CAAD 122/2016-T: PEC Deduction Against Autonomous Taxation in IRC – Arbitral Decision

ARBITRATION DECISION

I. REPORT

A…–, S.A., a legal entity no…, with registered office in Lisbon, covered by the local peripheral services of the Tax Office of Lisbon…, came, pursuant to articles 2.º, no. 1, letter a), and 10.º, nos. 1 and 2, of Decree-Law no. 10/2011 of 20 January, and 1.º and 2.º of Ordinance no. 112-A/2011 of 22 March, to request the constitution of an Arbitral Tribunal, electing as acts subject to the request for pronouncement the dismissal of the request for revision of the acts of self-assessment of Corporate Income Tax (IRC) relating to the fiscal years 2010 and 2011, and the acts of self-assessment, insofar as they correspond to the special payment on account (PEC) made under Corporate Income Tax (IRC) or, subsidiarily, insofar as the assessment of autonomous taxation is improper.

Not having appointed an arbitrator, the signatories were designated by the CAAD Deontological Council and, absent any objection, the tribunal was constituted on 12 May 2016.

The Tax and Customs Authority (AT) responded and, dispensing with the meeting referred to in article 18 of the Legal Regime of Tax Arbitration (RJAT), both parties submitted arguments, after which the tribunal announced the rendering of the decision by 11 November 2016, following a timely extension.

II. POSITION OF THE PARTIES

Of the Claimant

The question that the claimant seeks to have clarified is the following: does or does not A… have the right to effect the deduction, also from the IRC collection produced by the application of the autonomous taxation rates of the referred special payments on account?

Taking into account the overwhelming arbitral jurisprudence that today qualifies autonomous taxation as IRC, the claimant sees nothing in the law that precludes the deduction of special payments on account, also as regards the part of the IRC collection produced by autonomous taxation. However, according to it, at the time of filing the Form 22 declarations in question, the AT's IT system still did not permit such deduction to be effected. And in the context of an official revision request, the AT chose to maintain this position by dismissing the petitioned matter.

Just as jurisprudence has understood, in an almost unanimous manner, that the IRC collection provided for in (in force until 2013) article 45.º, no. 1, letter a), of the Corporate Income Tax Code (CIRC), comprises, without need for any additional specification, the collection of autonomous taxation in IRC, so must it also be understood that the IRC collection provided for in the same code (article 90.º, no. 1, and no. 2, letter c), of the CIRC, in the wording in force in 2010 and 2011) also encompasses the collection of autonomous taxation in IRC. Whence, for the claimant, the denial of the deduction of PEC from the IRC collection of autonomous taxation violates letter c) of no. 2 of article 90.º of the CIRC (prior to 2010, article 83.º; and since 2014 it became letter d) of the referred no. 2 of article 90.º of the CIRC).

The claimant recalls that, rightly or wrongly, it has been systematically decided by tax courts, in this case in the form of arbitral tribunals, that autonomous taxation is IRC, from which it is concluded as a consequence that the rules directed to IRC apply to them, such as the rule concerning the non-consideration of IRC collection for the computation of taxable profit in IRC (article 45.º, no. 1, letter a), of the IRC Code, in force until 2013).

The claimant recalls the identification of (at least) twenty-four arbitral decisions produced up to the date on which it was concluded that autonomous taxation has the nature of IRC: cases nos. 187/2013-T, 209/2013-T, 210/2013 T, 246/2013-T, 255/2013-T, 260/2013-T, 282/2013-T, 292/2013-T, 298/13-T, 6/2014-T, 36/2014-T, 37/2014-T, 59/2014-T, 79/2014-T, 80/2014-T, 93/2014-T, 94/2014-T, 163/2014-T, 166/2014-T, 167/2014-T and 211/2014-T, 659/2014-T, 697/2014-T and 769/2014-T.

And in all these judgments it has been decreed in consonance with the understanding and systematic requests of the AT (that autonomous taxation would be IRC). Whence the perplexity expressed by the claimant when it witnesses the AT's denial of the deduction of PEC from the IRC collection produced by autonomous taxation rates (IRC, according to the understanding, in harmony, of the AT and the courts), and, in particular in the express dismissals of which it became aware, it sees no reference made to all these arbitral decisions and their respective conclusions, absolutely coincident (for all of them, autonomous taxation is IRC) and for which it fought, and continues to fight, the AT.

In contradiction with everything it had been defending up to that time regarding the qualification of autonomous taxation as IRC, in particular for purposes of qualifying the collection of autonomous taxation as IRC collection for purposes of article 45.º, no. 1, letter a), of the IRC Code, in the wording in force until 2013, and in contradiction with the overwhelming arbitral jurisprudence that systematically gave it its way in qualifying the collection of autonomous taxation as IRC collection, the AT now says that the same reference to IRC a few articles further on (90.º of the CIRC) would no longer encompass the collection of autonomous taxation.

According to the claimant, the AT points out two reasons for this understanding. As to the first reason the claimant has only this comment: how can the AT in the dismissal of the official revision request say that because article 90.º of the CIRC does not mention autonomous taxation, its collection would be outside the deductions provided there if precisely not mentioning also letter a) of no. 1 of article 45.º of the CIRC autonomous taxation, this did not prevent the same AT (and dozens of arbitral decisions) from concluding that its collection was included there? And it was included there precisely because it still qualified as IRC collection.

In fact, for the claimant, the AT and the courts have had no doubts that where it spoke of IRC in article 45.º of the CIRC (in the wording in force until 2013), more specifically in letter a) of its number 1, it was also speaking of autonomous taxation (because these are also IRC), whence the perplexity that the same expression, in the same code, comes being understood by the AT in a divergent manner. If autonomous taxation is IRC, as the AT and arbitral courts understand it, and if to the IRC collection (which would be obtained if the expenses in question in autonomous taxation were not deducted) that this part of IRC which is autonomous taxation aims to replace/compensate, the PEC is deductible, how can it be said that to the substitute, also held in final terms (by the AT and arbitral courts) as IRC, this same PEC would not be deductible? With this being and not-being according to conveniences, the indelible impression that the AT leaves on the claimant is that of someone with the partial attitude of wanting to have sun in the field and rain in the cabbage patch.

