Process: 116/2018-T

Date: November 26, 2018

Tax Type: IRS

Source: Original CAAD Decision

Summary

This CAAD arbitration case (Process 116/2018-T) addresses whether common-law partners (união de facto) can file joint IRS tax returns under the same conditions as married couples. The claimants, living together since 2007, filed their 2014 IRS return as de facto partners but were rejected by the Portuguese Tax Authority (AT). The AT issued an ex officio assessment treating them as separate taxpayers, arguing that legal requirements under Article 14 CIRS were not met, specifically because their tax domiciles did not coincide on 31 December 2014. The claimants challenged this through administrative complaint and hierarchical appeal, both dismissed. They then sought CAAD arbitration, arguing they met all substantive requirements for de facto union recognition. The Tax Authority contended that Law 82-E/2014, which modified residence determination rules, only applied prospectively from 1 January 2015, and that the previous regime required identical tax domiciles and joint signature on the declaration. The tribunal examined witness testimony confirming the couple lived together, shared household expenses, and were publicly recognized as partners since 2007, with a 2014 parish certificate attesting to their seven-year union. The central legal issue concerns whether the strict formal requirement of identical tax domiciles on the last day of the tax year should prevent recognition of a substantively proven de facto union for IRS purposes, and whether Law 82-E/2014's changes apply retroactively or only to subsequent tax years.

Full Decision

ARBITRAL DECISION

REPORT

1. A..., taxpayer no. ... and B..., taxpayer no. ..., hereinafter referred to as Claimants, filed on 15/03/2018 a request for the constitution of an arbitral tribunal and for an arbitral decision regarding the express dismissal order of the hierarchical appeal which upheld the dismissal of the administrative complaint and, mediately, regarding the legality of the ex officio assessment of Personal Income Tax (IRS) no. 2016... on the grounds that, in their judgment, it suffers from the defect of violation of law.

2. His Excellency the President of the Deontological Council of the Administrative Arbitration Center (CAAD) designated on 09/05/2018 Francisco Nicolau Domingos as arbitrator.

3. On 29/05/2018 the arbitral tribunal was constituted.

4. In compliance with the provisions of art. 17, nos. 1 and 2 of Decree-Law no. 10/2011 of 20 January (RJAT), the Respondent was notified on 02/06/2018 to, if willing, submit a response, request the production of additional evidence, and to remit the administrative file (PA).

5. On 09/07/2018 the Respondent submitted its response in which it contests the admissibility of the request for an arbitral decision, given the legality of the assessment.

6. By order dated 10/07/2018 the tribunal scheduled the date for the production of witness evidence regarding the matters alleged under arts. 9, 10 and 14 of the request for an arbitral decision.

7. On 12/10/2018 witness C... was examined regarding the factual matters identified above.

8. By order dated 12/10/2018 the tribunal granted a period of 8 days for the parties, if willing, to submit their final written and simultaneous pleadings and for the Claimants to proceed with the payment of the subsequent arbitration fee.

9. The Claimants submitted their final written pleadings on 17/10/2018, in which they maintain their initial claim in its entirety.

POSITION OF THE PARTIES

The Claimants allege that they have lived in a de facto union for more than 8 years, residing at Street ..., no. ..., ..., Matosinhos, residence in which they share a common life. Consequently, they have the subjective right to the application of the IRS regime under the same conditions applicable to married taxpayers not separated in persons and property.

For this reason, they impute error regarding the factual and legal assumptions to the express dismissal order of the hierarchical appeal no. ...2016... which upheld the decision of the administrative complaint and mediately, to the IRS assessment no. 2016....

They conclude by requesting that the tribunal draw the consequences of the annulment of the express dismissal order of the hierarchical appeal, alleging as follows: "...namely regarding the guarantees provided for safeguarding the payment of the tax".

The Respondent presents a defense with the following grounds:

Error regarding the factual and legal assumptions

The regime introduced by Law no. 82-E/2014 of 31 December regarding the determination of residence is only applicable to cases of change of residence occurring after the entry into force of said law – 1 January 2015.

