The General Directorate of Taxes in its binding consultation V2223/2022 of October 25, 2022 responds to the place of taxation of a resident in Spain who teleworks for a foreign company.
The Double Taxation Agreement signed between Spain and the Netherlands indicates in its article 16 that the income obtained by a resident derived from a job carried out in another country will be taxed in his country of residence if he does not remain in the other country for more than 183 days. On this, the Commentaries to the OECD Model Convention indicate that "a resident of a Contracting State who receives remuneration, by way of dependent work, from sources located in the other State, cannot be subject to taxation in that other State with respect to said remuneration for the mere fact that the results of their work are exploited in that other State”.
Thus, since the consultant is a tax resident in Spain when carrying out his activity remotely at 100%, the DGT concludes that "the income from dependent work derived from teleworking, from a private address in Spain, although the fruits of said work are for a Dutch company and being the consultant considered a tax resident in Spain, when exercising employment in Spain, they will only be taxed in Spain ».
On the other hand, it is analyzed whether or not there is an obligation to withhold. For there to be this obligation, there must be an obligated to withhold and an income subject to withholding. With regard to the first requirement, given that the employer is an entity resident in the Netherlands, the DGT considers that, as it is an entity not resident in Spanish territory, it will have the obligation to withhold if it operates in Spanish territory through a permanent establishment. or in the event that he acts without a permanent establishment only with respect to the income from the work that he pays or other income subject to withholding or payment on account that constitute a deductible expense to obtain the income referred to in art. 24.2 IRNR Law.