Your queries: What is the difference between fiscal and civil residency?

What constitutes a Spanish resident, and should I pay my taxes here or in the UK?

Many expats who own property here divide their time between the UK and Spain. During the boom years in Spain, there was very little genuine concern over how many expats were actually here, or whether they were paying  taxes here in Spain, but as the economic crisis has highlighted the problems faced by both municipal and regional governments, the question of costs is being more carefully analysed and steps taken to make sure that only those who are fiscally resident in Spain receive the benefits to which fiscal residents are legally entitled.

This has been particularly highlighted in new legislation relating to the Health Service and particularly in relation to the implementation of the co-pago system of prescriptions, in which residents must now pay towards prescriptions and receive re-imbursement for charges paid over and above the pre-set income limits.

This is highlighting the dilemma in which many ex-pats now find themselves : should I be fiscally resident in the UK or Spain?
One of the most common confusions arises over the most basic of details. What constitutes a resident, so we’re often asked this question ‘if I divide my time between the 2 countries am I a resident in Spain or a UK resident?’.

Legally, if you live in Spain for more than 183 days (and they need not be consecutive) in any one year then yes, you are classified as a Spanish resident.
That bit’s simple.

Where the confusion often arises is that there are two perceived levels of residency: civil residency and fiscal residency, but only fiscal residency is classed as true residency of Spain. Being a fiscal resident of Spain is a commitment to living here, and also clarifies many grey areas such as the type of healthcare which you are legally entitled to receive, and the level of services to which you are entitled, as well as dealing with taxation issues, as you can only be fiscally resident in one country.

It’s quite common for expats to confuse fiscal residency with civil residency.

Expats purchasing property here are all told that they must apply for the green residencia document, which is the green piece of paper obtained from your local police station. Anyone who is here for more than three months must apply for a green residencia. But this is only half the story. What you have there is in fact civil residency, which is simply a means for the Spanish Government to know how many people are living here and how long they have been here, but as people move backwards and forwards across countries ‘forgetting’ to cancel these, the Spanish government does not rely on the green paper alone. If you really want to prove you are a resident in Spain you need to have evidence of your fiscal residency.    

The Certificate of Fiscal Residency
The certificate of fiscal residency is a white printed-off certificate which is obtained from The Tax Office – AgenciaTributaria and is only given to those residents who have fiscal residence, ie are here for more than 183 days a year and make their tax declarations to the Spanish Agencia Tributaria .

Many residents do not actually pay any tax at all, as some of those on pension incomes fall below tax thresholds, and it is difficult to obtain a fiscal residency certificate without having presented an annual tax declaration, the Spanish Tax Return - Modelo 100. So it is for this reason that we recommend all residents make a tax return, even if they fall below the threshold requiring them to pay any tax.

Proving income to the authorities has become even more of an issue recently due to the new co-payment system for prescriptions. Making a resident tax declaration and being a fiscal resident is the best way of ensuring that you are reimbursed when your monthly prescription limit is reached.

Another reason for making fiscal declarations here in Spain if you are living here, is that should you decide to sell up and go back to the UK, 3% tax has to be paid on the property sale if you are not resident.

The fiscal residency certificate is required to prove residency when you sell your home and avoids having 3% of the sale price retained.
 The Fiscal Residency certificate also proves residency where there is an inheritance claim and can make a big difference to the amount of inheritance tax payable. You will not benefit from these tax advantages unless the notary sees your fiscal resident certificate when presiding over the transactions.


Making a tax return as a Resident
The process is not that difficult. Tax returns are completed during June and are retrospective. So in June 2013 you will be completing a declaration for January to December 2012, the last complete tax year. A fiscal representative submits many of these every year and will be able to give you advice about the documents you need to take with you for the declaration to be completed.  

Not every resident has to complete an annual tax declaration and it is possible to prove fiscal residency without one. However, for a small annual fee, it is a useful way of ensuring that you have the proof you need when you want to demonstrate fiscal residency. In these times of economic uncertainty, it is one way of making sure you really are on the map in Spain.

Summary:
Who would be advised to make a Spanish resident tax declaration
Anyone resident in Spain for more than 183 days and with any income or capital gains anywhere in the world.Also those who have their family or business based in Spain even if they themselves are absent.If you are legally a fiscal resident and have not made a tax declaration, this does not change  the fact that you are in fact tax resident and are liable to be taxed accordingly.

What will I be taxed on?
Tax is payable on all income, although as with every other country there are allowances for various circumstances and tax bands.
Basically, tax will be paid on all income( worldwide as well as Spanish) and capital gains. This includes income generated by employment or business activities, pensions, gains from sales of property, shares or sales of assets, income from investments, rents received on property.