2018-03-14
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João de Macedo Vitorino

The recently enacted Law 7/2018 allows creditors to convert into share capital their senior credits over commercial companies with head-office in Portugal.

The following companies may benefit from this scheme:

  • Companies with a turnover above €1,000,000;
  • State owned companies previously authorized by the Minister of Finance.

Insurance companies, credit institutions, financial companies, investment companies and listed companies are excluded.

The conversion of claims into capital depends on the proposal of creditors whose claims represent two-thirds of the company's liabilities or the majority of senior claims.

For such proposal to be possible, the equity (capitais próprios) of the company must be lower than the share capital and at least 10% of the senior claims (or 25%, if senior loans) must be in default for more than 90 days.

The proposal for the conversion of claims into capital must be accompanied by a report prepared by a chartered accountant and a document containing the proposed share capital increase. The share capital increase may be preceded by a share capital reduction to cover accumulated losses.

After the conversion, the equity of the company must exceed the value of its share capital.

Shareholders will have a pre-emption rights in the subscription of the share capital increase and the shareholders who exercise it may subscribe and pay for the shares that would belong to the shareholders who choose not to exercise the right, in proportion to their respective shares.

The conversion must be approved by the shareholders in a shareholders meeting within 60 days from the proposal’s notice to the company. If the shareholders meeting is not held or the proposal is rejected, the creditors may obtain a judicial order from the relevant court replacing the shareholders meeting resolution on the conversion of claims into capital.

Before the judicial order is issued, any creditor is entitled to submit a proof of claim and request the conversion of its claims into capital.

After the judicial order is issued, the shareholders will be entitled to acquire the new shares by their nominal value, provided that they pay the remaining claims held by the creditors that proposed the conversion.

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2018-03-01

The «Why Portugal» platform is a pioneer project developed by Macedo Vitorino & Associados which offers economic, political, and legal information online, in an easy to access format.

The «Why Portugal» platform goes further than the «Why Portugal» investment guides published by Macedo Vitorino & Associados since 2014 as well as other national and international investment guides which are available in PDF and paper formats.

«Why Portugal» is available in Portuguese and English and organised in nine chapters, which describe how to set up a business, forms of investment incentives and government grants, how to apply and obtain a Portuguese residence permit or a golden visa, Portugal’s main taxes, acquiring and leasing property, hiring employees, intellectual property, software, patents trademarks and technology and dispute resolution.

The «Why Portugal» platform also includes a database of documents and publications in each chapter which gives easy and quick access to laws, official documents, reports from national and international organisations, official forms and contract templates.

“The project «Why Portugal» aims to be provide useful information to investors about Portugal. We believe that the promotion of investment should start by explaining in a simple and accessible manner the economic, political, social and legal conditions that interest investors. With this new platform we want to give investors access to the tools we use every day, giving away some of our own contract templates and forms.”, stated António de Macedo Vitorino, project coordinator and partner of Macedo Vitorino & Associados.

In preparing the «Why Portugal» website we used international sources, such as the World Bank, the World Economic Forum and the European Commission, which provide basic information to international investors about Portugal’s key economic, political and legal information and its competitive advantages when compared to other investment destinations in Europe.

To learn more about «Why Portugal» please go to https://www.macedovitorino.com/en/why-portugal/

This project reinforces Macedo Vitorino & Associados’ digital portfolio and online presence, following the launch, in 2016, of «MVStart», a program that aims to support the creation of startups in Portugal.

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Law 114/2017, which approved the 2018 State Budget (“2018 State Budget”), was recently published. In this newsletter we highlight the most relevant tax changes.

