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Notícias

  • NEWSLETTER -  MARCH 2015

    Fining decisions handed down by the Portuguese tax authority in the context of infringement proceedings are liable to annulment for violation of the requirements of form referred to in points b) and c) of number 1 of article 79 of the General Law of Tax Infringements (GLTI).


    Fining decisions handed down by the Portuguese tax authority in the context of infringement proceedings are liable to annulment for violation of the requirements of form referred to in points b) and c) of number 1 of article 79 of the General Law of Tax Infringements (GLTI).

    On January 2015, the Administrative and Tax Court of Braga delivered a final appeal decision that annulled a fining decision issued by the tax authority, concerning an alleged infringement by non-payment of toll.

    To this end, the Court found, succinctly, that the decision model used by the tax authority in this case is in direct violation of the formal requirements of the fining decisions, provided for in article 79 of the GLTI, being silent on essential elements for decision making and corresponding exercise of contradictory on the part of the accused.

    First, the Court understood that the decision-making model used by the tax authority does not contain the required (albeit brief) description of the facts allegedly practiced by the accused, enabling a full and correct perception of the conduct imputed to him, alluding generically to the type of offence committed, legal norms violated and punitive norms applied.

    The lack of any actual description of the facts of the accused's conduct violates the legal provision set out in point b) of number 1 of article 79 of the GLTI, which requires that the decision contains all the facts that integrate and sustain the offence charged.

    Second, the Court held that the mere reference to the legal provisions violated does not present itself as sufficient because it imposes on the accused the review of the invoked legislation so that he can (indirectly) seize the offence imputed to him, which, according to the Court, is liable to constitute, in the abstract, a limitation to the exercise of his right of defense.

    Finally, the Court held that the decision-making model used by the tax authority is silent about the elements (provided for in article 27 of the GLTI) that determined the concrete measure of the fine imposed, thus preventing the accused to perceive them and to exercise his right of defense, which constitutes a manifest violation of the legal provision set out in point c) of article 79 of the GLTI.

    Conclusions:

    According to the legal grounds described above, the Court decided that there was a nullity in the tax infringement proceeding, pursuant to the legal provision of point d) of number 1 of article 63 of the GLTI, which resulted in the annulment of the decision and of all its subsequent terms, under the legal provision of number 3 of that same article.

    This judicial decision, in accordance with the legal grounds sustained by the Court, "opens the door" for other similar situations having, on the part of the competent judicial bodies, the same kind of analysis and decision.

    And we do not only refer to similar situations concerning infringements by non-payment of toll. The usefulness of this legal decision is much more comprehensive and reaches all situations, without exception, in which the tax authority produces fining decisions in the context of procedures for tax offenses.

    This is because the Portuguese tax authority uses the exact same model of decision for every single tax situation, regardless of the offence report to an alleged non-payment of toll or, for example, to an alleged non-payment of tax due, namely the so lately fashionable Single Road Tax (SRT).

    If the Portuguese tax authority remains using this decision model, then virtually all fining decisions handed down by the same shall be liable to be declared void by the courts of Portugal.


    João Rôlo Marques
    Lawyer

    PMBGR
    Trocado, Durães Rocha & Associados
    Sociedade de Advogados, R.L.

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