Key Benefits:
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Proposal for Law No 235 /XII
Exhibition of Motives
As of the year 2005, and by virtue of the mandatory adoption of the International Standards of
Financial Reporting and Adjusted Accounting Standards, the amount of assets per
deferred deferred taxes has increased significantly.
On the other hand, with the entry into force of the Regulation (EU) No 575/2013, of the
European Parliament and of the Council of June 26, 2013 on the requirements
prudential for credit institutions and investment firms, and which alters
o Regulation (EU) No 648/2012, of the European Parliament and of the Council of July 4,
this matter went on to assume special importance once, as of January 1 from
2014, those assets by deferred tax passed, by rule, to be liable to deduction
to the main own funds of level 1 of credit institutions with special
negative implications on the solvency levels of credit institutions.
With a view, in particular, to obviate the negative implications on the solvency of the
credit institutions, several Member States of the European Union have already proceeded to
adjustments of the internal legislations ' respective laws. In this sense, and in such a way as to ensure that
national credit institutions can operate under conditions of competitiveness
similar to their European counterparts, it matters to proceed, too, to the adaptation of the
Portuguese legislation.
In such a way as to ensure the strengthening of the capital structure of the societies that opt for the
recourse to the now approved scheme, provision is expected for compulsory adoption, by these
entities, of capitalization measures by way of the issuance of conversion rights
transactionable in market.
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It was heard the Bank of Portugal.
Attentive to matter, at the headquarters of the legislative process taking place in the Assembly of the Republic,
are to be heard the own governing bodies of the Autonomous Regions and the Commission
of the Securities Market.
Thus:
Under the terms of the paragraph d) of Article 197 (1) of the Constitution, the Government decrees the
next:
Article 1.
Object
This Act approves the special scheme applicable to assets by deferred tax which
have resulted from the non-deduction of expense and negative equity variances with losses
by impairation in credits and with post-employment or long-term benefits of
employees.
Article 2.
Approval
It is hereby approved in annex to this Law, which of it forms an integral part, the special scheme
applicable to deferred tax assets that have resulted from the non-deduction of spending
and negative patrimonial variations with impairments losses in credits and with
post-employment or long-term benefits of employees
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Article 3.
Adherence to the scheme
1-The taxable persons of Income Tax on Collective Persons (IRC), which
wish to accede to the special scheme annexed to this Law shall express that
intention through communication addressed to the member of the Government responsible for the area
of the finances, to be submitted to the Tax and Customs Authority (AT) until the 10 th
subsequent to the publication of this Law.
2-A adherence to the scheme depends on the manifestation of intention referred to in the preceding paragraph,
as well as of the respect for approval by the general meeting, which shall also approve the
compliance with the remaining legal requirements of the special scheme.
3-The legal requirements of adherence to the special scheme must check throughout the
period of taxation of the taxable person in which the scheme applies.
4-After adherence to the scheme, taxable persons may waive the application of the same until
at the end of the taxation period immediately preceding that in which it is intended to
such renunciation shall produce effects, by means of communication addressed to the member of the Government
responsible for the area of finance, to be submitted to the AT.
5-In the case of credit institutions and financial companies, the waiver provided for in
previous number depends on prior authorization of the competent authority, on the terms
of Regulation (EU) No 575/2013 of the Parliament and of the Council of June 26 of
2013.
6-The application for waiver provided for in paragraph 4 shall be accompanied by the permission granted
under the terms of the previous number.
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Article 4.
Temporal scope
The scheme approved by this Law shall apply to the spending and changes in patrimonial
negative accounted for in the periods of taxation beginning on or after January 1
of 2015, as well as to assets by deferred tax that are found to be registered in the
annual accounts of the taxable person relating to the last period of taxation prior to that
date and part of the spending and negative heritage changes that are associated with them.
Article 5.
Entry into force
This Law shall come into force on the day following that of its publication.
Seen and approved in Council of Ministers of June 5, 2014
The Prime Minister
The Minister of the Presidency and Parliamentary Affairs
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ANNEX
(referred to in Article 2)
Article 1.
Object
This special scheme shall apply to assets by deferred tax which they have
result of the non-deduction of expense and negative heritage changes with losses by
impairance in credits and with post-employment or long-term benefits of employees.
Article 2.
