Spain is usually described as a country without an exit tax, and for most people leaving it that description holds. The charge in article 95 bis of the personal income tax law is not a general levy on emigration. It is a narrow instrument aimed at a specific person: the long term Spanish taxpayer who leaves owning a large holding of shares. Everyone else crosses the border without meeting it.
That narrowness is the reason the provision is so often misread. Advisers who have never had to apply it assume Spain works like the German charge in section 6 of the Außensteuergesetz, which sets no value threshold at all, though it applies its own tests, on the size of the holding under section 17 of the income tax law and on years of German liability. Article 95 bis does not work that way. Two thresholds and one residence history decide whether it applies, and once it applies the question is when the charge falls due, and whether it is paid at departure, suspended under the European election or deferred for a temporary posting.
Two thresholds, and only one of them counts a percentage
The article applies where a change of residence costs the individual his status as a Spanish taxpayer and, subject to the residence history below, one of two circumstances is present. The first is purely a value test: the market value of the shares and participations, taken together, exceeds 4,000,000 euros. No percentage of ownership is required. A diversified listed portfolio above that figure is inside the provision even though the holder controls nothing.
The second circumstance operates only where the first is not met. It requires that, at the accrual date of the last tax period to be declared, the participation in the entity exceeds 25 per cent, and that the market value of the shares in that entity exceeds 1,000,000 euros. The statute is explicit that in this second case the article bites only on the gains attributable to those particular shares, not on the whole portfolio. A founder whose 40 per cent stake is worth 1.2 million euros, and who separately holds a listed portfolio of two million, is charged on the founder stake alone.
The distinction matters in practice more than it looks. Where the first threshold is crossed the charge reaches every share and participation the taxpayer owns. Where only the second is crossed the charge is holding specific, and the measurement exercise is correspondingly smaller. Establishing which limb applies is the first thing to do, before any valuation work begins.
Ten of the fifteen preceding tax periods
Neither threshold does anything on its own. The article applies only where the individual has held the status of Spanish taxpayer for this tax during at least ten of the fifteen tax periods preceding the last period that has to be declared. A person who arrived in Spain six years ago and leaves with a hundred million euros of shares is outside article 95 bis entirely.
There is a specific rule for those who came in under the special inbound regime of article 93, which article 95 bis calls the regime for posted workers. For them the ten period count begins from the first tax period in which that special regime no longer applies. The years spent under the inbound regime do not feed the counter. That converts the impatriate regime into something more than a rate concession: it postpones the point at which the exit provision becomes capable of applying at all, and for a mobile executive that can be the more valuable feature.
The count is expressed in tax periods, not in days or in calendar years, and it is a condition of the whole article. Where the residence history falls short, the thresholds are irrelevant and no filing obligation under this provision arises.
What is measured, and how unlisted shares are valued
Where the article applies, the gain is the positive difference between the market value of the shares and their acquisition cost. It forms part of the savings income of article 46 and is attributed to the last tax period that has to be declared, by way of a complementary self assessment filed without penalty, late payment interest or surcharge. The article also reaches a move to a tax haven where a Spanish national keeps the condition of taxpayer under article 8.2 for the year of the change and the four following tax periods, and for him the statute substitutes both dates: the gain is attributed to the last tax period in which he had his habitual residence in Spanish territory, and measured at that period’s accrual date. If he transfers the shares in a period in which he still holds that condition, the market value taken for this charge becomes the acquisition value for the gain or loss on that transfer.
Valuation follows three statutory rules. Securities admitted to trading on a regulated market are taken at their quoted price. Collective investment holdings are taken at the applicable net asset value on the accrual date, or the last published one, and failing that at the net equity attributable to the holding in the last balance sheet closed before that accrual date, unless a different market value is proved. Unlisted shares are valued, unless a different market value is proved, at the higher of two figures: the net equity attributable to the shares in the last balance sheet closed before the accrual date, and the figure resulting from capitalizing at 20 per cent the average of the results of the three company years closed before that date.
That last formula is where the real exposure sits for a private company. A business with modest book equity and three strong years can produce a capitalized figure far above anything the owner would call the value of the company. The statute allows proof of a different market value, and where the capitalized figure is unrepresentative that proof is not optional housekeeping. It is the substance of the file, and it has to be built while the accounts and the trading record are still contemporaneous.
