Process: 16/2015-T

Date: September 1, 2015

Tax Type: IRC

Source: Original CAAD Decision

Summary

Process 16/2015-T addresses Corporate Income Tax (IRC) depreciation of wind farm assets in Portugal. A wind energy company challenged an additional IRC assessment of €290,790.24 for the 2010 tax year through CAAD arbitration. The dispute centered on the appropriate useful life period for wind turbines. The taxpayer depreciated its wind turbines at 6.67% annually, corresponding to a 15-year useful life, arguing this reflected their actual operational conditions, including intensive use due to coastal location, high wind exposure, and the fact that the supplier only offered 12-year maintenance agreements. The tax authority rejected this approach, proposing a 20-year useful life based on IEC 61400-1 international standards provided by the turbine manufacturer (Repower). Under Article 30(2) of the Corporate Income Tax Code (CIRC) and Article 5(3) of Regulatory Decree 25/2009, assets without specified depreciation rates in official tables must use periods the tax authority considers reasonable based on expected useful life. The authority corrected the taxable result by €875,821.46, leading to the disputed assessment. The taxpayer's arguments included: the 15-year subsidized tariff period for renewable energy, matching 15-year bank financing terms, absence of statistical data confirming 20-year durability, and abnormally intensive operating conditions. The arbitral tribunal was constituted on March 23, 2015, following proper appointment procedures. The case illustrates key principles in Portuguese tax depreciation disputes: the burden of proving reasonable useful life when assets lack official rates, the tension between international technical standards and actual operational conditions, and taxpayers' right to challenge IRC assessments through administrative arbitration under Decree-Law 10/2011.

Full Decision

Case No. 16/2015-T

The arbitrators Dr. Jorge Manuel Lopes de Sousa (presiding arbitrator), Dr. Carla Castelo Trindade and Dr. Henrique Fernando Rodrigues, appointed by the Ethics Council of the Administrative Arbitration Centre to form the Arbitral Tribunal, constituted on 23-03-2015, hereby agree as follows:

  1. Report

A…, Lda, NIPC …, with registered office at …, (hereinafter referred to as "Claimant"), filed a request for the constitution of a collective arbitral tribunal, pursuant to the combined provisions of Articles 2 and 10 of Decree-Law No. 10/2011, of 20 January (hereinafter "RJAT"), with a view to the declaration of illegality and annulment of the Corporate Income Tax (IRC) assessment No. 2014 …, in the amount of € 290,790.24, of the statement of compensatory interest calculation No. 2014 …, as well as the reconciliation statement No. 2014 …, and to the condemnation of the Tax and Customs Authority ("AT") to payment of the costs incurred by the Claimant with the issuance of a bank guarantee to suspend tax enforcement proceedings, as well as arbitration fees.

The request for constitution of the arbitral tribunal was accepted by the President of CAAD and notified to the TAX AND CUSTOMS AUTHORITY on 09-01-2015.

Pursuant to the provisions of Article 6(2)(a) and Article 11(1)(b) of RJAT, the Ethics Council appointed as arbitrators the undersigned, who communicated acceptance of their appointment within the applicable period.

On 06-03-2015, the Parties were notified of such appointment and did not manifest any intention to refuse the appointment of the arbitrators, pursuant to the combined provisions of Article 11(1)(a) and (b) of RJAT and Articles 6 and 7 of the Code of Ethics.

Thus, in accordance with the provision of Article 11(1)(c) of RJAT, the collective arbitral tribunal was constituted on 23-03-2015.

The Tax and Customs Authority responded defending the lack of merit of the claims.

By order of 09-06-2015, the hearing provided for in Article 18 of RJAT was held, at which witness evidence was produced and it was agreed that the proceedings would continue with closing arguments.

The Parties filed closing arguments.

The arbitral tribunal was regularly constituted and is competent.

The parties possess legal personality and capacity, are legitimately constituted (Articles 4 and 10(2) of the same statute and Article 1 of Ordinance No. 112-A/2011, of 22 March) and are duly represented.

The proceedings are not affected by nullities.

A decision is required.

  1. Facts

2.1. Established Facts

The following facts are considered established:

A) The Claimant produces electricity by wind power, operating wind farms with wind turbines;

B) In compliance with the service order …, of 2013/10/14, a tax inspection of the Claimant was ordered for the tax year 2010;

C) Following such inspection, a Tax Inspection Report was prepared, which forms part of the administrative file (document "PA2.pdf"), the contents of which are hereby reproduced, and which includes, among other matters, the following:

111.1 - IRC

111.1.1 - Non-deductible costs for tax purposes· Depreciation/Amortisation

During the inspection, it was found that certain expenses, although classified and recorded as costs, do not have this nature for tax purposes, as they are provided for in Article 34 of CIRC, which is why they should not be considered for the purposes of determining taxable profit.