Subjective scope
1-Can accede to the present special scheme any commercial companies and companies
public, as well as economic boxes, mutual agricultural credit boxes and the Box
Mutual Agricultural Credit Power Plant, with headquarters or effective direction in Portuguese territory
that they exercise, in the main title, an activity of a commercial, industrial or
agricultural, or still stable establishments located in Portuguese territory of
entities of an identical nature or similar to those, residing in another Member State of the
European Union or in a Member State of the European Economic Area that is
linked the exchange of information for tax purposes equivalent to the one established in the
scope of the European Union.
2-A adherence to the special scheme by the economic boxes implies the prior adoption of the form
of anonymous society, not by applying the provisions of Article 4 of the Decree-Law
n. 136/79 of May 18, as amended by Decrees-Laws 49/86 of March 14,
212/86, of August 1, 182/90, of June 6, 319/97, of November 25, and
188/2007, of May 11.
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3-In the case of the Central Fund for Mutual Agricultural Credit and agricultural credit boxes
mutual, the conversion rights to which the present regime is given right, in the
same terms as the shares, to the free allocation of representative capital securities
of the social capital of those institutions and thereby of the quality of associate.
4-In the event of an exercise by the State of the rights of conversion in the situations provided for in the
previous Article No. 16 and paragraphs 2 and 4 of Article 53 of the Conditions of Employment are not applicable
Legal of the Mutual Agricultural Credit and the Agricultural Credit Cooperatives, approved
by Decree-Law No. 24/91 of January 11, depending on the cases, and the State may
exonerate yourself of the quality of associate by alienation to the remaining associates or others
third parties.
Article 3.
Approval by the general meeting
1-A accession to the special scheme shall be approved by deliberation of the general assembly of the
taxable person, taken by the majority required for amendment of the contract of society, which
should include specifically:
a) The decision to accede to this special scheme;
b) The constitution of the special reserve, to be carried out by the body of administration, in the
amount that results from the provisions of Article 8, and the manner of constituting it, with
resource, if strictly necessary, the prior reduction of capital;
c) The unique purpose of the special reserve for incorporation, under the present
regime, in the social capital of society and, when it is the case, in reserve
consisting of the atoms to which there is place.
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2-The administration body of the taxable person shall draw up a report on the accession
to the special scheme and the possible financial consequences for the shareholders, which must
be placed at the disposal of the same in the framework of the preparatory information of the
general assembly.
3-A The deliberation of constitution of the special reserve, provided for in Article 8, implies the
approval of the issuance and allocation to the State of the conversion rights to which the
article 9, as well as the approval of the rise of the social capital of society by
incorporation of the special reserve, in the amount and in the conditions that come into being
necessary to meet the exercise of the conversion rights.
Article 4.
Impairance losses in credits and post-employment or long-term benefits of
employees
1-The expense and negative equity changes with impairments losses in credits
provided for in Article 28 (1) and (2) of the Income Code on the Income of the
Collective People (IRC Code), approved by the Decree -Law No. 442-B/88, of 30 of
november, as well as with post-employment or long-term benefits of employees,
of whose non-deduction for the purposes of finding the taxable profit in the period in which
have been incurred or recorded has resulted in the recognition of assets by
deferred tax in the financial statements, are deductible in the period of
taxation in which the conditions for the effect provided for in the IRC Code are checked,
in Article 9 of the Decree-Law No. 127/2011 of December 31, as amended by the Laws
n. paragraphs 20/2012, of May 14, and 66-B/2012, of December 31, or in Article 183 of the Law
n 64-B/2011 of December 30, as amended by the Laws No 20/2012 of May 14,
64/2012, of December 20, and 83/2013, of December 9, with the limit of the amount
of taxable profit from that period of taxation calculated before the deduction of these expenditions
and negative patrimonial variations.
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2-The spending and negative heritage changes that are not deducted in the
determination of taxable profit as a result of the application of the number
previous are deductible in the determination of taxable profit from the taxation periods
subsequent, with the limit on it predicted.
3-Excludes from the provisions of the preceding figures the losses by impairity and variations
negative equity provided for in paragraph c ) of Article 28 (1)-B of the IRC Code,
or relating to credits on natural or collective persons who detain, direct or
indirectly, pursuant to Art. 69 (6) of the said Code, more than 2% of the
capital of the taxable person or on members of his / her social bodies, as well as those who
they do not arise from the exercise, the professional title, of the normal activity of the taxable person.
