October 3, 2023
Portugal enacts legislation introducing public country-by-country reporting for multinational enterprises
On 23 August 2023, Decree-Law no. 73/2023 (Decree-Law) was approved, transposing the European Union (EU) public CbCR Directive (Directive (EU) 2021/2101 of the European Parliament and of the Council of 24 November 2021 amending Directive 2013/34/EU as regards disclosure of income tax information by certain undertakings and branches). For more information on the public CbCR Directive, see EY Global Tax Alert, EU Public CbCR Directive enters into force on 21 December 2021, 2 December 2021.
The Decree-Law establishes the obligation for eligible companies to report information on global operations on their website or the ultimate parent company's website, in particular: (i) the profits made in the various jurisdictions where they operate; (ii) the number of employees on a full-time equivalent basis; (iii) a brief description of the nature of the activity; (iv) the currency used for the presentation of the report; (v) the amount of income (including intragroup transactions); (vi) the amount of profit or loss before income tax; (vii) the amount of income tax recognized in the period, (viii) the amount of income tax paid on a cash basis; and (iv) the amount of accumulated earnings.
This reporting is mandatory for multinational groups with consolidated revenues of €750 million or more in each of the last two financial years, covering groups with a parent company based in the European Union or that operates in the European Union through a subsidiary or a branch and has a presence in more than one jurisdiction. The reporting also covers individual entities that meet this criterion.
The Decree-Law applies to financial years starting on or after 22 June 2024. For undertakings with a calendar financial year, the reporting obligation will apply for the first time to financial year 2025 and the report must be published until the end of the calendar year 2026.
The report must be published in the language in which the financial statements are presented, and in at least one of the official languages of the European Union, no later than 12 months after the balance sheet date of the financial year for which the report is drawn up. The report must remain accessible for at least five consecutive years.
In addition, for entities with financial statements that are subject to a statutory audit, the audit report must state whether the company is obliged to publish the public CbCR for the previous period and, if so, whether the report has been published in accordance with the Decree-Law.
The Decree-Law also includes an optional provision that allows the covered groups to temporarily omit commercially sensitive information for a maximum period of five years if its disclosure would seriously damage the commercial position of the companies to which the report relates. However, information relating to the EU list of non-cooperative jurisdictions for tax purposes should never be omitted.
The new reporting obligations will have a significant impact on in-scope MNEs. Compliance with the obligations will largely depend on the availability and quality of the information to be disclosed. As a result, a timely review and adaptation of data-capture processes will be required. Compliance with the new reporting rules is particularly relevant for board members, given that the members of administrative, management and supervisory bodies are held responsible for noncompliance, which can result in fines of between €1,500 and €30,000.
For additional information with respect to this Alert, please contact the following:
Ernst & Young, S.A., International Tax and Transaction Services — Transfer Pricing, Lisbon
Published by NTD’s Tax Technical Knowledge Services group; Carolyn Wright, legal editor