In the case under analysis, the taxpayer had declared his income as non-resident, although the administration determined that he was resident in Spain. The taxpayer did not present a certificate of residence from the country where he worked, arguing that the authorities of that State had refused to issue the certificate. The Spanish Tax Court upheld the administrative position and made the following reflections:

(a) There is no residency dispute to be resolved when the country where the taxpayer claims to reside has not issued a residence certificate, especially if that State (which is not mentioned in the ruling, but appears to be Portugal) regularly issues such certificates with almost no significant bureaucratic obstacles. The court holds that this refusal can only be attributed to a failure to comply with the residence requirements laid down by the domestic rules of that country.

(b) In the absence of a residence conflict, residence cannot be examined under the provisions of the double taxation treaty between Spain and that other State. Instead, recourse must be had to Spain’s domestic legislation (Article 9 of the Personal Income Tax Law), which establishes a double criterion based on residence in Spain for more than 183 days and the centre of economic interests.

(c) In order to assess the centre of economic interests, it is necessary to consider several factual elements, such as the source of earned income or wealth in each of the territories. In situations such as the one analysed, where the taxpayer does not provide substantial evidence on these aspects, and there are still significant economic links with Spain, it can be concluded that the taxpayer is resident in this territory.

(d) In the analysis of permanence, in the absence of a certificate of residence in another territory, sporadic absences will be considered as days of stay in Spain. Regarding this analysis, the court holds, among other considerations, that the presentation of taxi or restaurant receipts in the other territory does not constitute evidence of residence, especially if the recipient is not identified, and even less so if the payment was made in cash.

In this context, the court emphasises that, although this type of assessment allows for freedom of evidence, this does not mean that the evidence should be analysed in a lenient manner. Moreover, when it comes to evidence, both what is submitted and what is not submitted are equally valid. Thus, if the taxpayer chooses certain dates for the submission of documentation (such as bank movements), it is likely that there is plenty of other evidence that indicates otherwise.