Thus, in the wording in force of art. 14 of the Personal Income Tax Code (CIRS) at the date of the taxable event, beyond proof of the de facto union, there was required the identity of the tax domicile and the signature of the declaration by the de facto partners. Requirements which, in its judgment, were not met, whereby the IRS assessment should remain in the legal order. Particularly because said legislative amendment has an innovative nature, applying only prospectively.

In this sequence, the following are the issues that the tribunal should consider:

Whether the express dismissal of the hierarchical appeal which mediately underlies the IRS assessment suffers from error regarding the factual and legal assumptions;

Whether the Claimants are entitled to compensation for undue provision of guarantee.

PRELIMINARY EXAMINATION

The joinder of parties and the cumulation of claims underlying the present proceedings is admissible, inasmuch as there is identity between the factual matter and the admissibility thereof depends on the interpretation of the same principles and rules of law, see art. 3, no. 1 of the RJAT.

The proceedings do not suffer from nullities, the arbitral tribunal is regularly constituted and is materially competent to hear and decide the claim, and consequently the conditions for the final decision to be rendered are verified.

4. FACTUAL MATTER

4.1. Facts considered proven

4.1.1. On 06/05/2015, the Claimants submitted a model 3 IRS declaration, having filled in the box for "De Facto Union".

4.1.2. On 06/06/2015, the Claimants were notified by the Tax and Customs Authority (AT) to correct said income declaration because the legal assumptions for the application of the taxation regime provided for married taxpayers not separated in persons and property as de facto partners were not met.

4.1.3. The Claimants did not file a replacement declaration as a result of the content of the notification referred to in 4.1.2. above.

4.1.4. The AT proceeded to complete an ex officio declaration, in which Claimant A... was considered divorced, having been taxed as the sole member of the household.

4.1.5. No fiscally relevant income was detected by the AT in relation to taxpayer B..., and was therefore not included in any tax declaration.

4.1.6. The ex officio declaration gave rise to IRS assessment no. 2016..., which determined a net collection of €20,822.88, which after consideration of amounts withheld at source, installment payments, surtax and compensatory interest, determined tax payable of €7,462.06, with voluntary payment deadline until 27/04/2016.

4.1.7. On 31 December 2014 the tax domiciles of the Claimants did not coincide.

4.1.8. The Claimants filed on 12/05/2016 an administrative complaint in which they allege that they have lived in a de facto union since 2007.

4.1.9. On 06/09/2016 the Claimants were notified of the express dismissal of the administrative complaint.

4.1.10. On 06/10/2016 the Claimants filed a hierarchical appeal of the express dismissal act of the administrative complaint.

4.1.11. By order of the Head of Division of the IRS Services Directorate, dated 12/12/2017, the hierarchical appeal was expressly dismissed.

4.1.12. The Claimants have lived together, since 2007, at Street ..., no. ..., ..., sharing the house, where they sleep, take their meals and receive friends.

4.1.13. The Claimants since then participate as husband and wife in events of the union of parishes ... and ... and walk through the streets of said union of parishes equally in that capacity.

4.1.14. The parish assembly of ... issued on 03/09/2014 a certificate, based on personal knowledge, that the Claimants had lived in a de facto union for 7 years.

4.1.15. The request for an arbitral decision was filed on 15/03/2018.

4.2. Facts not considered proven

4.2.1. That guarantee was provided to suspend tax enforcement.

There are no other facts with relevance for the arbitral decision that have not been established as proven.

4.3. Reasoning for the factual matter considered proven

The factual matter established as proven originates from the documents used for each of the alleged facts and whose authenticity was not challenged and from the witness evidence produced.

4.4. Reasoning for the factual matter not considered proven

No documents were filed by the Claimants that would allow said matter to be established as proven.