The European option is a suspension, not an exemption
Where the change of residence is to another European Union state, or to a European Economic Area state with effective exchange of tax information, the taxpayer may elect into a different regime. Under that election the gain has to be self assessed only if, within the ten tax years following the last period declared, one of three things happens: the shares are transferred inter vivos, the taxpayer ceases to be resident in a Union or Economic Area state, or the reporting obligation attached to the election is breached.
This is the feature most often described as an exemption for intra European moves. It is not. The gain remains computed at departure and attributed to the last Spanish period. What the election changes is the trigger for paying it. Survive ten years inside the Union or the Economic Area, holding the shares and reporting as required, and the liability never crystallizes. Sell in year nine and it does.
The election carries a continuing duty to inform the Spanish administration of the option taken, the gain disclosed, the state of new residence with its address and any later change, and the continued ownership of the shares. Failure to communicate is itself one of the three triggers. A client who moves twice inside the Union and forgets to file the change of address has not committed an administrative slip. He has converted a suspended charge into a payable one.
What happens when the shares are actually sold
If the shares are transferred inter vivos within that ten year window, the election works in the taxpayer’s favour. The gain is reduced by the positive difference between the market value taken at departure and the actual transfer value. In plain terms, where the shares are worth less on sale than they were on the day of departure, Spain charges the lower figure.
The statute closes the obvious route around this. The transfer value is increased by the amount of profits distributed, and of any other receipts that reduced the net equity of the entity after the loss of Spanish taxpayer status, unless those receipts have been taxed under the non resident income tax. Stripping the company by dividend before selling the shell does not reduce the exit charge.
There is a further protection. If the taxpayer becomes a Spanish taxpayer again without any of the three triggers having occurred, the provisions of the article cease to have effect. The suspended charge simply disappears.
Deferral for a posting abroad
A separate regime applies to moves that are not permanent. Where the change of residence results from a temporary posting for employment reasons to a country that is not a tax haven, or from any other reason where the temporary move is to a country with a Spanish double tax treaty containing an exchange of information clause, the taxpayer may apply for deferral of payment of the debt.
That deferral runs under the deferral rules of the General Tax Law, with its provisions on the accrual of interest and the constitution of guarantees. The statute allows the guarantee to be constituted, wholly or partly, over the very shares in question where they are legally and economically sufficient. The deferral expires at the latest on 30 June of the year following the end of the period described below.
If the taxpayer becomes a Spanish taxpayer again at any point within the five tax years following the last one declared, without having transferred the shares, the deferred debt is extinguished together with the interest accrued on it. Where the move is for employment reasons the five year period can be extended on application, where circumstances justify a longer temporary posting, by no more than five additional years. The extinction takes effect when the return for that first year of renewed liability is filed. What is not recovered is the cost of the guarantees.
Return, refund and the rate that applies
Where the taxpayer has paid rather than deferred, and later becomes a Spanish taxpayer again without having transferred the shares, the route is a request to rectify the self assessment and recover the amounts paid. Interest runs from the date of payment to the date the refund is ordered, not from the six month point in the ordinary refund rule of the General Tax Law.
Rate matters here because the charge lands in the savings base. The general state savings schedule in article 66 runs in five bands from 9.5 to 15 per cent, and the autonomous schedule in article 76 repeats it, so on the scale in force for 2026 the combined charge runs from 19 per cent on the first 6,000 euros to 30 per cent above 300,000 euros. On a large latent gain the marginal figure is the one that counts, and it is charged in a single year.
The sequence decides the outcome
Article 95 bis rewards those who work backwards from the departure date. The residence count is fixed by history and cannot be altered, but everything else can be positioned. Whether the first or the second threshold applies depends on the composition of the estate at the accrual date. Whether the capitalized valuation or a proved market value governs depends on evidence assembled while the company is still Spanish. Whether the charge is payable, suspended or deferred depends on the destination and on an election made in a return.
In one mandate we mapped those four variables for a founder leaving for a Union state, and the decisive one turned out to be none of the obvious candidates. It was the reporting obligation attached to the European election, which nobody had allocated to anyone, and which would have fallen due in a year when the client had already moved twice. The tax was never going to be paid. It was going to be triggered by an unfiled form.
This article is informational and does not constitute tax or legal advice. The treatment of any structure depends on its facts and on the law of each jurisdiction involved. Each engagement is subject to scope and applicable regulation.