Law no. 7/21, of February 26 ("Law 7/21"), which reinforces the taxpayers' guarantees and procedural simplification, amending the General Tax Law ("LGT"), the Tax Procedure and Process Code ("CPPT"), the General Regime of Tax Infractions ("RGIT") and other legislative acts, has been published in the Official Gazette. This Law has come into force on February 27, 2021, without prejudice to certain rules identified in this Informative Note.
The main changes introduced in the referred legal diplomas are listed below.
- Liability of the certified accountants
In cases where the taxpayer is unable to pay his debts, the Tax Authority (AT) can only hold the certified accountant responsible for the technical regularisation in the accounting and tax areas or for signing tax declarations, financial statements and their annexes if the certified accountant has acted with intent.
The instalment payment facility is now available for debts from Community own resources, such as customs duties.
- Interruption and suspension of the limitation periods
The limitation period for the payment of the tax debt will be suspended (i) while a complaint against the decisions of the tax enforcement body is pending, when this results in the impossibility of carrying out coercive acts in the respective enforcement proceedings and (ii) until the end of the proceedings which begin after the submission of an application to the AT for the suspension of enforcement of the amount due.
- Deferral and extraordinary suspension of legal deadlines
According to this new article, all tax return or payment obligations that end during the month of August may be fulfilled until the last day of that month, without any penalty being applied.
In addition, the deadlines for acts of tax procedure, answers to requests for clarification from the AT or prior hearings are extended to the first working day of September.
The deadlines for tax inspections are suspended during the month of August, so the deadline for notifications whose deadline ends during the month of August is suspended on 31 July and continues to count from 1 September.
Regarding notifications received during the month of August, this Law establishes that the period only begins to run on 1 September.
When requesting binding information, the AT will now have to hear the taxpayer if he so requests in the application.
In addition, micro, small and medium-sized enterprises (MSMEs) will now have to attach the certificate proving their nature to their binding information request.
It should be noted, however, that the above-mentioned changes will only come into force on 1 July 2021.
It is now expressly stated that the AT must review its generic guidelines set out in circulars, regulations, or other instruments of identical nature, when they (i) deal with matters that have been examined in summary decision by a higher court, (ii) there is a Uniform Court Ruling issued by the Supreme Administrative Court or (iii) there is consolidated case law of the higher courts.
- Effects of a favorable decision to the taxpayer
If claims, administrative appeals, or judicial proceedings in favor of the taxpayer are granted, in full or in part, the AT is obliged to fully reconstitute the situation that would have existed if the illegality had not been committed, as well as to pay compensatory interest within 60 days.
- Notices and summonses to judicial administrators
In accordance with Law 7/21, the notifications and summonses addressed to the judicial administrators must be sent to their professional domicile or by electronic data transmission in the respective reserved area of the Finance Portal. In this context, professional address is understood to be the one that appears on the official list of judicial administrators published on the portal of the Commission for Monitoring the Justice Auxiliaries.
- Deferral and extraordinary suspension of deadlines
According to this new article, the legislator clarifies that the payment of compensatory interest by the AT is not subject to a previous procedural initiative by the taxpayer.
- Suspension of enforcement - Guarantees
According to the wording of Law 7/21, in cases of tax debts worth less than €5000 for individuals and €10,000 for legal entities, tax enforcement will be suspended for a maximum period of 120 days, starting from the end of the period for voluntary payment, regardless of the provision of a guarantee or the submission of a request, until the corresponding administrative or judicial means are presented, and the suspensive effect ceases 15 days after its presentation, if the competent guarantee is not presented or its waiver is obtained.
Additionally, the tax execution of tax debts is also suspended under the terms of article 169 of the CPPT, in cases of filing of an opposition to the execution.
- Expiration of the guarantee
The new wording clarifies that the guarantee provided to suspend tax enforcement in case of an administrative or judicial claim or opposition lapses (i) automatically if the administrative or judicial claim is not decided within one year as from the date it is filed and (ii) if the judicial claim or opposition has not been decided in the 1st instance within four years as from the date it was filed, and the interested party submits a request in the proceeding to the competent court. However, these time limits will not apply if the delay in the decision on the administrative or judicial appeal or opposition is due to a reason attributable to the claimant, appellant, applicant, or defendant.
- Formality of the seizure of money or amounts deposited
Regarding the seizure of money or amounts deposited, the new wording of the law has clarified and simplified the process underlying the execution of the seizure, referring to the application of the rules set out in the Code of Civil Procedure. Additionally, the mechanism for communication and/or notification of the seizure process should be by way of electronic data transmission to the electronic tax residence of the depositary or through the AT’s online Portal (“Portal das Finanças”).
Regarding the determination of the value of the assets seized for sale, the present law establishes that, when it is evident that the market value of the assets is manifestly higher than that determined based on the rules set forth in the CPPT, the value may alternatively, at the request of the debtor or on the initiative of the tax enforcement body, be determined with recourse to the technical opinion of a specialized expert registered with the Portuguese Securities Market Commission (“Comissão do Mercado de Valores Mobiliários”).
It is clarified that the transmission of the ownership right of the seized assets put up for sale only occurs with the issuance of the transmission title, after the price has been deposited and the tax obligations have been fulfilled.
- Waiver, reduction, and mitigation of fines
According to the changes introduced by the present law in the regime of exemption, reduction and mitigation of fines, no fine will be applied whenever there is no loss to the State (missing tax payment) and the tax situation is settled. In this context, the current practice of the tax authorities of imposing fines based on the argument of " minor degree of guilt" should not proceed if there has been no loss and the situation is regularized. Nevertheless, if the situation is not yet regularized, the taxpayer should always be notified to regularize the infraction and may, in case an administrative offence proceeding is later filed, request exemption from the fine.
It should be noted, however, that the above-mentioned changes will only come into effect on January 1, 2022.
The time limit for the defendant to present a defense in the administrative offence proceeding was extended from 10 to 30 days. The time limit for filing an appeal with the tax court of first instance against decisions to impose fines and accessory penalties has been extended from 20 to 30 days. It should be noted, however, that these changes will only come into effect on January 1, 2022.
- Guarantees of effectiveness
The new Law clarifies that the taxpayer or taxable person is not allowed to submit, from the beginning of the inspection procedure until its conclusion, tax declarations regarding facts included in the scope and extension of the inspection procedure accredited by the service order. It should be noted, however, that this amendment will only come into force on January 1, 2022.
- Start and deadline of the inspection procedure
The present law establishes that the deadline for conclusion of the inspection procedure is suspended when the inspected entity requests, by means of a request addressed to the head of the competent service for the inspection procedure, submitted within the period granted for a prior hearing, the settlement of its tax situation. It should be noted, however, that the above-mentioned changes will only come into force on January 1, 2022.
- Conclusion of the inspection procedure
The final report of the inspection procedure, which establishes the end of the inspection procedure, may now also be notified to the taxpayer by electronic data transmission, through the public notification service associated to the single digital address, the electronic mailbox or in the respective reserved area of the Finance Portal. It should be noted, however, that this change will only come into force on January 1, 2022.
V. Regulation of Procedural Costs
Law 7/21 clarifies that cases in which the AT revokes or annuls administrative acts in tax matters or reviews tax acts, or others, that are subject to tax proceedings pending in administrative and tax courts are exempt from costs.
António Vicente Marques – Sociedade de Advogados, RL, SP.