The firm assists non-resident sellers in the calculation, declaration and payment of this taxation, as well as in the management of the legal 3% withholding applied by the purchaser.
Who is considered non-resident for the sale of property in Spain?
A seller is considered non-resident under Spanish tax regulations when they do not meet the criteria for tax residence in Spain, particularly the absence of stay exceeding 183 days per calendar year on Spanish territory.
This classification applies both to French nationals residing in France and to any person whose centre of vital or tax interests is not located in Spain. Resident or non-resident status must be assessed at the date of sale.
To find out more about determination of tax residence, see: Tax residence France-Spain.
What tax rate applies to the capital gain of a non-resident?
The applicable rate depends on the seller's tax residence at the time of sale:
- Tax residents of a member state of the European Union or the European Economic Area (including France): rate of 19%
- Tax residents of a state outside the European Union: rate of 24%
This rate applies to the net capital gain realised, that is to say to the difference between the disposal price and the acquisition price revalued according to Spanish tax rules.
How is the taxable base calculated?
Acquisition price
The acquisition price taken into account is that appearing in the initial sale deed, increased by:
- acquisition costs borne at purchase (transfer duties, notary fees, registration fees with the Land Registry, estate agent fees)
- costs of improvement works carried out on the property, provided they are justified by invoices
- improvements made with authorisation of the owners' community where applicable
Disposal price
The disposal price is the actual sale price, reduced by costs directly linked to the transaction borne by the seller.
Allowances and corrections
Taxation disappears for the resident aged over 65 who sells their main residence. Outside this case, there is no allowance for duration of holding applicable to non-residents in Spanish law, unlike the French tax regime. The capital gain is therefore calculated on the gross basis of the difference between disposal price and corrected acquisition price.
Prior analysis allows identification of deductible charges and optimisation of the declared base in compliance with regulations.
The legal 3% withholding: mechanism and restitution
When the seller is non-resident, the purchaser is legally required to withhold 3% of the sale price and pay it directly to the Agencia Tributaria (Spanish tax administration) within one month following the sale.
This withholding constitutes a payment on account of the tax due by the non-resident seller. It does not substitute for the seller's declarative obligation.
If the withholding exceeds the tax actually due
The seller may obtain reimbursement of the excess by filing the capital gain declaration within the prescribed time limits. Restitution is carried out by the Agencia Tributaria after examination of the file.
If the purchaser fails to effect the withholding
The purchaser becomes liable for payment of this sum to the Spanish tax administration. The seller remains moreover required to declare and pay the tax corresponding to the capital gain realised.
Declarative obligations: form 210
The capital gain realised by a non-resident when selling property in Spain must be declared by means of form 210 (Impuesto sobre la Renta de No Residentes, IRNR).
The filing period is four months from the date of sale. Payment of the tax occurs at the time of filing the declaration.
In the absence of declaration within this period, penalties and late payment interest are automatically applied by the Spanish tax administration.
Coordination with the Franco-Spanish tax treaty
The tax treaty concluded between France and Spain on 10 October 1995 provides that the capital gain made on the occasion of sale of property is taxable in the state where said property is located.
A French national selling property located in Spain is therefore taxable in Spain on the capital gain realised. This taxation is deductible or creditable against the French tax due in respect of the same capital gain, in order to avoid double taxation.
The crediting mechanism must be verified having regard to the seller's personal tax situation in France. Coordination between the French and Spanish declarations is often necessary.
What the firm handles
The firm assists non-resident sellers in all procedures linked to the capital gain:
- Calculation of the taxable base and tax due
- Verification of the 3% withholding carried out by the purchaser
- Filing of form 210 within the time limits
- Request for restitution of excess payment where applicable
- Coordination with declarative obligations in France
- Representation before the Agencia Tributaria
