When 24 Notarial Acts Decided a €322,000 Tax Dispute: Spain's Residency Indicators in Court

Introduction: A €322,000 Lesson in Spanish Tax Residency

In November 2025, the Tribunal Superior de Justicia de Andalucía (Sala Contencioso-Administrativo, Málaga) handed down Sentencia 2536/2025 (ECLI:ES:TSJAND:2025:20596, rec. 537/2024), dismissing the appeal of a taxpayer who had claimed Russian fiscal residency for the tax years 2017 and 2018. The result: a confirmed tax liability of €322,345.72, comprising €195,659.87 in IRPF liquidation and €126,685.85 in penalties, plus €1,500 in court costs.

The case is a comprehensive study in how Spain's Agencia Tributaria (AEAT) builds and wins a tax residency challenge. The taxpayer — referred to in the judgment as "Laureano" — produced what might seem on paper like a compelling package of evidence of life in Russia: utility bills, a foreign tax residency certificate under the Spain–Russia Double Tax Agreement (DTA), near-daily Russian credit card movements, mobile phone records placing his device in Russia, financial assets in Russia, a sports club membership, and family members (an adult son, elderly and sick parents) residing there.

None of it was enough. The TSJ upheld the AEAT on three separate, independent grounds. Understanding why requires a close reading of Article 9 LIRPF — and a clear-eyed assessment of the evidence the taxpayer failed to produce or failed to rebut.

This case is essential reading for any internationally mobile person, business owner, or administrator who maintains substantial interests in Spain while claiming tax residency elsewhere.

The Three Pillars of Spanish Tax Residency (Article 9 LIRPF)

Under Spanish law, an individual is considered a tax resident in Spain if any one of three criteria is met. They are cumulative alternatives: satisfying any single one is sufficient to establish Spanish tax residency. The three criteria are set out in Article 9.1 of the Ley del Impuesto sobre la Renta de las Personas Físicas (LIRPF).

Pillar 1: The 183-Day Rule (Art. 9.1.a LIRPF)

The most well-known criterion. A person is a Spanish tax resident if they spend more than 183 days in Spanish territory during the calendar year. Critically, the law addresses the treatment of absences: sporadic absences (ausencias esporádicas) are counted as days in Spain unless the taxpayer accredits fiscal residence in another country. This shifts the burden: the taxpayer must prove foreign fiscal residence, not merely that they were physically absent on particular days.

The counting of days is not limited to days of formal entry and exit. Each day the person is demonstrably present in Spain — whether evidenced by a passport stamp, a notarial act, a banking transaction, or any other verifiable record — counts toward the 183-day total. The AEAT's power lies in its ability to compile a mosaic of such evidence, each piece placing the taxpayer in Spain on a specific date.

Pillar 2: Centre of Economic Interests (Art. 9.1.b LIRPF)

The second criterion is met when Spain is the main base or centre of the taxpayer's activities or economic interests, whether directly or indirectly. This criterion does not require the taxpayer to be physically present in Spain for a single day. It looks instead at where their economic gravity lies.

The phrase "directly or indirectly" is critical. A taxpayer who holds shares in a Spanish company — even if the taxpayer personally conducts their daily life outside Spain — may satisfy this criterion if the Spanish company represents their dominant economic interest. The AEAT does not need to prove the taxpayer personally managed petrol stations in Andalusia. It needs to prove that the seat of their economic life was in Spain.

Once the AEAT establishes that the taxpayer's main economic interests are in Spain, the burden shifts under Art. 105.1 LGT. The taxpayer must then prove that their economic interests in the foreign country are greater than those in Spain. Not merely that they exist. Greater.

Pillar 3: The Family Presumption (Art. 9.1 LIRPF, final paragraph)

The third and most overlooked criterion is a legal presumption: unless proven otherwise, a taxpayer whose non-legally-separated spouse and minor children habitually reside in Spain is presumed to be a Spanish tax resident. This is a statutory presumption that operates automatically. The taxpayer must affirmatively rebut it — and the bar for doing so is high, since it requires proving that neither of the two main criteria (183 days, centre of economic interests) is met.

