Global mobility is an irrefutable trend. In our ever-more globalized world, attracting talent has become a need to enterprises; a need that trespasses borders. This reality, known to the Spanish legislator, is the rationale behind the pre-draft of proposed amendments to the Spanish Special Tax Impatriates Regime, applicable to qualifying employees relocated to Spain.

There is no doubt that, nowadays, territorial attachment has become secondary to individuals as evidence from the success of nomadism during the COVID-19 pandemic; but global mobility is a phenomenon that started decades ago. The need to not only support the internationalization of Spanish enterprises, but also make the Spanish market attractive to multinational companies led the tax legislator, at the beginning of the century, to introduce tax benefits in the income tax law. Its purpose was to boost relocation of highly qualified workers to our territory.

After several amendments, with the aim of creating a more attractive environment for investment and talent, the Special Tax Regime for employees relocated to Spain (commonly known as “the Beckham Law” or “impatriates regime”) may be altered once again as the Draft of the Promotion of Emerging Enterprises’ Ecosystems Act, published last December 27th (“the Draft”), makes its way into the Congress. T The Draft includes a proposed amendment to article 93 of the Personal Income Tax Law (Ley 35/2006, de 28 de noviembre, del Impuesto sobre la Renta de las Personas Físicas), the provision setting the requisites for employees relocated to Spain to qualify for the special tax treatment.

Which Are The Proposed Changes To The Beckham Law For employees relocated To Spain?

Article 93 of the Spanish Personal Income Tax (PIT) Law provides for a flat tax rate of 24% on employment income derived worldwide up to 600.000 €, and non-resident treatment to any other income. Therefore, any income different from employment income would only be taxed to the relocated employee if sourced to Spain. Applicable tax rates will range from 19% to 26% for interests, dividends, and capital gains, and a flat 24% rate for all other types of income.

Amendments proposed to article 93 PIT Law include relaxing the requisites to access the regime, extending its term of application, and expanding the covered impatriates to include  family members of the employees relocated to Spain. The proposed provisions represent a step-up of the tax legislator in favour of global mobility, and an attempt to fix some of the outstanding issues that have been identified from experience over the years. These issues were summarized in the report issued by the Commission of Experts for the Reform of the Spanish Tax System in 2014.

More specifically, proposed changes include:

• A reduction of the non-residency requirement:
  Currently, an employee relocated to Spain is required to not have been a tax resident in Spain in the ten (10) tax years prior to relocation to qualify for the regime. The Draft reduces this term to five (5) tax years.
• Expansion of covered taxpayers:
  Family members are currently excluded from the scope of the Beckham Law. The Draft proposes it also applies to the following family members of the employee relocated to Spain: (i) children under age 25 and handicapped regardless of age, (ii) spouse or parent of the said children if not married to the employee. These family members would also have to meet the following requirements to qualify:
  • Family members must relocate together with the employee or on a later date with the limit of the end of the first year in which the Impatriates Regime applies.
  • They must become Spanish tax residents as a consequence of their relocation.
  • They must not have been tax residents in Spain for the five years prior to relocation.
  • They must not derive income through a permanent establishment in Spain.
  • The aggregated taxable income of the family members for each tax year in which the Impatriates Regime applies cannot exceed the taxable income of the employee relocated to Spain. The purpose of this rule is that only when the main source of income for the family is the employee relocated, may the other family members benefit from this regime.
• The current Law provides that the movement to Spain must take place, among other reasons, because of an employment contract. This condition would be fulfilled when (i) an ordinary or special employment relationship, or a statutory relationship, is initiated with an employer in Spain, or when (ii) the posting is ordered by the employer and there is a letter of posting from the employer.
• The Draft includes a new circumstance in which this condition is deemed to be fulfilled: when, without being ordered by the employer, the employment activity is provided at a distance, by means of the exclusive use of computer, telematic and telecommunication means and systems. This circumstance will be understood to be fulfilled in the case of employees who have the visa for international teleworking provided for in Law 14/2013, of 27 September, on support for entrepreneurs and their internationalization.

OUTSTANDING ISSUES

Despite proposed provisions implying real improvements in accessibility and scope of the special regime for employees relocated to Spain, there is still a long way to go, since relevant outstanding issues are not being addressed in this reform:

• Self-employed individuals do not qualify for the benefits of the Impatriates Regime, which deters start-up founders from relocating to Spain to invest and work.
• Impatriates regime is optional, and the term to file the election is unnecessarily strict: six months from the date the employee starts working in Spain.
• If the employee relocated purchases a dwelling in Spain, it will not be considered his/her habitual residence for tax purposes with the following two main consequences: (i) the employee relocated will have to report imputed rental income on the dwelling, and (ii) will not be entitled to benefit from a tax-free gain on the sale of the home, even if proceeds are reinvested in another dwelling.

THEREFORE…

Even if the tax legislator’s intention to attract foreign talent seem clear, the Draft has only started the parliamentary process, so the above proposed provisions are simply mere expectations for the time being.

Therefore, we will have to wait to know the final wording for these provisions and the actual extension of the changes in the special regime for employees relocated to Spain.

Find out more

This article was produced by Laura Vicente, expert lawyer in the tax law department at CECA MAGAN. Spain, a CELIA Alliance member firm.

For further information or if you have any queries relating to the content of this communication, please contact us.

CELIA Alliance
CELIA Alliance members are identified here. Members of the CELIA Alliance are each independent law firms and do not practice law jointly with any other member of the CELIA Alliance. “CELIA Alliance” and “CELIA” are not trading names. For more information about the CELIA Alliance click here.

Disclaimer
Content is for general information purposes only. The information provided is not intended to be comprehensive and it does not constitute or contain legal or other advice. If you require assistance in relation to any issue please seek specific advice relevant to your particular circumstances. In particular, no responsibility shall be accepted by the authors or by Abbiss Cadres LLP for any losses occasioned by reliance on any content appearing on or accessible from this newsletter. For further legal information click here.

Circular 230 disclosure
To ensure compliance with requirements imposed by the IRS and other taxing authorities, we inform you that any tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties that may be imposed on any taxpayer or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

Copying
If you would like to copy or otherwise reproduce this article then you may do so provided that: (1) any such copy or reproduction is for your own personal use or if it is made available to any third party it is done so on a free of charge basis; and (2) the article is reproduced in full together with the contact details, disclaimer and any logos as they appear on each article.