Spanish tax law · Non-Resident Income Tax · 01

Scope, taxpayers and representatives

The preliminary chapter and chapter I, articles 1 to 11: where the tax applies, which law governs it, how treaties fit in, who counts as a taxpayer, who is liable alongside them, and who has to appoint someone in Spain.

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.

What this chapter decides

These eleven articles come before any question of how much tax is due. They settle where the Act reaches, which other statute supplies a definition it does not give itself, whether a treaty overrides it, and who the Spanish authorities may pursue if the tax is not paid. The last two articles, on representatives and tax domicile, are the ones that most often surprise people: they decide where a notice can validly be served on you.

Preliminary chapter. Nature, purpose and scope

Article 1. Nature and purpose

Non-Resident Income Tax is a direct tax charged on income obtained in Spanish territory by individuals and entities not resident in that territory.

Article 2. Scope of application

1. This tax shall apply throughout Spanish territory.

2. Spanish territory comprises the territory of the Spanish State, including the airspace, the internal waters, and the territorial sea and the areas beyond it in which, in accordance with international law and by virtue of its domestic legislation, the Spanish State exercises or may exercise jurisdiction or sovereign rights over the seabed, its subsoil and the superjacent waters and their natural resources.

3. The provisions of paragraph 1 shall be understood without prejudice to the foral tax regimes of concierto and convenio económico in force, respectively, in the Historical Territories of the Basque Country and in the Chartered Community of Navarre.

4. In the Canary Islands, Ceuta and Melilla, account shall be taken of the special rules applicable by virtue of their specific legislation and of the provisions of this Act.

Paragraph 1 is narrower than “throughout Spanish territory” sounds. Paragraphs 3 and 4 carve two holes in it. The Basque Country and Navarre levy this tax under their own concierto and convenio, so for income attributed to those territories the operative text is theirs, not this one. The Canary Islands, Ceuta and Melilla stay inside this Act but carry their own special rules on top of it.

Article 3. Applicable legislation

The tax is governed by this Act, which shall be interpreted in concordance with the legislation governing Personal Income Tax and Corporate Income Tax, as appropriate.

Article 4. Treaties and conventions

The provisions of this Act shall be understood without prejudice to the provisions of the international treaties and conventions that have become part of domestic law, in accordance with article 96 of the Spanish Constitution.

This is the article that lets a treaty win. It is one sentence and it governs everything that follows: where a double tax treaty applies to you, the treaty prevails over the domestic rules in the rest of the Act. The practical order is to read the treaty first and this Act second. Spain’s treaty network is reproduced in full in the treaty library, and the headline withholding rates are compared in the treaty rates guide.

Chapter I. Personal elements

Article 5. Taxpayers

The following are taxpayers for the purposes of this tax:

a) Individuals and entities not resident in Spanish territory under article 6 who obtain income in that territory, unless they are taxpayers for Personal Income Tax.

b) Individuals who are resident in Spain by virtue of any of the circumstances set out in article 9.4 of the consolidated text of the Personal Income Tax Act, approved by Royal Legislative Decree 3/2004 of 5 March.

c) Entities under the income attribution regime referred to in article 38.

Paragraph b) is narrower than it looks. It covers Spanish nationals posted abroad in diplomatic and consular service and similar positions, who remain Spanish-resident for income tax but are taxed under this Act for certain purposes. It is not a general rule for residents.

Article 6. Residence in Spanish territory

Residence in Spanish territory shall be determined in accordance with article 9 of the consolidated text of the Personal Income Tax Act, approved by Royal Legislative Decree 3/2004 of 5 March, and article 8.1 of the consolidated text of the Corporate Income Tax Act, approved by Royal Legislative Decree 4/2004 of 5 March.

Both cross-references are to statutes that no longer exist. Royal Legislative Decree 3/2004 was repealed with effect from 1 January 2007 and replaced by Law 35/2006; its seventeenth additional provision directs that references to the 2004 consolidated text are to be read as references to the corresponding provisions of the new Act, so the operative individual residence test is now article 9 of Law 35/2006. Royal Legislative Decree 4/2004 was in turn repealed by Law 27/2014 of 27 November, with effect for tax periods beginning on or after 1 January 2015; the corresponding corporate residence test is article 8.1 of that Act. The same stale citation of Royal Legislative Decree 3/2004 appears again in articles 5.b), 7 and 8. We have left it as the law has it and flagged it each time rather than silently updating the text.

