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New special regime of IRS taxation of gains derived from option plans


On May 25th, 2023, the Law 21/2023, of May 25th, was published and approves a new regime applicable to startups and scaleups and the new regime of IRS taxation of gains derived from stock option plans, subscription plans, attribution plans or other plans with equivalent effects, on securities or equivalent rights, even if ideal in nature, created for the benefit of employees or members of corporate bodies.

The new published law approves a special regime to provide for a special rate of 28% applied to only 50% of the gains (without prejudice to the option for taxation at progressive IRS rates).

This regime is applicable to plans attributed by entities, including startups, that fall under one of the following points:
  • in the year prior to the approval of the plan for shares or equivalent rights, is qualified as a micro, small or medium company or as a small-medium capitalization company;
  • in the year prior to the approval of the share plan or equivalent rights, develops its activity within the scope of innovation, being considered as such the entities that have incurred expenses with investment in research and development (R&D), patents, industrial designs or models or computer programs equivalent to at least 10% of its expenses or turnover.

In relation to the moment taxation of this income, the regime has been altered in the sense that the taxation will be deferred to the first of the following moments: sale of the securities or equivalent rights acquired through the exercise of the option; loss of the quality of resident in Portuguese territory (exit tax); free transfer of the securities or equivalent rights.

The application of this tax regime depends on the maintenance of the underlying rights of the securities generating the gains or equivalent rights for a minimum period of one year.

Except in cases where the income in question is attributed by entities which, in the year prior to the approval of the plan, are qualified as a startup or as a micro or small enterprise, this special regime does not apply to taxpayers who:
  • directly or indirectly hold no less than 20% of the share capital or voting rights of the entity attributing the plan;
  • are members of corporate bodies of the entity attributing the plan.

The new regime is effective from January 1st, 2023, but is also applicable to plans approved until December 31st, 2022, provided that they are attributed by entities that, within 12 months after the entry into force of this law, are recognized as startups under the legal regime in force, or can demonstrate that at the date of approval of the plan they were qualified as startups.