Personal Income Tax (PIT)
The main changes to PIT Code are as follows:

  • The special surcharge (sobretaxa) of 3.5% was eliminated;
  • Two new tax brackets, covering income between €7,091 and €10,700 and between €20,261 and € 25,000, were introduced and will be subject to lower rates of 23% and 35%, respectively; 
  • Minimum threshold for PIT purposes is increased from €8,500 to €8,847.72, and will be linked to the Portuguese Social Support Index in 2018 onwards - business and independent professionals will start benefiting from this minimum threshold;
  • Lunch allowances will be exempt up to €4.77, if paid in cash, or €7.63, if paid in “Meal Tickets”;
  • "Education Tickets" granted by employers to their employees will be fully taxed as employment income;
  • Lease rents paid by students (up to the age of 25) may be deducted in 30%, with certain limits (e.g. €300 per year) if students are displaced more than 50km from the permanent residence of their household;
  • Business and independent professionals subject to the simplified tax regime (regime simplificado de tributação) will have to prove 15% of their business and professional expenses, as a condition for benefiting from the 25% PIT relief over their income; in addition, expenses which are only partially related to the business or professional activities, including (i) lease rents, (ii) 1.5% of the tax value of real estate assets or, in case of hotels or local accommodation, 4% of the tax value and (iii) other expenses with the purchase of goods and services, may only be considered in 25%;
  • Income arising from services rendered to companies in which, for more than 183 days of the tax period, (i) the taxpayer holds, directly or indirectly, at least 5% of the respective shares or voting rights or (ii) the taxpayer, spouse or unmarried partner, and their ascendants and descendants collectively own, directly or indirectly, at least 25% of their respective shares or voting rights, will be fully taxed;
  • Taxation of capital gains arising from the allocation of personal real estate assets to a leasing activity will be deferred until such activity ceases;
  • Non-resident taxpayers may opt to be taxed over real estate income at the marginal rates applicable to Portuguese residents, provided that they are residents in another Member State of the European Union or of the European Economic Area subject to a tax information exchange scheme; and
  • Capital gains arising from the disposal of shares or similar rights in companies or other entities without head-office or effective place of management in Portugal will be subject to PIT if:
    - During the 365 days prior to disposal, the value of the shares arises, directly or indirectly, in more than 50%, from real estate or rights in rem over real estate located in Portugal; and
    - The relevant real estate assets are not allocated to agricultural, industrial or commercial activities (other than the purchase and sale of real estate).

Corporate Income Tax (CIT)
The main changes to CIT Code are the following:

  • State surcharge (derrama estadual) is increased for profits above €35,000,000 (from 7% to 9%) and, consequently, the special advance payment is also increased (from 6.5% to 8.5%);
  • Autonomous taxation may not be deducted even if such deduction results from special legislation;
  • Irrecoverable debts may be deducted as expense even if recognized in previous tax years;
  • Pharmaceutical industry special contributions, like other special contributions, may not be deducted;
  • Companies to adopt criteria in the allocation of expenses to permanent establishments located outside Portuguese territory;
  • Mandatory assessment of CIT by tax authorities until 30 November in the event of non-delivery of annual tax returns (or until the 6th month after the deadline);
  • Automatic extension, for periods of one year, of the option to apply the limitation on deductibility of net financing expenses on a consolidated basis;
  • Extension to 2018 of the rules applicable to the taxation of internal works;
  • Waiver of the delivery of annual tax returns (modelo 22) by entities that do not earn any income subject to CIT, provided that they are not subject to autonomous taxation; 
  • Mandatory disclosure in the annual tax returns (modelo 22) of the buildings held by companies that are allocated to the personal use of their shareholders, members of corporate bodies or any administrative, management or supervisory bodies, or any of their spouses, ascendants and descendants;
  • Capital gains arising from the disposal of shares or similar rights in companies or other entities without head-office or effective place of management in Portugal will be subject to CIT if:
    - During the 365 days prior to disposal, the value of the shares arises, directly or indirectly, in more than 50%, from real estate or rights in rem over real estate located in Portuguese territory; and
    - The relevant real estate assets are not allocated to agricultural, industrial or commercial activities (other than the purchase and sale of real estate);
  • Companies will be obliged to adopt IT accounting systems and to keep the related documentation for 10 years;

Value-Added Tax (VAT)
The main changes to the VAT Code are the following:

  • VAT in respect of irrecoverable debts will be recoverable if the insolvency proceeding ceases due to insufficient assets or if, after final distribution, the debt remains unpaid; 
  • Real estate rehabilitation contracts entered directly with the National Urban Rehabilitation Fund will be subject to VAT at the reduced rate of 6%; and
  • Threshold of the VAT exemption applicable to the transfer of goods to outside the European Union by non-resident taxpayers is reduced from €75 to €50.

