Remaress - RE-EXPLORING BUSINESS LAW

THE BECKHAM LAW IN THE NEW STARTUP LAW

On 1 December 2022, the Beckham Law was re-regulated following the final approval by the Spanish Parliament of the Law for the Promotion of the Startup Ecosystem, also known as the Startup Law. This, together with the also approved “Crea y Crece” Law is part of the executive’s plans to place Spain at the forefront in promoting entrepreneurship and attracting investment and talent

There are many measures adopted by the Startups Law, both of a corporate, tax and labour nature, but in this case, I will focus only on the new features introduced concerning the “impatriate” regime. 

 

1.- Beckham Law

The regime for impatriates or individuals transferred to Spanish territory is currently regulated in Article 93 of Law 35/2006, of 28 November, on Personal Income Tax and partially amending the Corporate Income Tax, Non-Resident Income Tax and Wealth Tax Laws (hereinafter, the “Personal Income Tax Law”). It was introduced years ago with the aim  of attracting qualified human capital to Spain using tax measures or benefits. In other words, what is established is a special tax regime, applicable subject to certain requirements, to encourage people to move to Spain to work. 

As we shall see, with the approval of the Startups Law, the Beckham Regime has lowered the necessary requirements and opened up the spectrum of employment situations for its application, which will mean that many more people will be able to apply for it. 

The Startups Law has completed its parliamentary approval process, pending its publication in the Official State Gazette (Boletín Oficial del Estado).  The publication should take place in the next few days and it will come into force the following day. However, with regard to the impatriate regime and other tax measures, the effects and its entry into force will take effect from 1 January 2023

 

2.- The Beckham Regime after the approval of the Startups Law

It is the third final provision of the Startups Law which introduces, among others and by amending article 93 of the Personal Income Tax Law, the new regime for impatriates. In other words, this regime will continue to be regulated in the aforementioned article but with different content. 

The first modification can be seen in the title of the article itself, which extends the application of the regime, in addition to workers, to professionals, entrepreneurs and investors who have moved to Spanish territory. The title is clearly a declaration of intent and is intended to cover the new reality of labour relations and to protect the well-known, and very in-vogue, digital nomads

 

2.1.- Requirements

A) Time requirement

Individuals who have not been tax  residents in Spain during the five (5) tax periods prior to the period in which the arrival in Spain takes place may apply for the regime. 

The previous regulation required (or requires if we assume that it remains in force until 1 January 2023) that the period be ten (10) years, so the reduction to half is a clear encouragement and opening.

 

B. Reason for the displacement

In order to be able to apply the regime, it will be required that the trip to Spain takes place, in the first year of application of this regime or the previous year, for reasons or as a consequence of:

(i) an employment contract (with the exception of the special employment relationship of sportspersons). 

This condition will be deemed to be fulfilled when an employment relationship is initiated with an employer in Spain, when it is ordered by the employer and there is a letter of posting or when, without being ordered by the employer, the activity is carried out telematically. The latter will be deemed to be fulfilled when the employee has  a visa for international teleworking.

(ii) The acquisition of the status of Director of an entity. 

In the event that the entity has the status of an asset-holding company (more than half of its assets are made up of securities or are not assigned to an economic activity) in accordance with the provisions of Article 5 of the Spanish Corporate Income Tax Law, the Director may not have a holding that determines its consideration as a related entity,  following the provisions of Article 18 of the Corporate Income Tax Law. 

(iii) The performance in Spain of an economic activity classified as an entrepreneurial activity (which is of an innovative nature, of economic interest for Spain and which has the mandatory favourable report from ENISA), in accordance with the provisions of Article 70 of the Law on Support for Entrepreneurs and their Internationalisation (also amended by the Startups Law).

(iv) The performance in Spain of an economic activity by a highly qualified professional providing services to start-ups or carrying out training, research, development and innovation activities, receiving remuneration that represents in aggregate more than 40% of the total business, professional and personal work income.

C) The individual who moves must not obtain income that would be classified as obtained through a permanent establishment located in Spanish territory, except as provided for in sections iii and iv of the previous point. 

Points iii and iv have been introduced with the Startups Act and points 1 and 2 have been qualified for the purpose of introducing digital nomads and softening the requirements for those acquiring the status of Administrator.

 

2.2.- Tax advantage and duration of the regime

The main tax advantage that persons moving to Spanish territory who meet the above requirements and choose to apply this regime will obtain will be that they will be taxed under the Non-Resident Income Tax (hereinafter, “IRNR”), maintaining their status as IRPF taxpayers during the tax period in which they change their residence and for the following five (5) tax periods. 

The fact of applying the IRNR means that the individual would be taxed as follows:

1. On the employment income obtained:

Net Base 

Euros

Applicable rate

Percentage

Up to 600.000€

24%

From 600.000,01€ onwards

47%

2. On dividends, interest and capital gains:

Savings Tax Base

Up to Euros

Tax

Euros

Rest Savings Tax Base

Up to Euros

Rate

0€

0€

6.000€

19%

6.000€

1.140€

44.000€

21%

50.000€

10.380€

150.000€

23%

200.000€

44.880€

Onwards

26%

The main difference and tax advantage of impatriates compared to taxpayers who are not under this regime is the 24% taxation of the first 600,000.00 euros of employment income. Not being under the Beckham Regime would mean being taxed at the general personal income tax rate which, depending on the Autonomous Community in which the taxpayer is resident, could be as high as 54%. This is obviously a very interesting advantage, but it should be borne in mind that 24% is a fixed rate with no progressivity up to the first €600,000.00, which means that earned income of €10,000.00 per year would also be taxed at 24%. In short, it will be necessary to analyse, depending on the Autonomous Community of residence of the impatriate and the amount of earned income to be obtained, whether taxation under this regime is really worthwhile.

 

2.3.- Extension of the regime 

One of the new features introduced by the Law on Startups in this regime is the possibility that it may be extended to the spouse of the posted person, their children under 25 years of age or of any age in the event of disability, or in the event of the absence of a marital relationship, the parent of the latter. 

What is granted is the option for these persons to also request the application of the regime. To do so, in addition to having the above-mentioned relationship or kinship, they must comply with the following:

(i) They must move to Spain with the main impatriate or at a later time, provided that the first tax period has not ended.

(ii) They must acquire their tax residence in Spain.

(iii) They must not  be  residents in Spain during the five (5) tax periods prior to the relocation.

(iv) They must not obtain income that would be classified as obtained through a permanent establishment located in Spanish territory, except as provided for in section C) of point 2.1 above.

(v) The sum of the taxable income of the family members who intend to opt for the system must be less than the taxable income of the main taxpayer. 

 

Conclusions

As we have seen, some very interesting innovations have been introduced and the approval of the Startups Act, at least on a theoretical level, has been widely applauded and has to some extent boosted the Spanish entrepreneurial ecosystem. However, there are certain aspects of the law itself, and of the Beckham Regime in particular, that will need some “running in” and some regulatory development before we can see how it really works. Although, obviously, the desired effect is to broaden the possibilities for applying for the regime, the fact is that it has opened up the range of possibilities (digital nomads, provision of services by qualified professionals, etc.) which may be somewhat ambiguous and lead, at least initially, to a certain degree of uncertainty when applying for the regime. In my opinion, and although the steps are moving in that direction, the scheme should be opened up to any employment or service provision relationship, regardless of whether it is linked to a start-up company or not.   

 
 
This article includes general information and it does not provide professional o legal advice.

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