Portuguese Residence Card for Investors
Law 29/2012, published in the Official Gazette on 9 August 2012, amends the Portuguese immigration legislation and creates a special residence card for investors (the so-called “Golden Visa”). The amendments entered into force on 8 October 2012. On 28 January 2013, the authorities introduced changes to these regulations, which make the regime more flexible. These changes are reflected in this document. With the aim of attracting foreign investment to Portugal, the Portuguese Government has created a special residence card for investors (Golden Visa) for non-EU nationals who wish to invest in Portugal. This residence card will also allow the investor to travel within the Schengen area.
For purposes of obtaining the Golden Visa, the applicant should meet at least one of the following conditions:
i) A transfer of capital to Portugal of at least 1.000.000€;
ii) Creation of at least 10 new jobs in Portugal;
iii) Acquisition of real estate in Portugal with the value of, at least, 500.000€.
The individual may carry out the investment directly or through a company with its registered head office in Portugal, provided that it meets one of the above requirements. However, when the investment is made through a company, the investment amount considered for purposes of granting a Golden Visa will be proportional to the share capital held by the applicant.
The requirements should be maintained during a minimum period of 5 years counting from the date the residence card is issued for the first time.
Evidence of the Requirements
Evidence that the requirements are met may be provided as follows:
i) Transfer of capital to Portugal: a statement issued by a financial institution registered in Portugal; or an updated statement from the Commercial Registry/Portuguese Stock Market Regulator supporting the share capital held by the applicant; or statement from the Board of Directors and certified financial statements;
ii) Creation of 10 new jobs: a statement issued by the Portuguese Social Security confirming the registration of the employees;
iii) Acquisition of real estate: real estate registration certificate; or promissory contract before the initial application for the Golden Visa, provided that a deposit of a minimum of 500.000€ is paid.
The first residence card (Golden Visa) is valid for one year and should be applied for at the Portuguese Foreign Services during the first 90 days of presence in Portugal. This residence card may then be renewed for successive periods of two years, provided that the conditions are maintained.
To be able to renew the Golden Visa, its holder should stay at least 7 days in Portugal during the first year of validity and at least 14 days during each of the two-year renewal period.
NHR - Non-habitual Residents
Portuguese tax regime for non-habitual residents
Decree-Law nr. 249/2009, 23rd September, Law nr. 20/2012, of 14th May, and Laws nr. 66-B/2012, of 31st December, and 82-E/2014, of 31st December, regulate a special tax regime for new residents in Portugal.
The first law approved a so-called New Investment Tax Code («Código Fiscal do Investimento»), which, among other measures directed at improving Portuguese international competitiveness, created a Personal Income Tax («Imposto sobre o Rendimento das Pessoas Singulares», hereinafter «IRS») special regime for «non-habitual resident» persons.
This statute is granted to persons who become resident for tax purposes in Portugal without having had this statute in the preceding five years.
Non-habitual resident persons may enjoy such statute for a ten year period, after which, if staying in Portugal, will be taxed under the standard IRS regime.
Portuguese tax residence for IRS purposes, in a given fiscal year, may be acquired via a number of different ways, such as:
a) Staying more than 183 days in the period of one year in the Portuguese territory, whether these days are consecutive or not;
b) If staying for a shorter period, having in the Portuguese territory, on any day of the year, a dwelling under circumstances that lead to the presumption of an intention to hold and occupy it as a place of habitual abode;
c) Being, on 31st December, a crew member of a ship or aircraft at the services of an entity with residence, head-office or effective management in Portugal; or
d) Being a member of a household where one of the spouses is, on 31st December, a Portuguese tax resident.
The special tax regime targets non-resident individuals who are likely to establish either a permanent or a temporary residence in Portugal.
Therefore, the regime includes two different sets of rules, one of them applicable to foreign-sourced passive income and the other to active income, in this case encompassing income derived both from foreign and domestic sources, following expatriate, rectius impatriate, and taxation regimes such as the ones existing in some other countries.
