This is not the first time that the Commercial Law Department<\/a> at Belzuz Abogados, S.L.P.<\/a> has addressed the cross-border transfer of registered offices between Spain and Portugal. The sustained interest this process generates amongst our clients \u2014 both Spanish companies with a presence in Portugal and groups with a dual Iberian structure \u2014 has led us to publish a series of analyses on the subject. On this occasion, the update is significant: the regulatory framework has changed substantially, which justifies revisiting the analysis with a fresh perspective and a practical, decision-oriented approach.<\/p>\n The entry into force of Royal Decree-Law 5\/2023 of 28 June (BOE-A-2023-15135) entailed the repeal of Law 3\/2009 of 3 April on structural changes to commercial companies, and the transposition into Spanish law of Directive (EU) 2019\/2121 of the European Parliament and of the Council on cross-border conversions, mergers and divisions. Its Book One sets out the new regime applicable to these transactions, with more technically refined regulations and greater legal certainty for operators.<\/p>\n The transfer of the registered office of a Spanish company to Portugal \u2014 or vice versa \u2014 is legally classified as a cross-border transformation under the terms of Royal Decree-Law 5\/2023. This classification has significant procedural implications: it requires the preparation of a transformation plan, the issuance of a report by the board of directors, the involvement of an independent expert in certain cases, mandatory registration, and compliance with a protection period for dissenting shareholders and creditors. Strict compliance with each of these stages is not a mere formality, but a condition for the validity of the transaction.<\/p>\n One of the aspects that most frequently gives rise to controversy in this type of transaction is the correct application of the principle that the registered office must coincide with the company\u2019s actual place of business, as enshrined in Article 9 of Royal Legislative Decree 1\/2010 of 2 July, approving the consolidated text of the Law on Capital Companies (LSC). This principle is not merely a formal one: it has direct implications for international jurisdiction, the determination of the applicable law and, particularly significantly, the establishment of the entity\u2019s tax residence.<\/p>\n The transfer of the registered office without an actual and verifiable transfer of the place of effective management, or vice versa, creates a situation of dissociation that may be challenged by both the Spanish Tax Agency and the Portuguese Tax and Customs Authority. The consequences of this disconnect are far-reaching: they may result in de facto double taxation, in the inapplicability of the benefits of the Double Taxation Agreement signed between Spain and Portugal, or in the triggering of anti-abuse clauses provided for in the domestic legislation of both States. Careful planning of the transaction, with sufficient documentation to demonstrate the actual economic substance in the destination jurisdiction, is therefore an essential element of any rigorous advice on this matter.<\/p>\n From a strictly corporate perspective, determining the competent body to approve the cross-border transfer is a matter that should not be resolved hastily. In line with the provisions of Article 285 of the Companies Act (LSC) and Royal Decree-Law 15\/2017 of 6 October, the decision to transfer the registered office within national territory rests with the board of directors. However, a cross-border relocation \u2014 as it involves a more far-reaching amendment to the articles of association and a transformation within the technical meaning of Royal Decree-Law 5\/2023 \u2014 necessarily requires the approval of the general meeting, with the corresponding enhanced quorums depending on the corporate form adopted.<\/p>\n This requirement has significant practical implications in terms of time management. The convening of the general meeting, compliance with the deadlines for publicising the proposed transformation, and the exercise of shareholders\u2019 rights to information all determine the timetable for the operation and must be incorporated into the process roadmap from the outset. The experience accumulated by the Commercial Law Department<\/a> of Belzuz Abogados, S.L.P.<\/a> in managing this type of process enables us to anticipate critical issues and minimise the risks of delay or challenge.<\/p>\n The transfer of a Spanish company\u2019s tax residence to Portugal triggers the exit tax regime \u2014 commonly referred to as \u2018exit tax\u2019 \u2014 provided for in Article 19 of Law 27\/2014 of 27 November on Corporation Tax (LIS). Under this regime, the company must include in its tax base the unrealised capital gains relating to assets which, as a result of the transfer, cease to be situated within Spanish territory or become linked to a permanent establishment abroad.