The tax neutrality regime applicable to mergers and demergers in Portugal is a cornerstone of corporate restructuring, designed to facilitate business reorganisations without triggering immediate tax liabilities. This regime, enshrined in the Corporate Income Tax Code and the Tax Benefits Code, aims to ensure that such transactions are not hindered by tax burdens, provided they meet specific legal requirements. Among these, the “autonomous branch of activity” requirement and the existence of “valid economic reasons” are pivotal. However, the Portuguese tax authority (PTA) has adopted a particularly rigid and formalistic interpretation of these requirements, which has significantly narrowed the regime’s practical applicability.
This article explores the PTA’s evolving stance and underscores the importance of a thorough risk assessment by companies engaging in such transactions.
The legal framework: neutrality and economic substance
The tax neutrality regime allows companies to defer taxation on gains arising from mergers and demergers, provided the transaction involves the transfer of an “autonomous branch of activity” and is motivated by valid economic reasons.
The concept of an “autonomous branch of activity” generally refers to a set of assets and liabilities capable of functioning as an independent business unit. Meanwhile, valid economic reasons must demonstrate that the transaction is not primarily tax-driven but serves legitimate business purposes, such as improving operational efficiency or market competitiveness.
While the law provides a framework for neutrality, its application hinges on the interpretation of these requirements. The PTA’s role in issuing binding rulings has been instrumental in shaping the practical contours of the regime, but its increasingly stringent interpretations have raised significant concerns.
The evolution of the PTA’s opinion
Over the years, the PTA has issued several binding rulings that reflect a progressively restrictive view of the “autonomous branch of activity” requirement. Initially, the PTA appeared to adopt a more pragmatic approach, focusing on the functional independence of the transferred assets and liabilities. However, recent rulings reveal a shift towards a highly strict and formalistic interpretation.
The PTA’s interpretation has come to a point where the following requirements must be indisputably met in order for the neutrality to apply:
Transfer of a plurality of elements – the elements transferred in a merger/demerger must comprise a set of assets and other necessary resources, such as human resources;
Autonomy – the set of elements, prior to being transferred, must have, within the contributing company, autonomy in relation to other existing autonomous economic units; and
Continuity – both the business that is transferred and the business that remains (in a demerger) or the business that already existed (in a merger) must continue to be carried out in the same manner as it was before the transaction, without any adjustment of resources, as if no transfer had occurred, and cannot result in changes as a consequence of the transaction itself.
For instance, the PTA has frequently demanded proof that the transferred assets and liabilities constitute a fully operational business unit. This includes evidence of separate accounting, dedicated personnel, and independent operational capacity. In some cases, the PTA has even questioned the validity of transactions where the transferred unit lacked certain elements, such as its own customer base or distinct management structure, despite clear evidence of its functional independence within the broader corporate group.
A question that remains unanswered is if corporate income tax neutrality is denied in every merger or demerger of entities that rely on shared service centres, considering some pivotal functions are not transferred due to them being performed by those centres.
The PTA has also shown a tendency to scrutinise the “valid economic reasons” requirement with equal rigour. Transactions that could be interpreted as having any tax-saving motive, even if secondary to legitimate business objectives, have often been denied neutrality. This dual rigidity has created a significant barrier for companies seeking to benefit from a regime created to enhance and stimulate restructurings.
Critique of the PTA’s approach
The PTA’s strict and formalistic interpretation of the “autonomous branch of activity” requirement has drawn criticism for several reasons:
Overemphasis on formalities – by prioritising documentary evidence and legal formalities over economic substance, the PTA risks undermining the very purpose of the neutrality regime. The focus should be on whether the transferred assets and liabilities can function as an independent business unit, not on whether they meet an exhaustive checklist of formal criteria.
Narrowing the scope of application – the PTA’s restrictive stance has significantly limited the practical applicability of the neutrality regime. This is particularly problematic for SMEs, which may lack the resources to meet the PTA’s stringent requirements but still engage in legitimate business reorganisations.
A chilling effect on business reorganisations – the PTA’s approach may discourage companies from pursuing mergers and demergers, even when these are economically justified. The risk of losing neutrality and facing immediate tax liabilities can outweigh the potential benefits of the transaction.
Conclusion: navigating the risks in mergers and demergers in Portugal
The PTA’s rigid interpretation of the “autonomous branch of activity” requirement underscores the importance of a thorough risk assessment for companies considering mergers or demergers. Businesses must carefully evaluate whether their transactions meet the PTA’s stringent criteria and prepare comprehensive documentation to support their case. In some instances, challenging the PTA’s position in court is the only way, particularly when it contradicts the economic substance of the transaction or creates undue barriers to legitimate business reorganisations.
Ultimately, a more balanced approach by the PTA is needed to restore the neutrality regime’s effectiveness. This would involve a shift towards a substance-over-form analysis, focusing on the economic realities of the transaction rather than rigid rules. Until such a shift occurs, companies must remain vigilant and proactive in managing the risks associated with these transactions, ensuring that their business objectives are not derailed by overly restrictive interpretations of the law.
