Spanish tax law · Non-Resident Income Tax · 07

Additional, transitional and final provisions

The tail of the Act, and of the Royal Legislative Decree that approved it: mutual agreement procedures, the levy on lottery prizes, the exception that lets a treaty override the ban on head-office charges, relief on reinvestment in a main home, minimum taxation, and the provisions that are now spent.

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 the tail matters more than usual here

Three of these provisions do real work. The sixth additional provision is the only route by which a permanent establishment can deduct notional charges from its head office, undoing article 18.1.a). The fifth brings lottery prizes into charge with their own withholding. The seventh gives EU and EEA residents the reinvestment relief on a main home that otherwise belongs to residents only. The rest is machinery, and several provisions have expired without being removed from the text.

Additional provisions of the Act

First additional provision. Mutual agreement procedures

1. Conflicts that may arise with the authorities of other States in applying international conventions and treaties shall be resolved in accordance with the mutual agreement procedures provided for in those conventions or treaties, without prejudice to the right to bring such appeals or claims as may be appropriate.

2. This additional provision applies equally to the mechanisms for resolving disputes with other Member States of the European Union arising from the international conventions and treaties providing for the elimination of double taxation of income and, where applicable, of capital referred to in Council Directive (EU) 2017/1852 of 10 October 2017 on tax dispute resolution mechanisms in the European Union. The agreement reached shall be applied irrespective of the time limits laid down in domestic law.

3. The agreement reached between the two authorities within a mutual agreement procedure shall be applied once the agreement becomes final.

For these purposes, the agreement shall be regarded as becoming final on the date of receipt of the last notification from the competent authorities informing the competent authorities of the other States concerned of the acceptance by the persons concerned of its content and of their waiver of the right to appeal in respect of the elements of the tax obligation that were the subject of the mutual agreement procedure, where applicable. Where appeals have already been commenced, the agreement shall become final only once the person concerned provides evidence to the competent authorities of the Member States concerned that steps have been taken to bring those proceedings to an end in respect of the elements of the tax obligation that were the subject of the mutual agreement procedure.

4. For these purposes, the procedure for resolving these mutual agreement procedures, and for applying the resulting agreement, shall be laid down by regulation.

5. No appeal may be brought against those agreements, without prejudice to the appeals available against the administrative act or acts issued in application of them.

6. 1. In mutual agreement procedures, payment of the debt shall be suspended automatically at the request of the person concerned where its amount and any surcharges that may apply at the time of the suspension request are guaranteed, on the terms laid down by regulation.

Payment of the debt may not be suspended under the preceding paragraph while suspension can still be sought in administrative or judicial proceedings.

2. The guarantees admissible for obtaining the automatic suspension referred to above shall be exclusively the following:

a) A deposit of money or public securities.

b) A guarantee or joint and several surety from a credit institution or mutual guarantee company, or a surety insurance certificate.

3. If the mutual agreement procedures do not relate to the whole of the debt, the suspension provided for in this paragraph shall be limited to the amount affected by those procedures.

7. Where, in accordance with paragraph 1, a mutual agreement procedure provided for in international conventions or treaties runs at the same time as a review procedure of those governed by title V of Law 58/2003 of 17 December, the General Tax Act, the review procedure shall be suspended, exclusively in respect of the elements of the tax obligation that are the subject of the mutual agreement procedure, until the latter is concluded.

8. In cases where the existence of penalties excludes access to the arbitration stage of the mutual agreement procedure, paragraph 7 shall not apply where the imposition of penalties has been appealed in administrative proceedings. In that case, access to the arbitration commission of the mutual agreement procedure shall be barred until a final decision in administrative or judicial proceedings has been given in relation to the penalty.

9. In procedures conducted under Convention 90/436/EEC, the bringing of any appeal or claim in administrative or contentious-administrative proceedings against the penalties imposed referred to in paragraph 10 shall suspend the conduct of the mutual agreement procedure from the bringing of the first appeal available until a final decision in administrative or judicial proceedings is given in relation to the penalty.

The commencement of the mutual agreement procedure referred to in the preceding paragraph shall not be admitted, or shall be a ground for its termination, if the undertakings concerned have been subject to a penalty, on the terms laid down in paragraph 10 of this provision, which has become final.

