double taxation usa spain

Double taxation agreement between Spain and the USA

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What are DTAs and how they work

Double Taxation Agreements (DTAs) also known as Double Taxation Treaties, are agreements between two states designed, on the one hand, to protect individuals and businesses against the risk of double taxation when the same income can be taxable in two jurisdictions; and on the other hand, protect the government’s taxing rights and stop attempts to avoid or evade tax.

They can often be complex and require professional assistance, however, in this article we are going to focus on explaining some of the key points when it comes to understanding how Double Taxation Agreements work, to ensure their correct use.

Although many DTAs follow similar guidelines, in this case, we are going to focus on the Double Taxation Treaty between Spain and USA.

What taxes are covered by the agreements?

The DTA covers the following Spanish taxes:

  • Income Tax
  • Corporation Tax,
  • Non Resident Income Tax
  • Wealth Tax

Along with the Federal Income taxes in USA.

So now, the first step is figuring out where you should be declaring your income and, where you are liable to pay tax.

Tax Residency

When travelling back and forth to different countries, switching from one home to the other, and spending similar periods of time in several countries, sometimes it can be difficult to determine in which country you should be paying your taxes.

First of all, Double Taxation Agreements confirm that you will be a resident in the country in which you meet the requirements under the national laws of that State.

For example, under Spanish laws, you will be considered to be a resident for tax purposes when you have your usual residence in Spanish territory. This happens when you either:

Real Estate Income

According to the DTAs, any type of income received from a property at your disposal will be taxed at the State of Source, thus being where the property lies. This includes rental income and capital gains when selling.

For example, if you are a tax resident in Spain but rent out a property in the US, you must pay US tax to the IRS.

If you are then obliged to present your annual income tax return in Spain because your income is over the thresholds, then you will be able to claim tax relief for the tax paid abroad and avoid double taxation.

  • Spend more than 183 days a year in Spain (January-December)
  • It is where your main base of economic activities or interests lie
  • There is also a presumption you are a resident in Spain when your spouse and minor children are resident there, although the Tax Office does accept evidence against this.

On the other hand, you are automatically obliged to pay Tax in the United States if you are a US citizen, or you meet either the green card test or the substantial presence test.

To meet this last test, you must be physically present in the United States on at least:

  • 31 days during the current year, and
  • 183 days during the 3-year period that includes the current year and the 2 years immediately before that.

As a result, sometimes we can meet the requirements to be considered as a tax resident under the laws of both countries. In these cases, to make things easier, the Double Taxation Agreements contain a certain list of tiebreaking rules that are applied in strict order.

The first criteria that you meet, will determine exclusive tax residency in that country:

  1. You will be considered exclusively a tax resident of the State in which you have disposal of a permanent property. If this rule does not apply, or you possess property in both countries, your State of Residence will be considered as the one in which you present greaterpersonal and economic ties.
  2. If neither or these rules lead to a clear answer, residency can also be determined by analysing in which one you live on a more regular basis.
  3. However, if you spend long periods of time in both States or don’t spend hardly any in either, then you can be considered a resident in the State of which you are a
  4. Finally, if none of the tiebreaking rules above apply, then it will be the authoritiesfrom both States who must come to a mutual and friendly agreement regarding where you’ll be a tax resident.

Once you’ve established where you are a resident for tax purposes, this is now where you should be presenting your annual tax returns. As you may know, there are several types of taxes such as income, wealth or corporation tax that require you to declare your worldwide income no matter what country it comes from.

However, at the same time, sometimes we find ourselves obliged to pay tax in other countries where we are not residents. Why is this?

This is because each Double Taxation Agreement sets special rules for each type of income (Pensions, Real Estate, Interests, Salaries, Capital Gains, Dividends…) and occasionally allows the other countries to also levy income. When this is the case, you can apply for tax relief in your tax return in the country where you are considered a resident, to avoid double taxation.

In order to make this explanation easier, from here on out we are going to differentiate between two terms: “State of Residence” being the one we are considered residents for tax purposes, and “State of Source” which will refer to the country from which we have received the income, supposing they are not the same.

Pensions

Double Taxation Treaties differentiate between two different types of pensions:

  • Public pensions, which refer to civil servant pensions, and will always be taxed in the country in which you served, (State of Source). They will not be taxed in your State of Residence; however, they may be taken into account to determine the applicable tax rate.
  • Private pensions, include both state pensions and private pensions, and will be taxed in the country where you are resident (State of Residence) regardless of where the company, you worked for or receive the pension income from, is located.

Interest

The DTA between Spain-USA establishes that if you receive interest from the Unites States and are a resident in Spain, as mentioned before, you will declare your worldwide income in Spain, and your US interests will also be taxed in the United States, with a 10% limit.

To avoid double taxation you can claim relief in Spain for the taxes paid abroad.

Dividends

Dividends will be taxed in your State of Residence. Nevertheless the DTA may allow them to also be taxed in the country where the company who distributes the dividends is resident (State of Source), normally setting a 5-15% rate limit, which you can deduct from your tax return in your State of Residence.

Other Capital Gains

  • Capital gains obtained from selling property will be treated as explained above in Real Estate Income.
  • Capital gains derived from selling other assets will be taxed in your State of Residence.

Please note that this information is for general use only. For accurate advice and guidance, we highly recommend you book an appointment with an independent lawyer. Additionally, please see the following link about tax benefits for fiscal residents.

For more information or assistance, do not hesitate to contact Pellicer & Heredia on + 34 965 480 737 or email us at info@pellicerheredia.com.

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