Covid19 – Exceptional regime for compliance with tax obligations and social contributions

tax obligations

Informative Note

Covid-19 – Exceptional regime for compliance with tax obligations and social contributions

 

Following the measures taken to contain the pandemic COVID-19, and within the scope of approval of several extraordinary measures, the Government came to establish an exceptional and temporary regime for the fulfillment of tax obligations and social security contributions, under Decree-Law no. 10-F / 2020, of 26 March.

This regime aims to ensure liquidity for companies, and to preserve their activity and respective jobs. To this end, it eases the payment of tax obligations and social contributions.

 

I – Tax Obligations

Regarding tax payment, the Government has determined that payments related to VAT and withholding tax on IRS and IRC are to be fulfilled in the second quarter of 2020, which can be met:

a) Under the terms and dates provided for in article 98 of the IRS Code, in article 94 of the IRC Code and in article 27 of the VAT Code; or

b) In three or six monthly installments, without interest.

 

Installment plans

The monthly installments relating to the plans referred above are due as follows:

a) The first installment is due on the date of fulfillment of the payment obligation in question;

b) The remaining monthly installments are due on the same day of subsequent months.

Note: Applications for payment of installments are submitted electronically, due by the end of voluntary payment period.

 

Which taxpayers are supported?

  • Those who have achieved a turnover of up to € 10,000,000.00 in 2018;
  • Those whose activity falls within the sectors that were shutdown by the declaration of the State of Emergency;
  • Those who started their activities after 1st of January, 2019;
  • Those who have resumed activity on or after 1st of January, 2019, if they did not have a turnover in 2018;
  • Those who declare and demonstrate a decrease in the turnover, communicated through the E-factura (carried out by certified auditor or certified accountant) of at least 20% of the average of the three months preceding the month in which this obligation exists, compared to the same period of the previous year.

 

II – Social Security Contributions

In terms of social security contributions, the Government decided to enact the following measures:

1. Deferred payment of contributions

Who is supported by this measure?

  • Self-employed workers; and
  • Private and social sector employers with:

a) Less than 50 employees;

b) A total of employees between 50 and 249, when presenting a drop of at least 20% of the turnover communicated through the e-factura in the months of March, April and May 2020, compared to the same period of the previous year or, for those who started the activity less than 12 months ago, the average of the elapsed activity period;

c) A total of 250 or more employees, provided that it is charitable institution or equivalent, or that the activity of these employers falls within the sectors that were shutdown due to the declaration of the State of Emergency, or in the aviation and tourism sectors, or that the activity of these employers has been suspended by legislative or administrative decision and provided that they present a break of at least 20% of the invoice communicated through the e-invoice in the months of March, April and May 2020, in view of the homologous period of the previous year or, for those who started the activity less than 12 months ago, the average of the elapsed activity period.

The requirements stated in subparagraphs b) and c), are to be proven by the employer during the month of July 2020, together with certification by the company’s certified accountant.

Note: Beneficiary employers can be inspected, at any time, by the competent public entities, and must prove the facts on which the deferral depends, in addition to verification by electronic means with AT.

 

Installment Plans

  • Self-employed workers

The deferral of contributions due by the self-employed applies to April, May and June 2020 and contributions can be paid in the same terms as indicated below for employers.

  • Private and social sector employers

Employers’ contributions, due in March, April and May 2020, can be paid as follows:

a) One third of the value of the contributions is paid in the month in which it is due;

b) The amount of the remaining two thirds is paid in equal and successive installments in the months of July, August and September 2020 or in the months of July to December 2020, without interest.

In July 2020, employers must indicate in the Segurança Social Direta (the Social Security online service) which of the payment deadlines provided for in paragraph b) they intend to use.

Note: For employers who have already paid all the contributions due in March 2020, the deferral provided for in this article begins in April 2020 and ends in June 2020.

 

Non-compliance

Failure to comply with the legally defined terms for installment plans determines:

a) The immediate cessation of the benefits granted; and

b) Immediate due of all the missing installments, as well as the termination of the interest exemption.

 

2. Application of the judicial vacation regime to installment plans in progress at the Tax and Customs Authority and Social Security for debts outside the scope of executive proceedings until 30 June 2020

After 30 June 2020, the governing board of the competent social security institution may decide to extend the suspension period for the benefit plans entered into with private social solidarity institutions under cooperation agreements.

 

3. Extraordinary extension of social unemployment benefits and all Social Security system benefits that guarantee subsistence minimums until 30th of June, 2020

 

4. The suspension of revaluations of the conditions for maintaining the benefits of the Social Security system until 30 June 2020

Contact us for more details.

