Most tax controversies have their origin in a tax assessment, which may be made by the tax authorities (as is the case with personal income tax and with the tax on the acquisition of immovable property, based on information disclosed by taxpayers) or directly by taxpayers (as is generally the case with corporate income tax (CIT) and value-added tax (VAT)).
Tax controversies may arise for numerous reasons, although in most cases they arise because of an alleged illegality identified by the tax authorities during administrative tax audits that lead to additional tax assessments.
Most tax controversies arise from corporate income tax disputes, in particular regarding the non-recognition of certain costs for CIT purposes by the tax authorities.
Nonetheless, there are some pending cases related to more cutting-edge topics, such as controlled foreign corporations (CFCs), transfer pricing and the general anti-avoidance rule (GAAR).
Additionally, considering that recent years have seen the creation of sectorial taxes (eg, on banking, pharmaceuticals or the energy industry) that generate very high assessments, such taxes have given rise to a significant number of tax disputes.
Taxpayers may use the possibility of requesting binding rulings from the tax authorities regarding the application of law to certain facts.
Through such binding rulings taxpayers may, for instance, request advance clearance on the tax and legal qualification of certain highly complex transactions.
At the request of the taxpayer, and where duly justified, the binding ruling may be provided urgently within 75 days, as long as the taxpayer presents a proposal for the tax treatment considered applicable. A fee ranging between EUR2,550 and EUR25,500 is payable by the taxpayer to the tax authorities in such cases.
If the tax authorities recognise the urgency of the matter and the binding ruling is not issued within 75 days, it is considered that the tax authorities agree with the proposal of the tax treatment presented by the taxpayer.
Non-urgent binding rulings are free of charge and should be given within 150 days after the submission of the request. This deadline is considered merely indicative.
Another way to mitigate tax controversies, considering that in recent years the number of transfer pricing disputes has grown significantly, is to enter into an advance pricing agreement (APA) with the tax authorities. Such agreements may be unilateral, bilateral or multilateral.
APAs give legal certainty to taxpayers when conducting transactions with related entities (including parent companies, subsidiaries or associated companies, branches and other permanent establishments) provided that taxpayers comply with the terms and conditions of the APAs in question.
Over the years Portugal has already put in place a number of measures to combat tax avoidance, these include:
Nonetheless, in May 2019 the Portuguese Parliament formally (partially) implemented the Anti-Tax Avoidance Directives I and II into Portuguese Law.
Through this legislation the Portuguese tax system adopts the common solutions defined in the context of the EU, in line with the conclusions of the final reports of the G20 and the OECD project on the erosion of the tax base and the artificial shifting of profits (BEPS) to ensure that co-ordinated measures are implemented to discourage tax avoidance practices more effectively; to ensure fair and effective taxation; and to protect tax systems, at a global level, against aggressive fiscal planning.
This legislation includes amendments to the CIT Code and to the GAAR and its procedural provisions, currently provided for in the General Tax Law and the Tax Procedure and Process Code.
The taxpayer may challenge an additional tax assessment through an administrative, a judicial or an arbitration claim.
Tax disputes may involve both an administrative and a judicial or arbitration phase; they can start and finish as an administrative or a judicial or arbitration process, but they can also start as an administrative process that evolves into a judicial or arbitration one if the taxpayer is not satisfied with the final decision of the tax authorities.
Neither of these claims, by itself, suspends the foreclosure file. As a rule, the taxpayer must also pay the tax assessed or render a guarantee to suspend the foreclosure file while the claim is being heard; and if the taxpayer is not successful with the administrative, judicial or arbitration award and the latter becomes res judicata, the foreclosure file is immediately activated and enforced.
In the case of disputes related to additional tax assessments made by the tax authorities, the taxpayer will also be notified of an infraction procedure. Notwithstanding the possibility of immediately paying the administrative penalty or challenging the decision that determined the administrative penalty on its own merits, the law provides that this process may remain suspended until a final decision is reached in the tax dispute concerning the legality of the tax assessment. Usually, taxpayers opt for the latter alternative because the infraction file will be closed if they win the tax dispute.
The most immediate impact of COVID-19 on tax obligations and pending tax controversies came with the measures approved by the Portuguese government to confront the pandemic and the isolation obligations originating in the "state of emergency" declared in the middle of March 2020.
These measures provided an extension of the deadlines to file CIT returns and to pay the tax due, as well as the possibility of paying some taxes in instalments without interest or penalties being applied and an exemption from the need to deliver a bank warranty in cases where typically one is required. Notwithstanding this, these measures concern only those tax obligations that need to be complied with in the second quarter of 2020. Therefore, they do not affect any taxes currently the object of an administrative or court dispute.
The main measure adopted that concerns ongoing tax disputes was a general suspension of court and administrative terms. Law No 1-A/2020, of March 19th, as amended by Law No 4-A/2020, of April 6th, establishes that, apart from few exceptions, all terms in cases currently pending in courts (eg, administrative and tax courts, the Constitutional Court and arbitration courts) or with the tax authorities, that concern tax foreclosure procedures (considered as judicial cases despite being conducted by administrative bodies) shall be suspended until otherwise expressly determined by law.
Law No 1-A/2020, of March 19th, also establishes the suspension of the statute of limitations.
Therefore, all court and administrative activity is currently reduced to the essentials, with consequent delays in the normal progress and conclusion of cases.
Although made necessary by virtue of the pandemic, this is a lose/lose situation: the courts, already swamped with cases that exceed their real capacity, are becoming even more overwhelmed while the parties involved – who did not expect a quick resolution of their matters – will wait even longer for decisions. Additionally, and since deadlines are suspended but interest is still accumulating, the tax authorities – where the tax in dispute has been paid upfront – and the taxpayers – where the tax has not been paid – will face a collateral consequence of the courts’ delay produced by the suspension regime: in the case of unfavourable decisions, justice will become more expensive for each of them. They will have, respectively to refund the tax or pay it, with additional interest.
COVID-19 emergency measures are already pressuring the economy and, consequently, the Treasury beyond anything that could be expected. Only time will show the true impact of the economic shut down and the consequences on future litigation volume. However, as debt is growing significantly and the State will need revenue, there is a risk that harsh measures will be taken and then challenged.
Foreclosure files are expected to grow since it is likely that some taxpayers will become unable to comply with their ordinary obligations.
Secondly, the tax authorities will certainly increase the means at their disposal – tax audits and foreclosure files – to assess and collect additional taxes concerning previous tax years, from 2016 onwards. Probably the usual targets – such as large companies and high net worth individuals (HNWI) – will be their priority, although they are typically the type of taxpayer that does not shy away from challenging aggressive tax assessments, namely the GAAR. The use of tools based on anti-avoidance practices and BEPS actions may grow and result in more court cases. For such reasons, it is expected that litigation will increase.
Finally, and based on the past behaviour of the State in prior crises, it is also likely that new taxes will arise, which might be scrutinised by taxpayers with regard to their conformity with the tax law and the applicable Constitutional principles.
How the courts and jurisprudence will evolve around the usual highly controversial topics remains to be seen. Nevertheless, experience and practice show that tax disputes settled by Portuguese courts, from the bottom to the top (ie, first-instance courts, Administrative Central Courts and the Administrative Supreme Court), are usually well received. As a rule, courts abide by their reputable values and constitutional principles, defending justice with independence and impartiality. It is possible that the tax authorities will endure their positions vis-à-vis taxpayers, but it is not expected that the courts will bend their values and constitutional principles. Of course, in the current circumstances, grey areas and potentially controversial facts will need clear explanations not to cause tax disputes. Therefore, now is the time for taxpayers to review recent past operations and to ensure every new action is prepared with due care.
Primarily, tax audits follow a general National Plan for tax and customs audits (the so-called PNAITA) that is approved every year by the government. The National Plan defines the programme of action, the criteria to be used and the taxpayers to be audited, and establishes the targets to be achieved by the different tax services.
However, other tax audits may also be initiated during the year and the Plan should allocate specific human and material resources to tax audits not previously established. Although the National Plan for tax and customs audits is confidential, the tax and customs authorities must disclose the general criteria defined to select taxpayers and other entities that will be subject to a tax audit.
Tax audits may, therefore, be initiated following:
Moreover, specific taxpayers are permanently on the radar of the Portuguese tax authorities, in particular large companies and HNWI.
