Ratification and approval of Multilateral Instrument (MLI)
Presidential Decree no. 70/2019 and Parliament’s Resolution no. 225/2019, both of 14 November 2019, were publish in the Official Gazette. They ratify and approve, respectively, the Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting ('Multilateral Instrument' or MLI).
Under no. 2 of Article 34 and Article 39, both of the MLI, the MLI shall enter into force in respect of Portugal on the first day of the month following the expiration of a period of three calendar months beginning on the date of the deposit of the instrument of ratification with the Secretary-General of the Organisation for Economic Co-operation and Development (OECD) (Depositary).
Tax treaty between Portugal and Angola enters into force
Following the publication of Notice n.º 93/2019, published in the Official Gazette of 1 October, the tax treaty between Portugal and Angola for the avoidance of double taxation and prevention of fiscal evasion on matter of taxes on income entered into force on 22 August 2019. Accordingly, its provisions shall apply for the first time:
- In Portugal:
- Regarding taxes withheld, where the taxable event occurs on or after 1 January 2020.
- For other taxes, regarding tax years starting on or after 1 January 2020.
- In Angola:
- Taxes where the taxable event occurs after 31 December 2019.
The tax treaty between Portugal and Angola for the avoidance of double taxation and prevention of fiscal evasion on matter of taxes on income foresees, among other measures, the following:
- Dividends: Rate of 8% in case of ownership of the share capital in at least 25% for 365 days, including the day in which dividends are paid; 15% in the remaining situations.
- Branch profit tax: Taxation of 8% of the amount of the profits repatriated.
- Interest: Rate of 10%.
- Royalties: Rate of 8%.
- Technical services: Rate of 5% (includes services of a technical nature, management services, or consultancy services).
Law 119/2019, published in the Official Gazette of 18 September, amended several tax codes. We highlight the most relevant amendments introduced.
Corporate income tax (CIT)
Profits and gains: Bonds and other subordinated securities
It is now considered as income, at the level of the issuer, the total or partial reduction of the principal debt in bonds or other subordinated securities. This rule applies provided that they do not attribute to the holder the right to receive dividends or voting rights at the General Meeting of Shareholders and are not convertible into shares.
Negative equity variations: Bonds and other subordinated securities
The specific reference to instruments of regulated financial sector entities is eliminated. The provision now covers CIT payers in general, allowing a tax deduction of the negative equity variations related with the distribution of income from bonds or other subordinated securities, provided that they do not attribute to the holder the right to receive dividends or voting rights at the General Meeting of Shareholders and are not convertible into shares.
Total or partial relief or refund of withholding tax (WHT) on income earned by non-resident entities: Simplification of procedures
There is a simplification of the procedures applicable to non-resident entities to waive or obtain a refund, totally or partially, of the WHT on Portuguese-sourced income. It will now be necessary to present a standard form, yet to be approved, accompanied by a document issued by the competent authorities of the state of residence certifying the tax residence and subjection to income tax, in the period concerned.
Tax file: Large Taxpayers
Taxpayers followed by the Unit of Large Taxpayers are now required to file the tax file, including the transfer pricing file, by 15 July following the end of the tax period (15th day of the seventh month for entities with a tax year different from the calendar year). Entities that apply the special tax regime of group taxation (RETGS) continue to be required to deliver the tax file by 15 July following the end of the tax period (15th day of the seventh month for entities with a tax year different from the calendar year).
Article 143 is added to the Corporate Income Tax Code. It includes a definition of 'turnover', being sales and services provided, including rents of investment properties. In case of banks, insurance companies, and other financial entities, the concept of 'turnover' corresponds to interest and similar income and commissions, gross premiums issued and commissions of insurance contracts, or provision of services contracts, depending on the nature of the activity developed by the taxable person.
As a consequence of this amendment, there is a revocation of numbers 4 and 5 of Article 106, concerning the turnover for the purposes of the Special Payment on Account.
The definition of transactions subject to transfer pricing rules was broadened to explicitly include transactions with associated enterprises within the scope of business restructurings.
Transfer pricing methods
The hierarchy of transfer pricing methods to be adopted by taxpayers to ensure the best comparability between the transactions or series of transactions conducted with associated enterprises and substantially similar transactions between independent enterprises was removed. Furthermore, a reference to the use of other methods or techniques of analysis was introduced in the case where transfer pricing methods cannot be used due to the unique or singular character of transactions or due to the lack or scarcity of reliable comparable data. These amendments aim at aligning the Portuguese transfer pricing legislation with the guidelines included in the 2017 version of the OECD Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations.
