Newsletter Tax and Legal 3/2023

06 Feb Newsletter Tax and Legal 3/2023

Tax news.
Beckham Tax Regime after entry into force of Law 28/2022 of 21 December on the promotion of the ecosystem of emerging companies.

On 22 December 2022, the Law for the Promotion of the Startup Ecosystem (Startup Law) was published in the BOE, introducing interesting modifications to the special tax regime known as the «Beckham Law», previously applicable to workers, and now also extended to professionals, entrepreneurs and investors who have moved to Spanish territory.

The Startups Act lowers the requirements to benefit from this special regime, broadening the spectrum of persons who may apply for its.

Following the amendments introduced by the Startups Act, to Article 93 of the Personal Income Tax Act, the requirements for application of the special regime are as follows:

a) Persons who have not been tax residents in Spain, during the five tax periods prior to the period in which the arrival in Spain takes place, may apply for the special regime. Therefore, the number of previous tax periods of non-residence required, to be able to apply the special regime, is reduced from 10 to 5.

b) The special regime is now applicable, not only when the posting to Spain is the consequence of an employment contract, also when:

• The work activity is carried out from Spanish territory by means of the exclusive use of computer, telematic and telecommunication systems (digital nomads), without the need for the employer to order the displacement. This circumstance will be understood to be fulfilled in the case of employed workers who have an international teleworking visa.

  If the posting to Spanish territory is for telecommuting permanently, Spanish Social Security legislation continues applying.

  If, on the other hand, it is a temporary displacement, it will depend on the Social Security Agreement existing between the Kingdom of Spain and the company country of origin. Therefore, if Spanish social security legislation does not apply, the Spanish authorities must be notified of this situation by means of form TA 300.

• As a consequence of the appointment as director of an entity, irrespective of the percentage shareholding. In the event that the entity is considered an asset-holding entity, the director’s shareholding must be less than 25%.
• The taxpayer travels to Spanish territory to carry out an economic activity qualified as entrepreneurial for these purposes: (Of an innovative nature, of special economic interest for Spain and for which a favourable report has been issued by Empresa Nacional de Innovación, S.A. (ENISA)).

c) The special regime will also apply to highly qualified professionals who travel to Spain to carry out business activities consisting of providing services to emerging companies or carrying out training, research, development, or innovation activities, and receive 40% of their income for it.

Furthermore, the special regime is extended to the spouse of the posted worker and their children, under 25 years of age, or disabled children, without age limit, or if there is no marital relationship, to their parent, provided that the following conditions are met:

• That they move to Spanish territory before the end of the first tax period in which the special regime becomes applicable for the displaced taxpayer.
• They meet the requirements of non-residence and not obtaining income from economic activities other than those now authorised for taxpayers applying this special regime (innovative activity and/or activity of special economic interest for Spain with a favourable report from ENISA).
• That their respective IRPF taxable income does not exceed that of the spouse or parent who gave rise to the application of the regime.

It should be remembered that the persons to whom this special regime applies, will maintain their tax resident status in Spain, although, they will be taxed in Spanish territory according to the rules laid down in the Non-Resident Income Tax (IRNR), during the tax period in which they change their residence and the following five tax periods.

If the special regime is applied, they would be taxed in Spain:

• On their worldwide income from work and economics activities that qualifies as an entrepreneurial activity.
• Income, other than the above, obtained from Spanish source.

The tax rates applicable to the above would be as follows:

a) On the aggregated ordinary income (No changes):

b) On the aggregated dividends, interest and capital gains form the transfer of any item: (The rates of the scale have been increased from 150,000 Euros on).

Madrid, February 2, 2023