As an EU, EEA non-resident, are you obliged to appoint a fiscal representative in Portugal?
by Tânia Fernandes – Solicitor
Following the legislative change, regarding the obligation to appoint a fiscal representative of the non-resident and the situations of exemption from the said obligation, it is significant to make some clarifications.
The tax administration admits that the application for a tax identification number – NIF (Portuguese fiscal number) by non-residents citizens may not be carried out due to the legal requirement to appoint a fiscal representative.
It only requires the appointment of a fiscal representative in Portugal when, in the context of a legal tax relationship to be established, it is necessary to advise non-resident and ensure the necessary contact between them and the tax administration to enable the full exercise of their rights and compliance with their obligations.
Unlike the previous article, which contained the obligation of the non-residents in Portugal to appoint a fiscal representative, a citizen who has no tax domicile in Portugal, the European Union, or the European Economic Area (Norway, Iceland, and Liechtenstein), does not meet the legal requirements to have the tax resident status, is not a taxpayer, and is not subject to compliance with obligations nor intends to exercise any rights vis-à-vis the tax administration, is not required to appoint a tax representative.
The deadline to appoint a tax representative is 15 days, except in the case of starting a self-employed activity since in this situation you will have to make the appointment at the time of the registration of your start-up.
For non-resident citizens, with an address in an EU/EEA country, this appointment is always optional. Consequently, as tax representation is a way of overcoming the inability of the represented person to exercise rights and comply with tax obligations, the legal imposition of its designation should be reconducted to the context of a tax relationship established, or to be established with the tax authorities at a later stage.
As regards the registration and attribution of the NIF to a national or foreign citizen, as a non-resident, with an address in a third country, that is, in a country that does not belong to the European Union (EU) or the European Economic Area (EEA), the appointment of a tax representative is not mandatory.
However, the appointment of a fiscal representative becomes mandatory if, after obtaining the NIF as a non-resident and while living in a third country, he/she: a) owns a vehicle, or/and real estate in Portuguese territory; b) enters into an employment contract in Portuguese territory; c) exercise an activity as a self-employed person in Portuguese territory.
The limit to comply with the obligation to appoint a fiscal representative or to subscribe to the electronic notifications tax authorities is 15 days from the fact.
The tax representative assures his representative of the receiving of the correspondence sent by the tax administration, the fulfillment of all the accessory tax duties, and the exercise of his rights before the tax administration. However, the tax representative is not responsible for the payment of the non-resident citizen’s taxes.
He will only be liable under an exception, in case the non-resident citizen exercises a self-employed activity subject to VAT, considering there is a joint and several liabilities of the fiscal representative of the non-resident citizen.
The failure to appoint a tax representative, when mandatory, as well as the appointment that omits the representative’s acceptance, is punishable by a fine from €75.00 to €7.500,00, being the non-resident citizen unable to exercise any rights to the tax administration, including those of complaint, appeal or contest.