As to the second reason invoked by the AT, it boils down to the anti-abuse character of autonomous taxation. Independently of whether one agrees or not with the epithet of "combat against tax evasion" that the AT has been indiscriminately associating with TA, such association should in no way modify the conclusion that the collection of this part of IRC directed (in this thesis) against abuses is available for purposes of tax benefits in IRC that operate, precisely, at the level of collection. In fact, in the understanding of the claimant, nowhere in the law is the collection or parts of the IRC collection resulting from legislative anti-tax evasion measures excluded from these tax benefits. Some examples:

i) the exclusion of costs actually incurred by the company for lacking the requirement of indispensability (article 23.º of the CIRC) aims to prevent abuses and improprieties with the personal sphere, generate increase in IRC collection and yet this collection does not cease to be available for purposes of tax benefits in IRC;

ii) the same occurs with the additional IRC collection attributable to the list of tax non-deductibility provided for in (current numbering) article 23.ºA of the CIRC, which includes transactions with entities resident in tax havens;

iii) the same occurs with the additional collection resulting from corrections made in the context of transfer pricing (article 63.º of the CIRC) or in the context of real estate transactions (article 64.º of the CIRC);

iv) the same occurs with the increase in taxable matter and possible additional collection attributable to it, as a result of direct attribution of profits earned by entities domiciled in tax havens (article 66.º of the CIRC);

In none of these cases, despite the measure in question having anti-evasion objectives much more evident than those that could be associated with the more common or current autonomous taxation (and statistically more important in terms of revenue), the additional IRC collection attributable to these measures ceases to be what it is – IRC collection – for purposes, also, of interaction with the PEC, or with tax benefits in the context of IRC. Furthermore, if autonomous taxation were not (after all) IRC for purposes of article 90.º of the CIRC, as the AT has been trying in other proceedings concerning deductions from collection (which is not unknown to the AT in those proceedings, which has to annually administer the assessment of TA), on what basis then is the assessment of autonomous taxation made and has it been made?

Of the Tax and Customs Authority

The AT begins by stressing that the request for arbitral pronouncement comes formulated in the sequence of dismissal of a request for official revision of an IRC self-assessment act relating to the years 2010 and 2011, filed on 20.05.2015, that is, in circumstances of time in which the deadline for the gracious complaint referred to in article 131º of the Code of Tax Procedure and Process (CPPT) had already elapsed. Now, having regard to the provisions of articles 2.º, no. 1, letter a) and 4.º, no. 1, both of the RJAT, and articles 1.º and 2.º, letter a), both of Ordinance no. 112-A/2011, of 22 March, there is, for the respondent, an exception of material incompetence of the present Arbitral Tribunal to examine and decide the above request, a circumstance which requires that the absolution of the Defendant Entity from the Proceeding be determined [cf. articles 576.º, nos. 1 and 2 and 577.º, letter a) of the Civil Procedure Code (CPC), ex vi article 29.º, no. 1, letters a) and e) of the RJAT].

Both jurisprudence and doctrine have already abundantly addressed the characterization of the figure "autonomous taxation" in IRC (and in IRS) and the legislative evolution verified since its creation, by art.º 4.º of Decree-Law no. 192/90, of 09.06, to the present.

The considerations made in this regard reveal that the figure of autonomous taxation has been instrumentalized for the pursuit of diverse objectives, ranging from the original purpose of preventing practices of evasion and fraud – through undisclosed or undocumented expenses, or payments to entities located in legal systems with privileged tax regimes, to the replacement of taxation of ancillary benefits in the form of representation expenses or allocation of vehicles to workers and members of corporate bodies, in the sphere of the respective beneficiaries – to the purpose of preventing the phenomenon designated as "dividend washing" (cf. no. 11 of art.º 88.º CIRC) or of burdening, by tax means, the payment of income considered excessive (cf. no. 13 of the same provision).

For the AT, and in line with the characterization of autonomous taxation effected in the Arbitral Decision rendered in the context of case no. 80/2014-T – and in the happy expression used there that "autonomous taxation is nothing more than adjuvant mechanisms of the central axis of IRC, which is to tax profits (…)" –, the recognition of the coexistence between, on one hand, the (special) regime of autonomous taxation and, on the other, the system-rule (pre-existing) of IRC becomes very clear. And as is further explained in the same Arbitral Decision, "the inclusion of autonomous taxation in the respective code (…) has as a logical corollary the application of the general rules peculiar to this tax that do not contend with its special form of incidence".

It is recognized, thus, that the autonomous character of these taxation forms, stemming from the special configuration given to the material and temporal aspects of the tax facts, imposes, in certain areas, the exclusion or an adaptation of the general rules of application of IRC. In reality, for the AT, the integration of autonomous taxation, in the IRC Code (and of IRS), conferred a dualistic nature, in certain aspects, to the normative system of this tax, which materialized, in particular, within the framework of letter a) of no. 1 of art.º 90.º of the CIRC, in separate calculations of the respective collections, by force of obeying different rules.

And that is so, because, in one case, it is a question of the application of the rate(s) of art.º 87.º of the CIRC to the taxable matter determined according to the rules contained in chapter III of the Code and, in another case, it is a question of the application of the rates to the values of the taxable matters relating to the different realities contemplated in art.º 88.º of the CIRC. In the expression used by the Illustrious Professor SALDANHA SANCHES, J. L., Manual of Tax Law, page 407. "With this provision [autonomous taxation] the system shows its dual nature." That is, contrary to what is stated in point 9 of the dissenting opinion attached to the Arbitral Decision rendered in case no. 697/2014-T, there is not a single IRC assessment, but rather two calculations. That is, for the AT, there are two distinct calculations that, although processed, in accordance with letter a) of no. 1 of art.º 90.º of the CIRC, in the statements referred to in articles 120.º and 122.º of the same code, are effected on the basis of different parameters, since each materializes itself in the application of its own rates, provided for in articles 87.º or 88.º of the CIRC, to the respective taxable matters determined equally in accordance with its own rules.

And the cognitive path traced, with the purpose of uncovering such conflicts, passed through following the legislative evolution of autonomous taxation its nature and purposes and by establishing its confrontation with the conceptual structure of IRC, allowing one to conclude that the said autonomy of the figure of autonomous taxation in relation to this tax has always asserted itself with great intensity, since its creation by its own legislation, which defined its structural elements – tax facts and rates - naturally conditioned by the special objectives pursued.

It is asserted, thus, in the arbitral decision rendered in case no. 113/2015-T that being the "autonomous taxation" [are] altogether foreign to the pursuit of the conceptual objective of the CIRC, it is necessary to conclude that there will be situations in which the general rules will not be suitable to regulate the situation, because they pursue a different purpose. It is precisely in these situations in which the pre-existing norms of the CIRC contribute to the determination of real income, that their inadequacy to govern the "autonomous taxation" will be verified. In these cases of dissonance there are such conflicts that matter to be resolved.

