Spain

*Updated October 2017*

Legal system

Civil law. Spain is made up of 17 autonomous communities and two North African enclaves, each with its own government with independent legislative powers and powers to raise taxes. Regional legislation must be considered whenever the taxpayer is a habitual resident of one of the autonomous communities or where there is a connecting factor with an autonomous community.

Inheritance and succession

Succession

Rules of Private International Law: The EU Succession Regulation 650/2012 (the Succession Regulation) is now in full force and effect. The Succession Regulation establishes uniform rules on jurisdiction and on the choice of the applicable law throughout all countries bound by it in matters of succession and inheritance. The Succession Regulation zone countries (SRZC) comprise all EU Member States except the Non-Participating Member States (NPMS), namely the United Kingdom, Ireland and Denmark, which did not adopt the Succession Regulation.

The Succession Regulation binds the competent authorities within the SRZC when dealing with the succession to the estate of a person who died on or after 17 August 2015.

It replaces the previous national rules of private international law and of jurisdiction of each PMS in matters of succession but it does not amend or repeal the substantive inheritance laws of any country whatsoever, whether inside or outside the EU.

• Applicable law: By default, the Succession Regulation applies the law of the deceased’s country of ‘habitual residence’ at death to the succession as a whole (as opposed to the deceased’s national law which was the previous Spanish rule it replaced). So, where the deceased died habitually resident in Spain, the applicable law will be Spanish law, including its rules of forced heirship. Previously Spanish law permitted a foreign national to leave his estate to whomever he chose, provided the law of his nationality allowed him to do so. In future, if someone is ‘habitually resident’ in Spain, they will be subject to Spain’s forced heirship rules.
• Renvoi: However, if the deceased was habitually resident in a NPMS such as the United Kingdom, Ireland or Denmark, or a third state such as the USA, Australia or New Zealand, the situation becomes more complicated. If the rules of conflict of that third state or NPMS remit to Spanish law (for example because the deceased owned immovable property in Spain) the Succession Regulation provides that the renvoi must be accepted by Spanish law, so that the rights of the forced heirs under Spanish law will apply to the succession and will restrict the liberty of the testator to dispose of his immovable property in Spain as he wishes: even if he is habitually resident in a country such as England and Wales where he is generally free to dispose of his property as he wishes.
• ‘Member State’ or ‘third state’? This much-debated question will become irrelevant after Brexit as far as the UK is concerned.
• Jurisdiction: The Succession Regulation provides that jurisdiction to rule on a succession as a whole is granted to the PMS in which the deceased had his habitual residence at the time of death.
  
  If the deceased was not habitually resident in any PMS at the date of death the courts of Spain will have jurisdiction to rule on the succession as a whole if (1) he died leaving assets situate in Spain and (2.1) if he was a Spanish national at the date of his death or (2.2) if the deceased had been previously habitually resident in Spain provided not more than five years have elapsed since he ceased to be habitually resident in Spain.
  
  Obviously the courts of a third state or of a NPMS are not bound by the Succession Regulation.
  Finally, if no court in a PMS has jurisdiction under these rules, and the deceased left assets situate in Spain, the Spanish courts will nevertheless have jurisdiction to rule in relation to those assets. 

• Conclusion: UK nationals who are habitually resident in Spain or own real estate in Spain wherever they are resident should consider making new wills expressly declaring that they choose their national law as the law applicable to their succession as a whole. Other considerations will apply to other nationalities.

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Family law and defined inheritance rules

Family law:

• Separation of goods – each spouse owns their own property.
• Community of property (gananciales) – all assets acquired during the marriage except by gift or inheritances are automatically owned in equal shares.

Inheritance rules:

• These vary between autonomous regions. Issue, parents and spouse are forced heirs. If there are children they are usually entitled to two-thirds between them while the surviving spouse is only entitled to a life interest in one-third. This leaves one-third which can be freely disposed of.

Intestacy:

• The rules are set out in Article 912 et seq. of the Civil Code. For details see www.spanishlawyers.co.uk/info4step 

Probate process

The terms ‘probate’ and ‘executor’ are meaningless in Spanish law. Joint tenancies do not exist and assets never pass automatically by reason of survivorship. Assets pass on death directly to beneficiaries on acceptance of the inheritance by signing a deed before a notary.

