IRPF: Tax residence can be proven by means other than a certificate

Executive Summary

The High Court of Justice of Madrid, in its ruling 681/2025 of 17 September (rec. no. 1991/2021), confirms that a tax residence certificate is not the only valid means of proving tax residence abroad. Although it is the usual and preferred means of proof, its requirement cannot be absolute when the taxpayer provides sufficient, consistent and conclusive evidence proving their residence outside Spain. This is particularly relevant in cases where there is no double taxation agreement between Spain and the other State.

Legal framework: how tax residence in Spain is determined

The tax residence of individuals in Spain is determined in accordance with Article 9.1 of the Personal Income Tax Law (IRPF). This provision establishes that a person shall be deemed to have their habitual residence in Spain when any of the following criteria are met:

1. Staying in Spanish territory for more than 183 days in the calendar year, including sporadic absences, unless the taxpayer can prove their tax residence in another country.
2. Having their main centre or base of economic activities or interests in Spain.
3. Presumption of residence when their spouse, who is not legally separated, and minor children habitually reside in Spain.

The rule does not expressly impose the obligation to prove residence in another country exclusively by means of a tax residence certificate. However, administrative practice and economic-administrative doctrine have considered such a certificate to be the main and qualified means of proof when it is issued by the competent tax authority in that State, especially in cases of conflict of residence or the application of double taxation agreements.

The case analysed by the High Court of Justice of Madrid

The case in question concerns a taxpayer who worked as a chef in Sierra Leone between 2012 and 2014, employed by a Spanish company. In the 2013 financial year, he submitted a refund application using form 210 for Non-Resident Income Tax (IRNR), requesting a refund of the withholdings made by his payer for personal income tax. The Tax Agency denied the refund on the grounds that he had not proven his tax residence in Sierra Leone, as he had not provided a certificate of tax residence issued by the authorities of that country, which, moreover, has not signed a double taxation agreement with Spain.

Both the administration that issued the assessment and the TEAR in Madrid rejected his status as a tax resident in Sierra Leone, arguing that there was no evidence of personal tax liability or sufficient documentation to prove tax residence abroad. The High Court of Justice of Madrid upheld the taxpayer’s appeal and considered that tax residence in Sierra Leone had been proven on the basis of the documentation provided, which included, among other things, employment history, pay slips, passport with proof of departures and arrivals in the country, Sierra Leone immigration certificate, airline tickets, and a letter of conditions for long-term international assignment formalised between the interested party and the employing company.

The Chamber emphasised that the tax residence certificate is the usual means of proving residence, but it is not the only or exclusive means. Its absence does not, in itself, prevent the taxpayer from proving his residence in another country by other means of evidence admissible in law.

The Court maintains that, for the 2012 tax year, the Administration itself had recognised the taxpayer’s non-resident status with substantially identical evidence, without adequately justifying the change in criteria for 2013. The Court reiterates the reasoning of the Administrative Chamber of the National High Court, in its ruling of 26 May 2021, regarding the possibility of providing evidence other than the tax residence certificate, in which it was established that rigidly requiring the tax residence certificate, when the country of residence does not issue it or there are objective difficulties in obtaining it, may violate the principle of proportionality.

Practical implications

In the absence of a tax residence certificate, taxpayers may prove their residence in another country by means of a set of evidence and indications which, taken as a whole, reflect a real and effective residence outside Spain. Among the most relevant elements are:

• Employment or service contracts abroad.
• Employment history.
• Immigration documentation or residence permits.
• Entry and exit stamps in the passport.
• Invoices and bank expenses in the country.
• Company certificates and payslips.
• Long-term worker transfer letters signed by the company.

However, failure to provide a tax residence certificate places the taxpayer in a more complex evidentiary position with regard to the presumption of residence in Spain, which means that the consistency and soundness of the body of evidence is decisive.

STSJ Madrid 681/2025 establishes an important criterion which, while reaffirming the special probative value of the tax residence certificate to prove residence in another country, also points out that it does not constitute absolute and sole proof. In addition, it reinforces the obligation of the Tax Administration to make a reasoned and joint assessment of other evidence and elements provided by the taxpayer for this purpose. The Court recalls that tax residence is a matter of facts and actual circumstances and cannot be made solely dependent on the existence of a formal document when there is sufficient evidence to prove effective residence abroad.

Supreme Court doctrine: The value of the certificate in dual residence conflicts

The Supreme Court, in its judgments numbers 1236/2024 and 1214/2024, has ruled on the value of the certificate in cases of dual residence conflict, qualifying its value and establishing case law along the following lines:

• The tax residence certificate issued by another State with which Spain has signed a Double Taxation Agreement must be presumed valid, particularly when this certificate is issued for the purposes of the applicable Double Taxation Agreement. Spanish administrative and judicial bodies cannot unilaterally ignore it or judge the circumstances of its issuance.
• A certificate of tax residence issued by another State does not automatically exclude tax residence in Spain. The fact that a taxpayer proves that they are a tax resident in another country with this document does not in any case prevent the Spanish Administration, in application of the rules set out in Article 9.1 of the LIRPF, from also considering them a resident in Spain.
• When the above occurs, a conflict of dual residence arises. This conflict must be resolved by applying the tie-breaker rules of the applicable Double Taxation Agreement.

In short, the tax residence certificate is qualified evidence, but not exclusive. Its absence does not prevent proof of residence in another country, but it does make the taxpayer dependent on proving their residence with other documents and evidence that may be less conclusive and make it more difficult to apply the provisions of double taxation agreements.

Sources:

https://www.poderjudicial.es/search/AN/openDocument/ff786c203d38a398a0a8778d75e36f0d/20251023 https://www.poderjudicial.es/search/AN/openDocument/3946cb41076436dba0a8778d75e36f0d/20240719

https://www.poderjudicial.es/search/AN/openDocument/c57378b03fb38f45a0a8778d75e36f0d/20240719