How to optimise VAT in Portuguese property transactions

Property transactions – encompassing the acquisition, disposal, development, or leasing of real estate – are subject to a myriad of complex and diverse VAT rules and rates in Portugal. These rules vary significantly depending on the type, location, and use of the property, as well as the status and intention of the parties involved.

For businesses engaged in property development, investment, or management, understanding and applying the appropriate VAT rules and rates is crucial for optimising VAT costs and recovery, thereby improving cash flow and working capital.

In Portugal, both the lease and transfer of immovable property are, as a rule, always exempt. This creates a need for meticulous planning, analysis, and structuring of transactions, along with regular reviews of the business’s VAT position and performance, to ensure effective VAT management in these transactions.

In many EU countries, the first supply of a building or part of a building, as well as the supply of land, is subject to VAT. This allows for the real estate developers’ right to recover VAT on construction costs.

In Portugal, all supplies of immovable property – of buildings, including the supply before first occupation, and of land – are exempt from VAT.

Having a VAT-exempt acquisition or disposal of immovable property jeopardises the right to recover VAT on construction costs. Additionally, when VAT on construction has already been recovered (for buildings already in use), a VAT-exempt supply may trigger the need for VAT adjustments, which may add significant unpredicted costs to property transactions.

However, special VAT regimes may mitigate or eliminate the adverse consequences arising from an exempt sale.

One effective strategy is considering the option to tax on commercial property, which is available for leases and supplies of land or buildings. In Portugal, this option has increased in popularity due to the growing uncertainty associated with the scope of application of the VAT exemption for the lease of immovable property.

The option for taxation allows businesses to recover VAT on construction costs and related services. However, opting to tax means charging VAT to tenants, which could make the property less attractive to VAT-exempt businesses, so it is essential to consider the tenant’s VAT recovery position when making this decision.

Additionally, the Portuguese option for taxation regime entails a complex and extensive set of rules concerning the property, as well as the parties. Therefore, it is important to align these rules with the envisaged business model from day one, as factors such as the amount of refurbishment costs or rent price may make or break the possibility to opt for taxation.

Developers may face cash flow disadvantages if they are required to pay VAT on construction costs upfront and then wait for recovery through their VAT returns. This can strain liquidity, especially for smaller businesses or those with limited cash reserves.

Portugal features a domestic reverse charge mechanism applicable to the purchase of construction works by taxable persons that have the right to input VAT deduction.

Reverse charge does not in any way diminish the amount of VAT paid, but it does mean the payment of VAT and deduction (when allowed) are simultaneous, aiding in cash flow management.

From the supplier’s standpoint, reverse charge means not assessing VAT on invoices and therefore not running the risk of having to advance VAT to the state without having received payment.

On the other side of the scale, though, reverse charge means less assessed VAT for the supplier to offset against deducted VAT. This could leave businesses in a credit position and having to request VAT refunds, delaying the financial effect of the VAT deduction.

Lastly, businesses can also use joint venture arrangements, holding companies, or special purpose vehicles to share VAT costs and risks with partners or to isolate the VAT impact of property transactions from other business activities. This approach can provide flexibility and mitigate potential VAT liabilities.

VAT management in property transactions is a multifaceted and intricate process that requires careful planning, a deep understanding of local regulations, and strategic structuring of transactions. By considering possibilities such as opting to tax and VAT reverse charge, and understanding the VAT position of all parties involved, businesses can optimise their VAT costs and improve cash flow. However, they must also be vigilant about the potential challenges and risks, including cash flow disadvantages for buyers and compliance obligations.

Ultimately, effective VAT management in property transactions can provide significant financial benefits and enhance the overall efficiency of a business’s operations. By staying informed and proactive, businesses can navigate the complexities of VAT regulations and achieve optimal outcomes in their property transactions.