Mental capacity

National law applies to issues of capacity. Foreign court orders are recognised. Powers of attorney which remain valid despite incapacity are permissible.

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Estate planning

Use of trusts in estate planning

Spain is not a party to the Hague Convention on the Law Applicable to Trusts and on Their Recognition, of July 1985. It is not possible to create a trust under Spanish law.

Use of foundations in estate planning

Foundations are rarely used in estate planning.

Types of entities

The corporate structures most frequently adopted in Spain are the public limited company (Sociedad Anónima or SA) and the private limited company (Sociedad de Responsabilidad Limitada or SL). Minimum share capital is EUR60,102 for SAs (EUR3,000 for new SLs). At least 25 per cent of the capital must be paid up for SAs (100 per cent for SLs). Capital contributions are exempt from tax. Debt equity ratio should not exceed 3:1.

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Taxation

Income tax system

Residents are taxable on worldwide income and gains.

Personal income tax rates

For residents, the total income tax payable is the sum of the tax calculated on two scales – the State Scale (Escala General) and the Scale of the Autonomous Region (Escala Autonómica). The Regional Government determines the latter. For example, the combined rate for earned income for residents of Andalucía reaches a maximum rate of 48 per cent on income over EUR300,000 (down from 56 per cent in 2014).

Dividends, interest and savings income are taxed at special rates between 19 per cent and 23 per cent in 2017. For rates see www.spanishlawyers.co.uk/info4step.

Special reduced rates apply to annuities depending on the age at which the contract was taken out.

Under special tax laws and regulations, (known as the Beckham regime) persons who move to Spain as a result of a contract of employment who have not been resident in Spain for the previous ten years may elect to be taxed as non-residents for a period of five years. Instead of paying tax at a marginal rate of e.g. 45 per cent on worldwide income, the employee pays non-resident income tax at a flat rate of 24 per cent on employment income earned in Spain and elsewhere up to EUR 600,000 and 45 per cent on the excess.

Non-Spanish unearned income is not subject to Spanish taxation and assets outside Spain are exempt from wealth tax.

Corporate income tax rates

The mainstream corporation tax rate in 2017 is 25 per cent which applies both to profits and capital gains.

Investments in Spanish real estate by companies resident in ‘tax havens’ are subject to an annual tax of 3 per cent of the property’s fiscal value. Treaty-protected companies are not liable to this tax and no longer need to apply for exemption.

Capital gains tax

• Residents: short-term capital gains of residents are treated as income. Long-term gains are now taxed at 23 per cent (after applying a lower rate of 19 per cent to the first EUR6,000 and of 21 per cent on the next EUR24,000). Gains made on the disposal of a principal private residence are fully taxable except to the extent that the proceeds are reinvested in another principal private residence. The gain is exempt where the taxpayer can produce proof from the Town Hall that he has been habitually resident for at least the last three years and is 65 years of age or more. All gains made by residents over 65 years of age are exempt if reinvested in an annuity within six months of disposal.
• Non-residents: capital gains made by non-residents are subject to the lower rate of 19 per cent, but there is a withholding of 3 per cent on the sale price, which a purchaser of real estate from non-resident must pay to the Spanish Revenue.

Non-residents taxable on

Subject to double-tax agreements, non-residents pay tax at flat rates on the amount of Spanish-source income at varying rates, for example 24 per cent on rentals or 19 per cent if they are EU residents who may also deduct expenses.

If a property is owner-occupied, tax is payable at 24 per cent on a notional income usually of 2 per cent of the catastral value or 19 per cent if the owner is an EU resident.

Withholding tax rate (non-treaty, non-EU)

The general withholding rate is the same as the tax rate.

Withholding tax rate (treaty EU)

For treaty rates see http://www.minhap.gob.es/es-es/Normativa%20y%20doctrina/normativa/cdi/paginas/cdi_alfa.aspx

Taxation at death

It is the donee or beneficiary who is chargeable to tax (not the executors or administrators). Tax is calculated in relation to the total value of all legacies to each legatee or beneficiary. The total value of the estate is irrelevant. The more the estate is split up between close relatives, (especially young children) the lower the overall ‘estate rate’ of Spanish Inheritance Tax (IHT).