Under the current regulations, these entities are accompanied by a special large taxpayers’ unit (LTU) that targets such entities using the following criteria.
The government also prepares and releases a triennial Strategic Plan to Combat Tax and Customs Fraud and Evasion (the current one concerns the period 2018-20), and presents an annual report to Parliament, setting out the relevant actions that were put in place to achieve those goals and presenting statistics on different subjects under analysis.
As a rule, a tax audit may be initiated within the statute of limitations period, which in principle corresponds to a four-year period following the taxable event. If a criminal proceeding related to the tax audit is initiated within that period, the statute of limitations is extended and the tax authorities may make a tax assessment until the end of the year following the date on which that proceeding is closed, or a final decision becomes res judicata.
Usually a tax audit that takes place in the taxpayer’s premises should be concluded in a six-month period but, in specific circumstances, that period may be extended for two additional periods of three months each. The tax audit suspends the statute of limitations period during those six months.
When a mistake that may trigger an additional tax assessment was evidenced in the tax return, the statute of limitations period decreases to three years. On the contrary, the statute of limitations period increases to 12 years in two other situations; precisely when the tax authorities may encounter more difficulties in making additional tax assessments, as follows:
The audits may occur in the tax authorities’ headquarters or the taxpayer’s premises. The latter inspection is the so-called external audit and usually occurs in the taxpayer’s head office or other location where the accounting ledgers are maintained; all this information (eg, inventory, assets, VAT registers, any other types of records) is currently kept on computers, but physical documents on paper still exist (eg, invoices). In addition, the board of directors’ minutes and general shareholders’ meeting minutes are also provided in physical books. The tax authorities may also ask to see any specific elements or documents and may make special visits to the taxpayers’ offices, namely, to verify if the records are duly updated and/or to see inventory, etc.
The tax authorities can only make one external audit related to the same tax or year of a specific taxpayer, unless a specific grounded decision is adopted by the head of the tax services, namely invoking new facts.
Under their rights and powers, the tax authorities may:
As a rule, the tax authorities should make their requests in writing and, if not made under an audit within the taxpayer’s premises, through a registered letter, allowing the taxpayer to obtain and prepare its answers. Thus, the rule is to give advance notice that they are initiating a tax audit in the taxpayer’s premises (with a minimum period of five days) to provide time to reply to a specific questionnaire.
Taxpayers are often accompanied by their legal and tax advisers during the tax inspections and, in the case of companies, they should also appoint a representative who accompanies the tax auditor within the company’s premises.
Tax audits can be general or specific. The former generally cover all types of taxes, although the most common audits only cover income taxes, VAT, real estate taxes or stamp duty. They may also be very specific, covering one of the taxes above-mentioned or any other.
General tax audits are usually designed to verify the global position of a specific taxpayer, whereas specific tax audits are commonly launched to verify a particular aspect within a sector or activity (eg, to verify whether and how financial institutions are dealing with a specific stamp duty or VAT issue).
Usually the tax authorities review the company’s accounts and review its financial accounting compliance and tax obligations. Depending on the type of tax audit (a general or a specific one), the tax authorities may ask to examine:
Both formal requirements and substantive issues are some of the top priorities analysed by the tax authorities and litigation often arises because the tax authorities consider that taxpayers have failed to observe formal requirements in order to benefit from a specific tax regime (eg, a neutral merger operation, the consolidation tax regime or a waiver of a withholding tax), or reach the conclusion that a specific operation or a sequence of operations cannot produce the tax result intended by the taxpayer, either considering a specific violation of a substantive tax rule or invoking a specific or the general anti-avoidance rule.
Cross-border exchanges of information and mutual assistance between tax authorities have been increasing tendencies over the years, although the numbers, in some areas, are not yet very significant.
The Portuguese tax authorities' Report of Activities released in 2018, and referring to 2017, evidences the following number of requests for mutual assistance (MA) in the areas of customs/excises.
Moreover, in relation to the co-operation between the Portuguese tax authorities and the EC – mainly the Directorate-General for Taxation and Customs Union (DG TAXUD) and the European Anti-Fraud Office (OLAF) – in 2017 Portugal received a total of 1,481 forms of information of significant risks that required specific analysis and treatment, and 28 specific indications of fraud and serious irregularities detected by OLAF.
The cross-border exchanges of information in relation to income taxes in 2017 may be summarised as follows, for a total of 67 countries.
France, Spain, UK and Germany are clearly the countries with whom Portugal has exchanged the most information.
In 2017, under VAT EU Regulation No 904/2010, concerning the administrative co-operation and the fight against VAT fraud – through the Central Liaison Office (CLO), participation in the Eurofisc network and participation in Multilateral Controls – 1,452 files were initiated concerning the exchange of information, at the request of member states. Of these, 500 files originated in requests from other tax authorities and 952 in requests made by the Portuguese tax authorities.
The exchange of information between the tax authorities of different member states and their mutual assistance is obviously influencing the growth of tax audits as well as the sophistication and the level of information that the Portuguese tax authorities currently have in relation to taxpayers that do business abroad and/or have cross-border connections.
In general, it is important to be aware of the following aspects before and during a tax audit:
There are situations where an administrative claim is mandatory before initiating a judicial phase, namely in situations of self-assessment, withholding taxes, payments on account of the final tax due or custom duties, when the claim is related to the origin, classification or customs value of the product.
However, in situations of additional tax assessment, the administrative claim phase is always optional.
The administrative claim should be presented in the local tax office of the area where the taxpayer is domiciled, or where the tax assessment took place, or of the location of the assets; it also can be sent electronically through the tax authorities’ website. Although the administrative claim should be presented in the local tax office, it should be decided by the regional tax directorate (in Portugal the tax authorities are formed by the central services, regional tax directorates and local tax offices). The deadline for the presentation of the claim is 120 days counted from the first day inclusive following the termination of the deadline to pay the additional assessment, which should be around 30 days after the assessment is made. If the additional tax assessment does not give rise to an obligation to pay a certain amount of tax (for instance, the taxpayer had tax losses and the result of the additional tax assessment was a reduction of the available tax losses), the 120-day deadline to present the administrative claim should be counted from the notification of the assessment.
The procedure of the administrative claim, up to the final decision, is determined by law to be simple and without formalities. In this regard it is worth mentioning that, as a rule, in the administrative phase of tax litigation there are no costs or fees due to the administration, but the proof is limited to the documentation made available and only exceptionally will the tax authorities decide to hear witnesses. Moreover, this phase (as well as the eventual subsequent judicial phase) does not, by itself, suspend the enforcement and collection of the tax assessed, which means that to avoid the seizure of assets, the taxpayer should pay the assessment or present a guarantee to the tax authorities (exceptionally, it can be released from this duty, namely if the taxpayer is able to demonstrate economic hardship or that the presentation of the guarantee will cause irreparable damage). Finally, if the tax authorities intend to dismiss the administrative claim, they should notify the taxpayer, allowing them to react to the projected dismissal within a deadline of between 15 and 25 days. In their final decision, the tax authorities should take into consideration the reasons invoked by the taxpayer and the grounds on which they were rejected.
Notwithstanding specific deadlines that may apply to specific administrative procedures or claims, the main rule stipulates that any tax procedure (including, therefore, an administrative claim) shall be decided within four months.
The consequence of the tax authorities not complying with this deadline is that the taxpayer may presume that the claim was tacitly denied for the purposes of appealing against that tacit negative decision. The practical effect of this rule is to allow speeding up of litigation; ie, instead of waiting sine diem for a decision from the tax authorities, the taxpayer may presume that the appeal was dismissed at the end of the four-month period and appeal to court against that tacit negative decision.
Taxpayers frequently use this rule in a strategic move because (i) they try to convince tax authorities at the administrative level first, and (ii) the deadlines to lodge administrative claims terminate after the deadlines to go directly to court. Accordingly, it is relatively common to see taxpayers presenting an administrative claim and, at the end of the fourth month, appealing to a court assuming the tacit denial of the claim. Instead of going to court, taxpayers can also make a hierarchical appeal against the tacit negative decision and, on the express or tacit negative decision of the hierarchical appeal, subsequently go to court.
Otherwise – ie, if the tax authorities manage to decide the appeal in the said timeframe – taxpayers can also go to court against an express denial of the administrative appeal.