4-Excluded still from the provisions of paragraphs 1 and 2 the losses by impairity and variations
negative equity relating to credits on participating companies, direct or
indirectly, in accordance with Article 69 (6) of the IRC Code, by more than 10%
of the capital or entities with which the taxable person finds himself in a situation of
special relations in the terms of the ( a ) a g ) of Article 63 (4) of the said
Code, when from those losses by impairments or negative heritage variations
has resulted in the recognition of deferred tax assets at present
subsequent to that of the acquisition of the participation or verification of the condition from which it results
special relation situation.
5-For the purposes of the provisions of paragraph 2 are deducted in the first place the expenditured expendities
or the negative heritage variations recorded longer.
6-The expenses incurred and the patrimonial variations recorded by the merged companies, and
by these not yet deducted in the determination of taxable profit as a result of the
application of the provisions of paragraph 1, may be deducted, on the same terms and conditions,
in the determination of the taxable profit of the beneficiary society in a merger to
that the special scheme set out in Article 74 of the IRC Code be applied.
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7-taxable persons must integrate into the tax documentation process to which they are referred
o Article 130 of the IRC Code the information and documentation relating to,
specifically, to the methods used in determining the impairance losses in
credits and responsibilities with post-employment or long-term benefits of
employees, as well as the accounting policies adopted in tax matters
deferred.
8-The policies and accounting methods referred to in the preceding paragraph are certified
by official reviewer of accounts.
Article 5.
Rules applicable under the special scheme for taxation of groups of
societies
1-In the periods of taxation in which the taxable person is covered by the special scheme
of taxation of groups of companies provided for in Articles 69 and following of the Code
of the IRC, the deduction of the spending and the negative patrimonial changes to which the
n. 1 of the preceding Article shall not exceed the smallest of the following amounts:
a) Taxable profit of the taxable person calculated prior to deduction of those expenses and
negative patrimonial variations; or
b) Sum algebraic of taxable profits and tax damage to which the
article 70 of the IRC Code calculated before the deduction of those spent and
negative patrimonial variations.
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2-The expense and negative equity changes not deducted in the determination of profit
taxable as a result of the application of the provisions of the preceding paragraph are deductible in the
determination of taxable profit from subsequent taxation periods, with the limit
predicted in the same number.
3-For the purposes of the provisions of the preceding paragraph, the spending shall be deducted in the first place
or the patrimonial variations incurred or recorded longer or, when they have
have been incurred or registered in the same period of taxation, in the proportion between the
amount of these expendities and negative equity variations of each society and the total
of the relevant negative spending and variances of all the group's societies
incurred or registered in that period.
4-Terminated the implementation of the scheme with respect to a group society, spending and the
negative equity variations by it incurred or registered and which do not yet have
been fully deducted, are deductible in the determination of taxable profit of the
society to which they respect, under the terms and conditions laid down in the previous article.
5-When, during the implementation of the scheme, there will be place for merging operations between societies
of the group or a corporation incorporates one or more societies not belonging to the
group, the spending and negative heritage changes not yet deducted in the
determination of taxable profit as a result of the application of the provisions of paragraph 1 are
deductible, on the same terms and conditions, in the determination of the taxable profit of the
group up to the limit of the taxable profit of the new society or of the incorporated company,
provided that such operations are applied to the special scheme set out in Article 74.
of the IRC Code.
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Article 6.
Conversion of assets by deferred tax credit into tax credit
1-The deferred tax assets that have resulted from the non-deduction of spending and
negative equity variances with impairments losses in credits and with
post-employment or long-term benefits of employees, referred to in paragraph 1 of the
article 4, are converted into tax credits when the taxable person:
a) Registe a negative net result of the period in your annual accounts, then
of approved by the social bodies, pursuant to the applicable law;
b) Enter into liquidation for voluntary dissolution, insolvency decreed by sentence
judicial or, where applicable, revocation of respect for permission by authority
of competent supervision.
2-In cases provided for in paragraph a ) of the previous number, the amount of assets per
deferred taxes to be converted into tax credit is the corresponding to the ratio
between the amount of negative net result of the period and the total capital
own from the passive subject.
3-When the total of the own capitals referred to in the preceding paragraph is negative or
lower than the negative net result of the period, as well as in the situations provided for in the
point ( b ) of paragraph 1, is converted into tax credit the totality of the amount of the assets
by deferred taxes referred to in paragraph 1.
4-In cases provided for in paragraph b ) of paragraph 1, the taxable person may not resume his
activity.
