Filing Form 100 does not imply waiving the special regime of Law 35/2006

Managing tax residency and applying special regimes requires high technical precision. One of the recurring doubts among taxpayers opting for Law 35/2006 is whether an error in choosing the income tax return form leads to the definitive loss of the tax benefits associated with their situation.

What the DGT has ruled

The Dirección General de Tributos (DGT) has analyzed whether the fact of having filed Form 100 (general Personal Income Tax (IRPF) return) instead of Form 151 (return for the special regime for expatriates) constitutes a tacit waiver of the special regime under Law 35/2006. The body has determined that filing a form other than the mandatory one does not, in itself, imply the loss of the right to apply the special regime for the fiscal years in which the legal requirements are met.

The resolution is based on current regulations, specifically Law 35/2006 (LIRPF), the IRPF Regulation (RD 439/2007), and the General Tax Law (LGT), establishing that an error in the filing form does not have the effect of waiving the substantive right to be taxed under the special regime.

What this means for you

For relocated workers or professionals under the special regime, this criterion is relevant in the event of having made an administrative error. If a taxpayer has filed their income tax return using Form 100, they do not automatically lose the possibility of applying the tax advantages of Law 35/2006 for the corresponding periods.

This means that the right to the special regime is maintained as long as the regulatory requirements are met, regardless of whether the initially filed settlement form was incorrect.

What should be done

In a situation involving an error in the filing of tax forms, it is necessary to assess the particular situation of each taxpayer. Correcting the tax return through the mechanisms provided in the General Tax Law allows for the regularization of the tax situation to ensure that the regime corresponding to the Law 35/2006 regulations is applied. It is recommended to analyze each case individually to determine the most appropriate way to rectify the error.