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A sole shareholder and administrator of a Spanish company, moving their residence from the United Kingdom, inquired whether they could benefit from the special regime for posted workers while performing commercial director duties under a contract and salary. The DGT ruled that this is not possible because no employment relationship exists with the company, as the inquirer is the shareholder holding effective control over it.
Question raised: Whether the Special Regime for Displaced Workers may be applied given that the services of the commercial director are independent of those of the administrator position.
Para aplicar el régimen especial del artículo 93.1.b).1º de la LIRPF, debe existir una relación laboral con un empleador en España. En este caso, al ser el consultante socio único y poseer el control efectivo de la sociedad, sus servicios no constituyen una relación laboral según la normativa de la Seguridad Social. Por tanto, no se cumple la condición de desplazamiento por contrato de trabajo ni la de administrador sin participación.
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