Scope
Material scope
Stamp Duty is levied on any deeds, contracts, documents, securities, books, papers, and other events comprised in its General Schedule, attached to Stamp Duty Code, including the transfer of goods carried out free of charge.
STAMP DUTY GENERAL SCHEDULE (Some transactions liable to tax)
According to Article 1 (3) (4) and Article 4 (3) of the Stamp Duty Code, there shall be considered as transfers free of charge those having as their main purpose:
♦ Ownership right or partial rights on immovable property, including acquisition by adverse possession/by prescription;
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♦ Movable property subject to registration, licence or number plate;
♦ Corporate rights, securities and debt-claims associated thereto, even if autonomously transferred, Government bonds as well as currency amounts, even if deposited in bank account;
♦ Commercial, industrial or agricultural establishments;
♦ Industrial property rights, copyrights and other rights connected thereto;
♦ Debt-claims of company members on non commercial pecuniary payments connected with corporate rights, regardless of the name, nature or form of the incorporation or modification deed, namely capital inflow, loans, complementary capital allowances, ancillary cash allowances, as well as any other advance payments granted to the company;
♦ Acquisition resulting from voidness or nullity, dissolution, waiver or desistance, dissolution or revocation of a gift inter vivos, with or without a fruition reservation, except in those cases provided for under Articles 970 and 1765 of the Civil Code, in relation to assets and rights referred to under the preceding subparagraphs.
The following free transfers shall not be subject to Stamp Duty:
♦ Family allowance falling due upon the death of the respective title-holder death; credits from life insurance as well as pensions and allowances attributed by social security schemes, even if they are paid as a death allowance;
♦ Amounts invested in retirement-savings funds, education-savings funds, retirement and education-savings funds, stock-savings funds, pension funds or movable and immovable investment funds;
♦ Gifts granted under the provisions of the Patronage Law;
♦ Gifts of goods or values not included in the above paragraphs, according to the common use, up to € 500;
♦ Transfers in behalf of taxable persons subject to corporate income tax, even if exempted therefrom;
♦ Goods of a personal or domestic use.
In the case of free transfers, there shall be considered as a taxable person any individual to whom the goods are transferred to, such as:
a) In succession mortis causa, the tax shall be payable on the estate, this being represented by the head of the household and the legatees;
b) In any other free transfer, including the acquisition by adverse possession, tax shall be due by the beneficial owners thereof.
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Stamp Duty is levied on all above-mentioned facts taking place in the territory of the country and also in respect of:
♦ Any documents, acts or contracts issued or concluded outside the territory of the country, in the same way as if such documents, acts or contracts would have been issued or concluded in Portugal, if produced here for any legal purposes;
♦ Credit operations carried out and guarantees provided by credit institutions, financing
companies or any other entities, regardless of their nature, having their head-office abroad, by branches or subsidiaries of credit institutions, financing companies or any other entities established in the territory of the country, which are established abroad, to any entity, regardless of its nature, having its domicile within the territory of the country, being considered as such its head-office, a branch, a subsidiary or a permanent establishment;
♦ Interests, commissions and other remuneration charged by credit institutions or financing
institutions established abroad or by branches or subsidiaries abroad of credit institutions or financing companies established in the territory of the country, to any entities having their domicile in that territory, being considered as such its head-office, a branch, a subsidiary or a permanent establishment of the entities participating in the operations concerned;
♦ Insurance carried out in other Member States where the risk takes place within the
Portuguese territory; however, tax shall not be payable on an insurance carried out in Portugal if the risk occurs in another EU Member State;
♦ Insurance carried out outside the EU if the risk takes place in Portugal.
Personal scope
Taxable persons are:
♦ Notary public, municipal magistrate of public register (civil, commercial, immovable
property and other goods or assets subject to registration), other public entities, including government agencies and other bodies, as well as any entity or professional certifying private documents in respect of any deeds, contracts and other events in which they participate other than those issued or concluded before a notary public in relation to credit operations carried out and guarantees provided by credit institutions, financing companies or any other entity legally assimilated thereto and any other financing institutions and where under Article 5 subparagraph n) the contracts or documents are submitted to them for any legal purposes;
♦ Entities granting credit and guarantees or being creditors of interests, premiums, commissions and other payments;
♦ Credit institutions, financing companies or any other entity assimilated thereto, resident within the Portuguese territory, acting as an intermediary for credit operations, warrants or interest, commissions and other remuneration payable by residents in this territory to non-resident credit institutions or financing companies;
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♦ Credit institutions, beneficiaries of guarantees or debtor of interest, commissions and other remuneration in relation to the transactions referred to under the preceding paragraph, which were carried out without the agency of credit institutions, financing companies or any other entity assimilated thereto, and whose creditor is not exercising such activity by a way of supply of services, in the Portuguese territory;
♦ Insurance companies on the amount of an insurance premium, policy cost and any
other amount charged both jointly and under a separate document, as well as on commissions paid tax free to a middleman;
♦ Entities issuing bills of exchange and other securities, cheques and promissory notes, or in case of securities issued abroad, the first entity participating in the negotiation or payment;
♦ Lessor and sub-lessor on lettings and sub-lettings;
♦ Other entities participating in acts and contracts, or issuing or using documents, books, securities or deeds;
♦ Representatives appointed in Portugal by entities issuing insurance policies carried
out in the territory of other Member States or outside that territory, where the risk takes place within the Portuguese territory;
♦ Representatives appointed in Portugal by credit institutions or financing companies
carrying out within the Portuguese territory financing transactions under a supply of services scheme.
