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V1012-20 22 April 2020 · SG de Fiscalidad Internacional Criterion in force
IRPF · residencia fiscal

Fiscal residence determined by permanent home in case of residence conflict

The consultant asks whether they can be a tax resident in Andorra if they have a home there and not in Spain, while their spouse has a home in Spain. The DGT explains that, in case of residence conflict, the double taxation treaty with Andorra prioritises the country where the individual has a permanent home available.

The question raised

Concept of permanent home in the Spain-Andorra Double Taxation Convention. Whether, by virtue of not owning any assets in Spain but owning a home in Andorra, an individual can be considered a tax resident in Andorra.

The DGT's ruling

If a conflict of residence exists, the Convention establishes that the individual shall be considered a resident exclusively of the State where they have a permanent home at their disposal. If they have a home in both, the tie-breaker rule of the center of vital interests shall apply. The home must be furnished and reserved for permanent use, not for short-term stays. A home is considered to be any form (ownership or rental) provided that the subject has the possibility to inhabit it at all times.

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