Fiscal regime for promoting the capitalization of companies

Introduction

The Law No. 24-D/2022, of December 30, which approved the State Budget for 2023, established a fiscal benefit called the Fiscal Regime for Incentivizing the Capitalization of Companies.

This new benefit aims to address the repeal of the DLRR (Deduction for Additional Remuneration of Reserves) and the Conventional Remuneration of Share Capital, the effects of which are retroactive to January 1, 2023.

Subsequently, Law No. 20/2023, dated May 17, introduced some changes and clarifications regarding the operation of the benefit.

Therefore, it is important to provide an update or status report.

Characterization of the incentive

The benefit consists of a deduction from the taxable profit of Corporate Income Tax (IRC) for commercial or civil companies, cooperatives, public enterprises, and other legal entities, whether public or private, with registered office or effective management in Portuguese territory. The deduction is equivalent to applying a rate of 4.5% to the amount of net increases in eligible equity capital.

This rate is increased by 0.5 percentage points if the taxpayer qualifies as a micro, small, or medium-sized enterprise or a small and medium-sized capitalization company (Small Mid Cap), according to the criteria set out in the annex to Decree-Law No. 372/2007, dated November 6.

The mentioned deduction cannot exceed, in each tax period, the higher of the following limits:

• € 2.000.000; or
• 30% of the result before depreciation, amortization, net financing costs, and taxes, in accordance with Article 67 of the Corporate Income Tax (IRC) Code.

The portion of the deduction that exceeds the second limit mentioned above is deductible in the determination of taxable profit for one or more of the five subsequent tax periods, following the deduction for that same period, with the same limits.

Access conditions

The incentive applies exclusively to taxpayers who, in the relevant tax year, primarily engage in commercial, industrial, or agricultural activities and simultaneously meet the following conditions:

• They are not entities subject to the supervision of the Bank of Portugal or the Insurance and Pension Funds Supervisory Authority, nor are they branches in Portugal of credit institutions, other financial institutions, or insurance companies;
• They have regularly organized accounting in accordance with accounting standards and other legal provisions applicable to their respective industry;
• Their taxable profit is not determined by indirect methods; and
• They have their tax and contributory situation regularized.

Form of calculation

For the calculation of the deduction, the amount of eligible net increases in equity capital must be determined with reference to the sum of the values determined in the current fiscal year and each of the nine previous tax periods. The amount of net increases in eligible equity capital is considered zero in situations where the sum results in a negative difference.

However, it should be noted that only the eligible net increases in equity capital observed in tax periods commencing on or after January 1, 2023, are considered. In other words, for the 2023 period, only the eligible net increases in equity capital occurring in 2022 will be taken into account.

Regarding this matter, it is necessary to take into account the transitional regime outlined in Article 12 of Law No. 20/2023, dated May 17, which establishes that for the purposes of subparagraph IV) of paragraph a) of number

For the purposes of subparagraph IV) of paragraph a) of number 6 of Article 43.º-D of the Tax Benefits Statute, the first accounting profit covered is considered to be the profit for the 2022 period, whose resolution and corresponding application, either in carried-over results or directly in reserves or in capital increase, occurs in the tax period commencing on or after January 1, 2023.

In this calculation, increases in capital made using profits generated in the tax period starting in 2022 that have benefited from the conventional remuneration of share capital regime provided for in the former Article 41.º-A of the same Statute are not considered.

Another important aspect to consider in the calculation are the concepts that we are about to highlight.

Eligible increases in equity capital are considered:

• Cash contributions made in the context of the establishment of companies or the increase of the share capital of the beneficiary company;
• Contributions in kind made in the context of an increase in share capital that correspond to the conversion of credits into capital;
• Premiums on the issuance of corporate shares;
• The application of accounting profits available for distribution, in accordance with commercial legislation, to carried-over results, directly to reserves, or to the increase of capital.

Net increases in eligible equity capital are considered the positive or negative difference between:

• The increases in eligible equity capital; and,
• The outflows, in cash or in kind, in favor of the capital holders, as a reduction thereof or for the distribution of assets, and the distributions of reserves or carried-over results.

Conversely, for the purposes of this regime, increases in eligible equity capital resulting from:

• Cash contributions made in the context of the establishment of companies or the increase of the share capital of the beneficiary company, which are financed by increases in eligible equity capital in the sphere of another entity, are not considered for the purposes of this regime.
• Contributions made in cash, in the context of the establishment of companies or the increase of the share capital of the beneficiary company by an entity with which the taxpayer is in a special relationship, which are financed through loans granted by the taxpayer himself or by another entity with which that entity and the taxpayer are in a special relationship, are not considered for the purposes of this regime.
• Contributions made in cash, in the context of the establishment of companies or the increase of the share capital of the beneficiary company, by an entity that is not a tax resident in another Member State of the European Union or in the European Economic Area, or in another state or jurisdiction with which there is an in-force convention to avoid double taxation, bilateral or multilateral agreement that provides for the exchange of information for tax purposes, are not considered for the purposes of this regime.

Dr. Abílio Sousa

Consultor fiscal