South Central Administrative Court

Judgment of 5 March 2013

Case No. 05670/12

With this judgment, South Central Administrative Court ruled on the legal pre-conditions for the assessment of compensatory interest.

The court observes that, despite the fact that compensatory interest are included in the tax debt itself, «the assessment of compensatory interest implies a separate justification that is different from the one relating to the tax to which they relate», in accordance with articles 35(8) and (9) and 77 of the General Tax Law.

Accordingly, the indication, in the notification of compensatory interest, of two equal amounts – corresponding to the tax and the interest calculated – means there is a material mistake in the amount of tax indicated, to which the interest relates, as the amount payable set out in the collection document is equal to the amount of the interest.

Finally, the court considered that the occurrence of such material, ostensive and obvious mistake in the justification, given that it is impossible for the tax to have «the same amount of the interest calculated thereon », only gives rise to its correction without any other consequences.

South Central Administrative Court

Judgment of 12 March 2013

Case No. 06415/13

With this judgment, in addition to clarifying the concept of electronic auctions and setting out its legal framework, the South Administrative Court mentions the consequences that may be brought about by an error in the form of process in the context of tax judicial proceedings.

Referring to the provisions of Portaria No. 219/2011, of 1 June, the court refers that «the electronic auction represents the form of sale that employs computer means to bid, on the internet, in the sale of assets in enforcement proceedings», and that the same was implemented with a view to «speed up the procedure ».

On the other hand, in the same decision, the court refers the fact that the error in the form of process amounts, both in tax judicial proceedings as in civil procedure, to a procedure nullity raised by the court of its own motion, in accordance with article 2(e) of the CPPT which refers to articles 199 and 202 of the Civil Procedure Code.

The court emphasises that the correction of that nullity consists of the «transformation into the correct form of process, and only implies the cancellation of the acts that cannot be made use of and the performance of those strictly necessary to have the procedure be as close as possible to the form laid down in the law », giving the provisions of articles 97(3) of the General Tax Law and article 98(4) of the tax procedural code as basis of its observations.

South Central Administrative Court

Judgment of 19 March 2013

Case No. 06371/13

In this Judgment, the Court ruled on the requirements of proof of transmission by post of notifications of tax assessments.

Considering the nature of the tax act and the notification of the tax assessment as a requirement of its perfection, the Court holds that the presumption of notification on the third working day subsequent to registration or on the first working day after that, depends on demonstrating that the registered letter was sent to the residence of the person to be notified, and the burden of proof of the Tax Administration.

In this context, the Court stated that the evidence to be held demands the identification of the registered post which served to support the communication tax act, for which is not enough the presentation of expedition guides of the notification letters which merely list the date of dispatch of the mail and the amount of records made.