The Mokoena family arrives in Madrid
Sipho Mokoena is South African and arrives in Madrid in March as managing director of the Spanish subsidiary of a logistics group, on a salary of 140,000 €. With him come his wife, Naledi, who will keep working remotely for a Johannesburg consultancy for about 70,000 € a year, and their three children: Thabo, aged 17; Lerato, 23, who is about to start a master's degree; and Kagiso, 26, who is staying in Cape Town. Sipho will file Modelo 149, the form used to opt into the special regime for workers moving to Spain. His question: can the rest of the family join?
For years the answer was no. Law 28/2022, on promoting the start-up ecosystem, added a paragraph 3 to article 93 of the IRPF Law (Spanish personal income tax) with effect from 1 January 2023, and since then the regime can be extended to the family, subject to conditions.
Who can come in
Article 93.3 allows the spouse of the main taxpayer to opt, as well as their children under 25, or of any age if they have a disability. If there is no marriage, the other parent of those children may opt. Applied to the Mokoenas:
| Member | Can they opt? | Reason |
|---|---|---|
| Naledi, spouse | Yes, if she meets the other conditions | She is the holder's spouse |
| Thabo, 17 | Yes | Under 25 |
| Lerato, 23 | Yes | Under 25 |
| Kagiso, 26 | No | Over 25 and not moving to Spain |
Article 116.1 of the IRPF Regulations adds a useful clarification: the relationship, age and disability are looked at when the option is exercised. Lerato must file her notice before she turns 25.
The conditions each person meets on their own
Being related is not enough. Each family member must individually meet the following:
- Move with the main taxpayer or later, provided the first tax period in which the regime applies to the main taxpayer has not ended. Article 113.3 of the Regulations allows them to move earlier, on one condition: that they do not become tax resident before the first year of the main taxpayer's regime.
- Become tax resident in Spain.
- Not have been resident in Spain in the previous five tax periods and not obtain income through a permanent establishment in Spain: the same conditions as letters a) and c) of article 93.1.
- A combined limit on bases: the sum of the taxable bases of the family members in the regime, in each year it applies, must be lower than the taxable base of the main taxpayer.
The fourth condition is the one that matters most in practice, and the one that causes the most surprises.
The limit on bases, in figures
First year. Sipho's taxable base: 140,000 €. Naledi contributes 70,000 € of salary. Thabo and Lerato have no income.
- Sum of the family members' bases: 70,000 + 0 + 0 = 70,000 €.
- Comparison: 70,000 € is lower than 140,000 €. The condition is met.
Third year. Naledi is promoted and now earns 150,000 €. Sipho stays at 140,000 €.
- Sum of the family members' bases: 150,000 €.
- Comparison: 150,000 € is not lower than 140,000 €. The condition is breached.
- Consequence, under article 118.4 of the Regulations: the family members are excluded together, with effect in that same period. Sipho stays in the regime; Naledi, Thabo and Lerato move to ordinary IRPF that year and can no longer come back.
What does that mean for Naledi? In the regime, 150,000 × 24 % = 36,000 €. Under the ordinary system, her salary would be taxed on the progressive state and regional scale, with her allowances, and her worldwide income would be declared in Spain again. The state portion alone, with no Spanish contributions because her employer is foreign, deducting only the 2,000 € of expenses under article 19 and her personal allowance, comes to 28,223.50 € (148,000 € of net income: 8,950.75 € up to 60,000 €, plus 88,000 € at 22.5 %, less 527.25 € for the allowance), and to that you have to add the regional portion, whose scale depends on the region.
If the family members breach the limit on bases, or if the main taxpayer gives up the regime or is excluded, all the family members leave at once. If a family member breaches another condition of their own, for example by ceasing to be resident, only that person leaves and the others stay. Before accepting a pay rise or starting an activity, any member of the family should check whom it affects.
What does not break the regime: divorce
Article 118.4 of the Regulations says expressly that the end of the marriage through divorce or annulment is not a breach of the requirements. If Sipho and Naledi separated in the fourth year, Naledi would keep the regime while it still applies to Sipho and the other conditions are met.
The notice: one per person
Each family member exercises the option with their own notice, using the same Modelo 149. The deadline, under article 116.1.b of the Regulations, is six months from their arrival in Spain or the main taxpayer's deadline, if that is later. The notice must identify the main taxpayer and the notice they filed, and must be accompanied by documents proving the relationship: the marriage or birth certificate, translated and legalised where required. If disability is claimed, it is enough to have applied for the certificate, although applying the regime depends on its being recognised.
| Family member | When their deadline starts | What they attach |
|---|---|---|
| Naledi | Her arrival in Spain, or Sipho's deadline if that is later | Marriage certificate |
| Thabo | The same | Birth certificate |
| Lerato | The same, and always before she turns 25 | Birth certificate |
As for the order: the main taxpayer's notice must be filed first, because the family members' notices refer to it.
How long it lasts for the family
A family member's regime lasts as long as the main taxpayer's. Article 115 of the Regulations ties it to the last tax period in which it applies to the main taxpayer. If Sipho gives it up in the fourth year, the family leaves with him. The guide extending the regime to spouse and children sets out the technical details.
Is it worth it for each of them?
The extension is optional and individual. For Thabo and Lerato, who have no income, the practical effect on income tax is small, although it may matter if they receive income from abroad in the future. For Naledi, the comparison between 24 % and the ordinary system follows the logic of whether it pays on average salaries. And there is one more thing: anyone who does not join remains subject to all the obligations of a resident, including Modelo 720, the return declaring assets held abroad, as we explain in Modelo 720 and the regime.
We give no opinion on how Naledi's salary, paid by a company there, is taxed in South Africa: that is a matter for the adviser she appoints in that country, with whom we coordinate.
If you would like to review each family member's option before the deadlines run, you can send us the details on the Beckham form. We cannot guarantee the outcome of each notice, but we can go through the conditions with you one by one.
Planning the regime for the family, with each member's notice and the annual check on the limit on bases, is described on the Salama Tax page on article 93.