General Tax Law (“LGT”)
Sham legal transactions
Taxation of the actual legal transaction underlying the sham transaction laid down in an authentic document is no longer dependent upon a court decision declaring the transaction null and void.
Statute of limitation
In case of tax deduction or tax credit (e.g., carry-forward of the following amounts: tax losses, funding costs, international tax credit, etc.) the statute of limitation of the right to assess tax corresponds to the term to exercise such right.
Countries, territories or regions with a clearly more favourable tax regime
The criteria that determine the inclusion in the list approved by ordinance of the Government member in charge of the area of Finance of countries, territories or regions with a clearly more favourable tax regime, are now set out in the law. Such criteria concern (i) the absence of a corporate income tax similar to the Portuguese one, or, even though existing, a corporate income tax with a tax rate lower than 60% of the Portuguese general tax rate; (ii) the divergence of internationally accepted standard of rules for determining the taxable base; (iii) the existence of special regimes or tax benefits that imply a substantial reduction of taxation, and (iv) the effective impossibility (legally, or in practice) to exchange tax relevant information.
The countries, territories or regions included in the list referred to above may request to be eliminated from the same, if they consider that the criteria to be included is not met.
The duty of tax secrecy does not apply in case of confirmation of the tax identification number and of the domicile for tax purposes of a given taxpayer to the bodies responsible for the commercial, land and car registry.
Requests of binding ruling may now be submitted by any taxable person – physical or legal persons, assets or organisation, de facto or de iure, bound to compliance of any tax obligation.
- On the other hand, taxpayers will now be able to challenge before the court in an autonomous judicial appeal the decisions issued by the tax authorities that:
- Conclude that the requirements to issue a binding ruling are not met or that refuse to recognize the urgent character of a binding ruling;
- Consider that the binding ruling cannot be issued, considering the special technical complexity of the matter;
- Proceed with the legal and tax qualification of the facts set out in the reply to the request for binding information.
The Tax Administration is now obliged to review the generic guidelines issued, taking into account, in particular, Superior courts’ case law.
Presumption of veracity of the declaration and other details of the taxpayer
Express reference is made to the existence of other requirements for the deductibility of costs.
Tax Procedural Code (“CPPT”) – administrative claim related to customs issues
The 2014 State Budget Law amends the appeal procedure in customs related matters, which was, until now, governed by specific rules, different from the general tax procedural rules.
In fact, the law that created the Technical Customs Board is revoked and the taxpayers will, henceforth, be able to file and administrative appeal from the decisions relating to tariff classification, the origin of the goods or their customs value, in similar terms to the rest of administrative claims against any tax assessments.
Furthermore, it is important to stress that, as a rule, the taxpayers cannot appeal directly to court from customs decisions. In fact, the taxpayers have to:
- File an administrative claim before going to court. Only from the decision in such administrative claim (express or tacit) may the taxpayers file an additional appeal;
- File a mandatory hierarchical appeal from the acts of the tax authorities, carried out during the customs clearance, that conclude that the goods should classify as goods of prohibited import or of conditional import.
General Regime of Tax Offences (“RGIT”)
The possibility of discharge (i.e., of corresponding criminal penalty not being applied) is restricted to crimes punishable by up to 2-year imprisonment, thus excluding tax fraud amongst other.
Fraud against the Social Security
The taxpayers’ behaviour aiming to avoid Social Security payments or to receive unduly benefits is only punishable as crime of fraud against Social Security in the unlawful advantage exceeds a given threshold (below which, the behaviour is punishable as a misdemeanour). Such threshold was increased from EUR 3,500.00 to EUR 7,500.00 (and is now in line with the similar threshold established for tax fraud).
Fraudulent release for consumption
The list of acts that constitute fraudulent release for consumption of alcohol and alcoholic beverages, oil and energy product and tobacco, is extended to expressly include the sale of taxable products in breach of the national or European rules on the matter of marking, colouring, denaturing and sealing.
Irregular release for consumption
The dispatch and export of taxable vehicles without complying with the legal obligations qualify as an irregular release for consumption and are punishable by a fine between EUR 250.00 and EUR 165,000.00.
Group Taxation - compliance
Following the amendments to the special regime of taxation of the Groups of companies (RETGS), the failure or delay in filing certain declarations concerning the application of the special regime of taxation of the Groups of companies (RETGS), will now be punishable with a fine ranging between EUR 500.00 and EUR 22,500.00.