The high tax burden that many countries exercise upon their high net worth individuals, led the Portuguese Government to look for a strategy that could bring them inside our borders. Therefore, in the 23rd September, 2009 a new tax regime known as non-habitual residents published in the Portuguese Decree-Law 249/2009 has been created within the framework of the Personal Income Taxation (IRS) Code. This Decree-Law is applicable since January, 1, 2009.

Who fits and complies with the scheme requirements is entitled to be taxed as a non-habitual resident for a consecutive period of 10 years, that once completed, will bring such individual to be taxed under the general rules of the Portuguese IRS Code.
 

Who can benefit from this regime?

 

Those who intend to benefit from this statute have to comply with 3 requirements:

1- The applicant may not have been taxed as a tax resident in the five preceding years as from the moment that the application is made.
2- The applicant has to be considered as a tax resident in the Portuguese territory. For this purpose, he has to prevail for a minimum period of 183 days in Portugal, either consecutively or on an interpolated way. The case being of non-compliance of such period of stay, he has to prove that in the 31st of December of the year in question he has housing at his disposal with the conditions that deem his intention of maintaining and occupying it as his habitual residence.
3- The application for the non-habitual resident statute will have to be made to the Tax and Customs Authority (TA) until the maximum dead-line of March 31st of the year that follows the beginning of the activity that the applicant intends to undertake under such statute. 
 

The respective TA appreciation period will take an average term of 3 to 4 months.  

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The advantages of the regime

Those individuals who had access to the referred statute are entitled to be taxed as non-habitual residents for a period of 10 consecutive years, and when this ends they will be taxed according to the general rules of the Portuguese IRS Code.

The non-habitual tax resident regime entitles the taxpayer to benefit from tax advantages on the following types of income:

i.    Portugal’s Source Income 

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a.   All category A (dependent employment) and category B (self-employment) income, earned through the undertaking of high value added, of scientific, artistic or technical character activities, which fall within the ambit of the non-habitual residents tax regime. Such income will be taxed at a special flat rate of 20%, which may be temporarily subject to an extra IRS tax rate of 3.5%.

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b.    Any other earned income will be taxed under the general regime, i.e., at the general and progressive IRS tax rates up to 48%, with a temporary extra charge of 3.5%, whenever the monthly remuneration exceeds the minimum wage, with the possible application of a progressive solidarity tax whenever the collected income exceeds € 80 000; The portion exceeding € 250 000, will be subject to a temporary extra charge of 5%.  Interests, dividends and capital gains are not subject to taxation under the progressive tax rates of the IRS; they are subject instead to the special and discharging withholding taxes, which in these cases is of 28%. 
 

ii.    Foreign Source Income

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a.    All income of category A that has already been taxed in the State of source, in compliance with the double tax agreement (DTA) celebrated between Portugal and that State will be exempt from taxation in Portugal. If the source of such income is from a country which Portugal has no DTA in force with, and it is proved that such income is not deemed to have been obtained/earned in Portuguese territory, under the criteria of the nº.1 of article 4th of the CIRS, tax exemption also applies in Portugal.

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b.    The income of category B is also exempt from taxation in Portugal, should it be earned through the undertaking of activities considered as high value added ones and being part of the under mentioned list, or if it results from intellectual or industrial property, or even from the provision of information relating to an experience in the industrial, commercial or scientific sector. Income of categories E (capital income), F (property income), and G (income derived from capital gains) may also be exempt from taxation in Portugal, if it may be taxed in the other Contracting State, in accordance with a DTA to eliminate double taxation celebrated between Portugal and this State. Whenever no DTA in force exists between Portugal and the State of source but such income may be taxed in that country, territory or region, under the compliance of the OECD tax convention model on income and property as interpreted in accordance with the observations and reservations raised by Portugal, the exemption also applies. No income of whatever nature, may ever come from a country included on the list approved by the Minister of State and Finance (Ordinance no. 292/2011 of 8 November), known as tax havens blacklist. Such income, as well as that of category A may not, equally under the criteria of nº.1 of article 4th of the CIRS, be deemed as having been obtained in Portugal.

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c.    For pension income, the exemption may only apply if the same has not generated deductions exceeding a certain value, under the provisions of nº.2 of art. 25th of the CIRS, and that also has been taxed in a State which Portugal has a DTA in force with, and in compliance with it. This income may not be considered as being obtained in Portugal under the criteria of nº.1 of art. 18th of the CIRS.

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d.    Other income that is not foreseen in the above mentioned points, such as professional and business income from category B that has not the right of benefiting from this non-habitual residents regime, will be taxed under the general rules of the IRS and according to the provisions of the DTA signed between Portugal and that country, if applicable, or in the case of inexistence of such a treaty, will be taxed according to the unilateral standard rule for the elimination of the double international juridical taxation.

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