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Background

  • My permanent residence is in (mainland) Spain
  • I'm studying at a university in the UK (specifically, Scotland)
  • At the start of this academic year (September 2020), I moved to the UK for university
  • Due to COVID, I have been "attending" university from home (Spain) since November 2020
  • I have accepted and signed the contract for a 2021 summer internship (June to August) for a UK-based company

Question

I have an internship contract for summer 2021 in an Edinburgh-based company. Since the start of the recruitment process, candidates were told that the internship could end up being in-person or remote depending on the situation and that a final decision would be made in March 2021. This month, they have informed candidates that all internships will be remote.

I had assumed that, were this to be the case, I could participate in the internship from home (Spain); but the recruiter has recently contacted me and told me that, due to tax reasons, I would still have to move to the UK. Note the absurdity: I would have to travel to the UK, pay £1750 to self-isolate in a hotel for 10 days and then proceed to stay in accommodation for 2 months (paying out of my own pocket), just to stay locked up in a room behind a computer.

I told the recruiter that this would be a last-resort solution for me, and to check whether this was really necessary. After some consultation with their finance team, he came back to me saying that coming to the UK would be the only way, again citing tax and social security as the reasons:

Tax treaties exist where 2 countries have agreed to respect tax residence in one of the countries and avoid taxing individuals in both countries where they are majority tax resident in one. So, if you're spending more than 183 days in the tax year in Spain but spent e.g. 2-3 months in the UK (or vice versa) you would only be liable for tax in the country you spent the most amount of time in (Spain) and could offset any taxes deducted in the UK against what you pay in Spain.

However, if living in the country for more than 6 months is what determines tax residency, moving to the UK for the internship (start of June to start of August) wouldn't change this in any way, since I would have still been living in Spain since November. Moreover, according to my own research (see below), this definition of residency is not entirely correct, and according to what I found, I would still be a Spanish resident and have to pay taxes in Spain regardless of whether I move or not. I think the ideal solution to this would be to make them pay UK taxes as for any other UK employee, and then I, as an individual, would state my income in a Spanish tax return and pay any taxes due there (minus appropriate deductions).

There is also another problem, social security:

The more important treaty is the social security agreements which also state that if you are majority resident in Spain, then you must pay your employer/employee social security in that country. Social security is always the major factor in how we address these situations. As you have been in Spain (I assume) for more than 6 months and intend to continue to live in Spain for some time to come then we must pay employer/ employee social security in Spain via a Spanish payroll.

Again, here I think the ideal outcome would be to make them pay UK national insurance (NI) as usual, but I don't know if it is possible.

From what I understand, they're not willing to pay taxes and/or social security in Spain, so any solution would have to include them paying taxes and social security in the UK, if at all. If this doesn't get resolved, they will give the internship to someone else.

What are possible solutions to this? I.e., what tax/social security approach will allow me to participate in the internship without having to move to the UK? I would appreciate any help on this, and particularly if it's with authoritative references which I can send to the company.

My research

The tax issue

I have a small amount of experience with UK-Spain tax agreements due to a previous question. There is a double taxation convention (DTC) between the UK and Spain; I'll highlight the fragments relevant to my case, together with my interpretations.


Article 4 defines the notion of "resident":

Article 4
RESIDENT

  1. For the purposes of this Convention, the term “resident of a Contracting State” means any person who, under the laws of that State, is liable to tax therein by reason of his domicile, residence, place of management, place of incorporation or any other criterion of a similar nature, and also includes that State and any political subdivision or local authority thereof. This term, however, does not include any person who is liable to tax in that State in respect only of income or capital gains from sources in that State or capital situated therein. [...]

  2. Where by reason of the provisions of paragraph 1 an individual is a resident of both Contracting States, then his status shall be determined as follows:

    a) he shall be deemed to be a resident only of the State in which he has a permanent home available to him; [...]

I only have a permanent home in Spain, so under this definition, I'm only a resident of Spain.


