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An EU employee with retained Spanish fiscal residence asks whether their spouse, working independently in Belgium, benefits from the fiscal home equivalence granted to EU employees. The DGT concludes that Article 13 of Protocol 7 explicitly excludes spouses engaged in independent professional activity, including self-employment. Consequently, the spouse is not covered by this equivalence and must be taxed under Spanish domestic law.
Question posed: Interpretation of Article 13 of Protocol No. 7 on the privileges and immunities of the European Union, which states that "This provision shall also apply to the spouse insofar as they do not engage in their own professional activity": whether employment is included in the expression "their own professional activity".
Article 13 of Protocol No. 7 on the privileges and immunities of the EU extends the equivalence of tax residence to the spouse only insofar as they do not engage in their own professional activity. The DGT interprets that employment constitutes their own professional activity; therefore, a spouse engaged in such activity cannot benefit from the protection of the provision, and their tax residence must be determined in accordance with Article 9 of the LIRPF. This criterion is reinforced by ruling V1132-06, which reaches the same conclusion for a temporary worker at the REPER.
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