O regime da neutralidade fiscal nas operações de reestruturação empresarial da fusão e da cisão

Abstract

Corporate restructuring operations are aimed at redefining the economic and business fabric of a company and are based on economic motivations. In addition to economic purposes, the question arises as to whether these operations may be carried out for tax purposes. To counter the costly consequences of such operations and to avoid the hindering of the financial efficiency of companies by the applicable tax system, the possibility of opting for taxation under the tax neutrality regime is essential. Under such regime the taxation of gains obtained once the operations take place is deferred. Notwithstanding this special regime, companies shall also take into consideration the general taxation regime so as to evaluate and understand, on a case-by-case basis, which regime is more favorable. When opting for the tax neutrality regime, the fact that it implies a tax advantage cannot, by itself, be the reason for such option. It is not enough to opt for the neutrality regime exclusively based on a tax motive; the existence of an economic motive is imperative otherwise the specific anti-abuse rule will apply, and the application of tax neutrality regime is denied on the grounds of tax evasion. However, for the correct application of the specific anti-abuse rule, the Portuguese tax authorities have to perform a rigorous and cautious assessment.

Date of Award	19 May 2022
Original language	Portuguese
Awarding Institution	Universidade Católica Portuguesa
Supervisor	Rui Duarte Morais (Supervisor)