It is important to clarify, says the AT, that the assessment of autonomous taxation is effected on the basis of articles 89.º and 90.º no. 1 of the IRC Code but, applying different rules for the calculation of the tax: (1) in one case the assessment operates through the application of the rates of article 87.º to the taxable matter determined in accordance with the rules of chapter III of the Code and (2) in the other case, various collections are calculated according to the diversity of the facts that give rise to autonomous taxation.

In reality, and for the respondent, the common feature to all realities reflected in the deductions referred to in no. 2 of art.º 90.º of the CIRC lies in the fact that they concern income or expenses incorporated in the taxable matter determined on the basis of the profit of the taxpayer or anticipated payments of the tax, and are therefore entirely foreign to the realities that integrate the tax facts of autonomous taxation.

It must always be called upon, definitely dispelling the controversial question, the content of article 133.º, which added number 21 to article 88.º of the CIRC, with the effects provided for in article 135.º, both contained in the State Budget Law for 2016, published on 30.03.2016, with entry into force on the following day, in which it is recommended, with an interpretative character, that "The assessment of autonomous taxation in IRC is effected in accordance with the provisions of article 89.º and is based on the values and rates resulting from the provisions of the preceding numbers, with no deductions being made to the overall amount determined." This norm came to clarify by positivizing, as was evidenced above, the understanding and practice followed peacefully by doctrine and by taxpayers in general, which were never called into question by the AT, so that any divergent interpretation will be materially unconstitutional.

And if doubts were to subsist about the interpretative effect conferred by article 135.º contained in the State Budget Law for 2016, let us appeal to the good jurisprudence already expressed in the arbitral case no. 673/2015-T, constituted in a collective tribunal, presided over by the distinguished Councilor Jorge Lopes de Sousa.

In this judgment, the Collective pronounced itself specifically on this norm, in the terms that follow below.

"The new no. 21 of article 88.° of the CIRC added by Law no. 7-A/2016, of 30 March, is in harmony with this arbitral understanding, because it comes to establish expressly that to the amount determined of autonomous taxation no 'deductions' are 'made'. "On the other hand, article 135.° of Law no. 7-A/2016, of 30 March, by attributing the nature 'interpretative' to that new no. 21.° of article 88.°, combined with article 13.° of the Civil Code (which is the only norm that defines the concept of interpretative law), has inherent in it a legislative intention to apply the new regime to prior situations in which there have not been effects already produced by the fulfillment of the obligation, by judgment passed in judgment, by transaction, even if not homologated, or by acts of analogous nature. (…) In face of this position, whose reasoning is weighty, in light of the legislation in force in 2012 and 2013, one can accept the attribution of interpretative nature to no. 21 of article 88.° of the CIRC that is made in article 135.° of Law no. 7-A/2016, of 30 March, in light of the teachings of BAPTISTA MACHADO, because the solution foreseen therein of infeasibility of deduction of the special payment on account to the overall amount of autonomous taxation passes the test enunciated by this Author: - the solution that resulted from the literal wording of article 93.°, no. 1, of the CIRC was controversial, as evidenced by that arbitral decision and the solution defined by the new law situates itself within the frameworks of the controversy; - the judge or the interpreter could have reached that solution without exceeding the limits normally imposed on the interpretation and application of the law, since restrictive interpretation is admissible when there are reasons to conclude that the scope of the legal text betrays the legislative thinking or it is necessary to optimize the harmonization of conflicting interests that two norms aim to protect. (…) Beyond that, it is not seen that the regime that results from article 88.°, no.° 21, of the CIRC contains any contradiction, contrary to what the Claimant alleges: according to this new norm, the norms of the CIRC relating to the form of assessment of autonomous taxation should be interpreted as provided there and as to that part of the assessment of IRC no deductions are made. Indeed, it was precisely with this meaning that the Form 22 model of IRC statement was drawn up and it was by applying the regime now explicit in no. 21 of article 88.° that the Claimant filled out the statements referred to in the record, without any perceptible contradiction.

Thus, it must be concluded that the authentic interpretation made in article 88.°, no. 21, of the CIRC, in the part in which it boils down to the non-deductibility of special payments on account in autonomous taxation, does not offend the principle of non-retroactivity in the creation of taxes, understood as reporting only to authentic retroactivity, reported to tax facts that were completed and produced all their effects in the past.

However, in the specific case of special payments on account, one cannot conclude that there is not a truly interpretative law, because there was not a consolidated jurisprudence in the sense of their deductibility from the collection resulting from autonomous taxation and, on the contrary, the solution profiled in no. 21 of article 88.°, could already previously be adopted by the courts, as it was by the Arbitral Tribunal that rendered the decision in the case of the CAAD no. 113/2015-T. Thus, one cannot conclude that the authentic interpretation made in that article 88.º, no. 21, by force of article 135.° of Law no. 7-A/2016, of 30 March, violates the constitutional principle of legal certainty, concerning the part of that norm that reports to the non-deductibility of special payments on account from the collection of autonomous taxation."

Finally, it is also important to invoke the arbitral decision rendered under Case no. 535/2015-T, which dealt with the question at issue and was decided in favor of the Respondent.

The AT states that to date the question to be decided has been the subject of several arbitral decisions, in this case, Case no. 113/2015-T; Case no. 535/2015-T; Case no. 673/2015-T, and Case no. 781/2015-T; Case no. 784/2015-T all of them corroborating the thesis argued by the Respondent.

III. PRELIMINARY MATTERS

Raised by the AT the exception of incompetence of the tribunal, it is important to begin with it.

The AT maintains that article 2.º/a) of Ordinance 112.º-A/2011, of 22 March, should be understood in its literality, excluding from the scope of tax arbitral jurisdiction claims relating to the declaration of illegality of self-assessment acts that have not been preceded by a complaint in accordance with the referred provisions of the Code of Tax Procedure and Process (CPPT).

All the argumentation of the Respondent in the matter, however, ends up boiling down to maintaining that it was the intention of the legislator to restrict the competence of tax arbitral jurisdiction, with regard to the knowledge of illegalities of self-assessment acts, solely to situations in which there exists a complaint filed in accordance with articles 131.º to 133.º of the CPPT.

There is not discerned, among the reasons advanced by the Respondent, a substantive reason why, given the conditions and specificities peculiar to each of the gracious remedies in question, the legality of self-assessment acts should not be cognizable in arbitral proceedings, in the same terms in which tax courts are bound. Indeed, even a strictly literal interpretation, provided it is properly contextualized, would not lead to the result advocated by the Respondent.