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The minor or incapacitated children of individuals who have acquired Portuguese nationality derived after the birth of their children may apply for the acquisition of Portuguese nationality, expressing such will and proving the fulfillment of the applicable legal requirements.

However, this claim can be opposed by the Public Prosecutor’s Office, through a legal action opposing the acquisition of nationality, and one of the grounds that the Public Prosecutor’s Office can use in this action is the lack of an effective link of the applicant to the Portuguese community.

If the Public Prosecutor’s Office decides to oppose the acquisition of nationality, it will still have to prove that the person concerned does not have such link as, since 2006, and after express confirmation by the Supreme Administrative Court in 2016, it has been clear that the applicant for nationality only has to declare, and no longer has to prove, that he has an effective connection to the Portuguese community.

It is true that, in 2019, an Internal Service Guideline was issued by the Central Registry Office, which determined the presumption of the existence of an effective connection to the national community by all minors under 14 years of age, with the aim, among others, of relieving the pressure that had been generated on the courts in the past with the submission of several legal actions opposing the acquisition of nationality by the Public Prosecutor’s Office.

However, in October 2022, Internal Guidance ceased to apply, and the Registry Services began to consider that a case-by-case analysis should be carried out and that situations in which the Registrars had well-founded suspicions of the lack of an effective connection to the national community should be reported to the Public Prosecutor’s Office, regardless of the age of the person concerned.

How can one justify the opposition to the acquisition of Portuguese nationality?

We are waiting to see whether the Conservatives will only report cases where they have “well-founded suspicions” that there is no effective link or whether they will do so in all cases, leaving it to the Public Prosecutor’s Office to investigate and, if it so decides and has sufficient evidence, to take legal action against the opposition to nationality.

It also remains to be seen whether the Public Prosecutor’s Office will file opposition actions in all cases, regardless of the evidence it can (or cannot) gather, leaving the final realization of justice in the case in the hands of the judges, or whether it will only file an opposition judiciously when it has evidence of the absence of an effective link.

In addition to these doubts, there is also perplexity and concern about the counting of the 1 year available to the Public Prosecutor’s Office to file an opposition. In 2022, the Portuguese Nationality Regulation was amended in such a way that the time limit will be counted from the date of registration of the acquisition of nationality, instead of the date of the fact on which the acquisition of nationality depends (i.e., the applicant’s manifestation of the will, which occurs with the submission of the file), and which was the solution previously in force.

This means that, as of April 15, 2022, and even about cases that were already pending on that date (except cases based on the descent of Sephardic Jews), the Public Prosecutor’s Office can now oppose the acquisition of nationality, even after it has already been registered in the Portuguese Civil Registry.

From our experience, we can say that there are already Civil Registry Officers who are notifying the interested parties in cases submitted more than 1 year ago that they may report their cases to the Public Prosecutor’s Office on the grounds of lack of effective connection to the national community.

However, we continue to follow these cases closely to see what the practice of the Civil Registry and the Public Prosecutor’s Office will lead to in these matters.

Do not hesitate to contact our team if you have any questions about this matter or need advice on any other related to obtaining Portuguese nationality or citizenship.

In this article, we will explore the time limit for opposing nationality acquisition in Portugal, as defined in Article 56, number 1, of the Nationality Regulation (Decree-Law no. 237-A/2006, dated 14th December). Recently, there have been amendments to the regulation that have significant implications for the process. We will discuss these changes and their potential impact on individuals seeking Portuguese nationality.

We mention “recent” changes, but the amendment has been in effect for over a year since April 2022. Despite this, it seems that the activity of the Registry Office has become more intense now, and considering the numerous questions we receive daily on this topic, we deemed it necessary to write an article to explain.

 

The Previous Time Limit and its Basis

Under the previous version of the Nationality Regulation, the one year for opposition to nationality was calculated from “the date of the fact on which the acquisition of nationality depends.” In practical terms, this referred to the date of submission of the nationality acquisition process, where the individual’s will to acquire nationality was manifested.

 

Recent Amendment – DL 26/2022

In 2022, a notable amendment (DL 26/2022) was made to the Nationality Regulation, coming into force on 15th April. Surprisingly, this change was implemented with minimal announcement by the government. The amendment introduced a significant change to the time limit for opposing nationality acquisition.

 

Current Time Limit for Opposing Nationality

As per the amended Article 56 of the Nationality Regulation, the Public Prosecutor now has one year from the date of registration of nationality acquisition to file a judicial action in administrative and tax courts to oppose the acquisition of nationality by the will.

This means that the registration date, which is the date of the nationality grant, allows the initiation of legal action at any point during the process and even within one year after the process is concluded.

 

Early Identification and Concerns

Being vigilant of legislative changes, we were among the first to draw attention to the amendment before it was enacted. We expressed concerns about this change, considering that the previous time limit for opposing nationalities was more favorable to applicants.

