2025 ENG

Today we discuss an important ruling from the National High Court that affects non-resident property owners with rental properties in Spain.

Until now, the law allowed only residents of the European Union or the European Economic Area to deduct expenses related to rental income, while residents of third countries were not allowed to do so.

However, in its ruling of July 28, 2025, the National High Court has accepted that residents of third countries may benefit from this expense deduction.

The court upheld the claim of a taxpayer resident in the United States, who owns a rental property in Spain and sought the right to deduct expenses related to that rental. The TEAC had rejected the deduction, arguing that the regulation only allows such deductions for residents of the EU or EEA and that there is no European case law specifically addressing the deductibility of expenses for rental properties owned by non-EU residents.

The National High Court understands that denying this deduction violates both the free movement of capital principle under Article 63 of the Treaty on the Functioning of the European Union —which the CJEU has held to be applicable to third countries— and the non-discrimination principle set out in Articles 1 and 25 of the Spain-U.S. Double Taxation Treaty. It also notes that the evolution of Article 24.6 of the Spanish Non-Resident Income Tax Law (TRLIRNR) shows a legislative effort to align the regulation with EU law, progressively expanding the subjective and material scope of deductions, but without extending them to residents of third countries —a limitation incompatible with the requirements of the TFEU and the case law of the CJEU.

Although the ruling does not establish binding case law, it represents a major milestone in achieving equal tax treatment for non-EU non-residents compared to residents in Spain, the EU, or the EEA.

It is still too early to open the door to filing amendments for non-statute-barred years and claiming refunds for overpaid tax, but this is a significant step forward in a debate that clearly highlights discrimination against non-EU residents.

The Value Added Tax (VAT) is one of the pillars of the Spanish tax system. It is an indirect tax on consumption that applies to most goods and services supplied by businesses and professionals within Spanish territory. This extensive and complex tax operates in a coordinated manner across the European Union, based on a system of deductions that ensures the tax is ultimately borne by the final consumer.

Within VAT legislation, there are several special schemes designed to simplify taxation in specific sectors. These include the Surcharge on Equivalence Scheme, the Special Scheme for Used Goods, and the Agriculture, Livestock and Fisheries Scheme, among others. One of the most unique and frequently misunderstood is the Special Scheme for Travel Agencies (REAV), which is highly relevant for advisers, travel agencies and tourism professionals because it operates very differently from the general VAT system.

This REAV is regulated in Articles 141 to 147 of the Spanish VAT Law (LIVA) and must be applied whenever a travel agency acts in its own name. This means the agency uses goods or services provided by other businesses or professionals—such as hotels, transport providers or activities—to organise the trip and assumes responsibility for the overall service, regardless of whether it operates online or has a physical office. Conversely, when the agency acts solely as an intermediary or uses only its own means and charges a commission, the general VAT scheme applies.

The most distinctive feature of the REAV is that the VAT taxable base is not calculated on the total price of the trip but on the margin obtained by the agency:

Margin = Price charged to the customer – Cost of services purchased from third parties

Because the margin is the taxable base, the agency does not need to analyse the VAT applicable to each individual service included in the package. For this reason, the agency cannot deduct the VAT on services intended directly for the travelers such as hotels, meals, or tickets—as these form part of the trip’s cost and therefore affect the margin calculation. This system is particularly useful for international travel, where numerous providers and different tax rules are involved.

However, the agency may deduct VAT on expenses related to its own business activity, such as office rent, software or supplies.

Another important feature of the REAV is that invoices do not need to show the VAT amount separately. The tax is included in the final price. This may cause confusion for business clients, who are often unable to deduct this VAT because of the nature of the scheme.

We must also mention the exemptions set out in Article 143 of the LIVA, which states that travel services provided outside the European Union are exempt from VAT. If a trip includes parts both inside and outside the EU, only the portion carried out outside the EU benefits from the exemption. This rule is especially advantageous for international travel, as it reduces the final cost for the customer and further simplifies margin calculations.

Conclusion

The Special Scheme for Travel Agencies greatly simplifies taxation in a sector involving multiple service providers and international operations. Understanding how margin calculation works, which VAT can be deducted, and how the exemption in Article 143 applies is essential for correctly applying the scheme and avoiding errors.