10. For the purposes of paragraphs 8 and 9, the following shall be regarded as penalties:

a) sentences for offences against the public Treasury referred to in articles 305 and 305 bis of the Criminal Code;

b) penalties for the infringements referred to in articles 191, 192 and 193 of Law 58/2003 of 17 December, the General Tax Act, provided that one of the classification criteria referred to in article 184 of that Act is present;

c) penalties for the infringements laid down in article 18.13.2 of Law 27/2014 of 27 November on Corporate Income Tax, provided that one of the classification criteria referred to in article 184 of Law 58/2003 of 17 December is present. For these purposes, references in that article 184 to returns shall be understood as made to transfer pricing documentation.

Notwithstanding letter c), a penalty for an infringement arising from the filing of incomplete documentation shall not be regarded as a penalty for the purposes of paragraphs 8 and 9 where it does not seriously hinder the quantification or determination of market value.

11. The procedures referred to in this provision are governed by their specific rules and, in the alternative and so far as applicable, by the tax rules.

12. The Central Economic-Administrative Tribunal shall have competence to exercise the functions relating to the constitution and operation of the advisory commission as determined by regulation.

13. The members of the advisory commission or of the alternative dispute resolution commission constituted within a mutual agreement procedure shall be bound by the strictest and most complete secrecy in respect of the tax data they learn in that capacity, in accordance with article 95 of Law 58/2003 of 17 December, the General Tax Act. Breach of that duty may give rise to the legal liabilities arising under Spanish law and, for these purposes, the members of those commissions shall be regarded as holding public authority.

The preceding paragraph is without prejudice to the application, where appropriate, of the domestic rules of the other States concerned within their own jurisdiction.

A penalty can close the arbitration door. Paragraphs 8 to 10 make the existence of certain penalties — criminal convictions for tax offences, and serious infringements including transfer pricing documentation failures — a bar to the arbitration stage. A dispute that would otherwise have had a binding resolution route can be left with no exit once a penalty becomes final. Incomplete documentation is expressly carved out where it does not seriously hinder the determination of market value.

Suspension is available, but only in a narrow window and against a narrow list of security. Payment can be suspended automatically on request if guaranteed, but not while suspension is still available through the ordinary administrative or judicial route, and only against a cash or public-securities deposit, a bank or mutual guarantee, or surety insurance.

Second additional provision

(Deleted.)

Third additional provision. Rate of tax in 2012, 2013 and 2014

From 1 January 2012 until 31 December 2014, both inclusive, the 19 per cent rates referred to in articles 19.2 and 25.1.f) of this Act are raised to 21 per cent.

Likewise, during the period referred to in the preceding paragraph, the 24 per cent rate provided for in article 25.1.a) of this Act is raised to 24.75 per cent.

Fourth additional provision. Partial exemption for capital gains on the transfer of certain immovable property

Capital gains obtained without a permanent establishment in Spain, arising from the disposal of urban immovable property situated in Spanish territory which was acquired from the entry into force of Royal Decree-Law 18/2012 until 31 December 2012, shall be 50 per cent exempt.

The preceding paragraph shall not apply where the circumstances provided for in the second paragraph of the thirty-seventh additional provision of Law 35/2006 of 28 November on Personal Income Tax are present or, in the case of entities, the circumstances provided for in the last paragraph of the sixteenth additional provision of the consolidated text of the Corporate Income Tax Act, approved by Royal Legislative Decree 4/2004 of 5 March.

The fourth additional provision has not expired, and is easy to overlook. Unlike the rate provisions around it, this one has no end date: it attaches permanently to property bought in that narrow 2012 window. A seller today who acquired within it still halves the gain.

Fifth additional provision. Special levy on prizes from certain lotteries and bets

1. The prizes included in paragraph 1.a) of the thirty-third additional provision of Law 35/2006 of 28 November on Personal Income Tax, on the terms laid down in it, obtained by taxpayers without a permanent establishment, shall be subject to this tax by way of a special levy, with the particular rules set out below.

