Constitutional Court
Judgment No. 622/2013 of 26 September 2013, published in Diário da República (Portuguese official gazette) of 6 November 2013
Case No. 143/13

In this judgment, the Constitutional Court considered that article 15(1)(j) of Decree-Law No. 13/71 of 23 January as amended by Decree-Law No. 25/2004 of 24 January, providing for the payment of a fee for the issue by EP – Estradas de Portugal, S.A. of an opinion in connection with the procedures for the posting of placards or advertising objects in its area of jurisdiction, the amount of which increases with each square metre or fraction of square metre of the placard or advertising object to be posted, does not breach the Portuguese Constitution (“CRP”), notably, the principle of equality set out in article 13.

Indeed, the Constitutional Court considered that the benefit gained by individuals may constitute a criterion of calculation of the amount of a fee, even if it is a licence fee, and therefore, since the benefit gained by the advertiser tends to increase with the increase of the communicative effectiveness of the message advertised, which happens with the increase of the size of the advertising placard used, the fee established treats differently situations that are different and does not breach the principle of equality.

Constitutional Court
Judgment No. 340/2013 of 17 June of 2013, published in Diário da República (Portuguese official gazette) of 11 November 2013
Case No. 817/12

The Constitutional Court did not hold unconstitutional the rule arising from articles 61(1)(d) and 125 of the Código de Processo Penal (Code of Criminal Procedure) interpreted as meaning that the documents obtained through a tax inspection in accordance with taxpayers’ duty of cooperation, may subsequently be used as means of evidence in criminal proceedings for the commitment of a tax fraud crime.

Constitutional Court
Judgment No. 759/2013 of 30 October 2013, published in Diário da República (Portuguese official gazette) of 18 November 2013
Case No. 474/13

The Constitutional Court held unconstitutional, attributing to the judgment general binding force, the rule set out in the final part of article 146-B(3) of the Código de Processo e Procedimento Tributário (Tax Procedural Code), when applied in the scope of the assessment of the taxable matter by indirect methods, pursuant to the provisions of article 89-A(8) of the Lei Geral Tributária (General Tax Law), on account of it precluding, in abstract terms, evidence that may prove to be, in concrete, adequate or even indispensable to clarify the facts that make it possible to demonstrate the truthfulness of the tax statements presented by the taxpayer, making access to courts unviable or unenforceable.

South Central Administrative Court
Judgment of 14 November 2013
Case No. 06871/13

In this judgment, the South Central Administrative Court states that there is an inadmissible overlapping of rules between the Taxa de Ocupação da Via Pública (Fee for the use of public road), relating to the occupation of parts of the council’s public dominium with the installation of the equipment necessary to the distribution of cable networks, and the Taxa Municipal de Direitos de Passagem (Fee for the use of public rights-of-way).

Indeed, since the fees have a bilateral nature, the same use cannot be the factor that generates more than one fee, as in this case.

South Central Administrative Court
Judgment of 14 November 2013
Case No. 07029/13

In this judgment, the South Central Administrative Court held that the rule of article 812(6) of the Civil Procedure Code, which determines that the ruling ordering the sale of the assets seized should be served on the creditor who submits a claim holding a guarantee in rem over the asset to be sold, failing which the sale will be flawed in terms that may cause the nullity or cancellation thereof, applies to tax enforcement proceedings.

South Central Administrative Court
Judgment of 14 November 2013
Case No. 06594/13

In this judgment, the South Central Administrative Court ruled that it cannot be concluded that the assets of the original debtor of a tax debt are sufficient to settle such debt when the only asset found is a disputed claim held over third parties, in which case the preconditions are met for the application of the reverse charge mechanism against the subsidiary debtors.

The reverse charge mechanism does not depend upon the enforcement being firstly directed against the assets of the original debtor, but merely on them being proven to be insufficient to settle the enforcement debt. The seizure of the assets of the original debtor only takes place where, following the reverse charge mechanism and the opposition to it filed by the person against whom the same was directed, the tax enforcement is suspended to determine which amount of the debt is settled by the assets of the original debtor and the residual amount to be paid out of the assets of the subsidiary debtor.