However, whilst the deadline to lodge a judicial claim is 90 days after the notification of the denial of the administrative claim or after the tacit negative decision of such claim, the deadline to present the hierarchical appeal is 30 days counting from the same events. According to the law, hierarchical appeals should be decided within 60 days; however, this deadline is considered merely indicative and it is frequently not complied with. Taxpayers may consider that a tacit negative decision has occurred at the end of the 60-day term for the purpose of reacting against that negative decision.
Judicial tax litigation is initiated with the presentation of the claim in writing to the court of first instance. The claim may be sent by mail or by electronic means through the dedicated website of the tax (and administrative) courts. The claims can be presented directly by taxpayers, except if the value of the claim exceeds EUR10,000, in which case it is mandatory to appoint a lawyer registered with the Portuguese Bar Association. The claim has to be presented in articles, identify the act contested, and expose the circumstances of fact and the law that ground the final request. Moreover, the value of the claim shall also be indicated. Finally, the petitioner shall indicate his or her witnesses, other means of proof he or she wants to use and, in annex to the claim, the petitioner shall attach the documentary evidence at his or her disposal.
After the presentation of the claim, the court attributes a number to the case and the process is distributed to a judge who notifies the tax authorities of the need to contest the claim within three months. The tax authorities are represented in court by a specific body called Representantes da Fazenda Pública, whose function is to represent the tax authorities in the thousands of files pending in the courts.
Although contestation is not mandatory, the tax authorities normally contest within the said deadline. Within the deadline available to contest the claim, the tax authorities shall also gather the information available related with the process (the administrative file) and present it to the court.
If there is a partial revocation of the act, the tax authorities shall, within three days, notify the taxpayer to confirm, within ten days, if he or she wants to continue with the judicial claim.
If the act is totally revoked, the tax authorities shall contact the person representing the tax authorities in court to promote the termination of the judicial claim.
After the response of the tax authorities to the taxpayer’s petition and if the litigation is related to a strictly legal matter, the judge may decide upon the claim immediately after it has passed through the public prosecutor in the court.
If witnesses shall be heard or other forms of proof shall be presented, such as inspections or expert hearings, the judge shall notify the parties of the relevant date to produce those forms The number of witnesses to be heard in relation to each fact shall not exceed three and the maximum number of witnesses allowed is ten. The hearing shall occur in court and the testimonials shall be duly recorded. If witnesses are resident in an area not covered by the territorial jurisdiction of the court, they may be present in the court of the area where they live and be heard and interrogated through video conference. The claimant as well as the person representing the tax authorities may directly interrogate the witnesses.
Once the presentation of proof is terminated, the judge shall notify the parties to produce their final written allegations with a minimum deadline of 10 days, that shall not exceed 30 days.
Finally, before the decision, the claim shall be presented to the public prosecutor in the court that may pronounce on the matters under discussion. The public prosecutor’s opinion is not binding upon the judge.
In principle the proof must be presented (in the case of documentation or witnesses) or requested (in the case of inspections or expert witness) immediately with the presentation of the claim in writing to the court of first instance. Exceptionally, mainly if it is demonstrable that it was not possible to present or request the proof earlier, it is possible to present or request such proof afterwards.
Although it is not stated as such in the law, there is a clear preference for documentary evidence in tax litigation in comparison with witness testimony or other types of proof. If there are no witnesses to be heard – and in a considerable number of cases there are not – the entire case from its beginning to its termination will occur without any personal contact between the parties and the judge as all the contact is in writing.
If witnesses are to be heard and questioned by the judge and the parties, it is up to the judge to schedule a hearing after the tax authorities have presented their answer to the taxpayer’s petition. Both the taxpayer and the tax authorities can request the hearing of witnesses. Usually, in the tax authorities’ case, their witnesses will be their agents. Witnesses are first questioned by the judge, then by the party that has requested their hearing and they can be subsequently cross-examined by the other party.
The burden of proof is with the party that invokes a certain fact to be proved. As a rule, the tax authorities invoke and should prove their claims in the audit report, therefore grounding the tax assessment, and it is for the taxpayer to challenge such views and refute those proofs in the administrative or judicial claim.
In the case of criminal tax litigation the burden of proof rests with the public prosecutor.
From a strategic perspective – and taking into consideration the limitations established by the law of the process as well as the fundamental audi alteram partem principle – it is advisable, as a rule, for all the evidence to be presented or requested at the beginning, as well as all the legal arguments.
The possibility of settlement, namely through an agreement whereby both the taxpayer and the tax authorities would retract part of what they are claiming, is not possible. Among other motives this is due to the fact that the law clearly states that the tax authorities’ credit (ie, the amount of tax) is not at their disposal.
The option to pay or not to pay the tax while the dispute is pending is mainly a financial issue that the taxpayer has to weigh. In favour of paying the tax one can essentially invoke that, on the one hand, this is reflected on the company’s financial accounts and, on the other hand, if it wins the case, in principle it will be entitled to interest, currently at the rate of 4% per year. Taking into account the interest rate offered by banks operating in Portugal, it can be quite advantageous from a financial perspective to opt to pay the tax and then receive back the tax paid with interest. If the taxpayer opts not to pay the tax, it will have to constitute a guarantee to the benefit of the tax authorities. In considering this option the taxpayer has to weigh the fact that the guarantee has costs, firstly a tax cost related to stamp duty due on guarantees and then variable costs depending on the type of guarantee chosen (eg, bank commissions or notary costs). Moreover, in connection with this option, the taxpayer should also consider that while the case is pending, interest will continue to be computed and will be due if the taxpayer loses the case. On the other hand, if the taxpayer wins the case, as a rule, it is possible to recover this cost.
Finally, the taxpayer can also opt to pay the tax in instalments. Depending on the amount due, payment in instalments, to be accepted by the tax authorities, may oblige the presentation of a guarantee.
The presentation of expert reports or professors’ opinions is also something to consider. Their use will depend on the type of case. If the file includes complex non-legal matters, expert reports may be relevant to help the judge to understand the situation. In the case of complex legal matters, opinions from scholars may also be worth considering. Although these reports and opinions are not binding on the judge, they are usually taken into consideration.
In litigation related to international tax matters, it is common for the courts to take into account relevant jurisprudence (mainly from the ECJ) and international guidelines (mainly the different versions of the commentaries to the OECD Model Tax Convention or to the OECD Transfer Pricing Guidelines).
There are two appellate courts, the Administrative Central Court (ACC) North and the ACC South, and one Administrative Supreme Court (ASC).
The ACC South is situated in Lisbon and essentially covers the southern area of the country, and the ACC North is situated in Porto and covers the northern area of the country. The ASC is also located in Lisbon and covers the entire country.
Whoever loses the case at first instance – the taxpayer or the tax authorities – or both in the event that both parties lose part of the case, may take the case to the ACCs in the event of a disagreement over the facts and the law decided at first instance, or to the ASC in the event of a disagreement exclusively based on matters of law.
The appeal is only precluded if the value of the case (in cases challenging tax assessments, the amount of tax in litigation) is lower than EUR5,000.
From the decision of the ACCs or of the ASC, the taxpayer or the tax authorities may in exceptional cases still lodge a second appeal to the ASC based on a contradiction of a previous judgment, or go to the Constitutional Court in cases where there is a constitutional issue at stake.
If there are uncertainties as to whether a tax assessment violates EU law, the final-instance court shall file a request for a preliminary ruling to the Court of Justice of the European Union. In contrast to the final-instance court, the courts of first instance are not obliged to file such a request and the occasions on which such courts have opted to request a preliminary ruling voluntarily are scarce.
The appeal is launched in the court of first instance within thirty days of a final decision and shall include the appellant’s statements. If the appeal is admitted by the court of first instance (it is only precluded if the value of the case is lower than EUR5,000), the other party will then have 30 days to submit its response. The appeal then goes to the ACCs or the ASC, where it will await a decision. Where the purpose of the appeal is to review recorded evidence, the above-mentioned deadlines are increased by 10 days each.
The ACCs and the ASC each have one chamber for tax law appeals and actions, and another chamber that deals only with administrative law appeals and actions.
The decisions of the appellate courts are rendered by the majority decision of a panel of three judges. The judges are appointed by the court randomly. If there is no unanimity, the dissenting judge may publish their reasons for the dissenting vote.
