Carmen Ortiz, a pharmacist in Granada, bought a flat in Almuñécar in November 2025 from Luc Martin, who lives in Lyon. Price: 205,000 €. She paid the full price at the notary's office and forgot about the matter. In August 2026 she receives a communication from the Agencia Tributaria, the Spanish tax agency, about the withholding she should have paid in with Modelo 211. She rereads the deed and finds, among the final warnings, a sentence about "the buying party's obligation to withhold 3 % of the price". She does not remember anyone reading it aloud to her. Her first reaction is to think the mistake is the notary's.
What the law entrusts to the notary
A notary in Spain is not the tax adviser of one of the parties. Article 147 of the Notarial Regulations (Reglamento Notarial) entrusts the notary with drafting the document in accordance with the common will of the parties, bringing it into line with the legal system and informing them "of the value and scope of its wording". The same article requires the notary to advise the parties impartially.
In a sale by a non-resident, that means identifying the parties with their tax identification number (without which article 254.2 of the Mortgage Law, the Ley Hipotecaria, prevents registration), recording the residence the seller declares and warning of the tax obligations arising from the transaction, among them the withholding. It is usual for that warning to appear in the deed itself, as in Carmen's.
What the notary does not do is file Modelo 211, calculate it for the buyer or check afterwards that it has been paid in.
Who is obliged according to the law
Article 25.2 of the Law on IRNR (Spanish non-resident income tax) is clear: "the acquirer shall be obliged to withhold and pay in 3 per cent". Article 14.3 of the Regulations adds that it is the person obliged to withhold who must file the return and pay in within one month of the transfer. The rule does not mention the notary, the registrar or the estate agency.
The obligation therefore arises from the law and falls on whoever buys, regardless of what they were warned about. A warning that was omitted or badly explained could have consequences between Carmen and the professional, but not with regard to Hacienda, as the Spanish tax office is commonly called.
| Who is involved | What they do in relation to the withholding | What they do not do |
|---|---|---|
| Notary | Identifies the parties, records the declared residence and warns of the obligation | Does not file Modelo 211 or check that it is paid in |
| Land registrar | Records the charge by a marginal note if payment is not proved (article 14.5 of the Regulations) | Does not claim the withholding |
| Estate agency | Sometimes informs, sometimes not | Has no tax obligation whatsoever |
| Buyer's bank | Issues the cheque or transfer it is told to | Does not calculate or withhold on its own initiative |
| Buyer's adviser, if there is one | Calculates, prepares and files Modelo 211 if instructed to | Nothing, if not instructed |
| Buyer | Is the person obliged to withhold and pay in | Cannot shift that obligation to any of the above |
Carmen's figures, with the letter already received
The August communication changes her situation. The surcharge in article 27 of the General Taxation Law (Ley General Tributaria) only applies when filing takes place "without prior demand". An action by the tax authorities aimed at regularising that withholding and notified to Carmen is already a demand, so that route has, in principle, closed. If the communication is a simple information notice, it would have to be read carefully before reaching that conclusion; the guide on what counts as a prior demand helps to tell the difference.
If the tax authorities regularise:
- Withholding not paid in: 205,000 × 3 % = 6,150 €.
- Late-payment interest from the end of the deadline, at the rate for each period.
- A possible penalty. As Carmen withheld nothing, article 191.3.c of the General Taxation Law would place it as serious, with a fine of 50 to 100 %: at the minimum, 3,075 €.
- With the reductions in article 188, for agreement (30 %) and for payment on time without an appeal (40 %): 3,075 × 0.70 × 0.60 = 1,291.50 €.
This is an estimate of the mechanism; the specific procedure may vary. What is certain is that the price paid to Luc does not change: Carmen will have to pay in the 6,150 € with her own money.
While you decide whether there is someone to claim from, the Agencia Tributaria's communication has its own reply deadline. Letting it pass in the belief that the problem is the notary's only adds costs. Deal with Hacienda first; then, if appropriate, look at other routes.
If you have a similar communication, you can send it to us together with the deed through the Modelo 211 form.
Can you claim against the notary?
It is the question Carmen is asking herself, and the honest answer is that it depends. In her deed the warning exists. Even if it was not read to her, she signed it, and it is hard to argue that the notary failed in the duty to inform when the information is in the document. If the deed contained no mention and the seller had declared his residence abroad, the analysis might be different, but a professional liability claim requires proof of the fault, the damage and the link between the two. And the damage is debatable: the withholding is, after all, a payment on account of another person's tax that Carmen could claim from him.
It is not a route to rule out without reading the deed, but nor is it the one that solves the immediate problem.
The most natural route: the seller
Carmen paid Luc 205,000 € when she should have paid him 198,850 € and handed 6,150 € to Hacienda on his behalf. If she now pays in that amount, she is paying on account of Luc's tax. Article 1158 of the Civil Code allows someone who pays on behalf of another to claim what was paid from the debtor, with the nuances that same article provides. Luc, moreover, will be able to deduct the 6,150 € in his Modelo 210, so he has a real interest in the payment being on record. If Luc has already filed his return and paid his tax in full, the situation is different, and his receipts will have to be looked at.
In practice, the conversation with the seller is usually more productive than a claim against a professional. But it requires finding him and his cooperation, and that cannot be taken for granted.
What other buyers learned
The lesson of cases like Carmen's is not to distrust the notary, but not to delegate to the notary what the law places on the buyer. At the arras stage (the deposit agreement signed before the deed) it is worth putting in writing who prepares Modelo 211, how the 3 % is set aside from the price and when the seller is given his copy; we explain it in does the 3 % come out of my pocket? and in the guide on the 3 % in the arras contract. And if the seller resists, in the seller refuses to let me withhold.
The full consequences of not paying in, including the marginal note at the land registry, are in what can happen if I do not pay it in.
Withholding on purchases from non-residents and the rest of a buyer's questions are gathered on the Salama Tax page on Modelo 211.