholdings.

5. The issue of certificates, receipts or documents representing the acquisition of precious metals or objects, stamps of philatelic value or items of numismatic value must be reported to the tax authorities by the individuals or legal persons habitually engaged in promoting investment in such assets.

6. The provisions of paragraphs 2 and 3 above shall apply in relation to the obligation to withhold or make payments on account laid down by regulation in respect of transfers of financial assets with explicit income.

Paragraph 2.c) makes a notary the withholding agent of last resort. Where no issuer and no financial institution is in the chain, the Act does not drop the withholding: it requires a public notary to intervene and operate it. A private transfer of such assets between two parties is not a way around the charge.

Paragraph 3 blocks the redemption, not just the relief. If prior acquisition and price cannot be evidenced, the issuer does not simply withhold more — it must place the money on deposit at the disposal of the court. The holder is left having to establish the position before seeing the funds.

Where this sits

The final page of this series carries the additional, transitional and final provisions: mutual agreement procedures, the special levy on certain lottery prizes, the exemption for reinvestment in a main home, the minimum taxation rule, and the provisions of the Royal Legislative Decree that approved this consolidated text.

Nothing here is advice on your own position, and this reading is not the official text. Spain publishes no official English version of this Act; where the wording matters to a decision, read it against the Spanish original linked above.