In fact, the expression employed by the norm in question is parallel to the very provision of article 131.º/1 of the CPPT, which should be understood as a concretization of the peaceably recognized legislative intention that the tax arbitral process constitute an alternative procedural means to the process of judicial challenge.

The provision of letter a) of article 2.º of Ordinance 112.º-A/2011, of 22 March, should also be understood as being explained by the circumstance that, in its absence – and given the content of article 2.º of the RJAT – it would seem possible the direct challenge of self-assessment acts, without precedence of prior administrative pronouncement.

That is, taking into account that in light of the RJAT it was not necessary any prior administrative intervention for the arbitral challenge of a self-assessment, the content of the Ordinance should be interpreted as equating – in this matter – the tax arbitral process to the process of judicial challenge and not, as would follow from the position sustained by the Respondent, going from 80 to 8, taking an impugnability broader than that possible in Tax Courts, and transmuting it into a more restricted one.

Thus, no reason is seen to interpret one and the other norm differently, all the more so because the letter of the provision of Ordinance 112.º-A/2011, of 22 March, ends up being less restrictive than that of the CPPT, insofar as it does not integrate the expression "mandatorily", nor does it refer to "gracious complaint" but to "administrative avenue". From which it is possible a reading of the very letter of the law that is contained in the sense that only excluded from the scope of tax arbitral jurisdiction is the knowledge of claims relating to the declaration of illegality of self-assessment acts, withholding at source and payment on account that have not been preceded by recourse to the administrative avenue in terms compatible with articles 131.º to 133.º of the CPPT.

And it is this reading that is subscribed to, in the sequence of the Judgment rendered in case 48/2012-T of the CAAD and subsequent arbitral jurisprudence, not conceiving, insofar as the interpretation effected is contained in the letter of the law, that therefrom can result the violation of any constitutional provision, especially, of the indicated articles 2.º, 3.º, no. 2, 111.º and 266.º, no. 2, all of the Constitution of the Portuguese Republic (CRP).

Thus, and given all the above, the Respondent not being right in this matter, the exception of incompetence of the Arbitral Tribunal is judged to be without merit.

The parties are legitimate and are properly represented.

There are no further exceptions to decide, nor nullities or issues that constitute an obstacle to the examination of the merits of the case.

IV. FACTS

It is proven that:

A) The claimant delivered on 20 May 2011 the IRC Form 22 declaration relating to fiscal year 2010, and on 30 May 2012 the IRC Form 22 declaration relating to fiscal year 2011, having determined an amount of autonomous taxation in IRC of € 28,366.38 (2010) and € 48,375.32 (2011), respectively.

B) In both the declaration relating to fiscal year 2010 and the declaration relating to fiscal year 2011, an amount payable was determined, which the Claimant paid.

C) The claimant submitted a request for official revision against the referred self-assessments relating to fiscal years 2010 and 2011, having been on 2 December 2015 notified of the dismissal thereof, in accordance with the document attached by the Claimant under no. 3, which is here fully reproduced.

D) To the tax resulting from the application of autonomous taxation rates in IRC the AT's IT system signals divergences ("errors") that prevent the entry of the value relating to autonomous taxation rates in IRC, deducted, within the limits of the IRC collection resulting from the application of these rates, from the amounts of accumulated special payments on account.

E) As regards special payments on account there remains an accumulated amount not deducted from the IRC collection which amounts in 2010 to € 91,515.57, and in 2011 to € 88,738.33.

The tribunal's conviction results from the documents attached to the case and from the admission of the facts alleged by the Claimant and not contested by the AT.

There are no relevant facts, alleged by the parties, that have not been proven.

V. LAW

Autonomous taxation as it follows from the very designation consists of a form of taxation which, although provided for in the codes of income taxes, in particular in IRC, is materially distinct from them. Firstly, it has a different tax fact, given that it does not refer, strictly speaking, or at least at first sight, to the receipt of income, but to certain expenses. This understanding is confirmed by the jurisprudence of the constitutional court[1], administrative[2] and arbitral[3], as well as by doctrine[4]. Furthermore, contrary to IRC in its general regime, autonomous taxation does not have a periodic nature and is not of successive formation, but approaches more to single-performance taxes, given the circumstance that its tax fact, that is, the expenses to which it applies, arise in isolation in time.

It is found, however, that just as follows from the arbitral decision of 4/5/2016, rendered in case of the CAAD no. 781/2015-T, that "From the outset, it is now established, following numerous arbitral jurisprudence and the positions assumed by the Tax and Customs Authority, that the tax collected on the basis of autonomous taxation provided for in the CIRC has the nature of IRC".

Even in a context in which one goes beyond the question of whether autonomous taxation is or is not incidential on income, and accepting that there would be a logical nexus between the receipt thereof and the verification of certain expenses (to which autonomous taxation would be incidental), still, it would be admissible to recognize that the regime of autonomous taxation would be distinct from the general regime applicable in the context of IRC. That is, that it should not be extrapolated from the formal inclusion of autonomous taxation in the context of IRC that this form of taxation would be subject to the general regime of taxation of income obtained during the fiscal year. Especially in a context in which the system is characterized, precisely, by a certain dualism[5].

As follows from the very epithet autonomous appended to the word taxation, the rules underlying the taxation of these receipts are distinct, which is why taxation is autonomous. It follows from the rules applicable to autonomous taxation that the expenses to which it applies, not only are not reflected in taxable profit, insofar as they are excluded from it, having thus no reflection in the IRC collection relating to the general regime of profit taxation, but, also, moreover, are subject to a different rate. It is therefore legitimate that its specificities be heeded.

We admit that the following statements, contained in the decision of the CAAD rendered in the already cited case no. 781/2015-T, in all identical to what is now decided, are correct:

"However, the fact that a self-assessment of IRC, effected in accordance with no. 1 of article 90.º, may contain several partial calculations based on various rates applicable to certain taxable matters, does not imply that there is more than one assessment, as results from the very terms of that norm in making reference to 'assessment', in the singular, in all cases in which it is 'made by the taxpayer in the statements referred to in articles 120.º and 122.º', having 'as its basis the taxable matter that results from them' (whether determined in accordance with the rules of articles 17.º and following, whether determined in accordance with the various situations provided for in article 88.º)"

"The amount determined in the statement referred to in article 120.º includes the sums relating to autonomous taxation, with no other specific statement being issued for this purpose, neither before nor after Law no. 7-A/2016";

"In truth, the statements provided for in article 120.º of the CIRC are drawn up in a single official model approved by order of the Minister of Finance, in accordance with articles 117.º, no. 1, letter b), and no. 2, of the CIRC".