 

Cases Pending and Notifications

According to the law of 2022, the amended Decree-Law applies to cases pending on the date of its entry into force. As a result, the Registry Office is indeed notifying cases pending for more than one year since the date of submission.

 

Our Ongoing Cases

Concerning our specific cases, despite having several ongoing processes, we have received notifications in only a few cases where the process was initiated in 2021 and the notifications were received in 2023. Interestingly, these notifications were not solely related to connection proof; there were other factors involved.

In response, we handled these cases strategically, and, so far, none of them have escalated to court. Nevertheless, we must remain vigilant, as the possibility remains.

 

Conclusion

Understanding the time limit for opposition to nationality is crucial for individuals seeking Portuguese nationality. The recent amendments to the Nationality Regulation have shifted the basis of this time limit, impacting the process and potential legal actions. We advise applicants to be well-informed and proactive during the process and seek legal guidance to navigate any challenges effectively.

If you wish to do so or have any questions about this topic (or any other), don’t hesitate to contact us. Our team of lawyers is available to assist you anytime!

NOTE

This article was written by our lawyer and managing partner Ana Sofia Lamares.

She has dealt with countless Portuguese nationality requests and her experience is highly sought-after for those seeking help when it comes to granting Citizenship or Nationality. Don’t hesitate to get in touch with her here.

The HQA Visa promises to be an alternative solution to the well-known Golden Visas due to the reduced requirement regarding the minimum periods of stay in Portugal. Is this the case?

Before explaining this new type of visa, let us explain the context in which it emerged.

Portugal continues to experience a growing influx of migrants. However, the limit on the minimum length of stay in the national territory is a factor that weighs on the decision of those wishing to move to the country.

Residence Permits for Investment Activities, popularly known as Golden Visas, emerged in 2012 with the benefit of breaking the barriers inherent to mandatory periods of stay, as, by the provisions of Article 65-C of Regulatory Decree 84/2007, the holder of this type of residence permit needs to remain in national territory for an average annual period of 7 days.

It turns out that the popular Golden Visas, as set out in Article 90-A of Law 23/2007, not only entail very large capital spending for investors but, in recent times, have seen their survival questioned in some respects (we’ve written about it here).

Considering these factors, the “HQA VISA” has been hailed as a much more cost-effective solution that encompasses the benefits of Golden Visas. This means that, with a considerably lower investment, the holders of the “HQA Visa” would not have to comply with mandatory minimum periods of stay in national territory, acquire the possibility to circulate throughout the Schengen area without limitations and, after 5 years, give its holder the possibility to apply for the attribution of Portuguese nationality.

But is the HQA Visa all that? The answer is: yes and no.

The truth is that the HQA VISA, which is nothing more than the Residence Visa for Highly Qualified Workers, is not a low-cost alternative to Portuguese Golden Visas.

Once a residence permit has been granted in any of its modalities, except in the case of Golden Visas, the foreign resident still must comply with certain minimum stay rules in the national territory to ensure that his/her residence permit is not canceled.

According to paragraph a) of no. 2 of article 85 of Law no. 23/2007, of July 4, during the valid period of the temporary residence permit, its holder must not leave the country for a period exceeding six consecutive months or eight interposed months. The granting of permanent residence also requires compliance with the periods of stay in the national territory, this time by the provisions of paragraph b) of paragraph 2 of Article 85 of the Aliens Act.

According to this legal provision, the holder of permanent residence, which is valid for 60 months, may not be absent from the country for a period exceeding 24 consecutive months or 30 interpolated months.

However, there are several exceptions to the obligation to comply with these deadlines and which, as exceptions, do not result in the cancellation of the residence permit. The existence of weighty reasons of a personal, family, or professional nature that led to the need to be absent from the country for periods longer than those mentioned above, does not affect the maintenance of the residence permit of the third-country national.

Therefore, if the highly qualified worker holding the “HQA VISA” is absent from the country for periods longer than those indicated above and these absences are justified with professional reasons and documented, he/she should not be disadvantaged.

This exception applies not only to Residence Permits for Highly Qualified Workers but also to all other types of Residence Permits. This exceptionality, which allows the absence of the holders of these residence permits for longer periods, can never be confused with the flexibility inherent in Residence Permits for Investment activity.

If you have any questions regarding these types of visas, residence permits, or any other, please do not hesitate to contact our team of lawyers.

Get in touch with us for further information.

Lamares, Capela & Associados is committed to protecting and respecting your privacy and we will only use your personal information to manage your account and provide the products and services you have requested. Occasionally, we would like to contact you about our products and services and also about other matters that may be of interest to you.