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V2448-24 4 December 2024 · SG de Fiscalidad Internacional Criterion in force
IRNR · pensión pública

Spanish State Pension paid by US resident: Spain retains IRNR, no refund if correct

A US tax resident receiving a Spanish Social Security pension and having IRNR withheld asks about taxation and refund eligibility. The DGT identifies two scenarios based on the Spain-US CDI: if the pension is public (services rendered to the Spanish State), Spain taxes exclusively, except for US nationals or immigrants; if it is a private pension paid by Social Security, tax powers are shared. In both cases, if IRNR withholdings were correctly applied, no refund is due in Spain; if there is an over-withholding, a Form 210 may be filed.

The question raised

Question raised: Taxation of the pension in Spain. Method of declaring in Spain and, where applicable, obtaining a refund for the excess withholdings incurred.

The DGT's ruling

Article 21.2 of the Spain-USA DTA attributes exclusive taxation to Spain for public pensions when the recipient is neither a national nor a resident of the USA. Article 20.1.b) of the Convention and point 15 of the protocol allow Spain to also tax Social Security pensions from private sector employment as the State of the source, with shared authority. The elimination of double taxation is the responsibility of the USA pursuant to Article 24.2 of the Convention. To request a refund of excess withholdings, Form 210 must be submitted in accordance with Article 16 of the RIRNR, within the four-year period.

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