Extraordinary measures endorsing the liquidity of families and companies: mitigation of the tax impact of the “moratorium” on the repayment of loans

SÉRVULO PUBLICATIONS 09 Apr 2020

Considering the current economic and social circumstances brought by the COVID-19 pandemic, and following the renewal of the declaration of a state of emergency, the Secretary of State for Tax Affairs has clarified, through Order No. 138/2020-XXII, the stamp duty rules applying to cases of deferral of the repayment of loans, as well as to cases of suspension of payment of rents and interest, approved by Decree-Law no. 10-J/2020, of March 26^th, as extraordinary measures endorsing the liquidity of families, companies, particular institutions of social solidarity, non-profit associations and remaining social economy entities.

According to stamp duty legislation, the deferral of a loan contract is considered as a granting of a new loan, for stamp duty purposes.

Hence, as a rule, stamp duty applies – as if it was a fully new contract – to cases of amendment of the existing loan contract, where the respective term is deferred or a new term is added, with effect only as from its termination.

This situation differs from an actual change of the original contract term, with retroactive effects, upon which stamp duty is due only if a higher stamp duty rate becomes applicable to the new term, in comparison to that applicable to the original term (e.g., if the original contract term was of less than one year (to which a 0.04% rate applied for each month or fraction) and, following the retroactive change, the new term is of one year or more (where a 0.5% rate applies)). In such cases, stamp duty would be liquidated on the borrowed amount, considering only the difference between the two rates.

In this context, Order No. 138/2020-XXII clarifies that a change of the original term, with retroactive effects, without resulting in the liquidation and payment of stamp duty (and not a deferral of the original term), is considered to take place in the following cases: 

• Deferral of all loans with payment of principal at the end of the contract, existing by the date of the entry into force of Decree-Law No. 10-J/2020, of March 26^th;
• Suspension of the payment of principal, rents and interest on loans with piecemeal reimbursement or piecemeal maturity of other cash benefits. 

In these cases, stamp duty will only be due if a higher rate becomes applicable to the new term, in comparison to that applicable to the original term, where stamp duty would be liquidated on the (initial) borrowed value, considering only the difference between the two applicable rates (if any). 

Furthermore, it is established that, in loans with ascertained or ascertainable duration, the capitalisation of accrued interest during the deferral period should not give rise to any stamp duty payments.

In all the above cases, the contract deferral is limited to the period of validity of the “moratorium”, as foreseen in Decree-Law No. 10-J/2020 (i.e., 30 September 2020).

Finally, in case of deferral of the loan guarantees, such as insurances, securities or sureties, no stamp duty applies, to the extent that these are materially ancillary to the deferred contracts.

Thus, Order No. 138/2020-XXII ensures that stamp duty does not act as a barrier to loan renegotiation, in a moment where these instruments are being created to endorse the liquidity of families and companies during an extraordinary emergency situation.

Diogo Feio | dtf@servulo.com

Teresa Pala Schwalbach | tps@servulo.com

Joana Leão Anjos | jla@servulo.com