South Central Administrative Court
Judgment of 14 November 2013
Case No. 05173/11

In this judgment the South Central Administrative Court ruled that the requirements for the right of a company subject to VAT to deduct VAT on the goods purchased by it in the scope of its activity, which were eventually no used to obtain the income subject to taxation – in concrete, because the taxable person did not eventually pursue the economic activity as intended, are not fulfilled.

Consequently, the court held that, with regard to those goods, the company acted as a final consumer and cannot, consequently, deduct the VAT paid on purchase.

Administrative and Tax Arbitration Centre
Arbitration Award of 16 October 2013, published on 7 November 2013
Case No. 28/2013-T

In this arbitration award, the Arbitration Tribunal ruled on the lawfulness of the assessment of VAT in a situation in which a company managed the supply of programmed maintenance and car repair services to concessionaires, concluding contracts with insurance companies to ensure coverage of the costs that may arise from that management.

The Tax Authority considered that the debts made to the insurance companies reflected supplies of services subject to VAT, proceeding to the compulsory assessment of this tax in concrete.

The Arbitration Tribunal considered that the assessment was unlawful since the payments/receipts made by the company on behalf and on account, did not represent consideration for the supply of services for VAT purposes and that, even if they did, they would in any case be exempt from VAT, the same applying to the compensations received from the insurance companies, which, in this respect, has already been acknowledged by circular letter of the Tax Administration.

Administrative and Tax Arbitration Centre
Arbitration Award of 29 October 2013, published on 7 November 2013
Case No. 50/2013-T

In this arbitration award, the Arbitration Tribunal states that, with regard to buildings not divided into horizontal property (propriedade horizontal) comprised of several floors and units used independently, the taxable asset value of EUR 1,000,000.00 fixed in item 28 of the Tabela Geral do Imposto do Selo (General Stamp Duty Scale), which provides for additional taxation of urban properties for residential purposes with a taxable asset value of EUR 1,000,000.00 or more, cannot be calculated taking into consideration the sum of the taxable asset value attributed to the various parts or floors of the building.

Indeed, as happens with the Municipal Property Tax, also the Stamp Duty should be assessed individually for each part or unit used independently that comprises the properties, even if the latter are not divided into horizontal property, for which reason, taking into account not only the rationale for this tax, but also the principle of equality, the taxable asset value that constitutes the limit of application of item 28 must be the one of each individual part, floor or unit used independently.

Administrative and Tax Arbitration Centre
Arbitration Award of 6 September 2013, published on 28 November 2013
Case No. 54/2013-T

In this arbitration award, the Arbitration Tribunal ruled that accounting movements that do not have the necessary supporting documents cannot be qualified as confidential expenses for the purposes of article 88 of the IRC Code when they are artificial accounting operations, because the concept of confidential expenses implies the real existence of an expense, which was not proven in this proceeding (on the contrary, it was proven that the accounting operation under discussion did not involve an outflow of financial resources leading to a reduction of the Applicant’s assets).

According to the Arbitration Tribunal decision, this type of irregularity in a tax payer accounting does not justify the autonomous taxation as confidential expense, but is deemed to be a requirement for the application of indirect methods for the evaluation of the taxable base.

Administrative and Tax Arbitration Centre
Arbitration Award of 15 October 2013, published on 28 November 2013
Case No. 14/2013-T

In this arbitration decision, the Arbitration Tribunal ruled that article 3 (1) of the Vehicle Circulation Unified Tax Code (“IUC”) establishes a rebuttable presumption concerning its tax payer.

Therefore, if the motor vehicle was transferred before the occurrence of the taxable event and if the vehicle is still registered, by that time, in the previous owner’s name, the IUC tax payer shall be the new owner, as long as the property transfer is proven, in order to guarantee that the principle of equivalence is fulfilled – i.e., to guarantee that the tax payer is who really has the use of the vehicle and is the potential polluter

'For the same reason, article 3 (2) of the IUC establishes that, if a financial lease contract is in force when the taxable event occurs, the tax payer shall be the lessee – as he is the user of the motor vehicle –, even if the right of ownership is registered in the lessor’s name, as long as the lessor proves the existence of the financial lease contract.