Domicilio social vs domicilio fiscal: the difference explained

The domicilio social (registered address) is the address written in a Spanish company's estatutos (articles of association) and recorded in the Registro Mercantil (companies registry), while the domicilio fiscal (tax address) is where the company is located for the Agencia Tributaria (AEAT, the Spanish tax agency). Usually they are the same place. They can differ, though, because each follows its own legal test, and a mismatch has consequences for tax procedures and for where official letters are sent.

What the domicilio social is

Under article 9 of the Ley de Sociedades de Capital (the Spanish Companies Act), an SL or SA must have its domicilio in Spain, at the place where its effective administration and management are centred, or where its main establishment or operation is based. The address is one of the required contents of the estatutos, and it appears on the company's record at the Registro Mercantil.

Article 10 deals with the situation where the registered address and the real one do not match. In that case, third parties may treat either as the company's domicilio. In practice, a creditor or court can use the registered address even if nobody works there, and can also use the real one.

What the domicilio fiscal is

Article 48 of the Ley General Tributaria (General Tax Law) defines the domicilio fiscal as the place where a taxpayer is located for its dealings with the tax authorities. For a company, it is the domicilio social, provided administrative management and the direction of the business are effectively centralised there. If they are not, the domicilio fiscal is the place where that management actually happens. If neither test gives an answer, it is where the company's highest-value fixed assets are.

So the domicilio fiscal follows the facts. Writing an address in the estatutos does not make it the domicilio fiscal if the company is really run from somewhere else.

Domicilio social and domicilio fiscal side by side

	Domicilio social	Domicilio fiscal
Main rule	Ley de Sociedades de Capital, art. 9	Ley General Tributaria, art. 48
Test	Where effective administration is centred, or the main establishment	The domicilio social, if management is really centralised there; otherwise where it is
Where recorded	Estatutos and Registro Mercantil, published in the BORME	AEAT census, via Modelo 036
Who changes it	Administrators (within Spain), by public deed	The company, by filing Modelo 036
Who relies on it	Third parties, courts, the registry	Tax authorities

How to change the domicilio social

Changing the domicilio social is a change to the estatutos. Normally statutory changes need a resolution of the junta general (shareholders' meeting). Article 285 of the Ley de Sociedades de Capital makes an exception: the órgano de administración (the board or sole/joint administrators) can move the domicilio social anywhere within Spain unless the estatutos say otherwise. Since a 2017 reform, the estatutos only count as saying otherwise if they expressly state that the administrators do not have this power.

The steps are usually:

1. A resolution by the administrators (or the junta, where the estatutos reserve the decision).
2. A public deed (escritura pública) before a notario (notary).
3. Registration at the Registro Mercantil. If the new address is in a different province, the company's registry sheet is transferred to the registry of the new province.
4. Publication in the BORME (Boletín Oficial del Registro Mercantil, the companies gazette). The registrar sends the registered resolution for publication automatically.

A move abroad is a different and more involved process and is not covered here.

How to change the domicilio fiscal

A company tells the AEAT about a new domicilio fiscal by filing Modelo 036, the declaración censal (census return), as a modification. Under article 17 of Real Decreto 1065/2007, companies and individuals who must be in the business census have one month from the change to do this. Private individuals with no business activity have three months and use Modelo 030 instead.

A change of domicilio fiscal has no effect for the tax agency until it has been communicated. If the domicilio social moves, it is sensible to file the 036 at the same time, since the tax address will usually move too. Regional tax offices, the Seguridad Social (social security), your bank and your ayuntamiento (town hall) for local taxes may each need updating separately.

What happens if the domicilio fiscal is wrong

Several things can follow from a domicilio fiscal that is out of date or does not reflect reality:

• The AEAT can check and correct the declared domicilio fiscal (article 48.4 of the Ley General Tributaria) and move the company's file to the office for the right address.
• Failing to file census returns on time is an infringement under article 198 of the Ley General Tributaria, with fixed penalties set out there.
• Under article 147 of Real Decreto 1065/2007, the AEAT can revoke a company's NIF (tax identification number) if it declares its activity, administration or management at an apparent or false address and cannot justify carrying them out somewhere else. Losing a NIF causes serious practical problems, including with banks and the Registro Mercantil.
• Notifications on paper go to the address on file. Most companies, though, must receive notifications electronically, so the address matters less for delivery than for which office handles your file. See who must receive electronic notifications in Spain.

The domicilio fiscal of an autónomo

For individuals, including autónomos (self-employed people), the domicilio fiscal is normally their residencia habitual (usual home). Article 48 also lets the AEAT treat the place where an individual's business is actually managed as their domicilio fiscal, for people whose main activity is economic.

An autónomo who works from home therefore usually has the home address as domicilio fiscal. Modelo 036 also lets you give the address where the activity is carried on and a separate address for notifications, which is how many autónomos keep business post away from their home.

Using a domiciliación or business-centre address

A domiciliación de empresas (company address service) provides an address that a company can use as its domicilio social and, in some cases, its notification address. Many small SLs use a gestoría's or a business centre's address in this way, especially when the administrators work from different places or live abroad.

The points to keep in mind:

• The domicilio social should reflect where the company is administered or has its main establishment. If the administrators really manage the company from that address (meetings, records, decision-making), it can also be the domicilio fiscal.
• If the company is actually run from somewhere else in Spain, that other place is likely to be the domicilio fiscal, and it should be declared as such.
• Providers that give companies a domicilio social are obliged entities under Spain's anti-money-laundering law (Ley 10/2010), so expect to provide ID for administrators and owners.
• Post that arrives at the address needs to reach the administrators promptly, as courts and other third parties can rely on the registered address.

How Hola Post helps

Hola Post's staffed address in Almería, Spain can be used as a domicilio social and, where the facts support it, a domicilio fiscal. Post is scanned the same day, and we collect the company's Spanish electronic notifications every working day and add them to the inbox with an English summary (see Spanish notifications). Gestorías can manage clients through our partner programme. See businesses and pricing.

Frequently asked questions

Can a Spanish company's domicilio social and domicilio fiscal be different?

Yes. The domicilio fiscal is the domicilio social only if administration and management are actually centralised there. If they are run from somewhere else, the domicilio fiscal is that other place.

Who decides to move the domicilio social within Spain?

The administrators (órgano de administración) can move it anywhere in Spain unless the estatutos expressly say they cannot. The change still needs a public deed before a notary and registration in the Registro Mercantil.

How do I change a company's domicilio fiscal with Hacienda?

File a declaración censal de modificación, Modelo 036, with the Agencia Tributaria. Companies and people in the business census must do this within one month of the change.

What is the domicilio fiscal of an autónomo?

As a rule it is where the person habitually lives. The tax agency can treat the place where the business is actually managed as the domicilio fiscal for people whose main activity is economic.

Can I use a business centre address as my domicilio social?

Many small companies do, and third parties may rely on it. The tax agency looks at where the company is really managed, and it can revoke a NIF where the declared domicilio is merely apparent or false and no other real one is justified.

Sources

• Ley de Sociedades de Capital, arts. 9, 10, 285 and 290 (BOE)
• Ley General Tributaria, art. 48 (BOE)
• Real Decreto 1065/2007, arts. 17 and 147 (BOE)
• Modelo 036, declaración censal (Agencia Tributaria)

This guide is general information, not legal or tax advice. Rules change, so check your own situation with a gestor, accountant or lawyer.