However, the fact that autonomous taxation is assessed at the same time as the assessment is made in accordance with the general regime and that, ultimately, on the occasion of the determination of the amount of tax payable in the context of IRC, the assessment relating to autonomous taxation and that relating to the general IRC regime converge, can be understood as merely a technical expression and of convenience. Not therefore calling into question the existence of two distinct moments of assessment. Indeed, assessment, as a procedure, involves more than the determination of the amount of tax payable, comprising a whole succession of acts that, in the case of autonomous taxation, is entirely distinct from that which occurs in the context of the general rules. In that measure, the strictly literal argument that article 90.º of the CIRC makes a generic reference to assessment and that, for that reason, it would be necessary, in accordance with 90.º, no. 2 of the CIRC, a deduction of expenses, may leave room for the specificities of autonomous taxation to be considered and especially the dynamics and systematic nature of the various provisions of the CIRC.

In the case of the deduction of PEC, as is sought in the concrete case, there would arise a truly inconvenient situation that would translate into the fact that there would be two anti-abuse norms that would mutually annul each other.

As is known, the PEC was introduced into the legal order to provide the Tax Administration with an additional mechanism to combat tax evasion. It is therefore not a normal payment on account, given that it is calculated on the basis of turnover, and may even be due in the absence of profits, which evidences its anti-abuse character.

In practice, it would be permitted to deduct from a payment that has a view to preventing abuse, another that would pursue exactly the same purpose. In this situation, the paradox that would already follow from the effecting of the deductions contained in article 90.º, no. 2 of the CIRC would be maximized.

We fully subscribe to, as to what we have just ventured, the excerpt from the decision of the CAAD rendered in case no. 781/2015-T, and which we now proceed to transcribe.

"But it is also not less true that, in light of the previous regime of reimbursement of special payments on account, which revealed that the special payment on account had inherent in it a presumption of undeclared income, one could venture a restrictive interpretation, relating to the special payment on account, in the sense that it is not deductible from the collection of autonomous taxation, as was understood in the arbitral decision of 30-12-2015, rendered in case of the CAAD no. 113/2015-T, which invokes weighty reasons, derived from the purposes which were intended to be legislatively achieved with the creation of the special payment on account, which could justify a restriction of the reference made in article 93.º, no. 1, of the CIRC to the 'amount determined in the statement referred to in article 120.º':

As was seen, the PEC came to be part of the system of IRC whose assessment established in article 83º was designed to determine the tax directly incidental on the declared income. When there is fiscal loss the taxpayer still must bear the PEC; that was in fact the reason for its introduction. If a given company successively has fiscal losses, it will systematically bear tax, because the system doubts its possibility of functioning in a permanently deficit situation, requiring it to provisionally satisfy (on account) a determined value. It may be reimbursed if it proves that this situation is common in its sector of activity or if the AT verifies the regularity of its statements. This was the balance that the CIRC required to maintain a system based on statements made by taxpayers.

On the other hand, the tax resulting from autonomous taxation is founded solely on the pursuit of tax evasion by transfer of income and has a dissuasive and compensatory effect.

If the deduction of the PEC from the collection resulting from autonomous taxation is permitted, the purposes of the system in which the norm of 83º-2-e CIRC is inserted will be thwarted, because the product of the special payment on account that should remain "stationed" in the ownership of the Public Treasury will be allocated to the extinction of the debt of the taxpayer resulting from autonomous taxation, thus lightening the intended pressure to prevent tax evasion "declarative". There is effectively an irreconcilable conflict between the ratio of the PEC – the combat against evasion or pressure to correct statements – and the allocation of its credits to the satisfaction of other obligations that are not those that result from the determination of IRC calculated on the taxable result.

The new no. 21 of article 88.º of the CIRC added by Law no. 7-A/2016, of 30 March, is in harmony with this arbitral understanding, because it comes to establish expressly that to the amount determined of autonomous taxation no 'deductions' are 'effected'.

On the other hand, article 135.º of Law no. 7-A/2016, of 30 March, by attributing the nature 'interpretative' to that new no. 21.º of article 88.º, combined with article 13.º of the Civil Code (which is the only norm that defines the concept of interpretative law), has inherent in it a legislative intention to apply the new regime to prior situations in which there have not been 'effects already produced by the fulfillment of the obligation, by judgment passed in judgment, by transaction, even if not homologated, or by acts of analogous nature'.

BAPTISTA MACHADO teaches on interpretative laws:

The reason why the interpretative law applies to past facts and situations lies fundamentally in that it, coming to consecrate and fix one of the possible interpretations of the old law with which the interested parties could and should have counted, is not susceptible of violating secure and legitimately founded expectations. We can consequently say that those laws are of an interpretative nature which, on points or questions in which the applicable legal rules are uncertain or their sense controversial, come to consecrate a solution that the courts could have adopted. It is not necessary that the law come to consecrate one of the previous jurisprudential currents or a strong previous jurisprudential current. All the more so because the interpretative law often arises before such jurisprudential currents are formed. However, if this is the case, and if meanwhile a uniform jurisprudential current has formed that made practically certain the sense of the old norm, then the new law that comes to consecrate a different interpretation of the same norm can no longer be considered really interpretative (although it may be by legislative determination), but innovative.

For a new law to be really interpretative, two requirements are therefore necessary: that the solution of the previous law is controversial or at least uncertain; and that the solution defined by the new law situates itself within the frameworks of the controversy and is such that the judge or the interpreter could have reached it without exceeding the limits normally imposed on the interpretation and application of the law. If the judge or the interpreter, in the face of old texts, could not have felt authorized to adopt the solution that the new law comes to consecrate, then this one is decidedly innovative.

In light of this position, whose reasoning is weighty, in light of the legislation in force in 2012 and 2013, one can accept the attribution of interpretative nature to no. 21 of article 88.º of the CIRC that is made in article 135.º of Law no. 7-A/2016, of 30 March, in light of the teachings of BAPTISTA MACHADO, because the solution foreseen therein of infeasibility of deduction of the special payment on account to the overall amount of autonomous taxation passes the test enunciated by this Author:

– the solution that resulted from the literal wording of article 93.º, no. 1, of the CIRC was controversial, as evidenced by that arbitral decision and the solution defined by the new law situates itself within the frameworks of the controversy;

– the judge or the interpreter could have reached that solution without exceeding the limits normally imposed on the interpretation and application of the law, given that restrictive interpretation is admissible when there are reasons to conclude that the scope of the legal text betrays the legislative thinking or it is necessary to optimize the harmonization of conflicting interests that two norms aim to protect.

