NOTE ON RETENTION TO FOREIGNERS
Regarding retention in the transmission by foreigners of real estate located in Spain, we must abandon the concept of ?? resident ?? or of ?? non-resident ??, (own of the scope of the foreign investments) that has been surpassed by the fiscal rule in this point.
Now of what it is (in terms of retention) is subject to personal tax in Spain or not ??, and for this purpose it does not help us to be either a resident or not? no residence card or NIF or NIE?, not even a "residence tax certificate", but only a certificate that proves that you are subject to personal tax (on income or companies) in Spain.
For that reason, art. 14 of Royal Decree 1776/2004, of July 30, which approves the Regulation of Non-Resident Income Tax, modified by Royal Decree 1576/2006, of December 22, says:
"1. In the cases of transmissions of real estate located in Spanish territory by taxpayers of the Non-Resident Income Tax that act without permanent establishment mediation, the purchaser will be required to withhold and deposit the 3 percent, or to make the corresponding account deposit , of the agreed consideration, as payment on account of the Non-Resident Income Tax corresponding to those.
2. The acquirer will not have the obligation to withhold or to make the deposit on account in the following cases:
a) When the transferor accredit his subjection to the Income Tax of the Physical Persons or to the Tax on Companies through certification issued by the competent body of the Tax Administration.
b) In the cases of contribution of real estate, in the constitution or increase of capital of companies resident in Spanish territory
3. The person obliged to withhold or enter the account must present a declaration before the Delegation or Administration of the State Agency of Tax Administration in whose territorial area the real estate is located and enter the amount of the corresponding withholding or deposit in the Public Treasury. , within one month from the date of transmission.
4. The non-resident taxpayer in Spanish territory must declare, and enter in his case, the definitive tax, compensating in the quota the amount withheld or credited to the account by the purchaser, within three months from the end of the term established for the withholding income.
The Tax Administration will proceed, in its case, previous the checks that are necessary, to the return to the taxpayer of the excess retained or entered on account.
5. If the aforementioned withholding or deposit on account has not been paid, the assets transferred will be subject to the payment of the amount that is lower between said withholding or deposit and the corresponding tax, and the property registrar will do so record by note on the margin of the respective inscription, indicating the amount that the farm responds. This note will be canceled, if applicable, by expiration or by presentation of the payment letter or administrative certification proving the non-subjection or prescription of the debt.
Therefore, in my opinion, the general rule is that the purchaser, in all cases, must retain 3%, unless it is exhibited (and the Notary receives in the deed) the certification issued by the AEAT that results in the transferor is subject to the Tax in Spain