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5-For the purposes of the provisions of paragraph 2, in total own capitals excludes the result
negative net of the period, and include social capital and emission premiums
associates, the reserves, the transient results and, where applicable, the instruments
referred to in Article 26 of Regulation (EU) No 575/2013 of Parliament and of the
Council, of June 26, 2013, and the instruments the inclusion of which is permitted for the
calculation of the main own funds of level 1 in accordance with the provisions of the Party
X of Title I of Chapter 2 of the same Regulation.
6-A conversion into tax credit provided for in the previous figures covers assets
by deferred taxes referred to in Article 4 (1) and Article 5 (1) that
are found to be registered in the financial statements of the taxable person concerning the
period in which the situation provided for in the paragraph is found. a ) of paragraph 1 or on the date of
entry into liquidation provided for in paragraph b ) of paragraph 1, depending on the cases.
7-The taxable person shall enrol in the periodic declaration of income provided for in the
article 120 of the IRC Code relating to the period of taxation in which it is established
any of the situations provided for in paragraph 1, the amount of the tax credit ascertained in the
terms of the previous numbers.
8-The spending and negative equity changes not yet deducted in the determination of the
taxable profit for not if they have verified the conditions for the effect provided for in the
Code of the IRC, in Article 9 of the Decree-Law No. 127/2011 of December 31, amended
by the Laws n. ºs 20/2012, of May 14, and 66-B/2012, of December 31, in the article
183 of Law No. 64-B/2011 of December 30, as amended by Laws No 20/2012, of 14
of May, 64/2012, of December 20, and 83/2013, of December 9, in Article 2 (2)
4 or in Article 5 (2), do not compete for deduction for taxable profit, on the part
associated with the corresponding deferred tax assets that have been the object of
conversion under the terms of this article.
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9-Income and positive patrimonial changes resulting from reversal of losses
by impairance in credits, in the part associated with the corresponding active by tax
deferred that have been the subject of conversion under the terms of this article,
are considered to be positive components of the taxable profit of the respective respect period
taxation.
Article 7.
Use of the tax credit
1-The tax credit resulting from the conversion of assets by deferred taxes into the
terms of the previous article may be used, on the initiative of the taxable person, in the
compensation with debts of this or any entity based in Portugal
integrated into the same group of societies to which the special arrangements provided for
in Article 69 of the IRC Code or, where applicable, on the same perimeter of
prudential consolidation for the purposes of Regulation (EU) No 575/2013, of the
European Parliament and of the Council of June 26, 2013.
2-The provisions of the preceding paragraph shall cover debts relating to state taxes on the
income and the heritage that constitute its charge and whose generator fact does not occur
subsequent to the date of that conversion, provided that the term of the payment term
volunteer to occur until the last day of the taxation period following the one in which if
check the fact provided for in the paragraph a ) of paragraph 1 of the previous article.
3-The amount that is not compensated with tax debts within the period specified in the
previous number is immediately reimbursed to the taxable person.
Article 8.
Special reservation
1-In cases provided for in paragraph a ) of Article 6 (1), the taxable person constitutes a
special booking in the amount of the tax credit ascertained in the terms of that article,
majored from 10%, without prejudice to the adjustment provided for in Article 11 (3)
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2-A Special reservation is intended exclusively to be incorporated into the social capital and, if it is
in the case of this, in reserve consisting of the atoms to which there is place and subject to the scheme of
legal reserve, by raising the social capital of the taxable person in the modality
special provided for in this regime.
Article 9.
Rights of conversion
1-A The constitution of the special reservation implies the simultaneous constitution of rights of
conversion attributed to the State.
2-The conversion rights referred to in the preceding paragraph are securities that
confers to the titular respect the right to demand the taxable person the increased respect
of the capital through the incorporation of the amount of the special and consequential reserve
issuance and free delivery of ordinary shares representative of the social capital of the subject
passive.
3-The number of rights to be issued and ascribe to the State corresponds to the result of the
quotient between the amount of the special reserve and the reference value of the rights of
conversion calculated in the terms of the following numbers.
4-In the case of taxable persons issuers of shares admitted to trading on market
regulated, the reference value of the conversion rights corresponds to the price
medium weighted by the volume of the ordinary shares representative of the social capital of the
taxable person ascertained during the period of negotiation between the date of the submission of the
proposal for deliberation of application of results and the deliberation of the general assembly
that approve the annual accounts.