Beyond registration obligations and possible income tax liability, the question arises of taxation in Value Added Tax or Property Transfer Tax and Stamp Duty. To answer these questions, we must refer to Article 338 of Law 6/2023 on Securities Markets and Investment Services.

This article establishes that, as a general rule, the transfer of securities—whether or not they are admitted to trading on an official secondary market—is exempt from VAT and TPO/AJD. This measure seeks to promote the liquidity and efficiency of financial markets, preventing securities trading from being hampered by tax burdens that could discourage investment.

However, the rule introduces an important exception: when securities not admitted to trading on an official secondary market are transferred and the transaction is used to avoid taxation on real estate, the transfer will not be exempt. In this case, the transaction will be taxed as if it were a transfer of real estate for consideration. In this way, the legislator aims to prevent tax fraud, ensuring that securities transactions do not become a mechanism for avoiding the payment of taxes that would correspond to the purchase and sale of real estate.

Article 338 replaces the former Article 314 of the Consolidated Text of the Securities Market Law, maintaining virtually the same wording. It establishes several cases in which, unless proven otherwise, it is understood that the intention is to evade tax payments, which does not imply that there are no other cases not covered by the legislation. 

If you think you may find yourself in this situation and have questions about how you will be taxed, please do not hesitate to contact MDG Advisors, and we will help you resolve all your questions.

The retirement of partners in small real estate companies often comes with the same dilemma: how to dissolve the company and distribute its properties without the tax authorities taking a significant portion of the accumulated wealth.
A recent binding ruling issued by the Spanish Directorate-General for Taxation (DGT) has examined this situation in detail, shedding light—and issuing warnings—for those facing a similar operation.

The consulting entity was a limited liability company engaged in real estate development which, for more than a decade, had confined its activity to renting out three apartments, without carrying out new developments or property sales. Upon the retirement of its three partners, each holding one-third of the share capital, the company planned to dissolve and allocate one apartment to each partner. The properties had similar values, making the distribution equitable.

At first glance, this might seem like a simple internal transfer of assets without any economic transaction. However, the DGT clarified that such a dissolution involving the distribution of assets gives rise to several tax obligations for both the company and its shareholders.

Corporate Income Tax

According to Article 17 of Law 27/2014 on Corporate Income Tax, when a company transfers assets to its shareholders—whether through dissolution, withdrawal, or capital reduction—it must value them at market price and record the difference from their book value as taxable income.

In other words, even if the company does not sell the properties on the market, it must be taxed as though it had done so at their fair market value. If the properties have appreciated since acquisition, that gain must be included in the taxable base for the liquidation year.

This makes dissolution a transaction with significant tax implications, particularly for long-standing companies holding real estate assets that have substantially increased in value.

Value Added Tax (VAT)

With respect to VAT, the DGT reminds that transfers of assets made by companies to their shareholders are considered subject to the tax, even when they occur upon cessation of business activity.

However, such transfers are exempt from VAT if they qualify as second or subsequent transfers of buildings, in accordance with Article 20.One.22 of the VAT Law.

In the case under review, the apartments had been rented for more than ten years, so the allocation to shareholders would be exempt.

Nonetheless, the law allows taxpayers to waive the exemption when the recipients are taxable persons with the right to deduct input VAT. In that event, the reverse charge mechanism applies, shifting the obligation to pay the tax to the shareholders receiving the properties.

Transfer Tax and Stamp Duty (ITPAJD)

In addition, the dissolution of the company is subject to the “corporate transactions” category of the Transfer Tax and Stamp Duty (ITPAJD), pursuant to Article 19 of the consolidated version of the law.

The taxable base will be the value of the assets allocated, without deduction of debts or expenses, and the applicable tax rate is 1%. The shareholders are liable for the payment of the tax corresponding to the assets they receive.

The DGT concluded that this type of transaction, though common among small family-run real estate companies, is not exempt from tax obligations.
The company must pay Corporate Income Tax on the latent capital gains of its properties, and the shareholders must bear the ITPAJD corresponding to the allocation.

In summary, dissolving a company and “dividing up the apartments” is not merely a change of ownership but a transfer with full tax consequences.

Practical Considerations

Therefore, dissolving a real estate company requires more than a simple accounting distribution: it demands a detailed tax review before executing any allocation.
Assessing the value of the assets, simulating the tax burden, and considering alternatives—such as a prior sale, merger, or maintaining the company—can help prevent costly surprises.