Peter and Susan are British, live in Bristol and since 2015 have owned a flat in Mijas that they let all year round to a local family. They own it in equal halves: each receives €6,000 a year. From the start their Modelo 210, the non-resident income tax return, was handled by a gestoría on the coast (the administrative and tax agencies Spaniards use for paperwork), which filed every year applying 19 % and deducting about €2,000 of costs per head. In 2026 they changed adviser, and the new one asked them a question nobody had asked in five years: «Why are they applying the European Union rate to you, if you live in the United Kingdom?».
Where the mistake lay, law in hand
The Non-Resident Income Tax Act applies a rate of 19 % to residents of another member state of the European Union or of the European Economic Area (Iceland, Norway and Liechtenstein), and only they may deduct the costs linked to the letting. Everyone else is taxed at 24 % on the gross income. The United Kingdom ceased to be a member state, and from the 2021 tax year its residents fall into the second group.
The gestoría did not update the file after Brexit and kept filing the same way. Some taxpayers argue in the courts that the free movement of capital should allow residents outside the Union to deduct costs; it is not a settled route and we do not treat it as won, so we do not use it to lower the regularisation figures.
Peter and Susan's figures, year by year
For each of them, every year:
- What was declared: (6,000 − 2,000) × 19 % = €760.
- What was due: 6,000 × 24 % = €1,440.
- Annual difference per person: €680.
- For the two of them: €1,360 a year.
| Tax year | Declared (couple) | Correct (couple) | Difference | Position in 2026 |
|---|---|---|---|---|
| 2023 | €1,520 | €2,880 | €1,360 | Over 12 months: 15 % + interest |
| 2024 | €1,520 | €2,880 | €1,360 | Depends on its filing date |
| 2025 | €1,520 | €2,880 | €1,360 | Depends on its filing date |
| Total | €4,560 | €8,640 | €4,080 |
Mind what sits outside the table. Until 2023 rental income was declared quarter by quarter, and the limitation period runs from the end of each quarter's filing deadline: in September 2026 the third and fourth quarters of 2022 are still open and are regularised in the same way. Anything earlier is time-barred. The table shows 2023 as one figure for simplicity, although it is corrected return by return. If they correct on their own initiative, each difference carries the article 27 recargo, the surcharge for putting things right late but unprompted, according to the months elapsed since the end of its filing period. For 2023, well past twelve months, the surcharge is 15 %: 1,360 × 0.15 = €204, which drops to €153 if paid on filing, plus late-payment interest for the time beyond those twelve months. The other two years are calculated the same way with their own number of months.
Before the tax office it is you who answers, even if you did nothing
This is the hardest part to accept. The taxpayer is Peter, and so is Susan. The adviser is not a party to the tax relationship: they act as a representative or as a collaborator filing on someone else's behalf, but the debt is the owners' and it is claimed from them. There is no way of asking the tax office to collect from the adviser.
What does change depending on who made the mistake is the penalty. Tax offences require some degree of fault, and the law excludes liability where the taxpayer has taken due care. Having given a professional all the correct information and relied on them is an argument weighed case by case; it guarantees nothing, but it can carry weight. And there is a route that makes it unnecessary: correcting before receiving any request from the tax office, because then there is no penalty procedure, only the surcharge.
If you find yourselves in a similar position, the non-resident form gives us what we need to check how many years are affected and what it costs to put them in order.
Claiming against the adviser, and for what
The relationship with the gestoría is a contract for professional services. If the professional performs it negligently, they are liable for the damage caused, through the civil courts: first a written claim, then their professional liability insurance if they have it and, if there is no agreement, the court. The general period for claiming for breach of contract is five years.
The tax itself is not a loss
What almost nobody explains is what can be claimed and what cannot. The €4,080 difference is not harm caused by the adviser: it is tax Peter and Susan owed in any case and which, thanks to the mistake, they are paying late. Claiming it is the quickest way to lose credibility with the insurer.
| Item | Can it be claimed from the adviser? |
|---|---|
| The difference in tax (€4,080) | No: it was owed anyway |
| Article 27 surcharges | Yes, they are a direct result of the mistake |
| A penalty, if one is imposed | Yes, on the same reasoning |
| Late-payment interest | Debatable: it offsets the fact that you had the money in the meantime |
| Cost of the regularisation with the new adviser | Yes |
The whole claim rests on one fact: that the gestoría knew you were resident in the United Kingdom. If you sent them the British residence certificate every year, if the invoices went to your Bristol address, if there are emails in which you mention it, the mistake is theirs. If on the other hand you told them at some point that you lived in Spain or in France, the complaint is greatly weakened. Before writing them a single line, gather those documents and keep them outside the email account the gestoría shares.
And if the mistake went the other way: you overpaid
The same slip can go in the other direction, and then the story is kinder. We often hear from residents of Germany, France or the Netherlands who for years were charged 24 % on the gross income, as if they lived outside the Union, or who never had a single cost deducted. In that case they have paid tax they did not owe, and they can get it back.
The route is to rectify the self-assessments for the years that are not time-barred, which in practice are the last four counted from the end of each filing period. Residence in the EU member state is proved with each year's certificate, the costs are supported with their receipts (IBI, the annual municipal property tax; community fees; insurance; utilities; loan interest; depreciation) and the refund of the difference is claimed, which the tax authorities pay with late-payment interest in the taxpayer's favour. Here the harm caused by the adviser is mainly the time and cost of the rectification, and any years that became time-barred along the way, which can no longer be recovered: that is a clear, quantifiable loss.
In both directions the first step is the same: check which residence certificate the gestoría had on file each year and which rate it applied with it. That comparison, done year by year, is what tells you whether there is something to regularise, something to recover or nothing to do.
A sensible order for the next steps
- Download from the Agencia Tributaria's online office the receipts for every return filed in your name.
- Revoke any authorisation the gestoría held, so that nobody files anything more without your knowledge.
- Regularise the years that are not time-barred before any request arrives.
- With the payment receipts in hand, send the claim to the gestoría asking for its insurance details.
The guide on the residence certificate for Modelo 210 explains which document proves residence in each case, and the one on the order for regularising several years how several years are chained together without tripping over each other. We do not promise that the previous adviser will end up paying: we promise that, if there is something to claim, you will have it documented in order to do so.