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5-In the case of taxable persons not covered by the preceding paragraph, the value of
reference of the conversion rights corresponds to the adjusted book value of the
common shares representative of the social capital of the taxable person, understood as the
quotient among own capitals deducted from the amount of the tax credit
ascertained in the terms of Article 6 majord of 10% and the number of representative shares
of the social capital deducted from own shares, at the date and in accordance with the latest accounts
annual approved by the relevant social bodies under the applicable law.
Article 10.
Regime of conversion rights
1-The State, or other public servants to whom the State has passed the rights of
conversion, can freely dispose of them.
2-Shareholders at the date of the constitution of the conversion rights assigned to the State have
the potent right to acquire the conversion rights to the State in the proportion of the
respects holdings in the capital of the taxable person under the procedure conditions
defined by porterie of the member of the Government responsible for the area of finance.
3-It is not considered public supply of distribution the exercise or divestance by the State
of the rights of conversion, specifically by exercise of the potent right of
acquisition referred to in the preceding paragraph or by sale to third parties.
4-In the case of an issuer of common shares admitted to trading on a market
regulated, the admission to the trading of the new shares issued by exercise of the
conversion rights does not lack, regardless of the number of shares of the same
category already admitted to trading on the same regulated market, from the approval of
prospeto.
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Article 11.
Exercise of conversion rights
1-The exercise of the conversion rights implies the increase of the social capital of the subject
liability in the special modality provided for in this Law, the one which corresponds to the issuance of
new ordinary shares representative of the respected social capital.
2-The exercise of each right of conversion assigns free of charge to its holder an action
ordinary representative of the social capital of the taxable person issued at the price of
subscribed equivalent to the reference value of the conversion rights ascertained in the
terms of paragraphs 4 and 5 of Article 9.
3-Should the subscription price referred to in the preceding paragraph be lower than the nominal value
of the ordinary shares representative of the social capital of the taxable person, the price of
subscription is adjusted to match that nominal value, in that case the
amount of the special reservation referred to in Article 8 shall be proportionally adjusted
through the multiplication of the amount of the tax credit ascertained in the terms of the
article 6 by the quotient between the nominal value and the values referred to in paragraphs 4 and 5 of the
article 9 para.
4-In case the subscription price referred to in paragraph 2 is higher than the nominal value of the shares
ordinary representative of the social capital of the taxable person, the difference to more between
the underwriting price and the nominal value of each share consists of the age that is
incorporated into a special reserve subject to the legal reserve regime pursuant to the
article 295 of the Code of Commercial Societies, approved by the Decree-Law
n. 262/86, of September 2.
5-The administration body of the taxable person is obliged to immediately promote the
record of the increase in the capital of the society by the amount that result from the exercise of the
conversion rights after the course of the term for exercise of the right provided for in paragraph 2
of Article 10 para.
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6-The application for the registration of the increase in capital is instructed, among others required by law,
with the following documents:
a) Minutes of the deliberation of the general assembly of constitution of the special reserve and which,
consequently, in accordance with Rule 3 (3), approved the issuance of the
conversion rights and the increase in capital arising from the exercise of the
same;
b) Should this not be already deposited in the conservatory, balance sheet of the subject
passive, approved by the respected governing body, the date of reference
diss less than six months from the date of the application for registration, in which figure the reservation
special to be incorporated;
c) Written statement issued by the administrative body of the taxable person, in the
which one indicates the number of conversion rights exercised, the number of new
common shares representative of the social capital of the taxable person to be issued in
consequence of the exercise of the rights of conversion, its nominal value or
emission value, the amount of the increase in the social capital and the amount of the
social capital of the taxable person after the increase;
d) Company contract of the taxable person in which figure the new amount of the
social capital after the increase and the new number of shares that represent it.
Article 12.
Certification by official reviewer of accounts
The amount of deferred tax assets converted into tax credit in the
terms of Article 6 must be certified by official reviewer of accounts, and this
certify still the constitution of the special reserve and the issuance and allocation to the State of the
conversion rights, in accordance with Articles 8 to 11, as well as the remaining requirements
legal rules relating to the accession to the special scheme provided for in this Law.
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Article 13.
Regulation
The procedures for the offsetting of the tax credit with tax debts and for
the respect for reimbursement, as well as the conditions and procedures for the application of the
provisions of Article 6 (7), Article 5 (4), and Article 10 (2)
are established by portaria of the member of the Government responsible for the area of finance.