5. MATTER OF LAW

5.1. Issue of determining whether the express dismissal of the hierarchical appeal which mediately underlies the IRS assessment suffers from error regarding the factual and legal assumptions

De facto union is defined in Law no. 7/2001 of 11 May – art. 1, no. 2 – by comparison with marriage. That is, de facto union occurs in relation to those who live in a situation analogous to that of spouses for a determined period of time – for more than two years. Jurisprudence understands that fulfillment of the concept (de facto union) requires: "...the existence among members of the union of a joint life project, analogous to marital living, which must be materialized through a full community of life, namely through a community of table, bed and residence which must endure, in terms of stability, for a period exceeding two years, with members of that union behaving, in essence, as if they were actually husband and wife", judgment of the Coimbra Court of Appeal of 12/12/2017, delivered in the context of case no. 2292/16.4T8CTB.C1 with Judge ISAÍAS PÁDUA as reporter.

One of the subjective rights that persons living in a de facto union may invoke is precisely the application of the IRS regime under the same conditions applicable to married taxpayers not separated in persons and property, as paragraph d), no. 1 of art. 3 of Law no. 7/2001 of 11 May expressly and specifically provides.

The recognition of de facto union depends on proof, but how is de facto union proven? Art. 2-A of Law no. 7/2001 of 11 May provides that: "1. In the absence of legal or regulatory provision requiring specific documentary proof, de facto union is proven by any legally admissible means. 2. In the case of proving de facto union by declaration issued by the competent parish assembly, the document must be accompanied by a declaration of both members of the de facto union, under oath, that they have lived in de facto union for more than two years, and by certified copies of the full birth registration of each of them (...)".

At the date of the taxable event, art. 14 of the CIRS determined that this right depended on meeting two requirements: a) identity of tax domicile during the period required by law for verification of the assumptions of de facto union – in the taxation period, and ii) signature, by both, of the income declaration.

The choice by taxpayers living in a de facto union for the taxation regime of IRS of married taxpayers not separated in persons and property thus presupposed, at the date of the taxable event, identity of tax domicile.

Regarding this first requirement, jurisprudence sustains that: "The concept of tax domicile is defined in paragraph a) of no. 1 of art. 19, no. 1 of the LGT, and in this manner, absent provision to the contrary, the tax domicile of the taxpayer, in the case of natural persons, is the place of habitual residence. It is habitual residence that integrates the concept of tax domicile. In this manner, if the habitual residence of the taxpayer, natural person, is verified in a determined place, then that is their tax domicile, regardless of their notification to the AT. That is, the legal provision does not make the concept of tax domicile dependent on any notification, but solely on "habitual residence". The obligation to notify the tax authority of the taxpayer's domicile is only provided for, autonomously, in no. 3 of that legal provision, with no. 4 establishing that its change is ineffective until notified to the tax authority. Now, this is merely a matter of the effectiveness of the change of domicile, its production of effects before the AT, which does not affect the substance, and does not even integrate, the legal concept of tax domicile provided in no. 1 of art. 19 of the LGT. In other words, the tax domicile of a determined taxpayer natural person which is the place of their habitual residence does not cease to be so because it has not been notified to the AT. Consequently, for purposes of no. 2 of art. 14 of the CIRS, the identity of tax domicile of the taxpayers is verified when they have the same habitual residence [proven], regardless of compliance with the foreseen notification of no. 3 of art. 19 of the LGT. The absence of that notification will be relevant, in this case, for purposes of proof of tax domicile, which shall be incumbent upon the taxpayers, in light of the ineffectiveness of the change of domicile resulting from no. 4 of art. 19 of the LGT."

That is, taxpayers may rebut the presumption that they do not live in a de facto union by not having altered their tax domicile, by making proof in the context of judicial or arbitral proceedings of cohabitation for more than two years by means other than identity of tax domicile.

