Constitutional Court 

Judgment of 20 October 2015, published on 13 November 2015

Case No. 27/15

In this Judgment, the Constitutional Court rules in favour the constitutionality of the provision set forth by Article 9 of Decree-Law 119/2012, of 15 June, which creates the Food Safety Duty (Taxa de Segurança Alimentar Mais), as well as of the rules set forth by Articles 3 and 4 of Ordinance No. 215/2012, of July 17, which determine the amount and scope of exemption.

According to the Constitutional Court, being a financial contribution to a public body and not a tax, the Food Safety Duty may be created by government decree, regardless of parliamentary authorization, without breaching the principle of relative legislative reserve of the Parliament set forth in Article 165(1)(i) of the Constitution.

The Constitutional Court further considered that the criterion used by the legislator to define the duty assessment base does not breach the principle of equivalence, as it enables the differentiation of duties paid, considering their amount, as a result of the benefits that each taxpayer must compensate.

Supreme Administrative Court Judgment of 11 November 2015

Case No. 0968/13

In this Judgment, the Supreme Administrative Court rules that the exemption from Prop- erty Transfer Tax set forth in Article 270(2) of the Insolvency and Corporate Recovery Code is applicable not only to the sale or the exchange of companies or business units as a whole but also to the sale and the exchange of individual real estate assets, provided the transaction is part of an insolvency or payment plan or performed within the procedure to liquidate an insolvent estate, considering that the legislator, with such tax incentives, seeks to encourage and support the expedited sale of assets considering the interests of creditors and the public interest that business operations resume normality.

According to the Court, this solution is foreseen in the law authorizing the Government to legislate on this matter and, therefore, a different interpretation would be unconstitutional, as it would disregard the sense and scope of the legislative authorization.

North Central Administrative Court 

Judgment of 30 September 2015, published on 11 November 2015

Case No. 01080/15

In this Judgment, the North  Central Administrative  Court rules that, being the Tax Authorities in charge of determining the adequacy of the guarantee to be provided within a tax enforcement procedure, a guarantee should be accepted if, objectively and at the time of the application, it is sufficient to guarantee the enforced debt and associates costs and expenses, and cannot be rejected on abstract or theoretical grounds.

The Court also considers that an administrative act rejecting an application for provision of guarantee that does not justify the reasons why intangible assets of a much higher value than the total enforced amount are not eligible to guarantee the payment must be annulled, as it may not be syndicated by Court.

South Central Administrative Court 

Judgment of 22 October 2015, published on 16 November 2015

Case No. 08741/15

In this Judgment, the South Central Administrative Court states that profits obtained from the onerous transfer of an urban property purchased as a rural property before the entry into force of the PIT Code, and that was still classified as such at the time of its entry into force, shall not be subject to PIT even if the property was subsequently classified as urban (plot for construction) and sold as such.

South Central Administrative Court

Judgment of 19 November 2015, divulged on 16 November 2015

Case No. 05690/12

In this Judgement, the South Central Administrative Court states that the fact that the opponent is not responsible for managing of the administrative and financial departments of the company only taking upon himself the technical issues, without autonomy for the negotiation of expenses incurred regarding hiring of employees, equipment or supplies, is not enough to conclude that he is not a de facto manager, since the company could only be legally bound by his signature, as the signatures of both managers would be mandatory for that purpose.

In this regard, the Court also considers as managerial acts those that are performed with animus decidendi in other business areas, because all these acts affect, directly or indi- rectly, to a greater or lesser extent, the activity of the company.

Administrative and Tax Arbitration Centre Tax Arbitration Court

Arbitration Decision of 9 June 2015, published on 5 November 2015

Case No. 58/2015-T

In this arbitration decision, the Arbitration Court rules that, despite the CIT Code, in its wording prior to the CIT Reform of 2014, having set forth that the negative difference between capital gains and losses resulting from the onerous transfer of corporate holdings, as well as from other losses or negative net asset variations of equity relating to corporate holdings, are only considered for taxable purposes at half their value, this provision is not applicable to the costs resulting from the application of the fair value method to financial instruments, which fulfil the criteria set forth in Article 18(9)(a).

In this regard, the Arbitration Court states that accounting losses arising from financial instruments registered at fair value, so long as they are recognized in the P&L, are equity instruments, are quoted in a regulated market and the taxpayer does not own equity representing more than 5% of share capital, must be considered at their full value for CIT purposes.

Administrative and Tax Arbitration Centre Tax Arbitration Court

Arbitration Decision of 7 July 7 2015, published on 5 November 2015

Case No. 810/2014-T

In this arbitration decision, the Arbitration Court states that at the date of the events of this arbitration decision, the “unmarried partners” could opt for the tax regime for married and not legally separated taxpayers, under Article 14 of the PIT Code, not being foreseen that the option for either regime would be irrevocable.

In this regard, having met the criteria and being within the deadline to do so, the Court considers legally admissible the subsequent choice by the taxpayers for the application of a regime different from the one chosen in their first income tax return.

Administrative and Tax Arbitration Center Tax Arbitration Court

Arbitration Decision of October 26, 2015, published in November 2015

Case No. 7/2015-T

In this arbitration decision, issued in reference to a registered operator which admits into national territory new vehicles, therefore being stated as owner in initial registration in the Motor Vehicles Registry even if the vehicles have already been sold at that stage, the Arbitration Court stated that, though resorting to the Motor Vehicles Registry is a structural element of the Road Tax assessment system, the determination of Road Tax’s taxpayer cannot be ascertained exclusively from the vehicle ownership stated in the registry, which works only as a presumption, being rebuttable as per Article 73 of the General Tax Law.

The Court considered that the registered owner stated in the Motor Vehicle Registry must be allowed to submit sufficient evidence to prove that, ultimately, the actual owner of the vehicle is a third party, as otherwise it would be accepting the prevalence of the formal truth over the material truth.