Constitutional Court

Judgment no. 362/2015, of 23 September 2015

Case no. 760/14

In the Judgment in question, the Constitutional Court declared unconstitutional the provision of Article 100 of the Insolvency and Corporate Recovery Code (“CIRE”), when interpreted as allowing that the declaration of insolvency is capable of suspending the statute of limitation of tax debts attributable to the person with secondary liability in a tax procedure, due to the breach of Article 165 (1) I of the Constitution.

Although Article 100 of the CIRE does not contain specific wording aimed at addressing tax debts, such interpretation would imply the provision for a new cause of suspension of the statute of limitation period - in addition to those provided for in the General Tax Law - following the declaration insolvency. Thus, this subject falls within the scope of the taxpayers’ guarantees.

Being taxpayers’ guarantees a matter reserved to the Parliament, and given that the legislative authorisation granted to the Government does not include the possibility of ruling on matters relating to the statute of limitation period of tax debts, particularly those related to the person with secondary liability, Article 100 of the CIRE, with such interpretation, is vitiated by organic infringement of the Constitution.

Supreme Administrative Court

Judgment of 5 August 2015

Case no. 0990/15

In the Judgment in question, the Supreme Administrative Court states that, notwithstanding the recent amendments to Article 278 of the Tax Procedural Code, it is not legitimate to conclude that a judicial claim immediately referred to a higher instance has no longer the staying effect of the decision against which the claim is submitted.

Given that the staying effect is essential to ensure the effective judicial protection of the rights or interests of the claimants affected by acts of the Tax Authorities, no acts can be carried out to enforce such decision.

Supreme Administrative Court

Judgment of 23 September 2015

Case no. 01034/11

In the Judgment in question, the Supreme Administrative Court states that after the issuance of a VAT assessment and the corresponding delivery of tax by the taxpayer, the Tax Authorities cannot refuse the right to deduct the VAT by invoking the invalidity of such assessment, as otherwise the principles of good faith and justice would be breached, being also breached the principle of VAT neutrality.

South Central Administrative Court Judgment of 10 September 2015 Case no. 08245/14 In the Judgment in question, the South Central Administrative Court states that Article 8 of the General Regime of Tax Infringements does not establish any presumption of guilt of the manager for the insufficiency of the debtor’s assets. Therefore, the Tax Authorities have the burden of proof of such guilt so, within the order of reversion of tax foreclosure proceeding, in order to enforce the subsidiary liability.

Administrative Arbitration Centre

Tax Arbitration Court

Arbitration Decision of 31 March 2015

Case no. 770/2014-T

In the Arbitration Decision in question, the Arbitration Court states that the chargeable event underlying the taxation of capital gains arising from the sale of shares occurs upon sale thus entailing a unitary and instantaneous nature.

Given that such chargeable event does not have a complex and progressive nature, legal amendments introduced during the year in which the sale occurs but after such sale takes place, cannot be effective, as it would entail the retroactivity of tax law prohibited by the Portuguese Constitution.

Administrative Arbitration Centre

Tax Arbitration Court

Arbitration Decision of 30 June 2015

Case no. 96/2015-T

In the Arbitration Decision in question, the Arbitration Court states that, within the taxation of rental income for Personal Income Tax Purposes, taxpayers having their residence outside the European Union or the European Economic Area are entitled to specific deductions and to carry forward losses, even though they are not allowed to aggregate income of such source, as otherwise the source of the income would be jeopardised.