Stamp Duty

The Stamp Duty Code is also amended, including:

  • Increase of 0.1% in the rates applicable to consumer loans governed by Decree-Law 133/2009, on top of the increase approved in 2017; 
  • Mandatory monthly reporting of transactions subject to stamp duty; and 
  • Taxation of the insured, in contributory group insurance, in proportion to the premium.

Real Estate Transfer Tax (RETT)
The main changes to RETT Code are as follows:

  • Granting of irrevocable powers of attorney for the disposal of shares in closed-end real estate investment funds will be subject to RETT; and
  • Statutory limitation to the charge of RETT by tax authorities is increased from 8 to 12 years in case of taxpayers resident in a country, territory or region subject to a clearly more favorable tax regime.

RETT Additional
With regard to the additional to RETT:

  • Certain buildings whose owners are housing and construction cooperatives, associations of residents or condominiums, will become exempt of RETT Additional under certain conditions; and
  • Married and unmarried couple taxpayers may opt to be jointly taxed under RETT Additional until 120 days after the deadline for payment of the tax; this option will remain in force until they state otherwise.

Tax Benefits
In terms of tax benefits, the following changes should be highlighted:

  • Retained/reinvested earnings: the period for reinvestment of retained earnings is increased from 2 to 3 years and the maximum amount is increased from € 5 million to €7,5 million; for micro and small enterprises, the deduction is increased from 25% to 50% of the taxable amount.
  • Share capital remuneration: the 7% tax relief is extended to contributions in kind consisting of the incorporation of debts of any nature.

  • Recapitalization: cash injections made pursuant to article 35 of the Portuguese Companies Code may be deducted (up to 20%) to the distributed profits and capital gains obtained by individuals in the year of the injections and in the following 5 years.

  • Historical stores: buildings recognized by municipalities as establishments of local historical, cultural or social interest and which form part of the national inventory of establishments of this nature will be exempt from Real Estate Tax (RET).

  • Urban rehabilitation: tax benefits will apply to urban buildings or apartments completed more than 30 years ago or located in urban rehabilitation areas; subject to certain conditions, the incentives will include, inter alia, RETT exemption, RET exemption during a certain period and flat rate of 5% over capital gains.

  • Corporate reorganizations: tax benefits applicable to corporate reorganizations or cooperation agreements (e.g. RETT and stamp duty exemptions) are no longer subject to the approval of the member of the Government responsible for finances; however, companies must keep in their tax documentation files the grounds and evidence of the satisfaction of the exemption conditions.

  • Corporate insolvency and recovery: the income, gains and positive variations arising from the payment in kind, the assignment of assets and rights to creditors and the sale of assets and rights of the insolvent will be exempt from PIT and CIT, if the insolvency proceeding ends in liquidation.

In addition to these changes, the Government was authorized to approve new PIT and CIT tax benefits, including (i) exemption of real estate income for taxpayers who join the affordable lease program (programa de arrendamento acessível) or (ii) lower tax rates applicable to taxpayers entering into long-term lease agreements.

By June 2018, the Government should present a bill to implement the conclusions of the report on the assessment of certain tax benefits.

Other amendments

Among other changes, we should also highlight the waiver of bonds required in installments payment schemes if the tax amount due is less than €5,000, in case of individuals, or €10,000, in case of companies.