In practice, many internationally mobile taxpayers focus their arguments on the 183-day rule and their foreign tax certificates, and entirely overlook the family presumption. Laureano did not dispute that his wife Antonia and their minor child lived in Spain throughout the years in question. The presumption therefore applied by operation of law.

The Facts: Six Petrol Stations, €17.5 Million, and 24 Notarial Acts

Laureano was the sole administrator and (together with his wife Antonia) the shareholder of RASIR SL, a Spanish company that operated up to six petrol stations in Andalusia — located in Rota, El Cuervo, Alcalá de Guadaira, Jaén, and two in Jerez de la Frontera. RASIR's total assets ranged between €13 million and €17.5 million, with cash reserves of approximately €3 million.

Laureano drew no salary from RASIR. Instead, the company paid his personal expenses directly: his children's school fees, birthday party expenses, approximately €2,000 at a Barcelona pet shop, and the furnishing of his home. This pattern — no formal salary but full personal benefit extraction through the company — is a classic indicator that the taxpayer's economic life and the company's life are inseparable.

The AEAT also identified 24 notarial acts (escrituras públicas) executed in Spain across the two tax years under examination. Each notarial act is a document executed before a Spanish notary public, and each requires the physical presence of the executing party on the specific date of execution. Twenty-four such acts spread over two years means an average of twelve per year — twelve days that the taxpayer demonstrably and inarguably spent in Spain in each year, entirely independent of any other evidence.

What the Taxpayer Got Wrong: A Defence That Failed on Every Front

The Russian DTA Certificate

Laureano produced Russian tax residency certificates issued under the Spain–Russia Double Tax Agreement. This is often the first resort of a taxpayer claiming foreign residency — a formal certificate from the foreign tax authority confirming fiscal residence in that country.

The TSJ confirmed what the AEAT had argued: a foreign tax residency certificate issued under a DTA does not displace the application of Art. 9 LIRPF. Spanish domestic law determines whether a person is a Spanish tax resident. The DTA becomes relevant only if both contracting states claim the person as a resident — at which point the DTA's tie-breaker rules (permanent home, centre of vital interests, habitual abode, nationality) determine which state has the primary right to tax. But if the domestic law of Spain conclusively establishes Spanish tax residency, the DTA analysis never reaches the tie-breaker stage in the way the taxpayer hoped.

In other words: holding a Russian tax certificate does not mean Spain must treat you as a non-resident. Spain looks first at its own rules. If those rules are satisfied, the certificate is relevant only in the context of the DTA's conflict resolution mechanism — and even there, the taxpayer would need to show they do not satisfy the Spanish domestic criteria, which is precisely what they failed to do.

The Mobile Phone Records

Laureano produced MTS mobile phone records purporting to show his device operating from Russia for the majority of 2017. The court acknowledged the submission but found it insufficient standing alone. Mobile phone records establish where a device was located — not where its owner was. A phone can be left with a family member, a trusted employee, or deliberately positioned to create an appearance of foreign presence. While the court did not dismiss mobile records as irrelevant, it treated them as one piece of a mosaic rather than determinative evidence, especially given the weight of countervailing evidence.

The Russian Credit Card Movements

Near-daily credit card transactions in Russia were presented as evidence of continuous physical presence there. The court addressed this directly: credit cards are "personalísimo" instruments — personal instruments — but the court acknowledged that they can, in practice, be used by third parties. A card can be handed to a family member. A card can be used by an agent. Near-daily card use in Russia does not conclusively prove that Laureano himself was present in Russia on each of those days. Combined with the strong evidence of Spanish presence — particularly the notarial acts — the card movements were insufficient to rebut the overall picture.

The Aeroflot Records That Were Never Obtained

Perhaps the most instructive failure in Laureano's defence was what he did not produce. The 183-day count depends on actual days in Spain. The most direct way to rebut a high day count is flight records — entry and exit data that precisely maps the taxpayer's movements into and out of Spanish territory. Aeroflot flight records, for instance, would show dated departures from Russia to Spain and returns, placing hard boundaries on the days Laureano could have been in Spain.