From the analysis of the company's accounting records, it was verified that A… carried out the following depreciation/amortisation of the tax year, for tax purposes, recorded as costs in accounts POC 64.2.3 Depreciation/Amortisation and Adjustments of the Year/Tangible Fixed Assets/Basic Equipment (see Annex 4):

111.1.1.1 - Depreciation/Amortisation - Tangible Fixed Assets

The company's tangible fixed assets consist essentially of wind turbines, referred to in section 11.3.1.2 of this Report.

Given the absence of this type of equipment in the tables attached to Regulatory Decree (DR) 25/2009 of 14/9, the company, for tax purposes, classified them as "2195 - Not specified", amortising them at the rate of 6.67%.

Pursuant to Article 30(2) of CIRC and Article 5(3) of DR 25/2009 of 14/9, with respect to assets for which amortisation rates have not been fixed, as is the case with wind turbines, those considered reasonable by the Tax Authority are accepted, taking into account the expected useful life.

In amortising the assets at a rate of 6.67%, the company was assuming a useful life period, for tax purposes, of 15 years.

When contacted regarding the useful life of these equipment, the supplier of the wind turbines (Repower) informed us that it would be 20 years in accordance with international standards, namely the IEC 61400-1 standard, issued by the International Electrotechnical Commission applicable to this sector of activity. (Annex 5).

In the case of wind turbines, equipment that does not appear in the table attached to the said decree, the calculation of depreciation/amortisation for the tax year accepted for tax purposes should be in accordance with their useful life period pursuant to Article 30(2) of CIRC and Article 5(3) of Regulatory Decree 25/2009 of 14/9.

111.1.1.3 - Depreciation/Amortisation - Conclusion

Given the foregoing, it is proposed to correct the depreciation/amortisation recorded as costs, resulting from the difference between the depreciation/amortisation practised and recorded by the company for tax purposes and the amount of depreciation/amortisation which, in accordance with legal requirements, could have been effected, as set out in the following table:

Accordingly, it is proposed to correct the company's taxable result in the amount of 875,821.46 euros, by adding this amount to box 07 of the 2010 Form 22 return.

D) The Claimant was notified to exercise the right to be heard on the draft Tax Inspection Report, but did not exercise it;

E) Following the said correction to the Claimant's taxable matter, the Tax and Customs Authority issued, on 26-02-2014, an additional Corporate Income Tax assessment for the year 2010 bearing number 2014 … in the amount of €290,790.24, with a voluntary payment deadline of 24-11-2014, which includes the amount of the compensatory interest calculation No. 2014 …, in the amount of € 36,802.03 (reconciliation statement No. 2014 …) (documents nos. 5, 6 and 7, attached with the request for arbitration, the contents of which are hereby reproduced);

F) The Claimant considered that the wind turbines have a useful life period of 15 years, amortising them at the rate of 6.67%;

G) The subsidised tariff payment for electricity production from renewable sources is for 15 years;

H) The financing repayment period contracted by the Claimant with banking entities for the construction of the wind farm is 15 years;

I) Due to the special characteristics of the location where the farm was installed, namely proximity to the sea and significant wind availability, the Claimant's wind turbines are subject to an abnormally intensive operating regime, experiencing wear much greater than other equipment installed in Portugal;

J) The company that supplied the wind turbines to the Claimant only agreed to enter into a maintenance agreement for the wind turbines for a maximum period of 12 years;

K) In 2010, there were no statistical or experimental data that would allow the durability of the wind turbines used by the Claimant to be determined with certainty;

L) On 08-01-2015, the Claimant filed the request for arbitration that gave rise to the present proceedings.

2.2. Unproven Facts

It was not proven that the Claimant provided a guarantee to suspend tax enforcement proceedings related to the disputed assessment.

2.3. Basis for Determination of Facts

In the points where documents are indicated, the facts were established based on those attached with the request for arbitration and in the administrative file.

The remaining facts were established based on the testimony of the witnesses designated by the Claimant, who appeared to testify with impartiality and with knowledge of the facts they reported.

As regards the guarantee, although the Claimant makes a request based on its provision, it did not attach to the proceedings any documentary evidence.

  1. Legal Matters

The Claimant considered that the wind turbines have a useful life period of 15 years, amortising them at the rate of 6.67%, and classified the wind turbines as included in code 2195 of Table II attached to Regulatory Decree No. 25/2009, of 14 September, for "not specified" installations.