Portugal adopted an arbitration regime to settle tax disputes as an alternative dispute resolution (ADR) mechanism in 2011. Tax arbitration courts (TACs) were created to solve domestic tax disputes regardless of whether they involve domestic, EU or international tax law.
TACs must decide the cases based on the written law, being expressly prohibited from resorting to equity. In a nutshell, TACs should decide tax cases based on the same legal framework available to judicial tax courts.
According to this regime, the tax authorities are bound by arbitration decisions for almost all types of tax disputes with a value of up to EUR10 million.
Mediation has not yet been established, although several proposals exist to create a specific regime in some areas.
Moreover, at the international level and where tax disputes involve the relationships between states, tax arbitration becomes the ultimate resort to settle those disputes.
Under the arbitration regime, disputes are settled by TACs that can be constituted by a single arbitrator (usually for controversies of low value – up to EUR60,000) or a panel of three arbitrators (cases up to EUR10 million).
The linchpin of the tax arbitration project was deciding how the judges would be chosen/appointed by the parties involved or by a third party.
Provided the disputed amount exceeds EUR60,000, or the taxpayer chooses to appoint an arbitrator, the arbitration court is formed by a panel of three arbiters. Otherwise, the case will be settled by way of a decision of a single arbiter. The majority of cases are decided by a single arbitrator appointed by the Ethics Committee of the Centre for Administrative Arbitration (CAA).
Cases are initiated by a specific request filed electronically to CAA, which also indicates whether the taxpayer intends to appoint a specific arbitrator. Cases must be settled in a period of six months following the creation of the TAC, which nevertheless may be extended for a further six-month period.
TACs receive the written arguments of both parties (first taxpayers, usually contesting a tax assessment grounded in an audit report, and then the tax authorities) and analyse the merits of the claim, hear witnesses and eventually the parties or experts, and they decide in writing.
Under the arbitration system it is not possible to reach an agreement to reduce the tax assessment, the interest due or the penalties that may eventually be applied.
However, in an earlier phase (usually during the tax audit), it is possible to regularise situations to reduce the interest due and/or the penalties that may potentially apply.
Advance rulings with binding effect may be requested from the tax authorities. See also 1.3 Avoidance of Tax Controversies.
According to the current arbitration regime, cases may be submitted to TACs as follows.
The OECD Multilateral Convention to Implement Tax Treaty Related Measures to Prevent BEPS (MLI), signed on June 17th, 2017, was ratified in November 2019, and, on 28 February 2020, Portugal deposited its instrument of ratification before the OECD. The MLI will enter into force in Portugal on 1 June 2020.
Under one of the many optional clauses foreseen in the MLI, Portugal opted to apply the arbitration clause to settle international tax disputes; this option and the transposition of the EU Arbitration Directive (ie, Directive (EU) 2017/1852 of 10 October 2017) that is even more relevant in practice, meaning that arbitration will be allowed to settle this type of dispute in the near future. Concerning the MLI options, Portugal reserved the right not to apply the default “final offer” arbitration procedure, opting instead to apply the “independent opinion” model. However, Portugal reserved the right only to apply arbitration in matters related to Articles 5,7 and 9 of the OECD Model Convention, declining to apply it in cases:
In specific areas (eg, transfer pricing) or situations (eg, when the tax authorities calculate income through indirect methods), agreements between the parties (taxpayers and tax authorities) may be signed. See also 1.3 Avoidance of Tax Controversies.
Additional tax assessments typically result from internal or external tax audit procedures conducted by the Portuguese tax authorities. Within the context of such tax inspection procedures, the tax authorities not only evaluate whether the taxpayer has made a correct assessment of the tax paid and whether the taxpayer has paid the full amount of taxes due, but also ascertain if the mistakes eventually detected correspond to tax infringements/crimes.
Therefore, the tax inspection’s final report already contains (i) an assessment regarding possible inaccuracies regarding the taxes paid and the taxes and interest due, and (ii) an assessment respecting any tax infringements that may derive from the mistakes/significant crimes committed by taxpayers.
In these circumstances and because both assessments are made at the same time, typically, additional tax assessments and tax infringement processes begin "side by side".
However, the tax authorities may initiate an administrative tax offence process whenever there is suspicion that an administrative tax offence has taken place and independently from a tax inspection procedure, and whatever the situation is under the tax assessment perspective. The same applies to the Public Prosecutor’s Office regarding tax crimes.
If an administrative tax offence is detected, the tax authorities are competent to initiate an administrative tax offence procedure on their own. In the event of a possible tax crime being detected, the tax authorities must inform the Public Prosecutor’s Office and pass on all the information gathered during the inspection procedure.
The administrative process in which the additional tax assessment is being challenged and the tax administrative offence or criminal process regarding the facts that gave rise to such additional tax assessment run in parallel. They are, therefore, independent from one another.
However, when an administrative process, in which the additional tax assessment is being challenged, is pending and the qualification of the facts under dispute as a tax infringement depends on the decision of that administrative process – which determines whether the additional tax assessment was legally issued and if the tax assessed is due – the tax-infringement process (whether an administrative offence or a criminal one) must be suspended until a final decision on the administrative process is adopted and becomes res judicata.
As described above (see 7.1 Interaction of Tax Assessments with Tax Infringements), an administrative or a criminal tax offence proceeding is initiated by the tax authorities in any case in which they become aware or suspect that an administrative tax offence or that a tax crime may have taken place. Commonly this awareness arises within the context of tax audit procedures.
The same facts may simultaneously support an indictment in an administrative tax offence proceeding and an indictment in a criminal proceeding. When this happens, the facts are prosecuted as a crime.
If, for some reason, the same facts have given rise to an administrative tax offence proceeding and a criminal one, the first one is extinguished as soon as the defendant is notified of the criminal indictment.
There are far more cases of administrative tax offense, considering that all types of mistake originate in a file and usually the application of a fine (coima). However, tax criminal law has been aggravated in the last decade and the tax and social security authorities are using criminal sanctions far more often than in the past.
The administrative tax offence proceedings may be divided into two main stages: the administrative stage and the judicial stage. In the first stage, the tax authorities have broad powers to investigate and to issue a formal bill of indictment against the taxpayer, if it is concluded at the end of an investigation that there are sufficient grounds and evidence to indicate that a tax offence has been committed. Normally the grounds that give rise to additional tax assessments are the ones used by the tax authorities to issue such a bill of indictment.
Subsequently, the defendant may present its defence before the tax authorities.
Thereafter the tax authorities will issue their final decision; if a conviction is rendered at that moment, that decision may be judicially challenged by the defendant. Such judicial appeal marks the beginning of the judicial stage and has suspensive effect: therefore, the decision reached by the tax authorities at that point will neither become final nor immediately enforceable.
The judicial decision rendered by the first-instance court may still be appealed to the appellate courts if the first-instance court confirms the conviction previously rendered by the tax authorities.
Only the decision rendered by that appellate court would, in principle, be final and fully enforceable, except if constitutional issues are involved and an extraordinary appeal (also with suspensive effect) is presented to the Constitutional Court.
The Administrative and Tax Courts are the competent courts to decide on tax administrative processes.
On the other hand, criminal tax proceedings usually consist of four main stages: an investigation stage, a pre-trial stage (that may or may not occur), a trial stage and an appeal (see 7.7 Appeals Against Criminal Tax Decisions).
The investigation stage, which is conducted by the Public Prosecutor’s Office, has the purpose of gathering all the relevant information and evidence regarding the tax criminal offence allegedly committed. This stage typically ends with a decision of indictment or with a decision to close the investigation. Under certain circumstances, this stage may also give rise to a decision of provisional suspension of the tax criminal proceedings, where the defendants agree to comply with a number of injunctions for a period, after which time the investigation may be closed with no further action, or proceed, if the injunctions are not complied with.
The pre-trial stage is not compulsory. It may take place if requested by the defendant, as regards facts based upon which the Public Prosecutor submitted a bill of indictment.
The pre-trial stage represents a number of preliminary judicial acts that the investigating judge intends to perform and, compulsorily, involve a preliminary hearing, oral and adversarial in character, during which the Public Prosecutor, the defendant and his or her defence counsel may participate. It ends with a decision to arraign, with the case proceeding to the trial stage, or with a decision not to pursue the case, which brings an end to the proceedings.
