Same person, different day - different answer. The reason I contacted Blevins Franks (& others) about the issue of residency v non-residency and whether or not you can claim exemption from CGT when selling your formerly
principal residence, but now as a non-resident, was because my own gestor of many years was adamant that you cannot. Armed with documentary evidence that you can
, I spoke to him again today, and even before I presented my evidence he said that yes, you can!
So the next question was twofold: which would be the most beneficial to us, and can we choose anyway? Earlier on this thread I said:
"My take on it is that...fiscal residency is not an "option" for anyone - you either are or you're not. Of course, you can choose to arrange your life in a way so as to not become fiscally resident in Spain, but other than that, it's not really an optional thing"
Well, it seems that in our current situation, we can
pretty much decide ourselves. We already have fiscal residency certificates (although all that proves really is that we filed a tax return for 2015) so we can
sell as residents and avoid the 3% retention. But this would
mean filing IRPFs again next year and paying the resultant tax. According to our gestor (today, anyway) we would not
have to file 720s next year, because although we would be fiscal residents for all of 2017, we wouldn't be physically
resident on December 31st 2017, so would not
have to declare our overseas assets as of that date. Mmmm.....Also, as residents, even though our buyer agreed in the private contract to pay the plus valia, she could
argue that we must pay it, as by law it always applies to the seller. If she simply doesn't pay it, our town hall may try to track us down and squeeze us for it.
On the other hand, since we will be leaving Spain before June 30th, we can also
claim to be non-residents for 2017 if we want to. In this case, the 3% retention will be held back, but I'm now even more confident that we'll get it back once we reinvest the sale proceeds in a new primary residence in the UK. Modelo 210 actually has an option exactly for this purpose (income type 34), so I no longer have any doubts about this. Doing it this way will mean no IRPF next year (and no tax to pay in the UK either as we will both earn below the UK allowances), definitely no question about filing 720s, and if the buyer doesn't
pay the plus valia, the town hall will take the easier option and go after her rather than non-resident sellers. We rather like the "clean break" with the Spanish authorities this option will give us also. Apparently we can go to Hacienda any time before the end of June and present 030s to change our "domicilio" to a UK address, and that will be it - OUT of the system for good, hopefully!
Apologies to anyone who's bored with my ramblings (you don't have to read them!) and thanks to anyone who is following them and adding their thoughts and ideas. A.com is proving quite therapeutic and cathartic for me lately