Decreto-Lei 97/2026 Pins a 10% IMT Penalty on IVA-6% Homebuyers Who Vacate the Primary Residence Inside 12 Months — Pacote Fiscal Habitação Bolts the Affordable-Housing Loophole as Diário da República Publishes Tuesday 20 May

The Diário da República on Tuesday 20 May 2026 carried Decreto-Lei n.º 97/2026, the operational regulation that gives teeth to the affordable-housing branch of the Pacote Fiscal Habitação. The decree-law sets out a 10% surcharge on the IMT taxable value for any buyer who acquires a property at the reduced 6% IVA rate for moderate-price construction and then either (a) fails to designate the dwelling as own permanent residence inside six months of acquisition, or (b) vacates the property as own permanent residence inside the first 12 months of occupation. The clawback sits in Article 10.º of the decree and pulls forward the anti-speculation guardrail the government had flagged when President Seguro signed the Habitação Fiscal Package on Tuesday 12 May 2026.

The Clawback Engine

The Article 10.º text reads: "Sempre que o imóvel não seja afeto, no prazo de seis meses a contar da aquisição, a habitação própria e permanente do sujeito passivo", or where the buyer ceases to use the property as own permanent residence inside 12 months of occupation, "aplica-se um agravamento do IMT correspondente a 10% sobre o valor tributável". The clawback applies on top of any IMT line already settled at the Casa Pronta or notarial closing, and is levied by the Autoridade Tributária under the standard IMT enforcement machinery. The key wording mirrors the Article 10.º language already familiar from the IRS Code's habitação-própria clauses — meaning the AT can rely on its existing fiscal-residence cross-check infrastructure to flag triggers.

What Doesn't Trigger the Clawback

The decree carves out a narrow list of exceptional circumstances that disapply the IMT surcharge even where the buyer vacates the dwelling inside the protected window. These mirror the lateral-life-event exemptions inside the IRS Code: marriage or constitution of a união de facto, divorce or dissolution of a união de facto, and an increase in dependent children that the existing dwelling can no longer accommodate. The decree pulls these from Article 10.º of the IRS Code rather than defining them de novo, ensuring continuity with the family-event exemptions the AT has been applying since the 2024 IRS reform.

The decree also clarifies a separate operational point: the headline 6% IVA rate stays available to the developer even where the eventual buyer ends up not living in the property — "a não afetação do imóvel a habitação própria e permanente do sujeito passivo não determina a inaplicabilidade da taxa reduzida do IVA". The clawback is engineered to sit on the buyer side through IMT, not on the developer side through VAT.

The Bigger Package Mechanics

The 6% IVA rate is the headline measure inside the Pacote Fiscal Habitação. The rate applies to construction operations initiated between September 2025 and December 2029, with the underlying tax measure live until 31 December 2032. The package also caps the IRS marginal rate on moderate rents at 10% (down from 25%), removes the IMT on first-buyer purchases under €324,000, and re-routes part of the IFICI/non-resident regime. The 10% IMT clawback is the enforcement leg that keeps the headline 6% IVA from being arbitraged by buy-to-flip investors purchasing in the moderate-price band only to immediately let, vacate or resell the dwelling.

Letting-Out and Resale Windows

For the rental track inside the same package, the moderate-rent profile (under €2,300 per month) is the qualifying threshold and the property must remain leased for at least 36 months inside the first five years of occupancy-licence issuance. For the resale track, the dwelling must be sold inside 24 months of the occupancy licence. Falling outside either of these windows triggers a separate IRS/IMI reassessment under the package's secondary-residence rules. The Article 10.º IMT clawback overlays on the headline ownership-and-occupation chain rather than substituting for the let-and-resell timing rules.