Company’s Simplified Information / Annual Statement
The content of the legislation has been updated to be aligned with the information included in the Company’s Simplified Information / Annual Statement regarding (i) information on transfer pricing methodologies used in the transactions, (ii) changes that occurred to the methodologies adopted (if any), and (iii) information on any transfer pricing adjustments made during the year due to the non-compliance of the arm’s-length principle in the terms and conditions of the transactions (if any).
Transfer pricing adjustments
The power of the Portuguese Tax Administration was strengthened, now allowing corrections to the taxable profit/taxable income in case of non-compliance with transfer pricing rules.
Decree no. 1146-C/2001, of 21 December, which presently regulates the transfer pricing provisions between taxpayers and any other entities, will be revised in order to align the current regulations with the amendments introduced by the present bill.
Advance Pricing Agreements (APAs)
The term of Advance Pricing Agreements is extended from three years to four years.
Value-added tax (VAT)
The legal deadlines for the payment of VAT have been extended by five days. As of 1 October 2019, the deadlines will be as follows:
- Monthly regime, until the 15th day of the second following month.
- Quarterly regime, until the 20th day of the second following month.
The deadlines for submitting periodical VAT returns remain unchanged.
Tax on drinks with added sugar or sweeteners: Introduction of new taxation brackets
Introduction of two new taxation brackets for the taxation of concentrates with a sugar content equal to or higher than 50 g/l. A reduction of the rate applicable to the previously two existing brackets is also introduced. Accordingly, there are now four tax rates that apply to sugar added beverages based on the respective sugar contents. These amendments are effective as of 1 October 2019.
Packages intended for export or to be used as board supplies will no longer be required to make reference to 'export'. Additionally, the option to include the bar code option on the packages has been revoked.
Public sales of tobacco packs manufactured for domestic consumption will be required to have a unique identifier, in addition to the special stamp, in accordance with applicable law. These changes entered into force on 1 October 2019.
Circulation Tax (IUC)
For the purposes of IUC, from 1 January 2020 onwards, vehicles are considered:
- Category A: Passenger cars and mixed-use cars with a gross weight not exceeding 2,500 kg that have been registered for the first time in national territory, in a member state of the European Union (EU), or in a member state of the European Economic Area (EEA) from 1981 until the date of entry into force of the Circulation Tax Code.
- Category B: Passenger cars referred to in Article 2 paragraph (1) subparagraphs (a) and (d) of the Road Tax Code and mixed-use cars with a gross weight not exceeding 2,500 kg that were first registered in the national territory, in a member state of the European Union, or in a member state of the European Economic Area after the entry into force of the Circulation Tax Code.
It is now specifically foreseen that taxable persons liable to charge the tax and entities that bear the tax can file a claim under article 131, no. 1, of the Tax Procedure Code (claim concerning error in case of self-assessment). This amendment will enter into force on 1 January 2020.
Offset of stamp duty
Article 51 of the Stamp Duty Code is revoked. It concerned the offset of the tax due in result of the annulment or reduction of the transaction amount or material errors in the computation of stamp duty. This revocation will produce effects as from the entering into force of the monthly stamp duty statement foreseen in article 52-A of the Stamp Duty Code. In case it is not possible to offset against periods prior to the date of entry into force of the monthly statement, taxpayers shall file a claim within a two-years term.
Changes to the data reported in the monthly stamp duty statement shall be made by means of a replacement statement regarding the period to which said changes refer: (i) at any time should the change result in a higher amount of tax being levied or (ii) within one year following the filing of the statement or the date of completion of a tax audit, whichever occurs first, should the change result in a lower amount of tax being levied.
Tax refunds to the taxpayer shall be done by the end of the second month following the month in which the replacement return was filed.
The above-mentioned deadlines do not extend the deadlines for filing administrative and/or judicial claims against the tax settlement.
This amendment will enter into force on 1 January 2020.
Online bingo prizes are excluded from stamp duty.
Property tax (IMI)
Property registered in the name of undivided inheritances
The identification of the heirs with reference to the respective share is now included in the urban land register in case of property registered in the name of undivided inheritances.
Access to tax booklets
Lawyers and solicitors are also allowed to access to the information included in the tax booklets of the real estate owned by their clients if acting for the benefit of the client, being, however, subject to confidentiality obligations regarding the information accessed.
Aggravated tax rates for partially vacant urban properties
The IMI rates are increased threefold also to partially vacant urban properties, for buildings that are not registered under the condominium regime, levied on the part of the Tax Registration Value that corresponds to the vacant areas.