This Act does not define residence. It borrows the definition. Nothing on this page tells you whether you are resident; article 6 sends you to the Personal Income Tax Act for individuals and to the Corporate Income Tax Act for entities. If a treaty also claims you as resident of the other State, the treaty tie-breaker decides, by virtue of article 4 above.

Article 7. Attribution of income

Income corresponding to entities under the income attribution regime referred to in article 10 of the consolidated text of the Personal Income Tax Act, approved by Royal Legislative Decree 3/2004 of 5 March, together with the withholdings and payments on account they have borne, shall be attributed to the members, heirs, co-owners or participants, respectively, in accordance with section 2 of title VII of that consolidated text and with chapter V of this Act.

Article 8. Individualisation of income

Article 11 of the consolidated text of the Personal Income Tax Act, approved by Royal Legislative Decree 3/2004 of 5 March, on the individualisation of income, shall apply to individual taxpayers.

Article 9. Persons jointly and severally liable

1. The following shall be jointly and severally liable for payment of the tax debts corresponding to the income they have paid, or to the income from the assets or rights whose deposit or management has been entrusted to them, respectively: the payer of income accrued without a permanent establishment by taxpayers, and the depositary or manager of taxpayers’ assets or rights not connected with a permanent establishment.

This liability shall not exist where the obligation to withhold and make payments on account referred to in article 31 applies, including in the cases provided for in paragraph 4 of that article, without prejudice to the liabilities arising from the status of withholding agent.

2. A person or entity shall not be regarded as paying income where it merely acts as a simple intermediary in payment. Simple mediation of payment means the payment of an amount for the account and on the order of a third party.

3. In the case of the payer of income accrued without a permanent establishment by taxpayers of this tax, and in the case of the depositary or manager of assets or rights not connected with a permanent establishment and belonging to persons or entities resident in countries or territories regarded as tax havens, the proceedings of the tax authorities may be conducted directly with the person liable, from whom the tax debt may be demanded, without the need for the prior administrative act of derivation of liability provided for in article 41.5 of Law 58/2003 of 17 December, the General Tax Act.

In the remaining cases, joint and several liability shall be demanded on the terms provided for in article 41.5 of Law 58/2003 of 17 December, the General Tax Act.

4. Those who have been designated as their representatives shall be jointly and severally liable for payment of the tax debts corresponding to the taxpayers referred to in article 10(1) of this Act who operate through a permanent establishment or in the cases covered by article 38.

The second sentence of paragraph 1 is the one that matters commercially. A Spanish payer who is already obliged to withhold under article 31 does not also carry this joint liability for the recipient’s tax. Where there is no withholding obligation, the payer does carry it. The distinction decides whether a Spanish counterparty can be pursued for a foreign supplier’s unpaid tax.

Paragraph 4 makes the representative liable for the tax, not merely a postbox. Anyone agreeing to act as representative for a taxpayer with a permanent establishment, or in an article 38 case, is accepting joint and several liability for that taxpayer’s tax debts.

Article 10. Representatives

1. Taxpayers for this tax who are not resident in another Member State of the European Union shall be obliged to appoint, before the end of the period for filing the return for income obtained in Spain, an individual or legal person resident in Spain to represent them before the tax authorities in relation to their obligations under this tax, where they operate through a permanent establishment, in the cases referred to in articles 24.2 and 38 of this Act, or where, because of the amount and characteristics of the income obtained or the ownership of immovable property in Spanish territory, the tax authorities so require.

In the case of States forming part of the European Economic Area that are not Member States of the European Union, the foregoing shall not apply where rules exist on mutual assistance in the exchange of tax information and in collection on the terms provided for in Law 58/2003 of 17 December, the General Tax Act.

This obligation shall likewise be required of persons or entities resident in countries or territories with which there is no effective exchange of tax information in accordance with paragraph 3 of the first additional provision of Law 36/2006 of 29 November on measures for the prevention of tax fraud, who own assets situated, or rights performed or exercised, in Spanish territory, excluding securities traded on official secondary markets.

The taxpayer, or its representative, shall be obliged to notify the tax authorities of the appointment, duly evidenced, within two months from its date.

The designation shall be communicated to the Delegation of the State Tax Administration Agency to which the return for this tax is to be filed. The communication shall be accompanied by the representative’s express acceptance.