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2016-03-30

The Portuguese Government approved 850 resident permits (Golden visa) last month, boosting ARI (Residence Permit for Investment Activity programme) launched in 2012 as a quick solution for investors from outside the Schengen area to obtain a residence permit in Portugal.

This plan includes new rules on the awarding of residence permits for investment activity, known as “golden visa”, to citizens of non-European Union (EU) countries that wish to make a significant investment in Portugal and meet certain requirements.

The “golden visas” grant their holders the right to free circulation in Portugal and in the rest of Schengen area countries. In addition to general requirements applicable to residence permits, “golden visas” require their holders to undertake the obligation of investing in Portugal of certain minimum amounts for a minimum period.

Macedo Vitorino & Associados presents «Why portugal - The case for living in Portugal». In this paper, you will find an outline of the opportunities of living in Portugal and of the main aspects to be thought-out by everybody considering Portugal as a place to live.

Learn more here.

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2016-01-28

Web Summit will take place in Lisbon this year and an increasing number of new startups from all around the World is expected to choose Lisbon as their headquarters.

MVStart is our project to advise startups and to support them from their early stages.

Our young and dynamic team understands and connects well with startup entrepreneurs. We are experienced with investment vehicles and with ambitious projects, so we know what means to rise up from a blank sheet of paper and make it into a successful project.

In addition, our work in advising international clients (no less than a percentage of 60% of our clients come from abroad) gives us the tools to understand the business concerns of entrepreneurs and to offer them the best legal solutions.

With MVStart we aim at providing legal advice in the areas of interest to startup companies, such as:

• Corporate law, to set up businesses, determine the rights of the management and of each shareholder;
• Tax, to keep the accounts sound;
• Employment, to hire the best workforce;
• Banking and capital markets, to obtain financing, establish financing deals with banks or with investors; and
• Copyright and intellectual property, to protect software, trademarks, patents and your valuable ideas.

If you have a startup company or if you are planning to start a project, know more about us here and keep up with our activities by subscribing to our newsletter.

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2015-12-30
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António de Macedo Vitorino

The Bank of Portugal ordered the re-transfer of €2,000 million senior unsecured bonds to BES, the bad bank that resulted from the collapse of Banco Espírito Santo in 2014. These bonds were originally issued by BES and transferred to Novo Banco following the Bank of Portugal’s original resolution of BES.

The decision follows the suspension of trading of the bonds ordered by the Portuguese Securities Commission and comes as a surprise to the markets and specialists, who were not expecting the Bank of Portugal to revert its original decision.

According to Novo Banco’s press release this measure will allow Novo Banco to improve its common equity Tier 1 ratio to 13%. Senior bondholders stand to lose approximately €2,000 million. The Bank of Portugal’s decision only affects institutional investors. Other creditors, including retail investors holding the same categories of bonds issued by BES, will not be affected.

According to the Bank of Portugal, this decision is definitive and no other changes to BES and Novo Banco assets and liabilities will be made. The Bank of Portugal also announced that it had requested the European Central Bank to order the cancellation of BES banking license, which will be the first step in the liquidation of BES and that it will launch a new procedure for the sale of Novo Banco.

It is expected that this measure will meet fierce opposition from the senior bondholders whose only way forward will be to take the matter to courts. For now, the effects on Novo Banco appear to be positive but it remains to be seen if this decision will facilitate the sale of Novo Banco or scare potential investors away.

We will continue to update this news as more information is known.

 

See Novo Banco's press release

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2015-07-01
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Susana Vieira André Vasques Dias

Law No. 63/2015 published on 30 June 2015 amends previous Golden Visa regulations to include a new broad concept of "investment activity" that allows the investor to choose between the following investment alternatives to obtain a Golden Visa:

  • Creation of at least 10 jobs;
  • Acquisition of real estate, whose construction has been completed for at least 30 years or located in an urban recovery area and carry out rehabilitation works of real estate acquired in the overall amount of €350,000.00 or higher;
  • Transfer of capital in the amount of no less than €350,000.00, to be applied in research activities;
  • Transfer of funds in the amount of no less than €250,000.00, to be applied in investment or supporting artistic production, recovery or maintenance of national cultural heritage; and
  • Transfer of funds in the amount of no less than €500,000.00, for the purchase of a unit investment trust or venture capital geared to the capitalization of small and medium enterprises.