Property transfer tax (IMT)
Power of settlement
In case the IMT return (Form 1) is filed by electronic means or under the special procedure for transfer, encumbrance, and immediate registration of urban property in a single face-to-face service, the tax office of the taxpayer's domicile or head office is considered competent for the settlement of the IMT.
Anti-Tax Avoidance Directive (ATAD) - Transposition
Law 32/2019, published in the Official Gazette of 3 May, reinforces the actions against tax avoidance practices and amends the legal regimes applicable to controlled foreign companies (CFCs), net financing costs, exit tax, and the general anti-abuse clause. With this new set of rules, Portugal partially transposes into its legal system the Council Directive (EU) 2016/1164, of 12 July 2016, laying down rules against tax avoidance practices that directly affect the functioning of the internal market.
Changes in the tax law have entered into force on 4 May 2019.
Implementation of DAC6 - Draft Law under public consultation
A draft Law prepared by the Portuguese Government, aiming at implementing the EU Directive on the mandatory disclosure and exchange of cross-border tax arrangements, also known as DAC6, was made available for public consultation.
The draft Law follows DAC6 very closely; however, some specifications have been introduced, as follows:
- Arrangements are reportable for being cross-border but also if purely domestic and totally or partially applicable or effective in the Portuguese territory (thus deviating from DAC6, which covers only cross-border arrangements).
- The following taxes are in scope:
- Regarding purely domestic reportable arrangements and cross-border reportable arrangements partially or wholly applicable or effective in the Portuguese territory: CIT, personal income tax (PIT), municipal surtax, state surtax, autonomous taxation, VAT, property tax (annual property tax and property transfer tax), and stamp tax, including respective tax benefits (custom duties are excluded).
- Regarding cross-border reportable arrangements: All taxes, including the respective tax benefits (VAT, custom duties, excise duties, and social security contributions are excluded).
- 'Cross-border arrangement', 'marketable arrangement', 'bespoke arrangement', and 'relevant taxpayer' definitions follow DAC6.
- Definition generally follows DAC6; however, deviating from DAC6, the draft Law excludes those situations where there is a juridical assessment of a pre-existing tax situation of the relevant taxpayer performed within the scope of a juridical consultation or the exercise of a mandate granted under a tax procedure (administrative, judicial, penal or infraction), including advice provided regarding the respective procedures.
- Intermediaries must communicate reportable arrangements regardless of the legal professional privilege (LPP), thus deviation from DAC6, which allows intermediaries to notify any other intermediary or the relevant taxpayer if the reporting obligation would breach LPP.
- Hallmarks that present an indication of a potential risk of tax avoidance are in line with DAC6; however, since purely domestic arrangements are also covered, the hallmarks established have been adjusted accordingly; as mentioned in recital (13) of DAC6, it is specifically foreseen the possibility of using the work of the OECD, and more specifically its Model Mandatory Disclosure Rules for Addressing CRS Avoidance Arrangements and Opaque Offshore Structures and its Commentary, in what concerns financial accounts information and beneficial ownership.
- Reporting obligations:
- Information to be communicated is in line with DAC6.
- Because purely domestic arrangements are also covered, deviating from DAC6 there is an additional obligation for the relevant taxpayer to report to the Portuguese Tax Authorities a reportable arrangement in the situation where an intermediary exists but the relevant taxpayer is aware that the intermediary did not comply with the reporting obligation (for whatever reason).
- The reporting timelines are in line with DAC6, although with adjustments arising because purely domestic arrangements are also covered. Accordingly, (i) reportable cross-border arrangements applied/with effects outside Portugal whose first implementation step has occurred or occurs between 25 June 2018 and 30 June 2020 and (ii) purdomestic reportable arrangements and cross-border reportable arrangements partially or wholly applied or with effects in Portugal whose availability or first implementation step has occurred or occurs up to 30 June 2020,are to be reported by 31 August 2020 (10 September 2020 at the latest).
- Reporting deadline: From 1 July 2020 onwards, the deadline to communicate reportable arrangements is of 30 days.
- The draft Law foresees penalties ranging from 2,000 euros (EUR) to EUR 80,000 for lack of compliance.
After the end of the public consultation period, the draft Law will go through the Portuguese legislative process, and may be subject to amendments before final voting by the Portuguese Parliament. It is also expected that standard forms for complying with this new reporting obligation are published, alongside specifications, filing instructions, and filing procedures.
Automatic access of the Portuguese Tax Authority (PTA) to financial information of residents
Law 17/2019, of 14 February, approved the regime for the automatic exchange of financial information with respect to accounts with a balance or value that exceeds EUR 50,000 to be carried out by most financial institutions to the Portuguese Tax Authority (PTA).