In the trial stage, all evidence gathered by the Public Prosecutor’s Office and all evidence gathered by the defendants is brought to the first-instance court to be discussed and analysed. This stage ends with the court issuing a decision, which is, in principle, appealable (see 7.7 Appeals Against Criminal Tax Decisions).
The Criminal Courts are the competent courts to decide on tax criminal offences.
Portuguese Law provides for some situations in which the taxpayers may benefit from fine reductions.
If the fine is paid at the taxpayer’s request, he or she will benefit from a reduction of the fine, which can go from 12.5% of the minimum applicable fine up to 75% of the minimum applicable fine, depending on the stage of the administrative tax offence proceedings.
If the defendant pays the fine during the course of the administrative tax offence proceedings, but before the deadline for presenting his or her defence, the minimum applicable fine will always be imposed.
When the taxpayer pays the fine within the voluntary payment deadline, after the conviction decision is issued by the tax authorities, the penalty shall be reduced to 75% of the value set in such decision.
Portuguese law does not allow a defendant to enter a plea bargain. Normally, plea bargains represent agreements between defendants and the Public Prosecutor's office whereby the defendant agrees to plead guilty and pays the tax assessed plus interest and penalties in exchange for a reduced sentence and avoiding trial.
There are no other procedures for the early resolution of criminal law offences before trial.
However, if the criminal process refers to a crime for which criminal law allows no sentence, the Public Prosecutor's Office may decide to close the case without further action (ie, no indictment and no trial) after consulting the tax authorities and with the agreement of the investigating judge.
The judicial decision rendered by the first-instance court is appealable, as a rule, to an appellate court and has suspensive effect in the case of conviction; therefore, the decision reached by the first-instance court at that point will neither become final nor immediately enforceable.
In some exceptional cases, first-instance court decisions are appealable to the Supreme Court.
To appeal against a criminal court decision, the defendant must submit a written application declaring his or her intention to file an appeal, together with a written appeal statement. The written application must be submitted to the court of first instance, but it will be considered by the second-instance court. The appeal must be submitted within 30 days after the notification of the decision issued by the first-instance court.
If constitutional issues are involved, an extraordinary appeal (also with suspensive effect) may still be presented to the Constitutional Court.
As a rule, transactions and operations that have been challenged in Portugal under the GAAR, specific anti-avoidance rules (SAAR), transfer pricing rules or anti-avoidance rules gave rise to administrative tax cases in the same terms as all other tax facts (see 7.1 Interaction of Tax Assessments with Tax Infringements); this firm is not aware of criminal cases involving these type of operations, but one cannot exclude such a possibility if the facts were to show the existence of dolus with the evident intent of not paying the due taxes.
Therefore, in principle there are no particular procedures to address these matters.
The largest disputes involving such matters (in terms of the amounts involved, the number of defendants or their public notoriety) produce, however, a great deal of media attention and public pressure to obtain convictions (which do not necessarily occur).
In situations of double taxation due to additional tax assessments or tax adjustments in cross-border situations, it is common to use domestic litigation, which does not mean that the mutual agreement procedure is not used as an alternative or together with judicial litigation. According to the OECD statistics, 43 cases related to Portugal started in 2018 and 20 were terminated in the same year, and the total number of cases pending at the end of 2018 was 70.
With regard specifically to cases concerning transfer pricing, according to the same source, 15 cases started in 2018 and 2 were terminated in the same year, and the total number of cases pending at the end of 2018 was 40.
In September 2019, Portugal published Law No120/2019, of September 19th, which implemented the EU Arbitration Directive, and "lays down rules on a mechanism to resolve disputes between member states when those disputes arise from the interpretation and application of agreements and conventions that provide for the elimination of double taxation of income and, where applicable, capital. It also lays down the rights and obligations of the affected persons when such disputes arise".
Being so recent, there is still no data or statistics available on its use, although it is likely to assume an important part in cross-border double taxation disputes.
With the publication of the 2003 update to the OECD Model Convention, Portugal introduced an observation on the Commentaries to Article 1 stating that the application of GAAR or SAAR could not prevail if they were in conflict with treaty provisions due to the rules of the hierarchy of laws in the Portuguese legal system, according to which double tax treaties prevail over domestic law regardless of whether the latter rules were enacted before or after the former ones. This observation was later eliminated in the 2010 update of the OECD Model Convention.
After the elimination of this observation, Portugal started to negotiate treaties allowing the application of domestic anti-abuse provisions. Specifically, with regard to the application of the GAAR, taking into account that it may allow the tax authorities discretionarily to recharacterise the facts and operations that occurred as facts or operations of an equivalent economic result, it is argued that it can be against the double tax treaty as it may alter the taxing powers of the contracting states. However, to the best of the authors’ knowledge, this has never been challenged successfully in court.
Times are changing, however. MLI introduces more anti-abuse rules and includes the principal purpose test in all Conventions signed by Portugal. Moreover, Portugal accepted the principle that tax treaties generally do not restrict that one party (a State) have the right to tax its own residents, unless expressly excluded by the treaty (“saving clause”), which intended to clarify that SAARs such as CFC rules might be compatible with the Convention.
Portuguese tax law allows for correlative adjustments. Although these adjustments can be promoted by the tax authorities in the context of double tax treaties that foresee such a possibility, they should be generally promoted by taxpayers since it is in their best interest to avoid the double taxation originating in the transfer pricing correction made to an associated company in another state. According to the law, the taxpayer shall present, to the tax authorities, a request to make the correlative adjustment. This request has to be presented within the deadline foreseen in the mutual agreement procedure (MAP) of the relevant double tax treaty. If the tax authorities agree with the adjustment made in the other state, the correlative adjustment shall be made within 120 days after the agreement obtained with the tax authorities of the other state.
There is no information available on the number of such adjustments that have been made by the tax authorities or challenged by taxpayers.
The only information available is that 15 transfer pricing cases under the MAP were initiated in 2018 and two were terminated in the same year, and the total number of cases pending at the end of 2018 was 40.
Times are changing, however. MLI introduces more anti-abuse rules and includes the principal purpose test in all Conventions signed by Portugal. Moreover, Portugal has accepted the principle that tax treaties generally do not restrict one party (a state) from the right to tax its own residents, unless expressly excluded by the treaty (saving clause), which is intended to clarify that SAARs such as CFC rules might be compatible with the Convention.
Whilst detailed rules on transfer pricing have been provided for in the law since 2001, APAs were only introduced in 2008. In the early years, taxpayers were reluctant to initiate APAs, but things have changed in recent years, when they have become more widespread to mitigate controversies and litigation in transfer pricing matters. It is expected that if the number of APAs does not grow, more tax controversies on transfer pricing matters will arise. Although APAs take some time and involve a complex administrative procedure, more and more taxpayers intend to enter into this type of agreement.
The procedure to sign an APA starts with the request presented by the taxpayer to the tax authorities. In the event that taxpayers want to include operations with associated enterprises resident in countries with which Portugal has entered into double tax conventions, they can request that the APA is bilateral or multilateral, in which case the request will be presented to the other(s) tax authorities under the MAP. The agreement reached between the tax authorities is notified to the taxpayer, to obtain its confirmation on the acceptance of such agreement. The request shall
Taking into account the case law produced by the higher courts, the cases related to cross-border situations that generate the most litigation are those related to withholding taxes.
To mitigate this situation, taxpayers should have internal compliance rules that allow them to control these cases. Moreover, they should verify, with particular attention, the different formalities and criteria that the implementation of EU rules and the double tax treaty requires.
As a rule, litigating at the administrative level (by filing an administrative claim to the Portuguese tax authorities) has no associated fees, but the latter may apply a 5% fee if that claim does not seem to be sufficiently grounded.
The tax litigation process involves the payment of fees that vary between EUR102 and EUR3,060 according to the value of the claim, between EUR51 and EUR1,530 in the case of appeals and according to the value of the appeal, and between EUR204 and EUR6,120 in cases classified by the courts as particularly complex.
Where the value of the claim exceeds EUR500,000, the legal fee is not fixed but variable between EUR2,040 and EUR3,060, between EUR1,020 and EUR1,530 in the case of an appeal, or between EUR4,080 and EUR6,120 in the case of files classified by the courts as particularly complex.
