Important: tax residence, not nationality, determines the regime.
The ordinary filing rule
Article 24.6 of the Non-Resident Income Tax Act allows directly related rental expenses for tax residents in the EU and in the EEA states covered by mutual assistance: Iceland, Norway and Liechtenstein. The Tax Agency applies 24% to gross rent for other residents, including UK, US, Swiss and Canadian residents.
What the National Court actually decided
Judgment SAN 3630/2025, 28 July (appeal 636/2021; ECLI:ES:AN:2025:3630) allowed a US resident to deduct expenses. The main basis was Article 63 TFEU on free movement of capital. The Spain–US treaty and effective information exchange supported the analysis.
SAN 1521/2026, 27 March (appeal 637/2021; ECLI:ES:AN:2026:1521) addresses the same legal issue and expressly applies the reasoning of the earlier judgment. The published texts do not establish that they involve the same taxpayer or the same underlying litigation. They are two rulings on the same legal question, not settled case law.
As at 9 August 2026, no published Supreme Court admission order or final judgment has been identified for these appeals. The statute and the Tax Agency guidance remain unchanged. A claim may succeed, but the law is not settled.
Country-by-country strength
| Residence | Practical position |
|---|---|
| EU + Iceland, Norway, Liechtenstein | Expenses permitted by statute, subject to proof. |
| United States | Strongest fact match to the decided case; treaty and information exchange add support. |
| UK, Switzerland, Canada and other treaty/assistance states | Potential argument, but not decided by these US judgments. Review the particular treaty and evidence. |
| No effective assistance | Generally more difficult; the same outcome should not be promised. |
Lower-risk route: file, pay, then amend
- File Form 210 under the Tax Agency's current rule: 24% of gross rent.
- Request rectification and repayment, identifying and proving every expense.
- If refused, appeal within the deadline in the decision. A request does not remove the need to monitor subsequent appeal periods.
Deducting expenses directly creates an immediate dispute, with a potential adjustment, interest and a possible penalty discussion. A penalty is not automatic, but the exposure must be considered.
Limitation is not simply “every 1 January”
The general repayment period is four years under Articles 66–68 of the General Tax Act, calculated from the relevant filing/payment deadline. Old quarterly returns may expire in January, April, July or October; the new annual rental return is linked to April. Review each return individually.
Evidence checklist
- Annual tax residence certificate.
- Tenancy agreements, bank statements and complete income schedule.
- Invoices and payment proof for local tax, community fees, insurance, repairs, finance, utilities and management.
- Title deed, land/building split and depreciation calculation.
- Let days, owner-use days, ownership percentage, filed returns and payment receipts.
Expectations should be documented
There is no guaranteed refund. A professional engagement should explain which procedural phase is included, the evidence required from the client, the possibility of a process lasting several years and the risk that later Supreme Court or EU case law may confirm, limit or reject the favourable interpretation.
This is precisely why an ordinary Form 210 filing and a litigation-oriented repayment claim should not be presented as the same service or the same level of risk.
Evidence that should be ready before a claim
- Tax residence certificate for each year concerned.
- Tenancy agreements, platform statements and a complete rental-income schedule.
- Invoices and bank proof for local property tax, community fees, insurance, repairs, finance costs, utilities, management and other claimed expenses.
- Title deed and a reasoned split between land and building for depreciation purposes.
- Let days, owner-use days, ownership percentage, filed Forms 210 and payment receipts.
The taxpayer bears the burden of proving both the amount and the connection of the expense with the taxable rental income.
Limitation periods must be checked return by return
The general four-year repayment limitation period is calculated under Articles 66 to 68 of the General Tax Act from the relevant filing or payment deadline. It is not correct to assume that every old rental period expires on 1 January. Under the former quarterly calendar, different periods may expire in January, April, July or October. The newer annual grouping rules link later returns to the April timetable.
Anyone considering a claim should therefore prepare a schedule of each Form 210, its filing date, payment date and limitation date before deciding which years remain open.
A prudent procedural route
Unless the facts justify a different strategy and the taxpayer accepts the exposure, the lower-risk route is normally to file and pay Form 210 under the Tax Agency's published position and then request rectification of the self-assessment and repayment of undue tax. The claim should quantify each expense and include evidence linking it directly to the Spanish rental income.
If the Tax Agency refuses the request, the next step depends on the decision received and its appeal deadline. A rectification request does not permit later notification deadlines to be ignored. Administrative, economic-administrative and judicial stages should be treated as separate phases.
Why the country of residence matters
The US judgments provide the closest factual support for a US-resident owner because the decided cases concerned that country and the Spain–US treaty contains relevant non-discrimination and information-exchange mechanisms. For the United Kingdom, Switzerland, Canada and other treaty countries, Article 63 TFEU may still support an argument, but the cited judgments did not decide those countries and the treaty wording, information exchange and evidence should be reviewed separately.
Where effective administrative assistance is weak or unavailable, the evidential and procedural difficulties increase. It would be misleading to promise that every third-country resident will obtain the same result.
What the rulings do not change automatically
The National Court decisions do not amend Article 24.6 of the Non-Resident Income Tax Act and they do not, by themselves, rewrite the Tax Agency's ordinary Form 210 instructions. A taxpayer resident outside the EU/EEA should therefore distinguish between the ordinary filing position and a subsequent legal claim for rectification and repayment.
The argument also depends on tax residence rather than nationality. A British citizen who is tax resident in an EU Member State may be in a different position from a Spanish citizen who is tax resident in the United States. Residence certificates and the facts of each tax year matter.
Sources
- Spanish Non-Resident Income Tax Act, Article 24.6.
- Tax Agency: rental income.
- Tax Agency: Brexit consequences.
- SAN 3630/2025 and SAN 1521/2026, identifiers above.
- General Tax Act, Articles 66–68.
Information updated on 9 August 2026. Outcome, duration and costs cannot be guaranteed; viability depends on residence, treaty, evidence, limitation and judicial developments.
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