Under the first set of rules, pension income derived by non-habitual residents will be IRS exempt in Portugal, being sufficient for the purpose (i) its taxation in the source State under the rules of a tax treaty entered into by Portugal or (ii) that the income is not considered to arise from a Portuguese source under the IRS Code territoriality rules. This should mean that even if the pensions are not taxed in the source State, if there is no connection with a Portuguese source, meaning that the respective contributions have not been deducted for tax purposes in Portugal, the pensions will also be exempt from tax in Portugal.
Also in accordance with the same set of rules, other passive income, such as real estate rental income, financial applications income, such as interest or dividends, and capital gains, will be exempt from taxation in Portugal, being sufficient for the purpose that:
a) they may be taxed in the source State under the rules of a tax treaty entered into between Portugal and that State or;
b) if there is no treaty between Portugal and the source State that:
i) they may be taxed in the source State in accordance with the rules of the OECD Model Tax Convention, as interpreted according to the Portuguese reservations on its articles and observations on its commentary;
ii) it is not considered to arise from a Portuguese source under the IRS Code territoriality rules, and;
iii) the source State, region or territory is not included in the Portuguese tax havens' black list.
The regime requires only a potential tax liability in the source State in accordance with the rules of a tax treaty or of the OECD Model Tax Convention, not being thus required to be effectively taxed. In order for the exemption regime to be applicable it is only necessary that the income may be taxed in accordance with the rules of a tax treaty or, in case where no treaty is in place, no connection of the income with the Portuguese territory under the territorial scope rules of the IRS Code.
The second set of rules will be applicable to active income deriving from employment, independent personal services and also to royalties.
Under it, foreign-sourced employment income will be exempt from IRS, being sufficient that it is taxed in the source State according to the rules of a tax treaty entered into by Portugal or, if no treaty is in place, that it is taxed in the source State and that it is not considered to arise from a Portuguese source under the IRS Code territoriality rules. Income from independent personal services and royalties will be exempt if it may be taxed in the source State according to the rules of a tax treaty entered into by Portugal or, if no treaty is in place, that:
i) it may be taxed in the source State according to the rules of the OECD Model Tax Convention on Income and on Capital, as interpreted according to the Portuguese reservations on its articles and observations on its commentary;
ii) it is not considered to arise from a Portuguese source under the IRS Code territoriality rules and;
iii) the source State, region or territory is not included in the Portuguese tax havens' black list.
Effective taxation is therefore only required in respect of employment income. However, the independent personal services exemption will only be applicable to income derived from certain high value added activities of a scientific, artistic or technical nature defined by a Ministerial Decree.
Income deriving from employment or independent personal services of a domestic source or from a foreign source, but, in the latter case, not qualifying for the exemptions applicable under the first set of rules, will be liable to autonomous taxation at a special 20% flat rate and not to the general and progressive IRS rates (whose higher bracket is currently 48%), provided it derives from high value-added activities of a scientific, artistic or technical nature.
Non-habitual residents deriving foreign-sourced income that will be IRS exempt under both these sets of rules will be allowed to opt, in its regard, for the credit method, the standard method for the elimination of international double taxation in Portugal. Whenever this option is exercised, the income will be taxed under the standard IRS regime, being liable either to progressive rates of up to 48% or to special lower flat rates depending on its nature.
Additionally, non-habitual residents deriving income taxed at the special 28% flat rate may also opt for the standard IRS regime in its regard. However, persons exercising this option and also earning foreign-sourced income eligible for the above mentioned exemptions should be aware that it will imply that all of their income will be, in this case, taxed under the standard IRS progressive rates (no flat rates whatsoever being applicable), and that the credit method will switch-over (the exemptions therefore being lost).
It should be noted that, in case there is income of non-habitual residents subject to IRS in Portugal under the common terms, the exempted income in accordance with the above stated rules will be included for the purposes of determination of the marginal rates applicable to the overall income subject to taxation (exemption with progression).