Óscar Méndez, a civil servant in Alicante, bought a flat in Torrevieja in March 2024 from Ingrid Berg, a retired Swede, for 150,000 €. He paid the full price; nobody mentioned withholding to him. Now, in September 2026, he wants to sell it to move to Valencia. When the estate agency requests a nota simple (the land registry extract), something he did not expect appears: a note in the margin of the entry saying that the property is charged with payment of an amount in respect of IRNR (Spanish non-resident income tax). The interested buyer has already asked what that is.
Three different consequences that should not be mixed up
Anyone who does not file Modelo 211 faces three things, each with its own logic:
| Front | What it consists of | Rule |
|---|---|---|
| The buyer's debt | He owes the 3 % as withholder, whether or not he deducted it | Article 25.2 of the IRNR Law and article 37.2 of the General Taxation Law (Ley General Tributaria) |
| The charge on the property | The property is liable for the lower of the withholding and the seller's tax | Article 25.2, third paragraph, and article 14.5 of the Regulations |
| The penalty | A fine for failing to pay in what should have been withheld | Article 191 of the General Taxation Law |
On top of those three come late-payment interest and, if the matter is regularised voluntarily, the article 27 surcharge instead of the penalty.
The debt is yours even though you did not withhold
Article 25.2 says that the acquirer "shall be obliged to withhold and pay in 3 per cent" of the consideration. The General Taxation Law defines the withholder, in its article 37.2, as the person on whom the law imposes the obligation to deduct and pay in part of the payments made to another. The fact that Óscar deducted nothing from the price does not release him: he is still obliged to pay in the amount.
- Price: 150,000 €.
- Withholding due: 150,000 × 3 % = 4,500 €.
- That amount will now have to come out of Óscar's pocket, because the price was paid in full.
How far the flat is liable
The charge has a limit that almost nobody knows about. The property is charged with payment "of the lower amount of that withholding or payment on account and the corresponding tax". That is, of the 4,500 € and what Ingrid actually had to pay on her gain.
Suppose Ingrid bought in 2015 for 118,000 € plus 9,000 € of purchase costs and paid 4,500 € of selling costs:
- Transfer value: 150,000 − 4,500 = 145,500 €.
- Acquisition value: 118,000 + 9,000 = 127,000 €.
- Gain: 18,500 €.
- Tax at 19 %, the rate that article 25.1.f of the law sets for non-residents' gains: 3,515 €.
- Amount for which the property is liable: the lower of 4,500 and 3,515, that is, 3,515 €.
If Ingrid had sold at a loss, the corresponding tax would be zero and so would the limit of the charge. But be careful: that limits what the flat is liable for, not Óscar's own obligation as withholder. And to show what Ingrid's tax was, you need her deeds and invoices, which Óscar does not usually have.
The charge is enforced through article 79.1 of the General Taxation Law: acquirers of charged assets are secondarily liable with those assets, through a derivation of the tax claim, if the debt is not paid. Article 41.5 requires a formal act of derivation, with a prior hearing of the person concerned.
Article 14.5 of the Regulations requires the registrar to record the charge by a marginal note, stating the amount for which the property is liable. If Óscar sells without cancelling it, his buyer will inherit the burden. No notary's office and no bank will overlook it, and the normal thing is for the buyer to demand that it be cancelled before signing or that its amount be held back.
The penalty, depending on whether you withheld or not
Article 191 of the General Taxation Law grades the offence. When amounts that should have been withheld have not been paid in, the offence is never minor. If nothing was withheld, as with Óscar, it falls under the serious case in paragraph 3.c, with a fine of 50 to 100 %. If tax was withheld and not paid in, paragraph 4 classes it as very serious, with a fine of 100 to 150 %.
For Óscar, with the minimum fine and the reductions in article 188 (30 % for agreement and 40 % for payment on time without an appeal):
- Base: 4,500 €.
- Minimum fine for a serious offence: 50 % = 2,250 €.
- After reductions: 2,250 × 0.70 × 0.60 = 945 €.
This is the mechanism, not the outcome of a real case: the grading depends on the circumstances the tax authorities take into account.
Regularising before the letter arrives
If Óscar files Modelo 211 on his own initiative before receiving any demand, there is no penalty but a surcharge. As more than twelve months have passed since the deadline ended, article 27.2 sets it at 15 %, which rules out penalties, plus late-payment interest from the day after month twelve.
- Surcharge: 4,500 × 15 % = 675 €.
- With the 25 % reduction in article 27.5, if he pays on time: 506.25 €.
- Late-payment interest: depends on the exact dates and on the rate in force in each period.
How to file the form late is explained in I missed the month and, in more detail, in the guide on Modelo 211 filed late.
If you are in a similar situation, you can send us the deed and the nota simple through the Modelo 211 form and we will tell you which option makes most sense.
How long the tax authorities can claim
Article 66 of the General Taxation Law sets at four years the limitation period for the right to assess, and article 67.1 starts counting it from the day after the end of the regulatory filing period, in this case the month after the deed. Any action by the tax authorities with the formal knowledge of the taxpayer, or any action by the taxpayer aimed at settling the debt, interrupts that period (article 68). Waiting for it to become time-barred is a bet that is lost with a single letter, and in the meantime the registry note is still there. Article 14.5 of the Regulations provides for the note to be cancelled, among other cases, when it expires or on proof that the debt is time-barred, but that requires the debt to be genuinely time-barred. The guide on the four-year limitation period explains how those periods are counted.
Recovering the money from the seller
Óscar paid 150,000 € to Ingrid and will now have to pay in 4,500 € on account of her tax. Against Ingrid he has, in principle, a civil action to claim that amount, because the payment benefits her: she will be able to deduct it from her own tax. In practice, claiming from a retired woman in Sweden two years later means finding her and persuading her, and success cannot be guaranteed. If Ingrid filed her Modelo 210 and paid her tax in full, the picture changes again, and it would have to be looked at with her receipts.
When it is the seller who suffers from the missing payment, the perspective is different, and we deal with it in the buyer never paid in the 3 %.
What to gather before making a move
- The purchase deed and a recent nota simple.
- Any communication received from the Agencia Tributaria, the Spanish tax agency, about that purchase.
- The seller's contact details and, if possible, her purchase deed, to measure her actual tax.
- If you are going to sell, the timetable of the new transaction, so as to cancel the note in time.
The 3 % withholding and Modelo 211, with all their variants, are explained on the Salama Tax page for buyers of property from non-residents.