A Remote-Work Checklist for Foreign Employers With People in Spain

The review

1. Map the people. List everyone who works from Spain, including those who do so informally. For each: start date, where they live, share of working time spent at home, at company offices and elsewhere.
2. Check permanence. A single stay of a few months is not a fixed place. A home used all year is. Seasonal stays repeated every year need a closer look.
3. Apply the 50 % test. For each person, over rolling twelve-month windows. Below 50 % at home, the home is generally not a place of business.
4. Ask the commercial question. For those at 50 % or above: is there a reason for the business to have this person in Spain? Customers, suppliers, partners, colleagues, time zone used by design.
5. Identify the special cases. Founders and the main person running the business. Anyone who negotiates or concludes contracts.
6. Record the conclusion. A short memorandum per person or per group, with the facts, the test applied and the answer.
7. Sort out payroll and social security. Whatever the conclusion on the permanent establishment.
8. Set a review date, and a trigger: any change of role, of working pattern or of the company's business in Spain.

What to write in the remote-work policy

A policy does not decide the outcome, because the Commentary looks at actual conduct (paragraph 44.9). But a policy that matches reality is good evidence, and one that contradicts it is damaging. Points worth covering:

• Why remote work abroad is allowed. If the reason is to attract and retain people, say so. Paragraph 44.15 treats that as not being a commercial reason.
• Approval. Working from another country requires approval in advance, with the country, the address and the period.
• Limits on temporary stays. A cap on consecutive weeks and on total days per year in any one country other than the country of employment.
• What the employee must not do from abroad without further approval: meet customers or suppliers on the company's behalf, negotiate or sign contracts, represent the company to authorities, hire.
• Record-keeping. The employee keeps a simple record of where each working day is spent.
• Home office. The home is the employee's own. The company does not rent it, hold keys, list it as an address or use it for meetings.

Evidence worth keeping

• The employee's request to move, and the company's reply.
• The job description, and any changes to it.
• Working-day calendars and travel records.
• Organisation charts showing where the team and the manager are.
• For customer-facing roles: who negotiates, who approves, who signs.
• The company's own description of its presence. Websites, sales decks and job adverts that announce "our team in Spain" or "our Madrid office" are routinely used against companies.

Temporary stays and "workations"

Example A in paragraph 44.21 concerns an employee who works for three consecutive months from a rented place abroad after a holiday. The place is not fixed, and there is no permanent establishment. The Commentary adds that recurring use over several years has to be assessed as a whole.

A workable rule for a policy: allow a limited number of weeks abroad per year, require approval for anything longer, and review anyone who returns to the same place every year. Remember that the permanent establishment is only one of the issues: beyond certain periods, the employee's own tax residence and social security position change too.

Red flags

• A job advert that asks for someone "based in Spain".
• A business card, email signature or website giving a Spanish address for the company.
• An employee who is the named contact for Spanish customers.
• Several employees in the same Spanish city who meet regularly.
• A shift pattern that depends on the Spanish time zone.
• A founder or director who has moved to Spain.
• A group company in Spain with which the employee works day to day.

Any of these calls for the full analysis in the main guide. For what the tests mean, see the 50 % working-time test and the commercial reason test; for sales roles, the dependent agent route.

Source: OECD (2026), Model Tax Convention on Income and on Capital 2025 (Full Version), Commentary on Article 5, paragraphs 44.1 to 44.21, added on 18 November 2025. The Commentary is described here in our own words; the paragraph numbers are given so that it can be checked against the original.