In its ruling issued 3 May 2022, the Supreme Court analyses the application of the rules of one autonomous community or another, taking into account that the one where the donee (the recipient of the donation) has spent the greatest number of days in the last 5 years prior to the donation must be applied.

This ruling examines the concepts of “permanence” and “temporary absences” to determine the tax residence of a student who receives a donation and had studied in Madrid from 2012 to 2017. It is a proven fact that he had lived more days in Burgos – the city where his parents, on whom he was financially dependent, lived – than in Madrid in the 5 years prior to the donation.

Both the court of first instance and the High Court of Justice determined that, in view of the evidence, the donee’s residence for donation tax purposes was Burgos and that him moving to Madrid to study should be classified as “temporary absences” and therefore he continued to live with his parents. Both courts rely on arguments such as: census registration, the address of Burgos in the deed of donation or the inclusion of the minimum amount for descendants in the parents’ personal income tax. On the other hand, other evidence could support that these were not temporary absences but permanent absences, given that he was studying in Madrid and most of the cash withdrawals were made in Madrid.

The Supreme Court clarifies that it does not enter to assess on the evidence provided in previous instances and given that it is on record as a non-contingent fact and that the donee spent more days in Burgos than in Madrid in the previous 5 years, the number of days that he may have spent in Madrid as a “temporary absence” is irrelevant.

The concept of “temporary absence” from the habitual residence will be computed to determine the greater number of days spent in the territory of an Autonomous Community. However, in the present case, since it is clear where he spent the most days, the criterion of temporary absence and its calculation are irrelevant.