The Tax and Customs Authority took the view that, since the amortisation rate for wind turbines is not provided for in the tables attached to Regulatory Decree No. 25/2009, of 14 September, the calculation of depreciation/amortisation for the tax year accepted for tax purposes should be effected in accordance with the expected useful life period, pursuant to Article 30(2) of CIRC and Article 5(3) of the said Regulatory Decree, and that this period is 20 years. Consequently, it made the correction on the basis of this useful life period and the respective amortisation rate of 5%.

The issue that is the subject of the present proceedings is to determine what amortisation rate should be applied to the wind turbines that make up the Claimant's wind farms, referred to in the Tax Inspection Report.

For the tax year 2010, in the matter of Corporate Income Tax, the version of CIRC resulting from Decree-Law No. 159/2009, of 13 July, applies, by virtue of the provision of Article 9 thereof, which establishes that "this decree-law applies to tax periods commencing on or after 1 January 2010".

Article 31 of CIRC establishes, insofar as relevant here, the following:

Article 31
Depreciation or Amortisation Rates

1 – Using the straight-line depreciation/amortisation method, the annual depreciation or amortisation quota that can be accepted as an expense of the tax period is determined by applying the depreciation or amortisation rates defined in the regulatory decree that establishes the respective regime to the following values:

a) Acquisition or production cost;

b) Value resulting from revaluation under tax law;

c) Market value, as of the date of opening of the books, for assets the subject of valuation for that purpose, when the acquisition or production cost is not known.

2 – With respect to assets for which depreciation or amortisation rates have not been fixed, those considered reasonable by the Tax Authority are accepted, taking into account the expected useful life period.

(emphasis by the Tribunal)

In the same vein, Regulatory Decree No. 25/2009, of 14 September, establishes in its Article 5(3), in the original wording, that "with respect to assets for which depreciation or amortisation rates are not fixed in the tables referred to in para. 1, those considered reasonable by the Tax Authority are accepted, taking into account the expected useful life period".

Since the Regulatory Decree No. 25/2009, in the version prior to Decree-Law No. 82-D/2014, of 31 December, did not provide for the amortisation rate for wind turbines, the Claimant had to apply a rate that could be considered reasonable, taking into account the expected useful life period for wind turbines.

From the evidence produced, it was established with certainty that there was no reason, in 2010, for an expected useful life period for wind turbines to be higher than the 15 years that the Claimant took into account for effecting amortisation, in particular the 20 years considered by the Tax and Customs Authority, because it was indicated to it by the supplying entity as being what is contained in the IEC 61400-1 standard issued by the International Electrotechnical Commission (Annex V to the Tax Inspection Report, in document "PA3.pdf").

In particular, the evidence produced established that the Claimant's wind turbines are located in places near the sea and are subject to abnormally intensive use, as there is wind throughout the year, which results in faster deterioration and consequently in a lower expectation of useful life in comparison with the generality of wind turbines.

Therefore, the information obtained by the Tax and Customs Authority to the effect that a useful life of 20 years was to be expected cannot be considered conclusive, in particular when it was established by witness testimony that the rapid deterioration was indeed confirmed by the fact that some of the Claimant's wind turbines exhibited major operational problems before completing 15 years of use.

On the other hand, the fact that Law No. 82-D/2014, of 31 December, expressly included "wind energy equipment" in the list of rates of Table II attached to Regulatory Decree No. 25/2009, and indicated rate 8, which corresponds to a useful life of 12.5 years, dispels any doubts as to the reasonableness of the 15-year useful life period considered by the Claimant.

That formula "wind energy equipment" encompasses in its literal wording any equipment suitable for production, and there is no reason to effect a restrictive interpretation.

In fact, a restrictive interpretation is only justified when "the interpreter reaches the conclusion that the legislator adopted a text that betrays its intention, insofar as it says more than what it intended to say"([1]), and in the case at hand, it does not appear that the provision for a 12.5-year duration period for wind turbines is inappropriate; rather, the evidence produced confirms its appropriateness. On the other hand, being a matter of common knowledge, perceptible throughout the country, that virtually all electricity production from wind energy is effected with industrial-type installations such as those of the Claimant, it is not to be suggested that the legislator "forgot" this reality and introduced the legislative amendment solely with a view to microgeneration installations, for which the amortisation regime will normally be irrelevant as they are held by individuals not subject to organized bookkeeping requirements, rather than for industrial-type installations, which are the only ones with appreciable relevance for tax purposes.