2. The prizes provided for in this additional provision shall be subject to withholding or payment on account on the terms provided for in article 31 of this consolidated text. There shall likewise be an obligation to make a withholding or payment on account where the prize is exempt under an applicable convention for the avoidance of double taxation.

The rate of withholding or payment on account shall be 20 per cent. The basis for the withholding or payment on account shall be the amount of the tax base of the special levy.

3. Taxpayers for this tax who have obtained the prizes provided for in this provision shall be obliged to file a return for this special levy, determining the amount of the corresponding tax debt, and to pay that amount at the place, in the manner and within the periods laid down by the Minister for Finance and Public Administrations.

However, there shall be no obligation to file that return where the prize obtained was lower than the exempt amount, or where the withholding or payment on account provided for in paragraph 2 above has been made in relation to it.

4. Where amounts have been paid to the Treasury, or withholdings on account have been borne, under this special levy in amounts higher than those arising from the application of a convention for the avoidance of double taxation, that application and the consequent refund may be requested, on the conditions laid down by regulation.

The tax authorities may provide the taxpayer’s State of residence with the data included in that refund request, on the terms and within the limits laid down in the rules on mutual assistance.

5. For the purposes of Non-Resident Income Tax, the prizes provided for in this additional provision obtained by taxpayers without a permanent establishment may be taxed only by this special levy.

A treaty exemption does not stop the 20 per cent withholding. Paragraph 2 says expressly that the withholding must be made even where the prize is exempt under an applicable convention. The treaty is given effect afterwards, by a refund claim under paragraph 4, and the request may be shared with the taxpayer’s State of residence. The money leaves first and comes back later, if at all.

Sixth additional provision. Estimated expenses and imputed income on internal transactions of a permanent establishment

In cases where, by application of a convention for the avoidance of international double taxation concluded by Spain, the deduction of estimated expenses for internal transactions carried out with its head office or with any of its permanent establishments situated outside Spanish territory is permitted for the purpose of determining the income of a permanent establishment situated in Spanish territory, the following shall apply:

1. Article 18.1.a) of this consolidated text shall not apply.

2. The income imputed to the head office or to any of the permanent establishments situated outside Spanish territory corresponding to those estimated expenses shall be regarded as income obtained in Spanish territory, without a permanent establishment, for the purposes of article 15.1 of this consolidated text.

3. The tax corresponding to the imputed income shall accrue on 31 December of each year.

4. The permanent establishment situated in Spanish territory shall be obliged to make the withholding and payment on account for the imputed income in accordance with article 31 of this consolidated text.

5. Article 18 of the Corporate Income Tax Act shall apply to internal transactions carried out by a permanent establishment situated in Spanish territory with its head office or with any of its permanent establishments situated outside Spanish territory to which this additional provision applies.

This is the only way through article 18.1.a), and it is not free. Where the applicable treaty permits notional internal charges, the flat prohibition on deducting royalties, interest and service fees paid to head office is switched off. In exchange, the matching income is treated as Spanish-source income of the head office without a permanent establishment, accrues on 31 December, and the Spanish permanent establishment must withhold on it. The deduction is obtained at the cost of a charge on the other side, and the transactions are then tested under the transfer pricing rules of the Corporate Income Tax Act.

Seventh additional provision. Exemption on reinvestment in a main home

1. Capital gains obtained by taxpayers resident in a Member State of the European Union on the transfer of what has been their main home in Spain may be excluded from charge, provided that the total amount obtained on the transfer is reinvested in acquiring a new main home. Where the amount reinvested is lower than the total received on the transfer, only the proportionate part of the capital gain obtained corresponding to the amount reinvested shall be excluded from taxation.

2. For the purpose of applying the preceding paragraph, article 38 of Law 35/2006 of 28 November on Personal Income Tax, and its implementing rules, shall be taken into account.

3. The withholding obligation provided for in article 25(2) shall also apply, as shall the obligation to file the return and pay the corresponding tax debt provided for in article 28(1) of this consolidated text. However, where the reinvestment has taken place before the date on which that return falls to be filed, the reinvestment, in whole or in part, may be taken into account in determining the corresponding tax debt.