In this manner, it is necessary to first determine whether the proceedings establish proof that the Claimants had, in the year 2014, the same habitual residence and whether they lived in de facto union. As sustained by Recommendation 13/A/2013 of the Ombudsman, regarding the declaration of proof of de facto union to be issued by the parish assembly: "It is that the declaration, for tax purposes, of the same tax domicile over two or more years – which the AT requires as unique proof of de facto union – is obviously not a guarantee of the existence of a true de facto union. Citizens who cohabit with mere objectives of expense sharing, without living in conditions analogous to those of spouses, certainly do not meet the requirements demanded by Law no. 7/2001 of 11 May, as amended by Law no. 23/2010 of 30 August and have, in the eyes of the AT, a special facility in "proving" a non-existent "de facto union"."

Regarding the second requirement, jurisprudence observes that: "The requirements set forth in article 14, no. 2 of the CIRS, indication of a common address and joint signature of the income declaration, can only be seen as formal requirements that facilitate proof before the AT of said de facto union and, should the interested parties not comply with such requirements, it is incumbent upon them to prove, by any means, that they can effectively benefit from the regime applicable to de facto unions."

In the evidence production proceeding, it was established, in particular, that the Claimants are seen by the population as husband and wife walking through the streets of the union of parishes of ... and ...; they attend various events in that capacity and the President of this body delivered an invitation for an event at the following address – Street ..., no. ..., ... – having been received by Claimant B....

In this manner, it is important to analyze whether sufficient and clear evidence was presented that, at least since 2012, cohabitation existed between the Claimants in a manner analogous to that of spouses, with a view to rebutting the presumption contained in art. 14, no. 2 of the CIRS in the wording in force at the time of the facts.

From the combination of documentary and witness evidence it is legitimate to conclude that the Claimants in 2014 already lived in conditions analogous to those of spouses for more than two years. For this reason, the additional IRS assessment and compensatory interest are illegal.

5.2. Issue of compensation for undue provision of guarantee

The Claimants request compensation for undue provision of guarantee, but there is not minimally documented in the proceedings that any guarantee was provided to suspend the tax enforcement of the tax credit which the AT claims to hold. Only the Claimants were bound to allege and prove the existence of said guarantee, having failed to do so, the AT is absolved of this claim.

6. DECISION

On these grounds, judgment is rendered as partially admitting the request for an arbitral decision, annulling the additional IRS assessment for 2014 and respective compensatory interest, with further legal effects, namely the annulment of the express dismissal order of the hierarchical appeal and absolving the Respondent regarding the request for compensation for undue provision of guarantee.

7. VALUE OF PROCEEDINGS

The value of the proceedings is fixed at €7,462.06, pursuant to art. 97-A of the Code of Procedure and Tax Procedure (CPPT), applicable by virtue of the provision of art. 29, no. 1, paragraph a) of the RJAT and art. 3, no. 2 of the Regulation of Costs in Tax Arbitration Proceedings (RCPAT).

8. COSTS

Costs to be borne by the Respondent, in the amount of €612, see art. 22, no. 4 of the RJAT and Table I attached to the RCPAT.

Notify.

Lisbon, 26 November 2018

The arbitrator,

(Francisco Nicolau Domingos)

[1] Judgment of the Central Administrative Court South of 05/03/2015, delivered in the context of case no. 05655/12 with Judge CRISTINA FLORA as reporter. See also in this same sense, judgment of the Supreme Administrative Court of 16/11/2016, delivered in the context of case no. 0761/15 with Counselor ARAGÃO SEIA as reporter.

[2] See in this sense judgment of the Supreme Administrative Court of 16/11/2016, delivered in the context of case no. 0761/15 with Counselor ARAGÃO SEIA as reporter.

[3] Judgment of the Supreme Administrative Court of 16/11/2016, delivered in the context of case no. 0761/15 with Counselor ARAGÃO SEIA as reporter.

