A tax residence certificate from HMRC is not enough: a 2026 Madrid judgment on dual residence

The case

The taxpayer had been resident in Spain until 2014. In 2015 they moved to London, notified the Spanish tax office of the new address and stopped filing Spanish returns. They obtained a certificate of UK tax residence for each of the following years.

The tax office reviewed 2017 and 2018 and found a different picture. The taxpayer headed a business group run from Barcelona and Madrid, with its markets in Spain and Latin America and no activity at all in the United Kingdom. The assets and the companies were in Spain. The taxpayer kept a large house near Madrid, which was being renovated, as well as the home in London. Even day-to-day spending pointed south: about 633,000 euros in Spain against 21,000 in the United Kingdom in 2017, and about 2.1 million against 40,000 in 2018.

In judgment 449/2026 (appeal 105/2024) the High Court of Justice of Madrid upheld the assessment in full.

Step one: Spain can claim you without the 183 days

Article 9 of the Spanish income tax act makes you resident if any one of three tests is met. The best known is spending more than 183 days in Spain in the calendar year. Another is having in Spain the main centre or base of your business activities or economic interests. That second test needs no days at all, and it is the one the tax office used here.

The Tribunal Supremo has said, in its judgment 1393/2024 of 22 July 2024 (appeal 2613/2023), that this test calls for a look at the whole picture: income, assets, companies, activities and where the economic decisions are taken. Comparing how much income comes from each country is not enough on its own. For how the day count works, see our note on days in Spain and tax residence.

Step two: the treaty decides, and the certificate is only evidence

When both countries treat you as resident, the double tax treaty breaks the tie. The Spain–UK treaty of 2013, like the one with Germany and almost every other treaty Spain has signed, applies the tests in order: first a permanent home available to you; if you have one in both countries, the centre of vital interests, meaning where your personal and economic ties are closer; then where you habitually stay; and finally nationality.

The taxpayer argued that the house near Madrid did not count because it was being renovated. The court disagreed: the owner had chosen to carry out the works, and the house remained legally at their disposal. With a home in both countries, the case turned on the centre of vital interests, and everything economic was in Spain.

The HMRC certificate was accepted as what it is: proof that Britain treated the taxpayer as resident under British law. It says nothing about which country wins under the treaty, and the court gave it no more weight than that.

What else went wrong

• No exemption for work abroad. The taxpayer claimed the Spanish exemption for employment income earned abroad. The court classed the income as business income rather than employment, and found the conditions unmet in any event.
• No credit for British tax. A Spanish resident can credit foreign tax against the Spanish bill. The claim failed because the British documents were not translated and payment of the tax was not proved. Tax already paid in London was, in practice, paid twice.
• Penalties. Filing nothing in Spain for years was treated as concealment, and the penalties were confirmed.

Why this matters on Mallorca

The case concerns someone who left Spain, but the same rules apply in the other direction. We see three situations where they bite:

• Owners who live in London, Zurich or Munich but have built up a business, a portfolio or several properties in Spain. Spending fewer than 183 days here does not protect them if their economic interests are centred here.
• People who have moved to Mallorca but keep a house, a company or a job in their home country. Both countries may claim them, and the treaty test will be decided on facts, not on a certificate.
• Anyone who has stopped filing in one country on the strength of a certificate from the other. If the certificate is not backed by the facts, the years add up, and so do the penalties.

The evidence that counts

If your residence could be questioned, build the file before anyone asks for it:

• A certificate of tax residence for every year, requested each year rather than all at once afterwards.
• Where you have homes, whether each is available to you, and who lives in them.
• Where your companies are managed, where board meetings are held and where you sign.
• Where your bank accounts, investments and income are, and where you spend your money: card statements tell a story.
• Proof of the tax you pay abroad, with the assessment and the payment, and a sworn translation if Spain may need to see it.

We review residence positions before they are tested, and defend them when they are. What changes when you move is set out on our moving to Mallorca page.

Sources: Tribunal Superior de Justicia de Madrid, judgment 449/2026 (appeal 105/2024); Tribunal Supremo, judgment 1393/2024 of 22 July 2024 (appeal 2613/2023); articles 7.p and 9.1 of the personal income tax act (Ley 35/2006); article 4 of the double tax convention between Spain and the United Kingdom of 14 March 2013.

This page is general information and reflects the rules in force on the date shown. It is not advice and does not replace an assessment of your own case.