The DGT has stated in the attached consultation that the days of forced stay on Spanish territory as a result of COVID-19, which drastically restricted the rights of free movement of persons, must be calculated and may be decisive in determining that a natural person has stayed on Spanish territory for more than 183 days.
This expressly disregards the recommendation made by the OECD on 3 April 2020 in the document Analysis of Tax Treaties and the Impact of the Covid-19 Crisis, which has been followed by the tax administrations of many countries (for example, the United Kingdom, Australia or Singapore) and has led to agreements between different states to determine the relevance of the forced residence of certain persons with cross-border income.
The criterion applied by the DGT not only disregards international recommendations, but may also give rise to situations of international double taxation due to the differences in the determination of the relevance of such periods of forced confinement in our country.
Moreover, it remains to be seen whether the tax administration will give the same tax relevance to forced stays abroad for the purpose of determining the possible loss - or non-acquisition - of the status of habitual resident in our country.