4. This provision 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.

5. The conditions for requesting any refund that may be due shall be determined by regulation.

The relief does not switch off the 3 per cent withholding. The buyer still withholds under article 25.2 and the seller still files. Only where the new home was bought before the return falls due can the reinvestment be reflected in the tax computed; otherwise the route is a refund claim.

The new home does not have to be in Spain, but the old one must have been the main home. The provision refers to the transfer of what has been the taxpayer’s main home in Spain and to reinvestment in a new main home, without confining the replacement to Spanish territory. What it does require is that the property sold genuinely was the main home, which a property let out or used seasonally will struggle to be.

Eighth additional provision. Effective exchange of tax information

References in this consolidated text to “States forming part of the European Economic Area provided that they have concluded with Spain an international double taxation convention containing an exchange of information clause, or an agreement on the exchange of information in tax matters” shall be understood as made to “Member States 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”.

This provision quietly rewrites several earlier articles. Wherever the Act uses the older formula about a convention or information agreement, the operative test is instead whether effective exchange of information exists under the Prevention of Tax Fraud Act. Reading articles 14 and 46 without this provision gives the wrong condition.

Ninth additional provision. Rates applicable in 2015

In 2015, for tax accruing before 12 July, the 19 per cent rate provided for in article 19(2) and in letters a) and f) of article 25(1) of this Act shall be 20 per cent. Those rates shall be 19.5 per cent where the tax accrues from that date.

Tenth additional provision. Minimum taxation

For the purposes of article 19 of this consolidated text, in determining the tax debt the minimum taxation laid down in article 30 bis of Law 27/2014 of 27 November on Corporate Income Tax shall apply.

The minimum taxation rule reaches permanent establishments. Article 19 computes the tax debt of a permanent establishment by reference to the Corporate Income Tax rules; this provision adds the minimum taxation floor in article 30 bis of that Act. Deductions and allowances cannot take the liability below it.

Transitional provisions of the Act

First transitional provision. Transitional provisions of the Personal Income Tax consolidated text

1. The second, fifth, ninth and tenth transitional provisions of the consolidated text of the Personal Income Tax Act, approved by Royal Legislative Decree 3/2004 of 5 March, shall apply to taxpayers without a permanent establishment who are individuals.

2. The amendments made to the fifth and ninth transitional provisions of the consolidated text of the Personal Income Tax Act by the first final provision of Law 35/2006 shall take effect for Non-Resident Income Tax only from the date of entry into force of that provision.

Second transitional provision. Transitional regime for the exemption in article 14.1.h)

The exemption referred to in letter h) of article 14(1) shall apply during the years 2021, 2022, 2023, 2024 and 2025 to holdings acquired before 1 January 2021 whose acquisition value exceeds 20 million euro, without the direct or indirect holding needing to reach 5 per cent of the capital, and provided that the remaining requirements laid down in that article 14.1.h) are met.

This window has closed. The transitional regime for large holdings below 5 per cent ran for the five years 2021 to 2025. For dividends payable in 2026 and later it no longer applies, and the ordinary 5 per cent test in article 14.1.h) governs. The provision remains in the text, which makes it easy to cite after it has ceased to help.

Third transitional provision. Transitional regime for mutual agreement procedures

1. The mutual agreement procedures under the first additional provision of this consolidated text commenced before 6 February 2020, the date of entry into force of the wording given by Royal Decree-Law 3/2020 of 4 February, shall be governed by the rules in force before that date until their conclusion, except as provided in the following paragraphs.

2. The rules on mechanisms for resolving disputes with other Member States of the European Union referred to in paragraph 2 of the first additional provision, in the wording given by Law 13/2023 of 24 May, shall apply to any request to commence those mechanisms filed from 1 July 2019 in respect of matters forming the subject of a mutual agreement procedure relating to income or capital obtained in a tax year beginning on or after 1 January 2018.

Likewise, and provided it is so agreed with the competent authorities of the Member States concerned, those rules shall apply to any request to commence filed from 1 July 2019 in respect of matters forming the subject of the mutual agreement procedure which include income or capital obtained before and after 1 January 2018. In the latter case it shall also be required that the applicable international convention or treaty provided for the possibility of constituting an advisory commission.