Laureano did not obtain these records. The court described his posture as "passive." He offered circumstantial evidence of being in Russia but did not produce the documentary evidence that would have most effectively attacked the AEAT's day count directly. This passivity was fatal. Under Art. 105.1 LGT, once the AEAT establishes a credible case for Spanish presence, the taxpayer bears the burden of proof. A passive response that fails to obtain and produce the most probative available evidence is not a sufficient discharge of that burden.

Russian Financial Assets, Housing, and Utility Bills

Russian housing (with utility bills showing use), financial assets in Russia, and a Russian sports club membership were presented as evidence of an established life in Russia. The court did not disregard these entirely. But they proved the existence of Russian connections — not that those connections were greater than the Spanish ones. RASIR SL alone, with €13–17.5 million in assets and six active petrol stations, dwarfed anything the taxpayer proved on the Russian side. The burden was to show Russian interests exceeded Spanish interests. That burden was not discharged.

The Notarial Acts Doctrine: Each Escritura Is a Day in Spain

The most practically important principle emerging from this case — and from the AEAT's litigation strategy more broadly — is the evidentiary weight of notarial acts. In Spain, an escritura pública (notarial deed) is executed before a Spanish notary (Notario). The notary's role under Spanish law is that of a public official who authenticates the parties' legal capacity, identity, and presence. A notarial act bears the date of execution as a matter of public record.

The consequence for tax residency disputes is stark: every notarial act a taxpayer executes in Spain is irrefutable proof of physical presence in Spain on that specific date. There is no argument available — a third party cannot sign an escritura pública on behalf of the taxpayer in respect of acts requiring personal execution; and in any event the notary records the identity and presence of the party before them.

Twenty-four notarial acts across 2017 and 2018 — twelve per year — meant that at minimum, twelve days per year were positively proven to have been spent in Spain. Each of those twelve days was a building block toward the 183-day threshold, and none could be challenged or explained away. For a taxpayer arguing they spent most of the year in Russia, twelve unchallengeable Spanish-presence days per year is a significant handicap before any other evidence is even considered.

The lesson for internationally mobile people with Spanish business interests is clear: every time you sit before a Spanish notary, you create an indelible record of a day in Spain. If you are managing a complex Spanish business structure — corporate restructurings, property acquisitions, power of attorney documents, mortgage deeds, company incorporations — the notarial footprint accumulates rapidly. This footprint must be factored into any residency planning.

The Economic Interest Test in Practice

The second independent ground for the TSJ's decision — the centre of economic interests — is arguably the most relevant for business owners and company administrators. The following table summarises the factors the court considered:

The Art. 9.1.b test asks a comparative question: where is the main centre of economic activity or interest? It does not ask whether the taxpayer has any economic activity abroad — it asks whether that abroad activity is dominant. The taxpayer who cannot quantify and substantiate their foreign economic interests in a way that demonstrably exceeds their Spanish interests will lose this argument every time.

The Family Presumption Trap

Article 9.1 LIRPF contains a final paragraph that many internationally mobile taxpayers overlook entirely until they find themselves in front of an inspector. The provision creates a legal presumption: unless proven otherwise, a taxpayer whose non-legally-separated spouse and minor children habitually reside in Spain will be presumed to be a Spanish tax resident.

This is not a soft or rebuttable presumption in the sense that a taxpayer can rebut it with general evidence of foreign life. To rebut it, the taxpayer must prove they do not meet either of the two primary criteria — the 183-day rule or the centre of economic interests test. In a case like Laureano's, where both primary criteria were independently established against him, the family presumption was simply an additional, redundant confirmation of residency.

But the practical danger lies in cases where the primary criteria are less clear. A taxpayer who genuinely spends time in both countries and whose economic interests are mixed may find the family presumption decisive. Laureano did not dispute that Antonia and his minor child lived in Spain throughout 2017 and 2018. The presumption operated automatically. He made no serious attempt to rebut it.

For anyone in a cross-border family situation — one spouse in Spain, one abroad; children in Spanish schools; the family home in Spain — this presumption must be actively managed and, where possible, planned around. The existence of the presumption does not mean all is lost, but ignoring it is not an option.