Unlike what occurs with tax benefits that depend on the realization of investments, there is, as concerns the deductibility of special payments on account, no concern for the protection of confidence, because the special payments are connected with turnover, not depending on any specific conduct that the taxpayer would be led to adopt because the expectation is created for it to obtain in return a tax advantage.

Moreover, it is not seen that the regime that results from article 88.º, no. 21, of the CIRC contains any contradiction: according to this new norm, the norms of the CIRC relating to the form of assessment of autonomous taxation should be interpreted as provided there and as to that part of the assessment of IRC no deductions are effected.

Indeed, it was precisely with this meaning that the Form 22 model of IRC statement was drawn up and it was by applying the regime now explicit in no. 21 of article 88.º that the Claimant filled out the statements referred to in the record, without any perceptible contradiction.

However, being thus, as the Claimant alleges, the obstacle to the application of the regime that results from this no. 21 of article 88.º will be only its possible unconstitutionality, in particular in light of the rule of prohibition of taxes with retroactive nature contained in no. 3 of article 103.º of the CRP, which establishes that "no one can be obliged to pay taxes that have not been created in accordance with the Constitution, that have a retroactive nature or whose assessment and collection are not made in accordance with the law".

The Constitutional Court has adopted a restrictive interpretation of the scope of this prohibition of taxes with retroactive nature, understanding that the "legislator of the constitutional revision of 1997, which introduced the current wording of article 103.º, no. 3, only intended to consecrate the prohibition of authentic retroactivity, or proper, of tax law, encompassing only cases in which the tax fact which the new law intends to regulate has already produced all its effects under the old law, excluding from its scope of application situations of retrospectivity or improper retroactivity, that is, those situations in which the law is applied to past facts but whose effects still endure in the present" (Judgments no. 18/2011, of 12-01-2011, which follows jurisprudence adopted in Judgment no. 399/2010).

The norms that provide for special payments on account were not, in principle, norms of incidence of IRC, but rather on its assessment and payment, and therefore, in that measure, will not be encompassed by the constitutional prohibition of retroactivity. However, prior to the wording given by Law no. 2/2014, of 16 January, to no. 3 of article 93.º, in the infeasibility of deduction of special payments on account in the period to which they report and in subsequent periods, those norms could end up creating a situation of incidence of IRC, autonomous in relation to any other tax fact, if the reimbursement were not permitted in accordance with no. 3 of article 93.º of the CIRC, which depended on the fulfillment of conditions.

However, with the wording given to the referred no. 3 of article 93.º by Law no. 2/2014, those conditions for reimbursement ceased to be required, so that special payments on account only imply, by themselves, the definitive payment of tax when the taxpayer does not diligently seek to obtain reimbursement, within the prescribed deadline.

And, even in this hypothesis, one will be dealing with a complex tax fact of successive formation, which is constituted by the turnover in the year to which the special payments on account report combined with the infeasibility of deduction in the periods provided for in the law and non-reimbursement in accordance with the terms provided in article 93.º, no. 3, of the CIRC".

"Thus, it must be concluded that the authentic interpretation made in article 88.º, no. 21, of the CIRC, in the part in which it boils down to the non-deductibility of special payments on account in autonomous taxation, does not offend the principle of non-retroactivity in the creation of taxes, understood as reporting only to authentic retroactivity, reported to tax facts that were completed and produced all their effects in the past.

However, that rule of non-retroactivity of norms that create taxes does not exhaust the constitutional concerns for legal certainty, imposed by the principle of the democratic rule of law, as teaches CASALTA NABAIS:

"The principle of legal certainty, inherent in the idea of the democratic rule of law, is far, however, from having been totally absorbed by this new constitutional provision. It is true that it ceased to serve as a balance in the weighing of the legal interests in the presence when we are faced with a tax affected by genuine or proper retroactivity. When this happens, the solution is now dictated, urbi et orbi, in the Constitution, and the organs applying it cannot, without violating it, proceed to a case-by-case weighing.

But the principle in question undoubtedly has a much larger foundation. It is that it also serves as a criterion for weighing in situations of improper, inauthentic or false retroactivity, as well as in situations in which, without any retroactivity, proper or improper, there is a need to protect the confidence of taxpayers deposited in the action of the organs of the State"."

However, in the specific case of special payments on account, one cannot conclude that there is not a truly interpretative law, because there was not a consolidated jurisprudence in the sense of their deductibility from the collection resulting from autonomous taxation and, on the contrary, the solution profiled in no. 21 of article 88.º, could already previously be adopted by the courts, as it was by the Arbitral Tribunal that rendered the decision in case of the CAAD no. 113/2015-T.

Thus, one cannot conclude that the authentic interpretation made in that article 88.º, no. 21, by force of article 135.º of Law no. 7-A/2016, of 30 March, violates the constitutional principle of legal certainty, as concerns the part of that norm that reports to the non-deductibility of special payments on account from the collection of autonomous taxation".

With regard to the question of interpretative law and in the sense of reinforcing the position subscribed through adherence to the excerpt of the judgment that we have just transcribed, we also accept what was written in the arbitral decision of 30/06/2016, rendered in case of the CAAD no. 769/2015-T on this same matter:

"By Law no. 7-A/2016, of 30 March, the legislator introduced no. 21 to art. 88.º of the CIRC, with the following wording:

'The assessment of autonomous taxation in IRC is effected in accordance with the provisions of art. 89.º and is based on the values and rates that result from the provisions of the preceding numbers, with no deductions being made to the overall amount determined'.

In art. 135.º of the referred Law no. 7-A/2016, of 30 March, the legislator determined that the norm in question will have an interpretative character.

If it is verified that, in fact, the new no. 21 of art. 88.º of the CIRC has an interpretative character, the provisions therein contained will integrate the interpreted norm from its beginning of effectiveness, so that this tribunal will have to conclude for the non-deduction of the PEC to the amounts due as autonomous taxation, dismissing the claim of the Claimant. This would equally result from the application to the concrete case of art. 13.º of the Civil Code which "The interpretative law integrates itself in the interpreted law, being saved, however, the effects already produced by the fulfillment of the obligation, by judgment passed in judgment, by transaction, even if not homologated, or by acts of analogous nature".

First of all, it should be stated that, although in tax matters the constitutional principles of legality and non-retroactivity of law, provided for in art. 103.º of the CRP, impose some restrictions on the legislator, this tribunal understands that there is no generic constitutional prohibition of tax interpretative laws.

