Given the facilities in terms of company management and tax advantages currently offered by our neighbouring country, Portugal, and combined with the characteristics of our firm, which is clearly focused and equipped to provide comprehensive legal advice with an "Iberian" scope, we regularly receive queries on the feasibility of transferring the tax domicile of companies from Spain to Portugal.
The legal procedure for the international transfer of the registered office is regulated by Law 3/2009, of 3 April, on the structural modifications of commercial companies (hereinafter "Structural Modifications Law").
The Structural Modifications Law contemplates both the transfer of the registered office of a Spanish company abroad and the transfer of the registered office of a foreign company to Spanish territory. As regards the first option, the Law provides that such a transfer may only be made to a State which allows, in its territory, the legal personality of the transferring company to be maintained. It goes without saying that Portugal fully complies with this basic requirement. On the other hand, normally, the transfer of the registered office to a foreign country implies that the company changes its original nationality and becomes governed by the laws of the state where its new registered office is located, and this is the case in Portugal.
Spanish law provides that such transfer shall be governed by the provisions of the international treaties or conventions in force in Spain and by the Structural Modifications Law itself and, in particular, Article 93 of that law provides that the transfer abroad of the registered office of a company incorporated under Spanish law may only take place if the State to whose territory it is transferred allows the legal personality of the company to be maintained.
As regards the general impediments established in the Law, the Law establishes that the commercial company that intends to transfer its domicile may not be in liquidation or in insolvency proceedings.
International Transfer of Registered Office Project
In view of the above, within the preparatory phase of this restructuring operation, as the international transfer of the registered office is described, and as is the case in most other restructuring operations, the obligation is included to draw up a project by the company's administrators, the "Transfer Project", where all the aspects to be taken into account in relation to the said transfer are contemplated. The Transfer Project must be signed by all the directors and if any of them is missing, this must be indicated at the end of the project, stating the reason.
As regards the content of the Transfer Plan, it must include: i) the name and registered office of the company, as well as the details identifying the entry in the Commercial Register; ii) the proposed new registered office; iii) the Articles of Association that must govern the company, including all the changes necessary for the transfer to be possible in accordance with the regulations in force at the destination address; and; iv) the rights envisaged for the protection of shareholders and creditors, as well as employees.
After approval of the Transfer Plan by the company's directors, they must submit it for filing with the Companies Registry of the registered office of the company. Once the Transfer Plan has been deposited and qualified by the Registrar, the latter will transfer it to the Central Mercantile Register and it will be published in the BORME, including both the fact of deposit and the date of publication.
Until the Draft Transfer has been deposited, the notice of the General Meeting, if any, which is to decide on it, may not be published.
Article 96 of the Structural Modifications Act obliges the directors to prepare a report explaining and justifying in detail the legal and economic aspects of the Transfer Plan. Therefore, the report must take into account both the regulations of the country of origin and of the country of origin. The report must also consider the consequences for shareholders, creditors and employees.
Meeting Resolution concerning the International Transfer of the Registered Office
The requirements mentioned below are without prejudice to the fact that in practice, in most cases, resolutions are adopted at a general meeting (at which all the shareholders are present and agree to the meeting and the agenda) and, normally, unanimously, which simplifies all the requirements for convening the meeting and the quorum for constitution and voting.
The notice of meeting must be published in the BORME and in one of the newspapers with wide circulation in the province in which the company has its original registered office, at least two months before the date of the general meeting that is to decide on the transfer of the registered office. The notice must contain the following information: the registered office and the intended registered office abroad, the right of shareholders and creditors to examine at the registered office the draft transfer plan and the directors' report, as well as the right to obtain copies of these documents free of charge; finally, the right of shareholders to withdraw and creditors to object, as well as the manner in which these rights may be exercised.
With regard to the adoption of the corporate resolution itself, Article 97 of the Structural Modifications Act establishes that the international transfer of the registered office to another country must necessarily be agreed at a shareholders' meeting, following the criteria established by the company. With regard to the quorum and majorities required, it is established that the resolution must be adopted, on first call, with the concurrence of shareholders representing 50% of the voting capital and, on second call, with the concurrence of at least 25% of said capital.
As the majority required, it is established that, when shareholders representing less than 50% of the voting capital are present, the resolution will only be valid if it is adopted by a reinforced majority of two thirds of the capital present at the meeting. Specifically, in the case of limited liability companies, it is established that the resolution shall require, in all cases, the favourable vote of at least two thirds of the votes of the shares into which the share capital is divided.
Shareholders who have opposed the transfer of the registered office abroad may exercise their right to withdraw from the company. In order to enable the registration of the transfer agreement, the directors must enclose a declaration that no shareholder has exercised the right to withdraw from the company.
Similarly, the Structural Modifications Act also establishes the right of objection of the company creditors whose claims arose prior to the date of publication of the Transfer Plan.
Registration of the Transfer of Domicile Agreement
Once the above requirements have been met, the public deed containing the agreement to transfer the registered office shall be filed with the Commercial Registry and the corresponding Commercial Registrar shall certify that the necessary requirements for the transfer have been met. After such certification, the register is closed for further registrations.
Furthermore, the competent Registrar of the company's original domicile will certify compliance with the acts and formalities to be carried out by the entity prior to the transfer, and will not cancel the company's registration until it receives a communication from the judicial body, registry, notary or competent authority of the new domicile that confirms the company's registration in the new Companies Register of the destination jurisdiction. At that time, the company's company register must be cancelled and reference must be made to the new registration details of the foreign domicile. The effective date of the registration of the new domicile will be the date on which the company is registered in the new competent commercial register, once the certificate of its registration in the new domicile has been provided and notices of such registration have been published in the BORME and in one of the newspapers with wide circulation in the province of the company's domicile of origin.
Tax situation in Portugal for commercial companies
Portuguese companies are subject to the so-called IRC (or Corporate Income Tax), the current rate of which is 21% (as opposed to 25%, the general rate in Spain, or the reduced rate of 23% for companies and entities with a turnover of less than one million euros). To the taxation of business profits through the IRC, a Municipal Surcharge ("derrama municipal") of up to 1.5% of taxable profits must be added (depending on the municipality where the activities are carried out), reaching, therefore, an added tax rate of 22.5%, on the result of the financial year. However, reduced rates are applicable to SMEs under certain circumstances.
Moreover, in Portugal, tax losses can be offset against positive profits without any time limit. An additional advantage is that, when a Portuguese resident company pays dividends to its Spanish resident shareholders, these will be exempt from tax in Portugal and, in principle, will enjoy high tax exemptions in Spain.
In conclusion, considering only the tax aspect, the change of domicile to Portugal could be more efficient, considering that the IRC rate is lower.
Taking into consideration the above information, if your company needs legal or tax advice to study a possible change of registered office from Spain to Portugal, or any other type of legal or tax advice related to a commercial activity involving Spain, Portugal or both countries. Do not hesitate to contact Belzuz Abogados to discuss your case.
Departamento Derecho mercantil y societario | Madrid (España)
Belzuz Abogados SLP
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