The court may decide not to impose this extra fee.
In general terms, taxpayers must pay the above-mentioned fees in advance (it is the cost of their initiative to litigate), except for variable value legal fees. In these cases, only the minimum fee is paid in advance, the balance is paid at the end of the case.
The tax authorities are excused from the advance payment of legal fees, which means they will only be notified to pay fees at the end of the case.
Each party is responsible for the payment of the legal fees to the court: the court is always paid for its intervention. However, the winning party may request a refund of the amounts paid in all instances of litigation from the party that lost.
There are two possible situations to address regarding the possibility of requesting an indemnity if the disputed additional tax assessment is considered absolutely void and/or null.
Where the additional tax assessment has been paid, the taxpayer will be entitled to a full refund of the tax and interest unduly paid, plus an amount of indemnity interest of 4% per year calculated on the value of that tax and interest unduly paid.
If the additional tax assessment has not been paid and the taxpayer has prevented a tax enforcement procedure from seizing their assets, by providing a bank guarantee or equivalent to suspend such procedure while the additional tax assessment is in dispute, the taxpayer may request an indemnity related to the costs borne to maintain that guarantee.
The guarantee must have been maintained for at least three years for the taxpayer to be entitled to an indemnity, unless the additional tax assessment resulted from an error on the part of the tax authorities.
Tax litigation in the TAC involves the payment of fees that vary between EUR306 and EUR4,896 according to the value of the claim. Where the value of the claim exceeds EUR275,000, an extra legal fee is due, equal to EUR306 for each additional EUR25,000 or fraction thereof.
Half of the fees due are paid with the initial request for the constitution of the TAC and the other half are due before the point that the arbitration decision is issued (no decisions are issued without the correspondent fees being entirely paid for).
Where the arbitrators are appointed by the parties, the fees payable by the taxpayer vary between EUR6,000 for arbitration proceedings with a value up to EUR60,000 and a maximum of EUR120,000 for proceedings between EUR7.5 million and EUR10 million.
In the latter case, arbitration fees are entirely borne by the taxpayer and must be totally paid before the filing of the initial request for the constitution of the TAC.
The following statistics show the number of tax court cases pending in the first instance, indicating the average number of cases attributed to a judge of first instance.
Register of Tax Court Cases (First Instance) and Their Status (2017 and 2018)
Source: based on information published by the Conselho Superior dos Tribunais Administrativos e Fiscais and the Direcção-Geral da Política da Justiça in 2018 and 2019.
The statistics show that tax judges are allocated a significant number of cases despite the level of litigation having decreased slightly in 2018.
The following two sets of statistics reflect the number of cases pending in the second-instance courts and the ASC. There was also a decrease in the level of appeal litigation.
Register of Tax Cases at the ACC (Second Instance) and Their Status (2017 and 2018)
Source: based on information published by the Conselho Superior dos Tribunais Administrativos e Fiscais and the Direcção-Geral da Política da Justiça in 2018.
Register of Tax Cases at the ASC (Final Instance) and Their Status (2016 and 2017)
Source: based on information published by the Conselho Superior dos Tribunais Administrativos e Fiscais, the Direção-Geral da Politica da Justiça and the Administrative Supreme Court in 2018.
As for tax arbitration, since 2011, 4,300 cases were initiated and, up to 31 December 2018, 3,809 cases were terminated, hence 491 were pending on 1 January 2019.
The following statistics show the number of tax court cases, in the different regions of Portugal, initiated and terminated in 2016 and 2017 in the first instance, although there is no information regarding their value or the taxes to which they relate.
Source: based on information published by the Conselho Superior dos Tribunais Administrativos e Fiscais and the Direcção-Geral da Política da Justiça in 2018.
As for arbitration, the number of cases initiated every year increased until 2014, peaking at 850 new cases, and has since decreased slightly. In 2015 there were 789 new cases, in 2016 there were 772 new cases, in 2017 there were 693 cases and in 2018 there were 709 new cases.
Regarding the different taxes and according to the 2018 data, most cases were related to stamp duty (26%) and CIT (25.1%). Personal income tax was discussed in 15.9% of cases and VAT in 10.4%. Vehicle tax gave rise to 9.4% of the cases, property transfer tax to 7% of cases and property tax to 4.5% of cases.
Finally, also in accordance with the 2018 data, in arbitration most cases had a value of up to EUR60,000 (62%), 20.8% of cases had a value between EUR60,000 and EUR275,000, 5.8% had a value of EUR275,000 up to EUR500,000, 5.4% had a value between EUR500,000 and EUR1 million, and only 6% had a value higher than EUR1 million.
According to the OECD statistics (compiled with tax litigation data reported to 2015), around 40% of tax court cases are decided in favour of the Portuguese tax administration.
These results do not seem different to those achieved in arbitration, according to the Administrative Arbitration Centre, using statistics from 2017.
Throughout the course of a tax controversy there are many strategic options and decisions to be taken. In spite of each case deserving its own strategic consideration, preparation and analysis, there are general guidelines that should guide or be considered by taxpayers along the path. Below are some of the most relevant issues.
The year 2020 began with a tremendous new challenge worldwide: COVID–19. The effect of the novel coronavirus has rapidly spread to all social, economic, and financial areas.
The swift spread of COVID-19 required Portugal to adopt severe containment measures. We have been witness to something never seen before: closed borders, empty streets, the shutting down of non-essential industries and services, and an economy that is grinding to a halt as a result of the quarantine mandated by the government and recommended by the World Health Organization.
The budget for 2020, approved but delayed due to elections at the end of 2019, was published in March 2020 as an obsolete document. However, the Portuguese government is pressured daily to approve exceptional and temporary measures in all areas – tax and tax litigation included.
The financial assistance provided to companies and individuals; the release from, or flexibility toward, current tax obligations; and the economy’s abrupt slow down are all major factors contributing to increasing public debt and certain public deficit.
New issues will certainly arise once the intensity of the pandemic eases or its initial impact is lessened; the State will need to find new measures to recover. If Portugal faced difficult times in 2011, 2012 and 2013 – when harsh measures were required by the troika – one does not need to be Nostradamus to predict that a similarmedicine will probably be prescribed with a different name (the government will try to avoid the "austerity" term), and palliatives when necessary. Of course, apart from new taxes or heavier burdens on the existing ones, the tax authorities – probably more zealously than ever – will reopen their activities, certainly launching audits to review and scrutinise all the situations that may trigger taxes and, in particular, those related to recent years when the economy was growing. They will investigate everything not excluded by the statute of limitations and they will probably focus their attention on large companies and high net worth individuals (HNWI). In this environment, tax disputes and controversies are likely to arise, increasing tax litigation.
Considering that it is preferable to avoid litigation, both for the State and for taxpayers, they will both probably react based on the trust, good faith, and actions of each other
In such an extraordinary context, the following sections describe both recent and future trends and developments in tax litigation in Portugal.
COVID-19 – Tax Litigation Measures
The need for people to isolate themselves at home, and the declaration of a state of emergency, leading to the termination of all non-essential business activity at the levels of production, management, and administrative organisation led the Portuguese government to suspend all judicial and administrative litigation for an undetermined period and until otherwise legislated.
Law No 1-A/2020, of March 19th, as amended by Law No 4-A/2020, of April 6th, establishes that, apart from a few exceptions, all terms in processes and proceedings currently pending before courts – namely the administrative and tax courts, the Constitutional Court, arbitration courts and tax authorities in what concerns tax execution procedures (considered as judicial processes despite being conducted by administrative bodies) – shall be suspended until otherwise expressly determined by law. It is probable that these striking measures will be reversed in May 2020.
The shutdown of almost all court activities, and the suspension of deadlines, have a few obvious and direct consequences: both parties will have to wait (even) longer for an outcome of the processes and procedures of which they are part, which may mean waiting longer for an outcome and, in several cases, to obtain monies – either the State, if the losing taxpayer did not pay the tax upfront, or the winning taxpayer if he or she had paid it and claims a reimbursement of the tax unduly assessed and paid. For both parties, these delays may also increase the value of the payment considering that interest might still be accumulating.