Exemptions
In case of tax liability, exempted from tax are:
♦ The State, the Autonomous Regions, local authorities and their associations and federations
of public law, as well as any services, establishments and bodies thereof, even if personalized, including public institutes of a non business nature;
♦ Social security institutions;
♦ Administrative public utility companies as well as mere public utility companies;
♦ Private social solidarity institutions as well as any entities assimilated thereto under the law;
♦ The spouse or the member of an unmarried couple, descendents and ascendants on transfer of goods carried out free of charge as a beneficiary thereof according to Article
1.2 of the general schedule.
Also exempt from Stamp Duty are:
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- • Insurance premiums received for re-insurance from an enterprise legally operating in Portugal;
- • Premiums and commissions related to «Life» insurance;
- • Deeds of any contract related with operations realized, registered, paid or cleared in a regulated or organized market registered with the Marketable Securities Market
Commission (Comissão de Mercado de Valores Mobiliários – CMVM), as well as any warrant connected thereto;
- • Interest and commissions paid, guarantees granted and the use of credit granted by credit institutions/financing companies or institutions to venture capital companies/ companies or entities whose form or object fulfil the different requirements of credit institutions/financing companies and institutions provided for by the Community law, having their domicile in the EU Member States or in any other State, except if resident in a territory with a more favorable tax regime;
- • Guarantees granted to the State within the scope of the direct public debt management solely with the purpose of covering its credit risk;
- • Financial operations, including interest, for a period of time not exceeding one year, provided that such operations are exclusively designed to cover a treasury lack, which are carried out by venture capital companies in behalf of a company in which they hold a participation, as well as those operations carried out by SGPSs (holding companies) in behalf of their own controlled companies or of companies in which they hold a participation under certain conditions, or if carried out in behalf of the holding company (SGPF) having a controlling or group relation with it;
- • The above-mentioned financial operations, including interest, if carried out by the owners of capital stock to an entity in which they directly hold a participation of at least 10 per cent, and provided that such participation is held for an uninterrupted year or since the incorporation of the controlled entity, in which case such participation must be held for that period of time;
- • Loans of a contributing nature, including interest thereon, made by the members of a
company, provided that an initial term of at least one year has been established and such loans are not to be reimbursed before such period of time has elapsed;
- • Loans concluded within the scope of housing credit legal scheme up to the amount of the outstanding capital, in case of change of a credit institution or a subjugation for the mortgagor’s rights and guarantees;
- • Interest paid on loans contracted for the acquisition, construction, reconstruction or improvement of the owner’s dwelling house;
- • The carry-over of marketable securities or rights assimilated thereto carried out in a stock exchange;
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- • Credit granted by a way of wage-savings account, for that part not exceeding, each month, the amount of the wage monthly credited on account;
- • Any deeds, contracts and operations in which Community institutions or the European Investment Bank intervene or are a recipient thereof;
- • Bingo and gambling promoted by social welfare institutions, legal persons assimilated thereto or public utility entities having as their sole, exclusive or main object charity, assistance or beneficial purposes, where the proceeds therefrom are intended for their own statutory purposes or in behalf of other entities;
- • Constitution and increase of the equity capital of holding companies (SGPS) and venture capital companies (SCR);
- • Registration related to vehicles using exclusively electrical or solar energy or any other non-polluting source of energy.
Tax exemptions on transfers carried out free of charge as laid down in agreements between the State and any person of public or private law shall be kept in force.
Taxable amount
The Stamp Duty taxable amount is the amount resulting from the General Schedule.
The taxable amount may be assessed by indirect methods in those cases and conditions provided for under the Articles 87 and 91 of LGT as well as under Article 90 of LGT and Article 52 of CIRC subject to any necessary adjustments.
Tax assessment and collection
Tax assessment is incumbent upon the taxable persons referred to under Article 2 (1) (3) of the Stamp Duty Code.
The assessment of tax payable by reason of free transfers shall be made by DGCI central services.
The head of the household and the beneficial owner of any free transfer subject to tax are required to notify the competent finance office on the gift, death of the de cujus, presumptive death or judicial justification of death, judicial justification, notarial or carried out under the terms laid down by Immovable Property Register Code (Código do Registo Predial) for the acquisition by way of adverse possession, or any other deed or contract involving a transfer of property. The notification must be lodged with the competent finance office for the purpose of tax assessment no later than the end of the third month following the event giving rise to tax liability.
Regardless of the fact that tax is due or not, there shall always be required to produce a statement and a list describing any assets and rights, which, in case of tax exemption, shall only include those assets and rights referred to in Article 10 of the IRS Code, as well as any other assets subject to registration, licence or number plate.
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Tax payment shall be made by the taxable persons as referred to under paragraph 1 of Article 2 of the Stamp Duty Code, by means of a collection form, to be lodged with the Treasury offices no later than the 20th day of the month following that in which the fact giving rise to tax liability occurred. In case of tax assessment by the tax administration services, the taxpayer shall be notified to make its payment within 30 days.
Tax assessed on free transfers shall be paid, in its entirety, until the end of the second month following the notification or during the month in which each installment is due. If tax is paid in a lump sum until the end of the second month following the notification, a deduction of 0.5% per month shall be allowed to be estimated on the amount of each installment according to the circumstances described below, excluding the first mentioned one.
If the tax payable is higher than € 1000, it shall be divided into equal installments up to a maximum of 10 and a minimum of € 200 per installment, the first being increased by the fractions resulting from the rounding sum of all the others, together with any compensatory interest and the IMT (Municipal Tax on Real Estate Transfer) that may fall due.
The first installment shall be paid in the second month following the notification and each one of the remaining installments six months after the maturity date of the previous one.