Reporting financial institutions must report to the PTA, by 31 July of each year, the following information regarding each account subject to communication, with reference to 31 December of the previous calendar year:
- The name, address, Tax Identification Number (TIN), and date and place of birth (in the case of an individual) of each reportable person that is an account holder. In the case of any entity, the name, address, and TIN, as well as the name, address, TIN, and date and place of birth of each of its controlling persons that is deemed reportable.
- The account balance or value (including, in the case of a cash value insurance contract or annuity contract, the cash value or surrender value) as of the end of the relevant calendar year or, if the account was closed during such year, the closure of the account.
- In the case of any custodial account: (i) the total gross amount of interest, the total gross amount of dividends, and the total gross amount of other income generated with respect to the assets held in the account, in each case paid or credited with respect to the account during the calendar year; and (ii) the total gross proceeds from the sale or redemption of financial assets paid or credited to the account during the calendar year with respect to which the reporting financial institution acted as a custodian, broker, nominee, or otherwise as an agent for the account holder.
- In the case of any depository account, the total gross amount of interest paid or credited to the account during the calendar year or other appropriate reporting period.
- In the case of any other account, the total gross amount paid or credited to the account holder with respect to the account during the calendar year with respect to which the reporting financial institution is the obligor or debtor, including the aggregate amount of any redemption payments made to the account holder during the calendar year or other appropriate reporting period.
This regime covers financial accounts whose holders or beneficiaries are resident on national territory with respect to the information related to 2018 and following years.
Transposition of EU Directive package Anti Tax Avoidance - Law Proposal
Law Proposal no. 177 was presented for discussion at the Parliament. It aims at transposing EU Counsel Directive 2016/1164, of 12 July, as modified by EU Counsel Directive 2017/952, of 29 May. The law proposal includes measures on matter of tax deductibility of interest, exit taxes, general anti-abuse provision, and CFCs, amending several provisions of the Corporate Income Tax Code and General Tax Law. EU provisions on matter of hybrid mismatches shall be dealt with at a later stage, given its complexity.
2019 State Budget Law
Law 71/2018, of 31 December, approved the 2019 State Budget Law. The amendments introduced in the tax law are, in general, effective form 1 January 2019 onwards.
Portugal/Finland tax treaty terminated
Notice 146/2018, published in the Official Gazette, confirms the termination of the tax treaty signed between Portugal and Finland on 27 April 1970. This is effective from 1 January 2019 onward.
Tonnage tax and support seafarer schemes published
Decree-Law 92/2018, of 13 November, published in the Official Gazette, establishes the Portuguese tonnage tax scheme and scheme to support seafarers.
Tonnage tax scheme
Entities liable to CIT, with registered head office or place of effective management in Portugal, that carry out as their main activity the maritime transport of cargo and passengers may opt to be taxed under the tonnage tax scheme. Medium and large companies covered by restructuring aid from the European Commission are excluded. The option for the scheme is valid for five years, except if the taxpayer asks to opt out.
The scheme applies to income from eligible activities carried out through ships that, among others, meet the following requirements:
- Fly a flag of a European member state or an EEA state, and are strategically and commercially managed from an EU or EEA state.
- Regarding which at least 60% of the respective net tonnage flies a flag of an EU or EEA state, and the respective commercial and strategic management is run from that state.
The following revenues are eligible for the regime:
- Core revenues from maritime transport activities (cargo and passenger transport).
- Ancillary revenues closely connected to shipping activities.
- Revenue from towage and dredging, subject to certain conditions.
The tonnage tax profit is calculated on the basis of a notional daily profit per ship based on a sliding tariff by reference to the net tonnage of the ship, as follows:
||Daily taxable income for each 100 net tonnes (EUR)
|Up to 1,000 net tonnes
|From 1,001 to 10,000 net tonnes
|From 10,001 to 25,000 net tonnes
|Greater than 25,001 net tonnes
Costs and losses incurred and related with the eligible activities are disallowed for tax purposes. No deductions are allowed to the taxable profit assessed. The taxable profit assessed is subject to CIT at the standard rate of 21% (municipal surtax and state surtax may also apply). Taxable losses generated in tax years prior to the start of the scheme can be offset against taxable profits generated by non-eligible activities (in the proportion of such activities on the total profits). The taxpayers are required to maintain separate accounting records for both eligible and non-eligible activities.
The European Commission has already approved the scheme as state aid.
Scheme to support seafarers
Seafarers employed on vessels are exempt from PIT (a minimum stay of 90 days in the vessel is required, in each tax year, among other conditions). They are also eligible to pay reduced rates of contributions to social security (6% in total, being 4.1% borne by the employer and 1.9% by the seafarer).