The constitutional admissibility of interpretative laws in tax matters - as with any norms of a tax nature - should be assessed according to the matters on which they bear and their normative content, since the constitutional prohibition of retroactivity of tax law is limited to the matters of incidence (objective, subjective, temporal and territorial) of the tax.

As argued by Diogo Leite de Campos, Benjamim Silva Rodrigues and Jorge Lopes de Sousa, "The constitutionality of retroactive tax norms must be assessed in different terms depending on whether they concern the material elements that contribute to the definition of the tax normative type (incidence, exemptions and rate) or to other matters (guarantee of taxpayers, procedure for assessment and collection). The prohibition contained in art. 103.º, no. 3, of the CRP; concerns only the former. The constitutional conformity of the latter must be equated in light of the material principles of legal certainty and protection of confidence that inform the rule of law (art. 2.º of the CRP)".

Starting from the theoretical admissibility of interpretative laws in tax matters, it is necessary to analyze whether, in the case at hand, despite the express declaration of the legislator, we are effectively before an interpretative law.

of Baptista Machado concludes that "the reason why the interpretative law applies to past facts and situations lies fundamentally in that it, coming to consecrate one of the possible interpretations of the old law with which the interested parties could and should have counted, is not susceptible of violating secure and legitimately founded expectations". In these cases, there is no true retroactivity in the application of the interpretative law because the interpretation of the original norm effected in light of the legal framework in force would lead to the same solution as that consecrated by the legislator in a later norm.

It is thus considered that, to qualify a law as interpretative, the following requirements should be met:

(i) there is a controversial or uncertain question in the law in force; and

(ii) the legislator consecrates an interpretative solution that resolves the uncertainty to which the interpreter or the judge would have reached on the basis of the normative prior to the legislative change.

Applying these criteria to the situation at hand, we are led to conclude that we are indeed before an interpretative law. In fact, the matter regulated by the new no. 21 of art. 88.º of the CIRC was controversial and uncertain (having given rise to the arbitral cases listed by the very Claimant), corresponding the solution consecrated to one of the plausible interpretations to which the judge would have arrived, as it actually did, for example, in the arbitral decision rendered in proc. 113/2015-T, of 30-12-2015. The solution ceases not to be a plausible and well-founded solution that found previous jurisprudential adherence.

Against this understanding, the Claimant's allegation that, to be before an effective interpretative law, there would need to be a jurisprudential current that imposed a certain solution on the legislator will not proceed. And this allegation does not proceed because, as refers Baptista Machado "(…) It is not necessary that the law come to consecrate one of the previous jurisprudential currents or a strong previous jurisprudential current. All the more so because the interpretative law often arises before such jurisprudential currents are formed. (…) For a new law to be really interpretative, two requirements are therefore necessary: that the solution of the previous law is controversial or at least uncertain; and that the solution defined by the new law situates itself within the frameworks of the controversy and is such that the judge or the interpreter could have reached it without exceeding the limits normally imposed on the interpretation and application of the law. If the judge or the interpreter, in the face of old texts, could not have felt authorized to adopt the solution that the new law comes to consecrate, then this one is decidedly innovative." (highlighted in the original).

In light of all that is set out above, it remains to conclude on the interpretative character of no. 21 of art. 88.º of the CIRC, introduced by Law no. 7-A/2016, of 30 March, which, being directly applicable to the situation at hand, in accordance with art. 13.º of the Civil Code, will imply the dismissal of the claim of the Claimant by determining expressly the referred norm that to the amount of autonomous taxation no deductions will be effected."

Accordingly, it is concluded that the legislator in including in the IRC no. 21 of article 88.º, an "interpretative norm" added by Law no. 7-A/2016, of 30 March:

"The assessment of autonomous taxation in IRC is effected in accordance with the provisions of article 89.º and is based on the values and rates that result from the provisions of the preceding numbers, with no deductions being effected to the overall amount determined".

Limited itself to accepting and reinforcing the interpretative sense that already resulted from the norms in force, as was demonstrated by what was set out above. In that measure the retroactive application of that norm is dispensed with.

If it be possible to make deductions to the amount of autonomous taxation, we consider that a good legal hermeneutics imposes the retroactive application of the interpretative law.

We conclude by denying the allowance of the arbitral request for declaration of illegality of the IRC self-assessment relating to fiscal years 2010 and 2011.

VI. REIMBURSEMENT OF AMOUNTS PAID AND INDEMNIFICATORY INTEREST

The Claimant requests the reimbursement of the amounts paid, increased by indemnificatory interest at the legal rate, counted until full reimbursement.

The reimbursement of the amounts and the right to indemnificatory interest depend on the allowance of the request for declaration of illegality of the self-assessments.

For this reason, the request for declaration of illegality being dismissed, the requests for reimbursement and indemnificatory interest are necessarily also dismissed.

VII. DECISION

The members of this Arbitral Tribunal accordingly agree:

– to judge the request for arbitral pronouncement as without merit;

– to absolve the Tax and Customs Authority from the claims.

VIII. VALUE OF THE CASE

In accordance with the provisions of art. 305.º, no. 2, of the CPC and 97.º-A, no. 1, letter a), of the CPPT and 3.º, no. 2, of the Regulation of Costs in Tax Arbitration Proceedings, the value of the case is fixed at € 76,741.70.

IX. COSTS

In accordance with art. 22.º, no. 4, of the RJAT, the amount of costs, to be borne by the Claimant, is fixed at € 2,448.00, in accordance with Table I attached to the Regulation of Costs in Tax Arbitration Proceedings.

Lisbon, 04-11-2016

The Arbitrators

(José Baeta Queiroz – President – dissenting as per the vote that follows and integrates the present decision)

(António Martins - Member)

(João Sérgio Ribeiro - Member)

Dissenting Opinion

The jurisprudence produced by the arbitral tribunals functioning within the CAAD has understood, almost unanimously, that autonomous taxation integrates IRC, with the argumentation which the present judgment has not departed from.

And if it were not so as has been decided, there would be no legal norm that would support the respective assessment, and autonomous taxation would have to be considered unconstitutional, for violation of no. 3 of article 103º of the Constitution.

On the other hand, what primarily interests the courts is the manner in which the legislator configured things, and not doctrinal concepts, which the legislator does not always take into account. And the legislator, in this case, in including autonomous taxation in article 90º of the CIRC, undoubtedly chose to consider it IRC.

For its part, special payments on account do not cease to be payments on account by being special. That is, advances of the tax that is ultimately assessed, to which payments already made must be deducted, credits resulting from a loan that the taxpayer was forced to make to the State – whether they are special or not.

