Complexities of Portugal's NHR & Potential Solutions

Hi,

I’ve spent more time than I should looking at various setups for Digital Nomads who want a new residence to optimize both their corporate and personal income tax.

Like me, when you were researching such options, Portugal’s Non Habitual Residence (NHR) program likely came up.

I just want to share the information I have collected. In the process, I’ve spent time and money talking with tax consultants in Portugal. Conflicting information is everywhere, therefore please note that this is my interpretation of the various patchwork of laws and OECD frameworks and regulations.

If you disagree with any particular point, let me know why, I’d be happy to update this to be more accurate.

As much as I enjoy a cold Super Bock, I chose to not pursue setting up my residence in Portugal.

Hopefully this can help you in deciding whether or not Portugal’s NHR is for you.

The challenge of foreign sourced income

On paper Portuguese NHR looks great: For 10 years, you get a total exemption on taxes from foreign sourced income.

Any nifty digital nomads might think at this point: “Great I just need to figure out how to structure my income to make it “foreign sourced”.

During my travels I’ve met other nomads who just assumed their income would be foreign sourced and rushed right in to the NHR, only to get loads of headaches afterwards.

Of course, it goes without saying that any freelance type of work (even for foreign customers) will not be considered “foreign sourced” if you’re a resident and doing the work in Portugal.

I remember one person who said “but what if I’m in Bali or Thailand for 5 months, can that income be considered foreign sourced?”. Most likely you’re not declaring that income in Bali, Thailand, or any other place you might be travelling to, so it will be considered Portuguese sourced income.

What if I set up an offshore company?

So the question becomes, what if I set up a legal entity in an other country and pay myself dividends?

The frequent options to set this up include:

  • Maltese trading and holding company.
  • Cyprus LLC.
  • If in the IT sector, Georgia’s IT tax free zone.
  • A UAE company, or any other no tax jurisdiction.

You often see people talk about “Controlled Foreign Company” (CFC) regulations, and how that will be problematic.

Holding companies would fall into the scope of CFC regulations, but trading companies would not, as the income would be active and not passive. CFC is not the issue.

The trouble comes from the fact that your company will likely not have sufficient economic substance in those countries.

According to OECD frameworks, if you’re the sole shareholder and director, it can be deemed by Portuguese taxmen that the company’s effective place of management is Portugal and therefore that the corporation should be taxed in Portugal.

This would leave you liable for Corporate Income Tax as well as Personal Income Tax on the dividends. Not desirable.

You could try and get around it by renting offices in that country, hiring staff, appointing educated and qualified directors to the board, but you have to ask: do you really want to do all of this to avoid tax? Once you’ve gone through all these costs, will there really be any benefit to avoid tax?

If you’re making less than 30K / month, it is highly unlikely that there is any real benefit to going with such a set-up.

Furthermore, setting up such substance might avail you from tax obligations in Portugal, but it might not. If you are the most senior person in the company, that you reside in Portugal, and that you manage the company in Portugal, then having an office in Dubai with two staff, and flying there once a year to sign the board minutes might not be enough.

Of course, it is not a given that the tax authorities will hunt you down, but if you’re going to go to the effort of relocating and establishing a new home base, do you really want it done on a shaky foundation which has more holes than Swiss cheese?

For me the answer was a clear no. Swimming against the tide is tiring, and I want to sleep well at night.

Salvaging tax benefits of Portugal’s NHR

As a digital nomad with active income, Portugal’s NHR isn’t the tax free dream that local bean counters and lawyers pitch it as.

However, you can still achieve a reasonable tax rate with the NHR provided you set up a “transparent” entity.

I would be cautious about assuming that a US LLC (Delaware/Wyoming/New Mexico) will be considered transparent in Portugal. In the UK, Canada, and France, rulings have considered them opaque.

A UK LLP might be a better option.

You’d then declare UK LLP profits as professional income.

You’d have to pay 21.4% of social security on “relevant income”, which is 70% of reported income.

So if you make 100K in profits, you’d pay 14,980 or 14.9% in social security. It seems you can opt-in for a further 25% reduction, reducing this amount to 11,235 or 11.2%.

Finally you’d pay 20% income tax on the after SS profits, or 17,758.

This would mean that your total burden SS + Tax would be 28.9%.

For some, simply registering as a freelancer in Portugal and using the simplified tax regime rather than the NHR could result in better rates, depending on the amount of money you make, and your margins.

Conclusion

When looking for effective tax planning solutions, Portugal has brought up more questions than answers. No two professionals seem to agree, even on my final solution which would still come with a burden of 28.9%.