2. In the case of resident persons or entities under the income attribution regime constituted in another Member State of the European Union, they shall act before the tax authorities through the persons holding their representation in accordance with the rules on legal and voluntary representation laid down in Law 58/2003 of 17 December, the General Tax Act.

In the case of States forming part of the European Economic Area that are not Member States of the European Union, the foregoing shall apply where rules exist on mutual assistance in the exchange of tax information and in collection on the terms provided for in Law 58/2003 of 17 December, the General Tax Act.

3. Where the obligation to appoint laid down in paragraph 1 is not complied with, the tax authorities may regard as representative of the permanent establishment, or of the taxpayer referred to in article 5.c) of this Act, whoever is recorded as such in the Commercial Registry. If no representative has been appointed or registered, or if that person is other than the person empowered to contract on their behalf, the tax authorities may regard the latter as such.

Where the obligation to appoint a representative required of persons or entities resident in countries or territories with which there is no effective exchange of tax information in accordance with paragraph 3 of the first additional provision of Law 36/2006 of 29 November on measures for the prevention of tax fraud is not complied with, the tax authorities may regard the depositary or manager of the taxpayers’ assets or rights as their representative.

4. Failure to comply with the obligation referred to in paragraph 1 shall be regarded as a serious tax infringement, and the penalty shall consist of a fixed pecuniary fine of 2,000 euro.

Where the taxpayers are resident in countries or territories with which there is no effective exchange of tax information in accordance with paragraph 3 of the first additional provision of Law 36/2006 of 29 November on measures for the prevention of tax fraud, that fine shall amount to 6,000 euro.

The penalty imposed under this paragraph shall be reduced in accordance with article 188.3 of Law 58/2003 of 17 December, the General Tax Act.

Owning a Spanish property does not by itself trigger the obligation. This is the most common misreading of the article. Paragraph 1 bites only on taxpayers outside the European Union, and then only in the listed situations: a permanent establishment, an article 24.2 or article 38 case, or where the tax authorities actually require an appointment because of the amount and nature of the income or the property held. Ownership of immovable property appears in the article as a reason the authorities may require a representative, not as an automatic duty to appoint one.

Two separate carve-outs, pointing in opposite directions. A taxpayer in the European Economic Area but outside the European Union escapes paragraph 1 where mutual assistance rules on both information exchange and collection are in place. A taxpayer in a territory with no effective exchange of tax information is caught by a separate, wider duty in the third sub-paragraph, which attaches to holding assets or rights in Spain at all, and the fine for ignoring it is 6,000 euro rather than 2,000.

If you do not appoint one, the authorities will choose for you. Paragraph 3 lets them treat the person named in the Commercial Registry, or the person empowered to contract on your behalf, or your depositary or asset manager, as your representative. Combined with article 9.4, the person so treated is in the frame for the tax debt.

Article 11. Tax domicile

1. Taxpayers not resident in Spanish territory shall have their tax domicile in Spain, for the purpose of complying with their tax obligations:

a) Where they operate in Spain through a permanent establishment, at the place where the effective administrative management and the direction of their business in Spain are located. Where the tax domicile cannot be established under the foregoing criterion, the place where the greatest value of fixed assets is located shall prevail.

b) Where they obtain income derived from immovable property, at the tax domicile of the representative and, failing that, at the location of the property concerned.

c) In the remaining cases, at the tax domicile of the representative or, failing that, at that of the jointly and severally liable person.

2. Where no representative has been designated, notifications served at the tax domicile of the jointly and severally liable person shall have the same force and produce the same effects as if they had been served directly on the taxpayer.

The same validity shall attach to notifications that may be served at the location of any of the immovable properties they own, where persons or entities resident in countries or territories with which there is no effective exchange of tax information in accordance with paragraph 3 of the first additional provision of the Prevention of Tax Fraud Act have not designated a representative and there is no jointly and severally liable person.

Paragraph 2 is how a deadline can expire without you hearing anything. A notice served on your jointly liable person, or in the last resort left at a Spanish property you own, counts in law as a notice served on you. Time limits for appeal or payment run from that moment whether or not it ever reaches you abroad. This, rather than the fine, is the practical reason to appoint a representative whose address you actually monitor.

Where this sits

Chapter II, which follows, decides what Spain treats as income obtained in its territory, which is where almost every real argument begins. It is on the next page of this series, together with the exemptions and the rules on related-party transactions.

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.