Accordingly, applying this new rate to equipment of the type of the Claimant and there being no reason to believe that the quality of wind turbines deteriorated markedly and generally between 2010 and 2014 such that their predictable useful life fell from 20 to 12.5 years, one cannot fail to understand that already at that earlier date it would not be unreasonable not to expect more than 12.5 years of useful life.

Indeed, although this amendment only has normative effect for the future, what is at issue in the present proceedings is whether it was reasonable, in 2010, to expect less than 20 years of useful life for wind turbines, and it is manifest that the fact that the 2014 legislator understood that the useful life period appropriate to consider for wind turbines is 12.5 years reveals that, from the legislative perspective, already in 2010 it was perfectly reasonable not to expect a longer period.

In the case at hand, the Claimant even used an amortisation rate corresponding to a useful life period greater than 12.5 years, so there is no basis for the Tax and Customs Authority not to have considered reasonable, albeit excessively, the expected useful life period resulting from the rate applied.

For the foregoing reasons, it must be concluded that the disputed assessment is defective due to violation of law, arising from error concerning the factual and legal premises, which justifies its annulment (Article 135 of the Administrative Procedure Code of 1991).

  1. Compensatory Interest Calculation

As the Corporate Income Tax assessment is defective, arising from a correction of taxable matter without legal support, the compensatory interest calculation, which has as its premise the Corporate Income Tax assessment, is similarly defective.

Therefore, annulment of the compensatory interest calculation is also justified.

  1. Indemnification for Guarantee

The Claimant seeks indemnification for a guarantee provided to suspend tax enforcement proceedings, but it was not proven that enforcement proceedings were instituted for collection of the assessed amount in which a guarantee was provided.

It was not proven that enforcement proceedings were instituted for collection of the assessed amount or that the Claimant had provided any guarantee.

The arbitral process is an appropriate means for recognition of the right to indemnification for a guarantee improperly provided, as Article 171 of the Tax Procedure Code applies subsidiarily, by virtue of the provision of Article 29(1)(c) of RJAT.

However, what is established in that Article 171 is that "indemnification in case of a bank guarantee or equivalent improperly provided shall be requested in the proceedings in which the legality of the enforceable debt is disputed".

Therefore, only when a guarantee is "provided" can the right to indemnification be requested, and such provision can occur during the course of the proceedings, in which case it will constitute a subsequent fact, invocable pursuant to Article 171(2) of the Tax Procedure Code.

Indeed, this is the solution which accords with the role of courts, as a service of justice, as their function is to resolve concrete existing disputes and not merely hypothetical or abstract ones. Therefore, if recognition of the right to indemnification is requested before the guarantee is provided, the request should be denied, without prejudice to such request being formulated during the course of the proceedings, if the guarantee is subsequently provided, as in this case we are dealing with a subsequent fact, invocable within the 30-day period provided for in Article 171(2) of the Tax Procedure Code.

Accordingly, as it is not alleged and proven that a guarantee was provided, the request for recognition of the right to indemnification must be denied, without prejudice to this right being able to be recognized even in execution of judgment, should such provision occur.

  1. Decision

For these reasons, this Arbitral Tribunal hereby agrees to:

a) Grant the request for arbitration insofar as it seeks the annulment of the additional Corporate Income Tax assessment No. 2014 …, in the amount of € 290,790.24, as well as the annulment of the compensatory interest calculation No. 2014 … and the reconciliation statement No. 2014 …;

b) Annul the said assessments and reconciliation statement;

c) Deny the request for arbitration insofar as it seeks indemnification for a guarantee, dismissing the Tax and Customs Authority from the request in this part.

  1. Value of the Case

In accordance with the provision of Article 306(2) of the Code of Civil Procedure, Article 97-A(1)(a) of the Tax Procedure Code and Article 3(2) of the Costs Regulation in Tax Arbitration Proceedings, the value of the case is fixed at € 290,790.24.

  1. Costs

Pursuant to Article 22(4) of RJAT, the amount of costs is fixed at € 5,202.00, in accordance with Table I attached to the Costs Regulation in Tax Arbitration Proceedings, to be borne by the Tax and Customs Authority.

Lisbon, 01-09-2015

The Arbitrators

(Jorge Manuel Lopes de Sousa)

(Carla Castelo Trindade)

(Henrique Fernando Rodrigues)

[1] BAPTISTA MACHADO, Introduction to Law and the Legitimising Discourse, page 186.