Where the Clawback Bites

The 10% IMT add-on is calculated on the valor tributável — the higher of the declared purchase price or the AT's VPT (valor patrimonial tributário). For a typical moderate-price flat in the €250,000-€350,000 band that sits inside the first-buyer IMT-zero window today, the clawback materialises as a €25,000-€35,000 IMT charge — a number that wipes out most of the IVA reduction and any IMT exemption the buyer had banked at signing. For a higher-band dwelling above the first-buyer IMT exemption, the clawback stacks on top of the standard IMT line, lifting the effective transfer-tax cost into the high-teens percent range.

This calibration is deliberate. The Pacote Fiscal Habitação was negotiated as a supply-side stimulus aimed at a 14% national stock contraction and a planning-permission overhang that has kept moderate-price builds out of the active pipeline since the COVID-era inflation cycle. The 10% IMT clawback inside Article 10.º keeps the headline tax break from leaking into the second-home and investor-driven flipping market, while leaving the family-formation events that drove the prior IRS reform fully exempt.

What It Means for Foreign Buyers

The clawback applies by acquisition, not by buyer profile. A foreign-resident buyer using the 6% IVA rate to acquire a moderate-price newbuild faces the same six-month-designation and 12-month-occupation guardrails as a Portuguese-citizen buyer. The marriage, divorce and child-dependent carve-outs apply identically. For non-resident buyers seeking to acquire moderate-price stock with a view to later relocation, the safer path is to coordinate the acquisition with the actual residence move so the six-month designation clock starts running with the buyer in place at the dwelling.

The other operational consequence: a foreign buyer who acquires an IVA-6% dwelling and then accepts a posting elsewhere inside the first 12 months will be exposed to the clawback unless the move qualifies under a family-event carve-out. The Article 10.º wording does not extend the carve-outs to job-related relocations.

How the AT Will Police It

The Autoridade Tributária's standard enforcement chain for habitação-própria clauses runs through the address registered in the IRS Modelo 3 filings, the caderneta predial attribution and the cross-check against the cadastro dos sujeitos passivos. Any of these breaking the habitação-própria designation inside the protected window will trigger a notification and the IMT add-on assessment. Buyers who fall under a carve-out must substantiate the family event through the standard Conservatória do Registo Civil documents — marriage certificate, divorce decree or birth registration of the new dependent — through the AT's normal documentation channels.

The decree-law lands on the same Tuesday-Wednesday cycle that Banco de Portugal tightened the maximum DSTI ratio on new mortgages to 45% and the IFRRU 2030 €480 million BEI-and-CEB loan entered advanced negotiation. The three measures collectively recalibrate the buy-and-build side of the Portuguese housing market for the second half of 2026.

What This Means for Expats

• If you are buying an IVA-6% moderate-price newbuild as your future Portuguese primary residence, coordinate the timing of the purchase with the actual residence move. The six-month designation window starts on acquisition; missing the designation triggers the 10% IMT add-on on the valor tributável.
• If you face an unexpected move inside the first year of occupation for a job-related reason rather than a family event, the Article 10.º carve-outs will not cover the relocation and the IMT clawback will apply. The cleaner route is to defer the move past the 12-month occupation anniversary if practically possible.
• If you marry, divorce, enter or dissolve a união de facto, or add a dependent child inside the protected window, the carve-out is available but requires substantiation through the Conservatória do Registo Civil document chain. Hold onto the certified copies and file them with the AT promptly to head off any automated clawback notification.
• If you are routing through a Casa Pronta or notarial closing in the next few weeks, ensure the acquisition documentation flags the IVA-6% rate explicitly and that the buyer's declared morada fiscal updates to the new property within the standard 60-day AT timeline; the address change is the first signal the AT's monitoring engine reads as confirming habitação-própria designation.
• If you are advising clients on Portuguese moderate-price newbuild stock, factor the Article 10.º clawback into the buy-side underwriting. The headline 6% IVA saving and any first-buyer IMT exemption are now both subject to a contingent clawback if the habitação-própria timing slips.

Sources: Diário da República (Decreto-Lei n.º 97/2026, 20 May 2026); ECO (Tier 2 Portuguese-language media), 20 May 2026.