Burden of Proof Under Article 105.1 LGT

A thread running through every aspect of this case is the allocation of the burden of proof under Article 105.1 of the Ley General Tributaria. In Spanish administrative procedure, each party must prove the facts on which they rely. In tax residency disputes, this creates a two-stage dynamic.

First, the AEAT must establish a credible basis for asserting Spanish tax residency. Once it does — by producing evidence of days in Spain, economic interests in Spain, or family ties in Spain — the burden shifts. The taxpayer must then prove not merely that they have some presence or interests in the foreign country, but that those interests and that presence exceed the Spanish connection.

This is a demanding standard. It explains why Laureano's Russian evidence, while not trivial, was ultimately inadequate. He proved that Russia had some claim on his economic and personal life. He did not prove — could not prove, on the evidence presented — that Russia's claim exceeded Spain's. With a €17.5 million company and six petrol stations in Andalusia, that was always going to be an uphill battle.

The failure to obtain Aeroflot flight records is a particular illustration of this burden. The AEAT's day-count was circumstantial — assembled from credit card usage, passport data, and notarial acts rather than from formal border control records. An aggressive rebuttal would have sought to obtain flight records from all carriers Laureano used to travel between Russia and Spain, placing hard ceilings on the maximum days he could have spent in Spain. By failing to take this step, Laureano left the AEAT's circumstantial count uncontested on its own terms.

Practical Checklist: Are You at Risk?

Based on the reasoning in TSJ Andalucía 2536/2025 and the broader framework of Art. 9 LIRPF, the following indicators are warning signs that the AEAT may challenge a claimed non-resident status:

• Spanish company with assets over €1 million. If you are the administrator or major shareholder of a Spanish company with significant assets, the centre-of-economic-interests test almost certainly points to Spain. The larger the company, the harder the burden to prove foreign interests are greater.
• Spouse or minor children habitually resident in Spain. The family presumption of Art. 9.1 LIRPF applies automatically. You must actively rebut it — and to do so, you must disprove both primary residency criteria.
• Notarial deeds executed in Spain. Every escritura pública is an irrefutable day in Spain. Track them. If you execute ten or more per year, you are already close to the point where other Spanish-presence evidence could push you past 183 days.
• Regular use of Spanish credit or debit cards. Card transactions are circumstantial evidence of presence. While they can be explained away (a third party using the card, online transactions), they contribute to the overall picture and must be addressed in any defence.
• Personal expenses paid by a Spanish company. School fees, household costs, entertainment — any personal expense paid by a Spanish company you control is evidence that your economic life and the company's life are inseparable. This reinforces the centre-of-economic-interests argument.
• Reliance on a foreign DTA certificate alone. A DTA residency certificate from your claimed home country is a starting point, not a conclusion. It does not override the Spanish domestic criteria of Art. 9 LIRPF. It is relevant to DTA tie-breaker analysis, not to whether Spanish domestic law criteria are met.

Key Takeaways from TSJ Andalucía 2536/2025

This case illustrates several principles that any tax adviser or internationally mobile individual should internalise:

1. Three independent grounds, not one. The AEAT won on all three criteria — 183-day rule, centre of economic interests, and family presumption. Any one of the three would have been sufficient. This is not unusual in high-value residency disputes: the AEAT builds multiple independent arguments precisely to prevent the taxpayer from "winning" on one ground while the others remain.
2. Notarial acts are the most powerful day-count evidence. Unlike credit card transactions or phone records, notarial acts cannot be explained away. A taxpayer with significant notarial activity in Spain must account for each act in their day count from the outset.
3. Passive defence is fatal. Laureano's failure to obtain flight records — the most direct rebuttal to the AEAT's day count — was a critical strategic error. A well-advised taxpayer facing a residency challenge must proactively gather all available documentary evidence of foreign presence, particularly movement records.
4. The DTA certificate is not a shield. It is one piece of evidence in a complex factual analysis. It does not short-circuit the application of Art. 9 LIRPF.
5. Economic substance must be demonstrable and comparable. Claiming Russian residency while controlling a €17.5 million Spanish company with six operating petrol stations requires extraordinary evidence that Russian economic interests are greater. In this case, no such evidence was forthcoming.