Article 14 deals with "Income from Employment" (annotations in italics are mine):

Article 14
INCOME FROM EMPLOYMENT

  1. Subject to the provisions of Articles 15, 17 and 18, salaries, wages and other similar remuneration derived by a resident (me) of a Contracting State (Spain) in respect of an employment shall be taxable only in that State (Spain) unless the employment is exercised in the other Contracting State (UK). If the employment is so exercised, such remuneration as is derived therefrom may be taxed in that other State (UK).

I don't know whether working remotely for a UK company from Spain counts as "exercising the employment in the UK", but let's assume it does.

  1. Notwithstanding the provisions of paragraph 1, remuneration derived by a resident of a Contracting State (Spain) in respect of an employment exercised in the other Contracting State (UK) shall be taxable only in the first-mentioned State (Spain) if:
    • a) the recipient is present in the other State for a period or periods not exceeding in the aggregate 183 days in any twelve-month period commencing or ending in the fiscal year concerned (this is the case for me), and
    • b) the remuneration is paid by, or on behalf of, an employer who is not a resident of the other State (this is not the case for me, they are indeed a UK company), and
    • c) [...]

This would mean I have to pay tax in both Spain and the UK.


Article 22, "Elimination of Double Taxation", mentions how I can deduce tax paid in the UK from what is due in Spain, but honestly, this is a secondary issue; I would rather pay tax twice than lose the internship.


All of this suggests that I could work from Spain, with them paying taxes in the UK and I paying any remaining taxes in Spain (without them having to do any Spanish paperwork themselves).

The social security issue

I've found unreferenced claims online that the company can pay NI in the UK and not have to pay social security in Spain, but I wasn't able to come to a definitive answer.

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The reality is that, even if tax law allows them to hire you, the company can just decide not to hire you for the internship unless you do what they say. They may have their own reasons for not wanting to jump through the various hoops you are investigating, and for wanting to simplify their own bookkeeping by insisting that their interns be physically present in the UK.

Unfortunately this means they are making you jump through their hoops. You can try to raise these issues and propose workarounds in your dialogue with the company, but ultimately I don't think you have any legal recourse. In the end you will probably have to decide whether to abide by their terms or just decline the internship.

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You already know more about international tax and social security than I do. Your arguments sound plausible to me. But the company also has tax accountants and presumably know what they are doing. The only way I can see them being persuaded is to get a professional tax accountant to give them information. However let me give You some extra suggestions.

Since tax is the issue it all comes down to money. Suggest to them you would be willing to take a lower salary to compensate for their extra tax expenditures. Since you would incur considerable expenses if you had to relocate, you might find a compromise that worked for both of you.

Alternatively see if they can pay you as a contractor rather than an employee. That usually reduces the tax complexity and eliminates social security problems for the company, but will involve substantial amount of work for you. You will also need to check with your university that a contractor relationship is OK for the internship.

In the worst case maybe you could work unpaid.

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    I do not think any of these suggestions will help unfortunately - I'd be willing to bet it's almost nothing to do with the money but how their systems are set up. If their systems are not set up to support the international tax situation, from the company perspective it will not be worth any amount of reduced salary to have to put extra stuff in place to sort it out - for an internship specifically. It might be different if we were talking about a specifically head-hunted C-suite employee. – Vicky Mar 27 at 12:07
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    @Vicky You may be right. It's worth a try. My expectation is that doing it as a contractor is the simplest for the company, but will involve the 'employee' doing a substantial amount of work. – DJClayworth Mar 27 at 17:31
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    It's really quite complicated overall - anecdotally even quite large companies don't want to deal with all the difficulties and risks. – GS - Apologise to Monica Mar 27 at 18:56
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    @DJClayworth taking on someone as a contractor is not particularly simple for companies any more with IR35 etc., and would not even help with the tax and NI situation if the contractor was deemed to be inside IR35 (which I cannot imagine they would not be, as an intern). Source: I have been hiring a lot of contractors recently! – Vicky Mar 27 at 21:15
  • Thank you for your suggestions @DJClayworth; even if they might be long shots, it's still worth trying. I have forwarded my research along with proposed solutions, including the ones you mention. Although I have the feeling that as BrenBarn says, in the end I will have to decide between accepting their terms or losing the internship. At least, I just found out that there is a way for avoiding the £1750 hotel. – Anakhand Mar 30 at 9:41

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