3. The wording given by Royal Decree-Law 3/2020 of 4 February to paragraphs 7 and 8 of that first additional provision shall apply to mutual agreement procedures commenced from 12 October 2015.

4. The wording given by Royal Decree-Law 3/2020 of 4 February to the second paragraph of paragraph 3 of the first additional provision shall apply to procedures pending conclusion on 6 February 2020.

5. The wording given by Royal Decree-Law 3/2020 of 4 February to the third paragraph of paragraph 2 of the ninth additional provision of Law 29/1998 of 13 July governing the Contentious-Administrative Jurisdiction shall apply to mutual agreement procedures commenced from 12 October 2015.

Final provisions of the Act

First final provision. Powers conferred on the General State Budget Act

The General State Budget Act may:

a) Amend the rates of tax.

b) Amend the quantitative limits and fixed percentages.

c) Introduce and amend the rules necessary to comply with the obligations arising from the Treaty on European Union and the law deriving from it.

The rates in this Act can be changed by the annual budget. Letter a) lets the General State Budget Act amend them directly. Any rate reproduced on these pages is the rate as at the snapshot date and should be checked against the current consolidated text before it is relied on.

Second final provision. Regulatory powers

1. The Government is empowered to issue such provisions as are necessary for the development and implementation of this Act.

2. The return forms for this tax and for its payments on account shall be approved by the Minister for Finance, who shall lay down the manner, place and periods for their filing, and the cases and conditions for filing by electronic means.

Provisions of the Royal Legislative Decree approving the consolidated text

Sole additional provision. References in other legislation

References made in other provisions to Law 41/1998 of 9 December on Non-Resident Income Tax and Tax Rules shall be understood as made to the corresponding provisions of the consolidated text approved by this Royal Legislative Decree.

Sole transitional provision. Law 58/2003, the General Tax Act

Until 1 July 2004, the date of entry into force of Law 58/2003 of 17 December, the General Tax Act:

a) Article 9(3) of Law 41/1998 of 9 December on Non-Resident Income Tax and Tax Rules shall remain in force.

b) References made, in the consolidated text approved by this Royal Legislative Decree, to the provisions of Law 58/2003 of 17 December shall be understood as made to the corresponding provisions of Law 230/1963 of 28 December, the General Tax Act, and of Law 1/1998 of 26 February on the Rights and Guarantees of Taxpayers, on the terms laid down by Law 41/1998 of 9 December.

Sole repealing provision. Repeal of legislation

1. Save as provided in the sole transitional provision above, on the entry into force of this Royal Legislative Decree, Law 41/1998 of 9 December on Non-Resident Income Tax and Tax Rules shall be repealed, by reason of its incorporation into the consolidated text approved, with the exception of its second additional provision, which shall remain in force.

2. The repeal of the provisions referred to in paragraph 1 shall not prejudice the rights of the public Treasury in respect of tax obligations accrued while they were in force.

Sole final provision. Entry into force

1. This Royal Legislative Decree and the consolidated text it approves shall enter into force on the day following their publication in the Boletín Oficial del Estado, except as provided in the following paragraphs.

2. Articles 10(3) and 18.1.b) of the consolidated text shall enter into force on 1 July 2004, the date of entry into force of Law 58/2003 of 17 December, the General Tax Act.

3. Article 25.1.i) of the consolidated text shall enter into force on 1 January 2005, the date referred to in Council Directive 2003/49/EC of 3 June 2003 on a common system of taxation applicable to interest and royalty payments made between associated companies of different Member States.

The consolidated text has no legal force of its own. That statement is the BOE’s own, printed at the foot of the document these pages are translated from. The consolidation is an editorial compilation of the Act as amended; the binding texts are the Royal Legislative Decree and each amending statute as published. It is a reason to treat any single reading, including this one, as a starting point rather than an authority.

Where this sits

This is the last page of the Non-Resident Income Tax series. The earlier pages cover scope and taxpayers, what Spain taxes and what is exempt, permanent establishments, income obtained without one, attribution-regime entities and the property levy, and the EU option. They are listed on the section index.

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.