The rates of IHT vary, depending on degree of kinship between donor and donee and the net wealth of the donee. Children benefit from the most liberal tax-free allowances, dependent on age. For spouses and children, maximum tax rates range between 34 per cent and 40.8 per cent. For unrelated beneficiaries, the maximum tax rates range between 68 per cent and 87.6 per cent. See www.spanishlawyers.co.uk/info4step.

Spouses are not usually exempt from IHT as in the UK and France but several autonomous communities do grant allowances to spouses and children of up to 99 per cent.

The law establishes various allowances which have the effect of reducing the value of the taxable legacy. See www.spanishlawyers.co.uk/info4step.

These allowances are determined by reference to four categories of legatee, including – children of under 21 years of age (Group I); spouses and older children (Group II); brothers and sisters (Group III) and more distant relatives and unrelated beneficiaries (Group IV).  The categories and allowances for 2017 are set out in table A on the previous page, although regional variations may apply.

The balance of the legacy is then subject to tax at ad-valorem rates. For rates see www.spanishlawyers.co.uk/info4step.

The scale incorporates a basic amount of tax for the relevant slice (e.g. euros ‘A’ on X thousand euros) and a further marginal rate of tax on the excess (e.g. B per cent on the excess up to Z thousand euros), although regional variations may apply. However, the tax thus calculated only represents the amount payable where:

• The taxpayer is a relative within groups I and II, and
• The taxpayer’s personal wealth for the purposes of Spanish Wealth Tax does not exceed EUR402,678.11 (approx GBP268,450).

For all other taxpayers, the tax calculated on the scale is multiplied by a coefficient varying between 1.0500 and 2.4000 depending on the net worth of the beneficiary or donee and depending on which group he or she falls within the categories defined below. The coefficients are in table B (above), although regional variations may apply.

If the legatee is unrelated, the tax payable under the scale is increased by a minimum coefficient of 2.0000 and a maximum coefficient of 2.4000 (where the legatee’s net worth exceeds EUR4,020,770.98.)

Where assets pass from the deceased to trustees and from the trustees to a beneficiary who is not related to the trustee there is a risk that the trust will be disregarded. In such cases the transfer would be taxed as a lifetime gift (in favour of unrelated persons Group IV) and the minimum multiplier would be 2.00.

Different tax rates may apply if the beneficiary is resident in Spain and the deceased has been habitually resident in an autonomous region, such as Madrid or the Balearics, for at least five years before their death, and in some regions children and spouses can benefit from a 99 per cent reduction in the tax payable.
 Rates for some regions are set out on www.spanishlawyers.co.uk/info4step. Regional legislation needs to be considered whenever the deceased or the beneficiaries are resident in one of the autonomous communities.


Death is not a disposal for gains tax purposes but the value declared for IHT purposes becomes the beneficiary’s base value for gains tax purposes.

As a result of the ruling of the Court of Justice of the European Union, the law governing Spanish Inheritance Tax (ISD) changed as from 1 January 2015. The Court of Justice held that the tax discriminates against non-resident EU citizens insofar as they must pay tax based on the state rules which are much more burdensome compared to taxes on residents of the autonomous regions. From 1 January 2015, the applicable rules and rates of the relevant tax authority will be determined in accordance with table C (left). NB: Brexit will affect the position of UK residents.

Table A:

Table B: Coefficients based on wealth of legatee and his relationship with the deceased

Table C: Rules for determining applicable tax authority

Other taxes

• Wealth tax: for residents the tax applies to worldwide wealth, while for non-residents it applies only to assets within Spain.

• Net taxable wealth (NTW): taxable at rates of up to 2.5 per cent per annum. To arrive at NTW each taxpayer (whether resident or non-resident) may deduct EUR700,000. Additionally each taxpayer may deduct up to EUR300,000 in respect of the habitual residence but only if resident. The NTW is then subject to tax on an ad-valoram scale – see www.spanishlawyers.co.uk/info4step.
• VAT: the standard rate of VAT is now 21 per cent, although reduced rates of 10 per cent and 4 per cent apply in certain situations. For example, the VAT rate for real estate is 21 per cent, but supplies of most new dwellings with garages attached are taxed at 10 per cent, while shops and commercial premises are taxed at 21 per cent.
• Property transfer tax (stamp duty): real estate transfers that are not liable for VAT are usually liable to transfer tax on a rising scale starting at 8 per cent and rising to 10 per cent on the consideration exceeding EUR700,000 (except where the property is exchanged for shares in a company, when the tax rate drops to 1.5 per cent), although regional variations may apply. For rates see www.spanishlawyers.co.uk/info4step.