Main Areas of Predictable Impact: Examples from the Past
Sooner or later, the tax authorities will need to activate their mechanisms to collect revenue – tax audits that may lead to the assessment of additional taxes and tax foreclosure procedures to collect taxes already assessed and not yet paid – mechanisms that are currently inactive whether by the formal rule of suspension of deadlines mentioned in the previous section, or by the rules on social isolation.
As a result of this suspension, the State is currently spending more and collecting less. Public debt, already high, will increase, but there are limits; taxes will soon be used as the usual tool to raise revenues. How the State will obtain additional revenues, either through new taxes or by harsher tax audits, is still to be seen; probably both methods will be employed.
Foreclosure files are expected to grow because some taxpayers will be unable to comply with their ordinary obligations, including taxes. This may lead to an unpredictable increase in the number of tax foreclosures, but this would not lead to significant litigation.
Stricter and more extensive auditing
However, other COVID-19-related phenomena are expected to cause an increase in litigation. Tax authorities will likely become increasingly strict, if not aggressive, once the suspensions are revoked. Those less affected by the economic effects of the pandemic – such as some large companies, businesses that may have grown from or with the pandemic (such as some online based businesses) and high net worth individuals, already under the scrutiny of tax authorities – are the most obvious targets of new, stricter and extended tax audits in the months and years to come. As these correspond precisely with the profile of taxpayers that do not easily accept aggressive, hurried and unjustified tax assessments (the type that often arises from the State’s urgent financial need for revenue) and have the means to fight them, it is foreseeable that the current pause in the tax and arbitration courts, will be followed by an exponential increase in tax litigation.
The main areas of litigation may shift from traditional discussion on the admission of tax expenses and obvious mistakes made by taxpayers to broader subjects, open to interpretation and qualification with a greater impact outside the specific case in which a decision is issued. Anti-avoidance practices and BEPS (Base Erosion and Profit-Shifting) actions, are strong candidates to occupy more prominent roles in tax litigation.
The tax authorities may be tempted to unduly expand the use of the means at their disposal, such as the GAAR or SAARs (General or Specific Anti Abuse Rules), or to apply Double Taxation Treaties (DTTs) in a manner intended to maximise the State’s tax revenue – something that already happens from time to time, carelessly or with poor judgement. Even in ordinary times there are several examples of these cases.
For instance, in February and November 2019, the Arbitration Court issued decisions on cases of undue use of the GAAR, in which tax authorities defended their position that the restructuring operations executed by the taxpayers in question had the sole purpose of avoiding tax. According to these decisions, the conditions for the application of the GAAR did not exist in any of those situations. The tax authorities did not prove that the tax avoidance was the sole or main reason for those operations to take place and therefore the tax authorities could not have made use of the clause to assess additional tax under the circumstances (cases ns.s237/2018-T and 165/2019-T, respectively).
The correct application of DTTs is also of paramount importance and the courts are frequently asked to verify if the tax authorities have correctly challenged a specific interpretation and/or application made by taxpayers in this domain, or an incorrect qualification. Also, the proper use of foreign tax credits is something on which the tax authorities are particularly focused, sometimes making basic mistakes.
Recently the Supreme Administrative Court (SAC) confirmed a previous decision of a tax court that ruled against the tax authorities’ decision to deny a tax credit for taxes paid in Germany. In that decision, issued on 6 November 2019, the SAC confirmed that the Kirchensteuer (ecclesiastical tax) and the Solidaritätszuschlag (solidarity tax) are covered by the DTT celebrated between Portugal and Germany, because they have the nature of additional taxes to the main Einkommensteuer (income tax), thus having to be taken into account by the tax authorities when calculating the tax credit for international double taxation.
The State surcharge
In fact, not long ago, Portugal saw this happen, despite it being on a different scale, when the troika intervened. At that time, several new taxes were created. The State surcharge (derrama estadual) is a clear example of a tax (i) created with the sole purpose of facing a crisis, (ii) affecting essentially large companies, (iii) abusively applied by the tax authorities, and (iv) strongly challenged by taxpayers.
Back in mid-2010, the State created a surcharge of 2.5% on taxable profits over EUR2 million. The State surcharge was then applied by the tax authorities to all taxable profits in 2010. It has been successfully challenged by taxpayers for being retroactive, thus unconstitutional, in recent years. The Supreme Administrative Court decision of 7 July 2018, among others of the same nature and content, states that "in the absence of a transitional law rule and with due regard to the provisions of paragraph 2 of Article 12 of the General Tax Law, the State surcharge created by Law No 12-A/2010, of June 30th, can only be applied to that part of taxable profits which correspond to the period from 1 July 2010, the date of entry into force of that Law."
However, the story of the State surcharge did not end there. A few years later, the crisis has elapsed but the surcharged remains. Moreover, considering that it is targeted and applied only to large companies, the government decided to increase the tax rate first to 5%, then to 7% and in 2017 to 9%, even raising the profitable income to which these rates apply in order to narrow the number of affected taxpayers (there are probably fewer than 100 taxpayers subject to the top rate). This, despite the fact the Portuguese Constitution stipulates progressive tax rates for individuals but a proportional rate to corporate bodies. Of course, this action promoted litigation that is still pending where taxpayers challenged this tax, mainly based on the principles of equality in taxing the real profit (the Portuguese Constitution does not subject corporate income tax to a progressive taxation contrary to the individual income tax), confidence, good faith, justice and proportionality.
Matters where litigation may increase
The above-mentioned cases are mere examples that illustrate the type of issues that the near future may bring – at an amplified scale – in terms of post-pandemic litigation, now with all the most sophisticated tools brought forward by BEPS, the Anti -Tax Avoidance Directive (ATAD) I and II, MLI, the Common Reporting Standard (CRS), DAC 6, etc.
The targeted taxpayers will probably check whether those measures used offend ordinary or constitutional domestic rules, or EU and international agreements, such as DTTs, and if they consider that they do so, they will fight for their rights. One cannot forget that most large companies or HNWI were also affected by the current crisis, and they will try to avoid a second wave lunched by the states.
Prevention of BEPS and Tax-Avoidance
The prevention of BEPS has been one of the OECD's and the EU’s main concerns in recent years. Within this context, several amendments were introduced into domestic Portuguese legislation or into Portuguese DTT via the signing of the Multilateral Convention to Implement Tax Treaty Related Measures to Prevent BEPS (MLI), with direct impact on all those matters covered by different OECD BEPS actions being closely monitored by tax audit inspection teams.
The post-pandemic period will probably see these teams scrutinising all these issues with greater diligence in large companies when reviewing and auditing the last few years. From 2020 onwards, an important new legal instrument is expected to assist the authorities in detecting possible opportunities to make additional tax assessments.
Portugal already has rules requiring taxpayers to disclose certain tax operations considered as aggressive to the tax authorities. However, from now on, with DAC 6, the EU Council Directive on Administrative Co-operation 2018/822, of 25 May 2018, the scope will be substantially expanded, and a significant change is expected to occur. The new IFRIC 23, issued by the International accounting Standards Board (IASB), setting out how to determine the accounting tax position when there is uncertainty over income tax treatments, will also probably assist the tax authorities to be more vigilant towards specific cases and companies, from 2020 onwards. Regarding Action 12 of the OECD BEPS Project, as well as the mandatory Disclosure Rules for addressing CRS avoidance arrangements and opaque offshore structures, this EU measure imposes the mandatory automatic exchange of information for arrangements with an EU cross-border element that meets one or more of the listed hallmarks (features of an arrangement that present an indication of a potential risk of tax avoidance listed in DAC 6 Annex IV).
According to this Directive and despite its official application date being set as 1 July 2020, member states should already have adopted and published all necessary laws, regulations, and administrative provisions by 31 December 2019.
That was not the case in Portugal. On 31 January 2020, the Portuguese Government published revised draft legislation for the implementation of DAC 6, and since then several other proposals have been discussed in Parliament. COVID-19 took precedence and other legislation required more attention at the end of winter 2019 and in spring 2020. However, the conclusion of discussions is expected by the summer and the law will probably be published in 2020.
The current draft of the Portuguese legal document has a scope much wider and larger than DAC 6. Further to cross-border arrangements, the Portuguese law intends to also introduce disclosure requirements in respect of domestic arrangements with sole effects in the Portuguese territory and covering several taxes, including VAT. Additionally, the Portuguese current draft does not include an exemption, due to legal professional privilege, for certain intermediaries such as lawyers from the duty to report, making these professionals ultimately responsible for disclosing information if their client or other intermediaries do not comply with the obligation to report. This point is and has been quite controversial in public discussions.
