Portugal: Foreign Investment In Portugal – Legal Update – February 2021

In recent years Portugal has been trending as one of the most successful destinations for foreign investors¹ and one of the main reasons is because Portugal's legal environment, safety², political, social, and economic stability encourage foreign investors. The country has no foreign capital entry restrictions and Portuguese law prohibits any discrimination of investments based on nationality. As of today, Portugal still ranks first³ in Trading Across Borders category in the World Bank's Ease of Doing Business rankings, an indicator that captures the time and cost for document preparation and compliance with border procedures to export and import goods.

COVID-19 came to suspend a steady and continuous growth of a foreign investment stream, but we all believe that there will be a recovery once current circulations restrictions come to an end.

Meanwhile, some adjustments to foreign investment legal framework have been enacted and this report aims to provide an update on the major changes on such legal framework:

I. Portugal's Investment Resident Scheme (a.k.a. "Golden Visa")

Enacted in October 2012, Portugal's Golden Visa has been responsible to attract almost 6 billion euros of foreign investment corresponding to approximately 9500 residency permits⁴. Most of such investment (approximately 5 billion euros) was channeled to real estate acquisitions (residential, services, commerce, agriculture, industry, and others) including rehabilitation of urban buildings.

Following certain local discussions on the merits of the Golden Visa Scheme and the pressure it had allegedly caused in real estate price increase in cities like Lisbon and Porto, in December 2020, following a Portuguese Council of Ministers meeting, it was announced that the Golden Visa Legal Framework was to be amended and adjusted to the country's needs.

On February 12, 2021, the amendments to such legal framework were finally published under Decree Law no. 14/2021 ("Golden Visa New Framework"). According to the Decree Law, Golden Visa New Framework will be effective on January, 1st 2022 ("Effective Date").

In terms of minimum investment amount thresholds, the amounts to consider after Effective Date shall be as following:

1. Transfer of funds - from EUR 1,000,000.00 to EUR 1,500,000.00;
2. Transfer of funds for supporting scientific investigation activities - from EUR 350,000.00 to EUR 500,000.00;
3. Transfer of funds for subscription of participation in investment or venture capital funds - from EUR 350,000.00 to EUR 500,000.00;
4. Transfer of funds for incorporation of a company or subscription of shares in an existing legally entity based in Portugal establishing or maintaining at least five permanent jobs for a 3 calendar years period - from EUR 350,000.00 to EUR 500,000.00.

With respect to residency authorizations granted following investments in residential real estate, Golden Visa New Framework confirmed the rumours that Golden Visa's based on such investments would be restricted to Madeira and Azores Regions as well as to acquisitions of residential real estate located in certain inland areas of Portugal's mainland meaning that residential type of real estate located outside those areas, namely, in capital Lisbon, Oporto or certain other mainland coastal cities will no longer be eligible for Golden Visa applications.

Golden Visa New Framework also helps to clarify what inland regions shall be considered eligible for real estate investments on Effective Date onwards as per table attached.

Despite the replacement of the previous legal framework the Golden Visa New Framework shall not affect any of the applications submitted or to be submitted up to Effective Date, as well as all renewal applications and family reunification applications related and or connected to the previous regime.

Despite initial rumours, industrial, services and commercial real estate seem to be exempted from Golden Visa New Framework meaning that these type of investments in Lisbon, Porto and majority of coastal cities remains eligible for Golden Visa under the new legal framework.

II. New Portugal Site Selection⁵

In February 2021, Portuguese Government launched a new online "asset registration" platform showing country's specific locations and assets availability to host foreign investments.

"Cadastro de Ativos" and "Dashboard" are new features of Portugal Site Selection that contribute to the qualification of whole Portuguese territory attracting more investment. Portugal Site Selection platform is a free public service on a Geographic Information System (GIS), providing data on Business Location Areas (ALE) allowing investors, with multicriteria analysis, to find best location in Portugal to set up their businesses.

The main purpose of Portugal Site Selection is to promote Portugal as an investment destination, providing organized and qualified information on the national offer of business parks, allowing each potential investor an efficient and competitive choice in the national territory.

This new feature, "asset registration", adds georeferenced data on land, with or without construction, related to industrial and logistical use existing throughout the country to the previously existing platform and, therefore, serving a more business oriented purpose to those investors looking for such kind of information regarding opportunities in the country.

III. Brexit - Tax Portuguese Representation - Procedures to adopt

On January 11th, 2021, Portuguese Tax Authority issued a formal information detailing the new procedures to be adopted by United Kingdom.

Since the transition period for the United Kingdom (UK) to leave the Union European Union (Brexit) ended on December 31, 2020, Portuguese Tax authority issued an official information⁶ on the procedures to appoint a Tax Representative, to be adopted by all individual and collective taxpayers with tax domicile in the UK. This obligation became effective on January 1st, 2021, since from such date onwards the UK became a third country.

A. Taxable payers registered with Tax and Customs Authority (AT) database until December 31st, 2020, with address in the United Kingdom

1.1. Deadline for appointing a Tax Representative

The appointment of Tax Representatives by natural and legal persons registered with the AT by December 31st, 2020, with address in the United Kingdom, can be held until June 30, 2021, without any penalty. Until the appointment of a representative occurs, correspondence continues to be referred to the taxable person's address registered with AT.

Such appointment is mandatory for natural and legal persons who, under the terms of the law, are subject to the fulfilment of obligations or intend to exercise their rights with AT.

1.2. How to designate the fiscal representative

1.2.1. Individual payers, with or without activity, regarding VAT and IRS

• Appointment of Tax Representatives by individuals non-resident taxpayer can make the nomination representative through the finance portal by accessing the AT Webpage
• Through "e-balcão": the taxpayer who intends to be the representative of the non-resident can trigger the process of appointing a representative through the e-counter, provided that the power of attorney empowered for that purpose is sent, selecting in
• In AT counter (in person): the non-resident and the tax representative may request and accept, respectively, the appointment of a representative in any AT counter; this procedure can alternatively be carried out exclusively by the tax representative, if they have the necessary power of attorney empowered to do so.

1.2.2. Collective taxpayers, with or without activity, on VAT and IRC

• In AT Webpage: the non-resident collective taxpayer, with activity, can make the appointment of your representative through the finance portal by accessing the page.
• Through the "e-balcão": the representative of the non-resident can initiate the process of appointment of a representative through the e-counter, provided that the power of attorney is sent empowered for that purpose.
• In AT counter (in person): the non-resident and the tax representative may request and accept, respectively, the appointment of a representative in any AT counter; this procedure can alternatively be carried out exclusively by the tax representative, if they have the necessary power of attorney empowered to do so.

1.3. Declaration of Beginning of Activity

Taxpayers registered in the AT database with address in the United Kingdom, without tax representative, who intend to submit a declaration of commencement of activity, must appoint a VAT and IRC or IRS representative, depending on whether they are companies or individuals.

The beginning of activity declarations can be delivered via e-counter or in person with any AT counter, by prior appointment.

In any of the situations, the representative to be indicated will have to be subject to VAT (domiciled in Portuguese territory) and provided with a power of attorney with relevant powers.

List of Eligible Municipalities and Parishes located inland Portugal

Footnotes

1. https://www.pwc.com/emerging-trends-real-estate/europe-2020

2. http://visionofhumanity.org/app/uploads/2020/06/GPI_2020_web.pdf

3. https://www.doingbusiness.org/en/rankings

4. Plus approximately 16000 permits for investors family members.

5. https://www.portugalsiteselection.pt/

6. Ofício Circular N.º: 90031 2021-01-11

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.