Tax treaties

Spain has entered into double tax conventions with over 80 countries (www.agenciatributaria.es).

Tax information exchange agreements

Spain has entered into TIEAs with five countries (www.agenciatributaria.es).

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Residence and domicile

Special rules on becoming resident

Persons are regarded as resident in Spain if they spend more than 183 days in the country in any calendar year, or if their centre or base of their activities or financial interests is located in Spain. Certain presumptions of residence apply unless rebutted.

Special rules on ceasing residence

Temporary absences are treated as periods of continuing residence unless and until proof of residence in another country is produced. In practice this means a certificate of residence from another DTC country.

In the case of a ‘tax haven’ the taxpayer must prove actual residence in that territory for a period of at least 183 days p.a.
Under a rule known as the cuarentena fiscal Spanish nationals who move to a ‘tax haven’ do not ‘shed’ their residence in Spain until they have been non-resident for four years plus the year they moved.

There is now an exit tax: taxpayers who have been resident for more than ten years out of the preceding 15 who move to a non-EU country and own shares or have portfolio investments worth more than EUR4 million are taxable on a deemed gain based on an assumed disposal of the holdings the day they leave. The threshold drops to EUR1 million if they own more than 25 per cent in the company in question.

Domicile concept for gifts and inheritance

Domicile is not a concept known to the Spanish legal system; it is often confused with domicilio meaning residence. Domicile of the deceased or of the beneficiary is irrelevant. The beneficiary or donee, not the estate, is charged tax.

Taxation of holdings by non-residents on death and of gifts

• Gifts: gifts tax is payable on all assets passing situated inside Spain, and assets outside Spain if the donee is resident in Spain. The rates of tax are the same as on death except that the tax-free allowances do not apply.
• Death: IHT is payable on all assets passing situated inside Spain, and assets outside Spain if the beneficiary is resident in Spain.
  • Gains – capital gains tax is also payable on lifetime gifts but not in death.
  • Income – from Spanish holdings.
  • Wealth – in Spain – wealth tax.

Reporting/auditing requirements

Tax returns must be filed by resident and non- resident individuals and corporations – for details see www.spanishlawyers.co.uk/info4step/ Residents must file an annual return of assets held outside Spain exceeding EUR50,000.

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Other relevant information

Asset protection laws

Articles 1.111, 1.291 and 1.297 Código Civil.

Foreign currency restrictions

Imports or exports of cash and/or negotiable instruments and foreign currency over EUR10,000 must be declared, and also internal movements of cash in excess of EUR100,000. Cash payments to businesses or professionals over EUR2,500 are forbidden.

Foreign ownership restrictions

None – except investments from ‘tax havens’ must be notified. The purchase of real estate in areas of strategic importance is restricted and consent is required in the case of non-EU purchasers.

AML/due diligence and other requirements and regulatory procedures for advisors

Non-Spanish nationals and non-Spanish residents contemplating any financial transaction or investment in property in Spain must obtain a fiscal identity number (NIE). Evidence of source and proof of payment must be shown to the notary who attests the conveyance.

Key resources for further information

PUBLICATIONS

• The Spanish section of Tolley’s Planning and Administration of Offshore and Onshore Trusts (LexisNexis)

 WEBSITES

• Spanish Revenue: www.aeat.es
• Legislation: www.elderecho.com
• Official State Gazette: www.boe.es
• Supreme Council of the Bar: www.cgae.es
• Red Abogacia Española: www.abogacia.es
• Tax law: www.efl.es
• For tax treaty details: www.agenciatributaria.es

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STEP branches in Spain

There is one STEP branch in Spain.

• STEP Spain

Firms in Spain

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Members in Spain

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