Frequently Asked Questions

Automatically Created

Can common-law partners (união de facto) in Portugal file joint IRS tax returns under the same conditions as married couples?
Yes, common-law partners in Portugal can file joint IRS tax returns under the same regime as married couples, provided they meet specific legal requirements. Under Article 14 of the Portuguese IRS Code (CIRS), de facto partners who have lived together for more than two years in conditions analogous to marriage can opt for joint taxation. However, procedural requirements must be met, including proof of the union's existence and, depending on the applicable legislative version, identical tax domiciles. Law 7/2001 defines de facto union as a situation analogous to marriage lasting for a determined period. The taxation regime aims to treat substantively similar situations equally, though formal requirements have evolved through legislative amendments, particularly with Law 82-E/2014.
What are the legal requirements for common-law couples to benefit from the married couples' IRS tax regime in Portugal?
To benefit from the married couples' IRS regime, common-law partners must: (1) prove they have lived in a de facto union for more than two years in conditions analogous to marriage; (2) submit proper documentation, such as certificates from parish councils or other official recognition of their union status; (3) both sign the IRS declaration indicating their de facto union status; and (4) depending on the tax year, meet residence requirements. Under the pre-2015 regime, the Tax Authority required identical tax domiciles registered on 31 December of the relevant tax year. Law 82-E/2014 modified these requirements effective 1 January 2015, introducing new residence determination rules. The substantive existence of the union must be demonstrated through evidence of cohabitation, shared household, and public recognition as partners.
How can taxpayers challenge an IRS tax assessment through hierarchical appeal (recurso hierárquico) and CAAD arbitration?
Taxpayers can challenge IRS assessments through a three-tier process. First, they file an administrative complaint (reclamação graciosa) directly with the Tax Authority within a specified deadline, requesting review of the assessment. If dismissed, they can file a hierarchical appeal (recurso hierárquico) to a superior administrative authority within the Tax Authority. If the hierarchical appeal is also dismissed, taxpayers can seek arbitration through CAAD (Centro de Arbitragem Administrativa) under Decree-Law 10/2011 (RJAT). The arbitration request must be filed within 90 days of notification of the hierarchical appeal decision. CAAD arbitration provides an alternative to judicial courts, offering faster resolution of tax disputes. The arbitral tribunal examines both procedural legality and substantive merits, can annul administrative acts, order refunds, and award compensation for undue guarantees provided during enforcement proceedings.
What changes did Law 82-E/2014 introduce to the IRS treatment of common-law partnerships in Portugal?
Law 82-E/2014, effective 1 January 2015, introduced significant changes to IRS treatment of common-law partnerships, particularly regarding residence determination. The law modified Article 14 of the CIRS, updating requirements for de facto partners to access the married couples' taxation regime. A key controversy in this case concerns whether these changes apply retroactively to tax years before 2015 or only prospectively. The Tax Authority argued the amendments were innovative in nature and should only apply to residence changes occurring after 1 January 2015, meaning the previous stricter regime—requiring identical tax domiciles registered on 31 December of the tax year—would apply to 2014 returns filed in 2015. This interpretation affects whether formal registration requirements should prevail over substantive proof of a long-standing de facto union. The legislative change reflects evolving recognition of non-traditional family structures in Portuguese tax law.
Can a CAAD arbitral tribunal annul an IRS assessment issued to common-law partners who were denied joint taxation status?
Yes, a CAAD arbitral tribunal has jurisdiction to annul IRS assessments issued to common-law partners denied joint taxation status, provided it finds legal or factual errors in the administrative decisions. The tribunal examines whether the Tax Authority correctly applied legal requirements for de facto union recognition and whether the hierarchical appeal dismissal suffered from errors regarding factual or legal assumptions. If the tribunal determines that claimants substantively met the requirements for de facto union despite formal deficiencies, or that the Tax Authority misapplied the law, it can annul the ex officio assessment and the administrative acts upholding it. Annulment would require the Tax Authority to issue a corrected assessment recognizing the joint taxation status. The tribunal may also order reimbursement of excess taxes paid and potentially award compensation for undue guarantees provided to suspend enforcement, though this requires proof that such guarantees were actually furnished.