The minimum investment amounts are reduced by 20% when activities are carried out in areas with less than 100 inhabitants per Km² or GDP per capita below 75% of the national average (i.e. the interior of Portugal).

Foreigners who received residence permits for college education and wish after completing their studies to find work in accordance with their qualifications in Portugal may do for a one year period may temporary residence permit without a new visa.

Applications for a concession of a residence permit and for renovating a residence permit are now decided in 90 and 60 days, respectively.

Law No. 63/2015 of 30 June enters into force on 1 July 2015.

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2015-03-26

Today Macedo Vitorino & Associates refreshes its image and launches a new responsive website. The changes to Macedo Vitorino & Associados' brand reflect firm's core values: transparency, integrity and proximity.

The revitalization and transformation of the brand also included the development of a new responsive website. The new website is now adapted to tablets and smartphones, which are today among the preferred means of access to the Internet, with links to the social networks where the firm has a presence. The new website comes with improved navigation features, ease of access and more information about the firm and legal matters of interest to our clients, prospective clients, students and foreign lawyers looking for information on Portuguese law matters.

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The Portuguese Government approved the new tender specifications for the privatisation of TAP, the Portuguese flagship airline company, by means of direct sale. Although the tender comprises only 61% of TAP shares, the Portuguese State will hold a put option for two years regarding the remaining stake.

Following a failed attempt to privatise the Portuguese flagship airline company, TAP - Transportes Aéreos Portugueses, S.A. (TAP SA), in 2014, the Government relaunched the privatisation by Decree-Law no. 181-A/2014, of 24 of December 2014, which approved a new privation procedure, including:

  • A direct sale of up to 61% of the share capital of the holding company, TAP SGPS, S.A. (TAP); and
  • An offer of up to 5% of the TAP shares to TAP employees.

Under the new privatisation procedure the Portuguese State will hold a put option in respect of the remaining shares held by it for a period of two years after the privatisation.

Following the agreement reached with the TAP trade unions, which prevented strikes in the Christmas season, the Government has approved the new tender specifications for the privatisation of TAP and the conditions of the offer of the shares to TAP employees under Council of Ministers Resolution no. 4-A/2015, of 20 January 2015.

According to the new privatisation tender specifications, the privatisation will be opened to national and international investors, which may bid individually or in consortia. The selection of the winning bid will include, among other criteria, the following:

  • Improvement of TAP's economic and financial structure;
  • Share purchase price;
  • Capacity to assure TAP's public services obligations; and
  • Technical and management expertise in the air transportation sector.

The binding offer must include a financial binding offer, a technical binding offer and documentation and legal and economic information regarding the bidder.

The financial binding offer must include:

  • Bid stating the number of shares the bidder undertakes to buy and the proposed price;
  • Proposed capitalisation plan for TAP and TAP SA; and
  • Strategy to ensure compliance with TAP SA's legal framework and its status as EU airline operator.

The shares will be subject to a lock-up period of five years. After that period the Portuguese State will have a right of first refusal in any resale of TAP shares acquired by the winning bidder. In general, the new privatisation conditions are more favourable to potential investors and the procedure is expected to be more flexible, which could attract more bidders.

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2013-05-16

El Gobierno portugués aprobó el Decreto-Ley no. 58/2013, de 8 de mayo de 2013, que establece nuevas normas aplicables a las operaciones de crédito, lo que limitará los intereses de demora a un 3% más el tipo de interés acordado, permitir la capitalización de intereses por períodos mínimos de un mes y prohibir cargos por pago tardío .

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