2008 budget law includes measures affecting payments to nonresident entities

The final version of the Portuguese Budget Law for 2008, published in the Official Gazette on 31 December 2007, includes changes that will affect payments to nonresident entities. The changes, which are generally welcome, include a relaxation of the rules to benefit from the EC Parent-Subsidiary Directive and measures that reduce the compliance burdens on nonresidents deriving Portuguese-source income. The Budget Law measures are effective as from 1 January 2008.

Dividends Paid to EU Companies

In response to the European Commission’s challenge to Portugal’s domestic rules, the 2008 Budget Law changes the tax regime applicable to dividends paid by a Portuguese resident company to a shareholder resident in another EU Member State.
The adopted measure aims to grant the same tax treatment to dividends paid by Portuguese subsidiaries to their Portuguese and EU parent companies. Thus, dividends paid to qualifying companies resident in an EU Member State are now exempt if:
The EU parent company holds at least 10% of the share capital (previously 15%) of the Portuguese subsidiary or the acquisition value of the shareholding is at least Euro 20 million; and the shareholding has been held for an uninterrupted period of one year (previously two years).
The new regime also covers profits distributed to a permanent establishment of an EU parent company situated in another EU Member State.
In light of the amendment, EU companies that meet the above criteria and that have been subject to withholding tax on dividend income arising from their Portuguese affiliates should consider the possibility of requesting a refund of the Portuguese tax unduly borne under the previous dividend taxation regime.

Income from Swap Transactions

Income arising from currency swaps, interest rate swaps and currency forwards will now be, for all purposes, treated as interest. This amendment may change the taxation of such income when obtained by entities resident in tax treaty partner countries.
Depending on the definition of interest in a tax treaty, in many instances, such income will be treated as interest subject to a withholding tax rather than being exempt under the business profits or other income articles of a treaty. Nonresident financial institutions deriving income from swap transactions or currency forwards in Portugal should examine their position as to whether the changes result in an additional withholding tax burden.

Proof of Eligibility for Relief under Treaties and EU Directives

The deadline for presenting proof that the requirements for application of tax treaty benefits or the EC Interest and Royalties Directive have been satisfied has been extended until the time withholding tax must be remitted to the state, i.e. the 20th of the month following the month in which the withholding is due. Previously, such proof had to be available before the tax liability arose. Proof that the EC Parent-Subsidiary Directive applies must be provided before the dividends are made available to the beneficiary.
The Portuguese taxpayer liable to withhold tax will be relieved of the joint obligation to pay tax if the proof to benefit from an exemption or a reduction of tax is presented after the above deadlines, via an official form duly certified by the tax authorities of the beneficiary’s country of residence. The Portuguese withholding agent, however, still will be subject to an administrative penalty. The 2008 Budget Law provides for a penalty ranging from Euro 250 to Euro 2,500 for failure to withhold tax if the formal requirements to benefit from an exemption or a reduction of withholding tax are satisfied but the proof of eligibility is not made available by the prescribed deadlines.
The final version of the 2008 Budget Law contains a significant modification not included in the draft budget. Proof of fiscal residence may be presented in situations before the law’s 1 January 2008 effective date even if the tax has been withheld unless the tax was paid and such payment is not subject to objection or appeal to administrative bodies or courts.
The 2008 Budget Law also confirms that, if the beneficiary of income is a central bank or government agency domiciled in a country that has signed a tax treaty with Portugal, the periodic resubmission of the forms necessary to apply the treaty no longer is mandatory. However, a central bank or an agency still must inform the Portuguese entity paying the income of any changes with respect to its compliance with conditions for the application of the exemption or reduction of tax under the treaty.
Finally, the number of Portuguese official forms to be certified by the nonresident’s tax authorities has been reduced from 12 (separate forms for various types of income) to four.
(...)

DELOITTE - Carlos Loureiro e Susana Barahona Ferreira