I ultimately decided against it, because living in doubt is not what I’m seeking to achieve.

What else can we add to this? In particular to my assessment of the best possible set-up for someone relocating to Portugal.

3 Likes

Any income coming from abroad should fit “foreign sourced” and taxed on remittance basis or taxed at zero rate - otherwise what exactly are their “exemptions”?

This is great! Thank you! This has been doing my heading! Couple of questions if you don’t mind.

  • Assuming the UK LLP option, where you pay out part as dividends and part as salary, wouldn’t the dividend part be exempt? Or it won’t because it’s not really foreign income as you are creating if from PT?
  • so this setup assumes that you have to register as self-employed in PT and that’s why do you pay the self-employed rate for social security on this UK LLP income and not the employee rate?
  • It does make sense that In determining residence status a UK LLP would be deemed resident in the jurisdiction from which it is controlled, which would ordinarily be the jurisdiction in which its members are situated. I don’t think there is a way around it. But from UK perspective, if you are non-resident in UK then you don’t need to pay anything there or do you still need to pay at least NIC and perhaps mandatory pension?
  • What about the additional solidarity rate, which varies between 2.5% and 5%, applies to taxpayers with a taxable income exceeding EUR 80,000 (only on the amount above 80K).

So after all of that, out of curiosity, what sort of setup are you thinking to use if not PT? I’ve been trying to figure out the best option and after a ton of research, I’m still confused.

Wasn’t it that the rich are able not to pay taxes as they don’t own things (their companies own them) and only pay themself out salary/dividends which will be taxable for living expenses that otherwise can’t be qualified as ‘company expenses’? So the most $ stays in their companies and gets invested.
So you could say that you don’t pay out your profit as salary/dividends, expense your accommodation in PT as company office/meeting space, as much as possible put everything as expenses and keep the profits in the UK LLP and use it to buy investments in/out of UK?
Curious about your thoughts.


Also all of the above is based on the assumption that you are a one wo/man band and you work for yourself. However if you are actually employed by say UK or US entity as an employee then your income would be exempt as foreign, right? And companies can employ people abroad but they might end up having to set up a local entity to actually pay employer taxes and social… which they probably wont do.

Moral of the story do not try to diy tax - go to a specialist

Haven’t found two tax specialists that have given the same answer. Seems like the confusion is on both sides of the situation. Good luck to all.

How is this the moral of the story? Anybody who’s gone down the NHR route hasn’t found two “specialists” who agree.

This has been my take on it as well.
Because of the complexities, I would not suggest Portugal to people going there first and foremost for tax reasons.
If you love Lisbon or Porto and want to live there, well that’s a different story and you can make it work with a reasonable tax burden.

Hi sorry it took more than 10 days for me to get back to you.

The UK LLP option is one which I view as possible and two specialists I’ve talked to seem to agree. Doesn’t mean it won’t be questioned at some point.

Assuming the UK LLP option, where you pay out part as dividends and part as salary, wouldn’t the dividend part be exempt? Or it won’t because it’s not really foreign income as you are creating if from PT?

Partnerships do not pay dividends, and your intuition on the source of the income is correct. LLPs are “transparent” which means that the profits flow to the partners who pay tax on them. If the said partner is a Portuguese resident, that’s where it will be taxed.

so this setup assumes that you have to register as self-employed in PT and that’s why do you pay the self-employed rate for social security on this UK LLP income and not the employee rate?

Yes the setup assumes you are a partner of the LLP, and that you declare your partnership profits as self-employed revenue, you are not an employee of the LLP.

It does make sense that In determining residence status a UK LLP would be deemed resident in the jurisdiction from which it is controlled, which would ordinarily be the jurisdiction in which its members are situated. I don’t think there is a way around it. But from UK perspective, if you are non-resident in UK then you don’t need to pay anything there or do you still need to pay at least NIC and perhaps mandatory pension?

So under the set-up, as long as you don’t have any UK clients, you won’t owe anything in the UK.

What about the additional solidarity rate, which varies between 2.5% and 5%, applies to taxpayers with a taxable income exceeding EUR 80,000 (only on the amount above 80K).

I might be wrong but my understanding was that it isn’t applied if you have the flat 20% NHR rate.

Finally I decided to incorporate and get residency where I am happy to spend most of my time, which is Indonesia. Reasonable tax burden.

If I were to do it purely for tax in Europe, Cyprus or Bulgaria would be the choice.

But I wouldn’t do something purely for tax, lifestyle considerations come into play.