Samir Haddad lives in Dubai and in January 2026 sold a flat in Estepona for 320,000 €. The deed states that the buyer, a private individual, withholds 9,600 € of the price "for payment to the Agencia Tributaria by means of Modelo 211", the Agencia Tributaria being the Spanish tax agency and Modelo 211 the form a buyer uses to pay in that 3 %. Samir received 310,400 €. Four months later, when preparing his Modelo 210 (the non-resident's tax return), his adviser looks for the payment and it is not there. The buyer does not answer messages. Samir wonders whether he has to pay his whole tax as if nobody had withheld anything.
Who had to pay it in, and what the law says if they did not
The obligation to pay in the 3 % belongs to the buyer. Article 25.2 of the IRNR Law (the law on Spanish non-resident income tax) requires the buyer "to withhold and pay in 3 per cent" of the consideration, and article 14.3 of the Regulations gives one month from the transfer to do so with Modelo 211.
The same provision sets out the consequence when the payment is not made: the assets transferred "shall be charged with payment of the lower of that withholding or payment on account and the corresponding tax". Article 14.5 of the Regulations adds that the land registrar will record this by a marginal note on the registration. In other words, the flat that now belongs to the buyer answers to Hacienda, as the Spanish tax office is commonly called, for that amount.
Samir's figures, with the payment and without it
Samir bought the flat in 2019 for 260,000 € and paid 20,000 € in taxes and costs. On the sale he paid 9,600 € to the estate agent.
- Transfer value: 320,000 − 9,600 = 310,400 €.
- Acquisition value: 260,000 + 20,000 = 280,000 €.
- Gain: 30,400 €.
- Tax at 19 %: 5,776 €.
| Scenario | Withholding he deducts | Result of the Modelo 210 |
|---|---|---|
| The buyer paid in the 9,600 € | 9,600 € | Refund of 3,824 € |
| The buyer paid in nothing | None on record | Tax to pay of 5,776 € |
The gap between the two scenarios is almost 9,600 €, which is exactly the money the buyer withheld and did not take to Hacienda. The amount for which the flat would answer is the lower of the withholding and the tax: 5,776 €.
Can Samir deduct what was withheld from him?
Here the non-resident law leaves a gap. Under IRPF (Spanish personal income tax), article 99.5 of the Law allows the recipient to deduct from their tax the amount that should have been withheld when the withholding was not made for a reason attributable exclusively to the withholder. The IRNR Law contains no equivalent rule for the sale of property.
There are arguments for maintaining that Samir should not pay the same thing twice: he bore the withholding, because he received 9,600 € less, and the deed documents it. But it is also true that the system of the law rests on what is deducted on the Modelo 210 being what was paid in, and that the remedy provided for a failure to pay is the charge on the property, not the deduction. We cannot promise how the managing office will resolve it.
Filing the Modelo 210 deducting 9,600 € that do not appear as paid in almost certainly produces a request for information, and possibly an assessment demanding the tax with interest. If that route is chosen, it has to be done by providing the deed, explaining the situation and accepting that it may not succeed. Not filing the Modelo 210 to avoid facing the problem makes things worse: it adds surcharges and possible penalties for the seller.
What Samir can do, in order
- Confirm that the payment does not exist. Sometimes the buyer filed late, or with a mistake in the seller's NIE (the foreigner's tax identification number), and the payment is there but cannot be traced. It is worth asking the buyer for the copy of Modelo 211 and the bank receipt and, if a notary or agency was involved, asking there too.
- Serve a written demand on the buyer. A demand with proof of delivery, by burofax (a certified letter with proof of content), reminding him of his obligation, asking for the receipt and warning him that his own flat answers for the debt. The buyer usually has more interest than he thinks: the charge may surface when he wants to sell or mortgage.
- File the Modelo 210 on time. Even if the receipt is missing, the seller's deadline runs all the same. If the buyer pays in late before it ends, the withholding can be included.
- Decide how to treat the withholding that was not paid in. Pay the tax and claim the 9,600 € from the buyer through the civil courts, or declare the withholding with all the paperwork and defend that position. These are strategies with different risks, to be weighed with the figures in front of you.
- Claim from the buyer what he withheld. He kept part of the price for a specific purpose and did not fulfil it. The civil claim for that amount is independent of whatever happens with Hacienda.
If the buyer ends up filing Modelo 211 late, he will bear his own surcharges. How that late payment works from the buyer's side is in a late Modelo 211.
You can send us the deed and whatever you have from the buyer through the property sale form, and we will tell you which route carries less risk in your case.
When the buyer did not withhold either
There is a different variant: the buyer paid the full price without withholding anything, sometimes because nobody warned him that the seller was non-resident. In that case the seller has borne no withholding, so there is nothing to argue about deducting it. He declares his gain and pays his tax in full. The charge on the property still exists against the buyer, but that is the buyer's problem. Who counts as non-resident for these purposes is explained in who is non-resident for Modelo 211.
If the sale was at a loss
The most painful case is that of the seller who sells at a loss and whose buyer withheld and did not pay in. With the withholding paid in, he would recover the whole 3 %. Without it, there is nothing to refund, and his only way of getting the money back is to claim it from the buyer. We deal with it in selling at a loss.
How to avoid it on the next sale
The safest way to make sure this does not happen is for the payment of the 3 % not to depend on the buyer's goodwill. In some sales the withholding is handed over at the notary's office by cheque or by a transfer earmarked for paying Modelo 211, and the receipt is given to the seller within a few days. Agreeing this in the arras contract (the deposit contract signed before the deed), as explained in the 3 % in the arras contract, is the most effective protection.
As for timing, the seller should not wait until the last day to check the payment: with three months for his Modelo 210, there is room to react if the buyer fails. The timetable is in when do I get back the excess 3 %.
What happens with this sale in your country of residence, and whether the Spanish tax is recognised there, must be confirmed by your adviser in that country; we do not give opinions on foreign law.
The papers worth keeping from the signing
Many problems of this kind are solved or made worse depending on what the seller has in hand. The minimum is an authorised copy of the deed stating the withholding, proof of payment of the rest of the price, the contact details of the buyer and his notary, and any communication in which the buyer undertakes to pay in Modelo 211. If an agency handled the operation, its emails as well. With that paperwork, both the civil claim and the explanation to Hacienda start from a solid base; without it, everything depends on the buyer's word.
Reviewing the buyer's Modelo 211, preparing the Modelo 210 and pursuing the claim when the payment does not appear are part of the Salama Tax service for non-residents selling a property.