It is true that these special payments on account aim to tax companies that systematically present fiscal losses, and not those that evidence positive fiscal results. However, this is not an obstacle to what we have been affirming.

Thus, in our view, the collection found through the assessment effected in accordance with article 90º no. 1 includes autonomous taxation, and no. 2 of the same article, in its letter c), orders the deduction from the amount determined, which is one, of the "special payment on account referred to in article 106º".

We do not see how this norm can legitimately be interpreted other than literally. All the elements which are taken into account for the interpretation of laws, in particular the intention of the legislator, or the unity of the system, are of no avail if the result which is reached has no sufficient expression in the letter of the law. And that letter, in this case, is clear and does not admit, in our view, any other sense.

It is true that numerous jurisprudence of arbitral courts made a restrictive interpretation of the norm, considering special payments on account not deductible. Such jurisprudence rests, in summary, on the consideration that, given that special payments on account were introduced to tax companies that systematically present fiscal losses; and assuming autonomous taxation an effect both dissuasive and compensatory, pursuing tax evasion by transfer of income – the system would be defrauded if the use of special payments on account to extinguish the debt resulting from autonomous taxation were permitted.

Hence such interpreters felt authorized to make a restrictive interpretation – the legislator said more than it wanted in admitting the deduction from the collection resulting from autonomous taxation of special payments on account.

However, with all the consideration for the members of the courts that understood thus, as well as for the learned argumentation they expanded, we do not follow what was so decided, for the reasons already synthetically exposed. In our view, such interpretation attends more to the systematic element and the intention attributed to the legislator than to the letter of the law, nothing making us believe that the legislator manifested itself incorrectly, and nothing recommending, consequently, the restrictive interpretation.

However, it is necessary to heed that article 133º of Law no. 7-A/2016, of 30 March, introduced into article 88º of the CIRC a new no. 21, of this tenor:

"The assessment of autonomous taxation in IRC is effected in accordance with the provisions of article 89º and is based on the values and rates that result from the provisions of the preceding numbers, with no deductions being effected to the overall amount determined".

And article 135º of the said law affirmed the interpretative nature of the transcribed no. 21 of article 88º.

It so happens that our doctrine and jurisprudence have sustained, for a long time, that it is not enough for a norm, to be interpretative, the affirmation of the legislator to such an end.

It is true that, in this case, there is a jurisprudential controversy that, in principle, would justify an interpretative intervention by the legislator. It is also true that the new norm, affirmed as interpretative, goes in the sense of one of the pre-existing jurisprudential currents, that is, already before some judges had reached the interpretation now made by the legislator.

But heed what in 1997 Professor Oliveira Ascensão wrote: "it is not enough that in relation to a doubtful point a later law emerges that consecrates one of the possible interpretations for the law to be interpretative" (apud Saldanha Sanches, "Interpretative law and retroactivity in tax matters", in FISCAL, no. 1, p. 87). To which Professor Saldanha Sanches adds: "It is necessary that there be an effective controversy, known by the recipients of the norm, about the uncertainty of the interpretation".

This point seems to us relevant. It is that the recipients of the norm are not, prima facie, the jurists, the judges, but citizens in general, all obliged to the payment of taxes and all bound by the law, whose ignorance they cannot invoke.

Now, the interpretation reached by those arbitral tribunals is not within the reach of any citizen, nor even of any jurist, but only of a highly specialized tax lawyer, capable of combining various elements, be they historical, systematic and others, interpretative, reasonably ignored by most people, recipients of the law, and not even attainable by those most committed to understanding it.

That is: the common citizen, the bonus pater familias, even if an entrepreneur, investor or manager, not knowing, nor having to know, the jurisprudence of arbitral courts, counted, before the so-called interpretative law, on the possibility of deduction from the collection, in it included autonomous taxation, of special payments on account. That was what he read in the law then existing.

Which amounts to saying that the interpretative norm "(…) for not corresponding to anything which the taxpayer should or could have counted, comes to constitute by its unpredictable character a conduct harmful to legal certainty" (Saldanha Sanches, work and place cited, p. 86).

Furthermore: for the Author whose teaching we have been following, "(…) it does not seem to us that interpretative law can have place in tax matters (…) the [IV] constitutional revision came to prevent the retroactive effects of any norm in tax matters. Including those provoked by interpretative law" (work and place cited, p. 88).

And, for those who may think that this position may have been merely circumstantial, reported to the year 2000, in which the article we have been referring to was written, it is to see the MANUAL OF TAX LAW of the same professor, in whose 2007 edition is read, at p. 195, that "(…) even when we are before a truly interpretative law, and not one of those which the legislator designates as interpretative 'to make the retroactivity of the law less perceptible', (…) we are, in all these situations, before cases encompassed by the constitutional prohibition of retroactivity".

More so for those who, like us, understand that the letter of the law prior to the law of the budget for 2016 did not admit the interpretation subsequently adopted by the legislator, because the sense that was derived from that letter was univocal: special payments on account were deductible from the collection determined in accordance with no. 1 of article 90º, whether this included, or not, autonomous taxation. That is, that no. 21 of article 88º of the CIRC is not a truly interpretative norm. As, moreover, is immediately indicated by the manner in which the legislator proceeded: instead of giving the supposedly ambiguous norm a new wording, now unequivocal, it created another norm, a new one - no. 21 of article 88º of the CIRC -, in collision with article 90º, which cannot fail to be the "interpreted norm". And, if the said no. 21º of article 88º of the CIRC were a truly interpretative norm, it would be non-conforming with article 103º no. 3 of the Constitution.

Here, in brief summary, are the reasons why we do not follow what was decided and why, consequently, we would judge the request as well-founded.

José Baeta Queiroz

[1] Cf. Judgment no. 617/2012, case no. 150/12, of 31/1/2013 and Judgment 197/2016, case no. 465/2015, of 13/04/2016.

[2] Cf. Judgment 21/3/2012, case 830/11, of 21/3/2012, among others

[3] Cf. Judgment 535/2015-T of 27/04/2016; Judgment no. 697/2014-T, of 13/05/2015, among others.

[4] Cf. Rui Duarte Morais, Notes to IRC, Almedina, 2019, pp. 2020-203; José Casalta Nabais, Tax Law, 8th edition, Almedina, Coimbra, 2015, p. 542; Ana Paula Dourado, Tax Law, Lectures, 2015, pp. 237 et seq.

[5] Saldanha Sanches considers that the introduction of autonomous taxation conferred on the system a dual nature. See Saldanha Sanches, Manual of Tax Law, Coimbra Editor, Coimbra, 2007, pp. 406-408.