It seems likely that this legal instrument will apply substantially to future investigations by the tax authorities. How this information will be used by the tax authorities remains to be seen, but a very strict and aggressive approach will certainly lead to more litigation. Therefore, this will certainly be a very sensitive area for the next couple of years.
Apart from domestic tax litigation, disputes among states over the interpretation and application of DTTs and matters of qualification will probably also increase. In this domain, it is relevant to stress that Portugal signed and deposited the instrument of ratification of the MLI on 17 June 2017 and on 28 February 2020, respectively; the MLI will enter into force on 1 June 2020.
The Portuguese ratification instrument lists and covers a total of 79 tax treaties and clarifies the reservations and options made by Portugal in relation to various optional rules. The full text of the MLI, as well as the ratification document containing all the Portuguese reservations and options, is available at the OECD website.
Portugal reserves the right not to apply several MLI provisions, notably those related to non-individual tax residency, anti-abuse rules for permanent establishments situated in third jurisdictions, artificial avoidance of permanent establishment status through commissionaire arrangements and similar strategies, among others. However, mandatory rules concerning the purpose and preamble of treaties and the prevention of treaty abuse, as well as the rule clarifying that treaties do not generally restrict a state from taxing their own residents, already represent a significant alteration to the current treaties. In this respect, Portugal adopted the principal purpose test (PPT) and not the simplified limitation on benefits rule.
It has opted, instead, to settle international tax disputes by arbitration. Whether this mechanism will be effectively useful in settling disputes over the application of treaties signed by Portugal is yet to be seen, in particular due to approval of EU Directive No 2017/1852 of 10 October 2017
The novelty of the MLI, which certainly increases the complexity of applying DTTs may provoke more errors, and this may contribute to further litigation, at least in the short term.
Nevertheless, probably the principal weapon used by the authorities, and the one that gives rise to the largest amount of highly controversial litigation, is the general anti-avoidance rule (GAAR), which was recently amended (in 2019) to cover a larger scope of operations and to more heavily penalise the persons involved.
The GAAR was introduced into Portuguese law in 1999 and currently allows the Portuguese tax authorities to disregard any transaction that had been undertaken through artificial, fraudulent or abusive forms with the principal, or one of the principal, purposes being to avoid tax (including its mitigation or deferral), taxing instead the transaction according to its substance, rather than its form. The key point is to find whether the transaction (or a series of transactions/arrangements put together) is genuine and was done with valid economic reasons, or not; and, in making this appraisal one should also verify if this is supported by the economic substance of the transaction.
The alteration of the preamble and purpose in all double tax treaties as well as the introduction of the principal purpose test by the MLI, may also lead the tax authorities to use the GAAR in more cross-border situations.
It should be noted that the rule was amended to foresee an aggravated interest penalty applicable to all situations that fall under the GAAR. In these situations, in addition to the general 4% yearly compensatory interest due when an additional tax assessment is made regarding a previous year (usually no more than four years due to the statute of limitation period), a 15% yearly interest rate is then applicable, meaning that a tax saving allegedly based on an abusive tax scheme is subject to a 19% rate of total yearly interest. This may also be applicable to resident taxpayers or payers of income that did not withhold tax on payments made abroad if the tax authorities consider that they knew or should have known that the structure put in place was intended to avoid the payment of tax in a manner covered by the GAAR. As a rule, these taxpayers may not only become subject to tax on the income paid abroad to non-residents but from now on also to this massive penalty disguised as an interest rate.
If this might seem an effective measure to dissuade taxpayers from resorting to tax avoidance and abusive schemes, it is also an enormous incentive to litigation. First, this is a very strong penalty badly disguised as an interest rate, which will probably be systematically challenged because it avoids the control of legislating penalties and applying new penalties. Secondly, being a punitive interest rate, it will push taxpayers to challenge the Portuguese tax authorities use of the GAAR, which is often applied for the purpose of getting results (taxes) rather than because the evidence demands it.
Tax Dispute Resolution Mechanisms between EU Member States
New and more effective means to settle international tax disputes between states have also been developed recently. In September 2019 Portugal published Law No 120/2019, of September 19th, which implements Directive (EU) 2017/1852 of 10 October 2017.
According to the Directive, it "lays down rules on a mechanism to resolve disputes between Member States when those disputes arise from the interpretation and application of agreements and conventions that provide for the elimination of double taxation of income and, where applicable, capital. It also lays down the rights and obligations of the affected persons when such disputes arise".
Law No 120/2019 of 19 September 2019, establishes that taxpayers have a three-year deadline to submit a claim to the national competent authority on EU double taxation issues, a right that does not obliterate the right to challenge or appeal tax assessments under the national laws of Portugal or another EU member state involved in the dispute.
The national competent authority has a six-month period to decide whether to accept the complaints that are submitted and, in the case of acceptance, a two-year deadline to issue a final decision which may be extended for an additional year at the most.
It is also foreseen that, if an agreement is reached between all the competent authorities concerned in this respect, the decision will be binding on the national competent authority and enforceable by the taxpayer provided that the taxpayer accepts it and, if any other appeal is pending, renounces that appeal. Additionally, if it is not possible to reach an agreement between the national competent authority and the other competent authorities involved in the dispute, the party concerned must be notified of this fact and the reasons for it.
If the decision is not favourable, the taxpayer may still use its national appeal mechanisms or, alternatively, appeal to the Advisory Commission.
After the Advisory Commission issues an opinion, the national competent authorities of the states involved shall reach an agreement complying with it, within six months after being notified of that opinion. In the absence of an agreement between these authorities, the opinion issued by the Advisory Commission shall be binding on the national competent authority.
The implementation of the Directive in Portugal is so recent that there are still no statistics on the volume of litigation generated by the approval of Law No 120/2019, of 19 September 2019. Certainly, it is not yet a significant amount, not only because the regime is only a few months old, but also due to the deadlines and the suspension of acts determined by law due to COVID-19, a measure adopted in many member states.
The dispute resolution mechanisms now available fill a gap that taxpayers have wanted fixed for a long time. Furthermore, the COVID-19 crisis is already giving rise to many concerns relating to the interpretation of the double tax treaties in force. Can employees stuck in countries other than the country in which they regularly work, and working from their homes during the COVID-19 crisis, create a permanent establishment (PE) for themselves in those countries? Can the relocation or inability to travel of chief executive officers or other senior executives change the place of effective management of a company under certain domestic laws? Is the relocation, or inability to travel in general, capable of changing an individual's residency for tax purposes?
These questions led the OECD to issue a report (available at https://read.oecd-ilibrary.org/view/?ref=127_127237-vsdagpp2t3&title=OECD-Secretariat-analysis-of-tax-treaties-and-the-impact-of-the-COVID-19-Crisis) to address the main issues. Notwithstanding this, and despite the OECD’s efforts to clarify such doubts, it is possible that some of them will give rise to litigation between states.
The world’s economic scenario is changing fast and in a way that was impossible to predict a few months ago. In fact, it is quite possible that, by the time these words are being read, it has already changed radically… again. States are being tested on their ability to respond to simultaneous public health and economic crises, and the tax repercussions will play a central role in the way they do so.
Portugal was already witnessing the dawn of a new era in tax matters, a trend that will continue more than ever after the pandemic is controlled.
Damage control will become an urgent necessity, and it is likely that an increase in taxes will occur with new taxes and/or heavier burdens placed on existing ones. The Portuguese authorities are better equipped with technical means and supplied with much more information and knowledge than in the past. At the same time, they will be pressed to increase tax receipts and collection after this crisis. IFRIC 23, DAC 6 and the developments in anti-tax avoidance practice and BEPS initiatives (in particular, the MLI) will continue to make an important contribution to the monitoring of large companies and HNWIs as well as the interaction of different tax systems in cross-border situations.
Clearly, the best strategy for taxpayers is to anticipate and be prepared for the tax audits that will come soon, by reviewing their most recent operations and any possible weaknesses in order to better identify and mitigate the tax risks; collecting data and arguments that will sustain positions. This is crucial to avoid potential litigation and, if this is not possible, it may be key to initiating a successful challenge of an additional tax assessment.