<\/p>\n The financial impact of this obligation may be significant depending on the volume and nature of the company\u2019s assets. However, when the transfer takes place to a Member State of the European Union \u2014 as is the case with Portugal \u2014 Spanish legislation allows the payment to be spread over five equal annual instalments, which considerably mitigates the immediate cash flow impact and makes the transaction financially viable for most corporate structures. The proper management of this instalment arrangement, including the provision of security where required by the tax authorities, is one of the aspects requiring the greatest attention during the tax planning phase.<\/p>\n As regards the Portuguese tax framework, the Imposto sobre o Rendimento das Pessoas Coletivas (IRC) has features that make it competitive within the European context, particularly when combined with the specific incentives available for certain activities, holding company structures or participation schemes. The Portuguese participation exemption regime allows, subject to certain conditions regarding shareholding and holding periods, for the exemption of dividends and capital gains of Spanish origin received by the Portuguese company, which opens up possibilities for efficient tax planning in compliance with the anti-abuse regulations in force in both jurisdictions. A detailed review of the applicable rates and the tax benefits available at any given time must be carried out on a case-by-case basis, in coordination with the tax team specialising in the Portuguese jurisdiction.<\/p>\n The technical complexity of a cross-border transfer of registered office extends beyond commercial and tax considerations. Rigorous execution of the transaction also requires integration of the employment law perspective \u2014 in particular, employees\u2019 right to information and consultation as provided for in the regulations governing structural changes \u2014 as well as coordination of registration and notarial procedures between the Spanish Commercial Register and the Portuguese Conservat\u00f3ria do Registo Comercial. In cases where the company operates in regulated sectors or holds administrative authorisations, public contracts or concessions, it will also be necessary to analyse the impact of the transfer on the validity of such titles.<\/p>\n For groups with a presence in the Iberian Peninsula that are considering a restructuring of their corporate architecture, the cross-border transfer of the registered office can be a strategic tool of the highest order. The Commercial Law Department<\/a> at Belzuz Abogados, S.L.P.<\/a> is at your disposal to analyse the feasibility of the transaction in your specific case, design the most appropriate structure and support you at every stage of the process, from initial planning through to registration in both jurisdictions.<\/p>\n Royal Decree-Law 5\/2023 has provided the cross-border transfer of a registered office with a clearer, more secure legal framework that is better aligned with European standards. For business groups with a presence in Spain and Portugal, this operation represents a genuine opportunity for structural optimisation, provided it is approached with the technical rigour and interdisciplinary vision required by its complexity. The Commercial Law Department<\/a> at Belzuz Abogados, S.L.P.<\/a> has the experience and specialist knowledge to support its clients throughout this process, ensuring efficient and secure execution in line with each group\u2019s strategic objectives.<\/p>\n","protected":false},"featured_media":19009,"template":"","categories":[],"area-de-practica":[512,517,513],"publicaciones":[139],"idioma-publicacion":[71],"areas-practica-publicacciones":[],"class_list":["post-21999","publicacion","type-publicacion","status-publish","has-post-thumbnail","hentry","area-de-practica-ma","area-de-practica-mercantil","area-de-practica-societario","publicaciones-igor-orozco-roman","idioma-publicacion-ingles"],"acf":[],"_links":{"self":[{"href":"https:\/\/belzuz.com\/en\/wp-json\/wp\/v2\/publicacion\/21999","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/belzuz.com\/en\/wp-json\/wp\/v2\/publicacion"}],"about":[{"href":"https:\/\/belzuz.com\/en\/wp-json\/wp\/v2\/types\/publicacion"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/belzuz.com\/en\/wp-json\/wp\/v2\/media\/19009"}],"wp:attachment":[{"href":"https:\/\/belzuz.com\/en\/wp-json\/wp\/v2\/media?parent=21999"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/belzuz.com\/en\/wp-json\/wp\/v2\/categories?post=21999"},{"taxonomy":"area-de-practica","embeddable":true,"href":"https:\/\/belzuz.com\/en\/wp-json\/wp\/v2\/area-de-practica?post=21999"},{"taxonomy":"publicaciones","embeddable":true,"href":"https:\/\/belzuz.com\/en\/wp-json\/wp\/v2\/publicaciones?post=21999"},{"taxonomy":"idioma-publicacion","embeddable":true,"href":"https:\/\/belzuz.com\/en\/wp-json\/wp\/v2\/idioma-publicacion?post=21999"},{"taxonomy":"areas-practica-publicacciones","embeddable":true,"href":"https:\/\/belzuz.com\/en\/wp-json\/wp\/v2\/areas-practica-publicacciones?post=21999"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}Principle of consistency between the registered office and the actual place of business<\/h2>\n
Organisational jurisdiction and requirements for adopting the agreement<\/h2>\n
Tax regime for the transfer: exit tax and the attractiveness of the Portuguese framework<\/h2>\n
A transaction requiring specialised interdisciplinary advice<\/h2>\n
Conclusion<\/h2>\n