Spain's 'Beckham Law': recent changes and the current state of play

On 6 December 2003, the Spanish government issued Royal Decree 1008/2023 that revised the Personal Income Tax Regulations and changed the "impatriate" regime. The changes are aimed to bringing the regulations in line with the Law on Business Startups and ensure that the impatriate regime is applied correctly.

On 15 December 2023, the ministerial order was issued along with form 149 and form 151 for taxpayers to apply for the impatriate regime and file their tax returns.

The Startup Law

Law 28/2022 of 21 December on the Promotion of the Startup Ecosystem, known as the Start-up Law, becomes effective from 1 January 2023. The Startup Law has made some significant improvements to the impatriate regime. 

One noteworthy change is the expansion of the subjective scope of the regime, which now includes teleworkers, innovative entrepreneurs, highly skilled professionals engaged in specific training and research, development and innovation (R&D&I) activities, as well as administrators, regardless of the percentage of ownership they hold in the company's share capital.

Personal Income Tax Regulations amendments

The Startup Law has delegated certain aspects to develop regulations, which are dealt with in Royal Decree 1008/2023 of 5 December. This royal decree aims to adapt the Personal Income Tax Regulations to the changes introduced by the Startups Law and clarify issues raised by the law. The decree was published in the Official State Gazette on 6 December 2023.

Concerning the impatriate regime, the text specifies the new cases where taxpayers can use the special regime for impatriates. Specifically: 

• "Entrepreneurial activity" refers to an innovative activity or economically significant activity in Spain, with approval from the National Innovation Company (ENISA) and authorisation for business residence before relocation.
• Highly qualified professional refers to a professional who meets the requirements of Law 14/2013 before relocation.
• Criteria have been established to determine when training and R&D&I activities are conducted under to Law 14/2013 and when the taxpayer has a residence permit before relocating to Spain.
• It is important to note that the period given to family members of a taxpayer, who are subjected to the special regime, to move to Spanish territory is six months. This period will start from the entry date into Spanish territory or from the beginning of the calculation in the case of elderly taxpayers.

Regarding deductions, only income from professional activities is eligible for deductions or payments on account of economic activities. Additionally, it is mandatory to maintain records of income, expenses, and invoices, as per the regulations prescribed for non-residents.

The waiver and exclusion regime now includes spouses and parents of children, and children of the taxpayer. Individual waivers and exclusions will generally be applied, except when a collective exclusion may be necessary.

It also outlines the additional documentation required for new access cases to the impatriate regime. 

A transitional regime has been established for those who gained residency in Spain in 2023 due to a posting in 2022 or 2023. This is before the ministerial order of the new model of notification of the option of the impatriate regime comes into effect. They may opt for the impatriate regime within six months of the order's entry into force; that is, 15 December 2023 (as published in the Spanish Official Gazette). 

Forms 149 and 151

Following the legal and regulatory modifications under Law 28/2022 and Royal Decree 1008/2023, a Ministerial Order was issued on 15 December 2023. The order approved several forms that are now adapted to comply with the new regime starting 1 January 2023.

Form 149 is a document for reporting personal income tax. It is designed specifically for professional workers, entrepreneurs, and investors who have relocated to Spanish territory and are subject to a special tax regime. It notifies the option for waiver and exclusion from the special regime, or the end of the relocation.

Form 151 is a personal income tax return specifically designed for employees, professionals, entrepreneurs, and investors relocating to Spanish territory. 

The order includes transitional provisions for taxpayers who establish tax residence before it enters into force.

Osborne Clarke comment

The Personal Income Tax Regulations have been adapted and the ministerial order has updated Form 149. Taxpayers who choose the special regime due to the new circumstances established by the Startups Law can now submit their applications within the deadlines set by the Personal Income Tax Regulations. 

Additionally, the ministerial order's entry into force marks the beginning of six months as a transitional regime for taxpayers who acquired their tax residence in Spain in 2022 or 2023 and wish to apply for the impatriate regime.