Frequently Asked Questions

Automatically Created

How are wind farm aerogerator assets depreciated for IRC (corporate tax) purposes in Portugal?
Wind farm aerogenerator assets are depreciated for IRC purposes in Portugal under Article 30(2) of the Corporate Income Tax Code and Article 5(3) of Regulatory Decree 25/2009. Since wind turbines do not appear in the official depreciation tables, taxpayers must use depreciation rates considered reasonable by the Tax Authority based on the expected useful life of the equipment. The tax authority typically requires technical justification for the chosen depreciation period. In Process 16/2015-T, the dispute involved whether to use a 15-year useful life (6.67% rate) based on operational conditions and financing terms, or a 20-year period based on IEC 61400-1 international standards for wind turbine design. Taxpayers should document factors affecting useful life, including environmental conditions, maintenance agreements, and manufacturer specifications.
Can a taxpayer challenge an IRC tax assessment on depreciation and amortization through CAAD arbitration?
Yes, taxpayers can challenge IRC tax assessments on depreciation and amortization through CAAD (Centro de Arbitragem Administrativa) arbitration. Under Decree-Law 10/2011 (RJAT - Legal Framework for Tax Arbitration), taxpayers may file a request for constitution of an arbitral tribunal to contest the legality of tax assessments, including disputes over depreciation corrections. Process 16/2015-T demonstrates this procedure: the taxpayer filed a request challenging the IRC assessment, the CAAD President accepted it, an arbitral tribunal was constituted with three appointed arbitrators, and the Tax Authority filed a response. The arbitration process includes witness evidence, hearings under Article 18 of RJAT, and closing arguments from both parties. This alternative dispute resolution mechanism provides taxpayers a faster, specialized forum for technical tax disputes compared to traditional court litigation.
What are the legal grounds for annulling an IRC liquidation related to asset depreciation under Portuguese tax law?
The legal grounds for annulling an IRC liquidation related to asset depreciation under Portuguese tax law include violations of Article 30 of the Corporate Income Tax Code regarding depreciation methods and useful life determinations, misapplication of Regulatory Decree 25/2009 concerning depreciation rates, failure to consider substantiated evidence of actual useful life under Article 5(3) of the decree, and procedural irregularities in the assessment process. In depreciation disputes, taxpayers can argue that the Tax Authority's determination of useful life is unreasonable given specific operational circumstances, technical evidence, financing structures, or industry practices. The burden of proof typically lies with the taxpayer to demonstrate that their chosen depreciation period reflects economic reality. Successful challenges may establish that the tax authority acted arbitrarily or failed to properly weigh relevant factors such as intensive use conditions, limited maintenance coverage periods, or economic obsolescence considerations distinct from technical lifespan.
How does the CAAD arbitral tribunal process work for disputes over IRC depreciation adjustments?
The CAAD arbitral tribunal process for IRC depreciation adjustment disputes follows the procedure established in Decree-Law 10/2011. The taxpayer files a request for arbitration specifying the contested assessment and legal grounds. The CAAD President accepts the request and notifies the Tax Authority, which files a response defending the assessment. The Ethics Council appoints three arbitrators (one presiding), who must accept within the applicable period. Parties are notified and may refuse arbitrator appointments. Once constituted (typically within 2-3 months), the tribunal manages the proceedings, which include document exchange, witness evidence production, and hearings under Article 18 of RJAT. In Process 16/2015-T, the tribunal heard witnesses regarding wind turbine useful life and allowed closing arguments. The tribunal then issues a binding decision on the assessment's legality. The process provides specialized expertise in tax matters, faster resolution than courts, and the possibility of suspending tax enforcement pending decision.
Is a company entitled to recover bank guarantee costs after a successful CAAD arbitration against the Tax Authority?
Companies may be entitled to recover bank guarantee costs incurred during CAAD arbitration against the Tax Authority if they successfully contest the tax assessment. When taxpayers request suspension of tax enforcement proceedings under Article 169 of the Tax Procedure Code (CPPT), they must typically provide a bank guarantee covering the disputed amount plus interest. These guarantees involve issuance costs and ongoing fees. In Process 16/2015-T, the taxpayer explicitly requested condemnation of the Tax Authority to pay costs incurred with the bank guarantee issuance. Under Portuguese administrative and tax law principles, if the arbitral tribunal declares the tax assessment illegal and annuls it, the taxpayer may recover costs necessarily incurred to exercise their right to challenge the unlawful act, including guarantee fees. The tribunal must specifically rule on costs in its decision. However, the right to reimbursement depends on the tribunal finding the assessment wholly or partially illegal and determining that the guarantee costs constitute recoverable damages.