IRS Arbitration: Green Receipts Duplicate Registration and Duplicate Tax Collection (CAAD 243/2015-T)

ARBITRAL DECISION

I – Report

1. On 8 April 2015, A…, with the TIN…, filed with the Administrative Arbitration Centre (CAAD) a request for a declaration of illegality of the IRS assessment No. 2014… in the amount of € 703.38 (seven hundred and three euros and thirty-eight cents). With the Application were attached, in addition to the power of attorney and proof of payment of the initial fee, six documents.

2. In the application presented, the Applicant did not appoint an arbitrator, having been appointed as sole arbitrator by decision of the President of the Deontological Council, in accordance with Article 6(1) of the RJAT [Legal Regime of Tax Arbitration], the undersigned arbitrator, who accepted the office within the legally prescribed period.

3. The arbitral tribunal was constituted on 22 June 2015.

4. The Tax and Customs Authority (AT or Respondent) sent the administrative file (PA) and the Response on 1 and 2 September 2015, respectively.

5. On 10 November 2015 the meeting provided for in Article 18 of the RJAT took place, at which witnesses presented by the Applicant were examined. The tribunal requested the annexation to the file of various documents, set a deadline for the submission of written pleadings, and designated 21 December 2015 as the date for communication of the final decision.

6. On 18 November and 26 November 2016, respectively, the Applicant submitted pleadings and nine documents and the Respondent submitted its pleadings.

7. The Request for Pronouncement

The Applicant submits, in summary (our translation):

• Entered into a service provision contract with B… in September 2011, with retroactive effect to May of the same year, receiving in consideration for the services provided a sum of € 5,000.00 (five thousand euros) per month, plus holiday and Christmas bonuses, which represents an annual amount of € 70,000.00 (seventy thousand euros).

• In the year 2011, he received under that contract the amount of € 46,666.66 (forty-six thousand, six hundred and sixty-six euros and sixty-six cents), taxable as IRS as income of the so-called category B, corresponding to work performed between May and December 2011, as well as, in the respective proportion, to Christmas and Holiday bonuses.

• In the year 2012, he received the amount of € 70,000.00 (seventy thousand euros), taxable as IRS as income of the so-called category B.

• In the year 2013, he likewise received an amount of € 70,000.00 (seventy thousand euros), taxable as IRS as income in the so-called category B, in accordance with the declaration from the entity that made the payment and the respective withholding at source (Doc. 3).

• With regard to the years 2012 and 2013, instead of issuing 10 invoices/receipts, each in the amount of € 5,000.00 (five thousand euros) and 2 invoices/receipts in the amount of € 10,000.00 (ten thousand euros) each, corresponding to the latter to the months in which the monthly remuneration was paid double, by including the holiday and Christmas bonuses, he issued in January of the years 2012 and 2013, receipts/invoices that reported to the immediately preceding calendar year.

• Thus, on 10 January 2012 he issued invoice/receipt No. …, in the amount of € 8,333.33 (eight thousand three hundred thirty-three euros and thirty-three cents) but included the value of this receipt in the IRS declaration for the year 2011.

• And on 26 January 2013, he issued the invoice/receipt No. …, in the amount of € 5,000.00 (five thousand euros), having included the value of this receipt in the IRS declaration for the year 2012.

• This situation is due to the fact that, at the moment when he proceeded to complete the said green receipts/invoices, he did not enter the date to which the respective service provision referred, so the system automatically assumed the date of issue; but, although dated 2012 and 2013, they correspond to the provision of services that occurred in December of the immediately preceding year and whose value was actually declared and properly taxed in those years (fiscal years 2011 and 2012).

• The Tax Authority intends to include the invoice/receipt No. …, in the amount of € 8,333.33 (eight thousand three hundred thirty-three euros and three cents) in the income declaration for the year 2012 but as demonstrated, the invoice/receipt No. …, in the amount of € 8,333.33 (eight thousand three hundred thirty-three euros and three cents) was already included in the income declaration for the year 2011, the Tax Authority having raised no question regarding the tax assessment for that tax year.

• The Tax Authority likewise intends to include the invoice/receipt No. …, in the amount of € 5,000.00 (five thousand euros), in the income declaration for the year 2013, but that invoice/receipt No. …, (five thousand euros), was already declared in the income for the year 2012.

• In August 2013, the Tax Authority was informed of an identical situation occurring with the income declaration for the year 2012 - in both 2012 and 2013 the Applicant issued receipts/invoices corresponding to an annual income of € 70,000.00 (seventy thousand euros) per year, a value that was actually declared and the respective tax paid, with these values being subject to withholding in the months to which the corresponding services related (even without the receipts/invoices being issued) and were included by the paying entity in the income declaration for those years and were actually taxed as income earned in those years.

• The apparent discrepancy between income earned and declared in the year 2013 results from a lapse in the completion and issuance of green receipts/invoices and the intended correction of the income declaration relating to 2013 and 2012 would be equivalent to double taxation of the income relating to December 2012 and 2011, since those incomes were actually declared and taxed in the income of 2011 and 2012 and would now be again taxed with respect to 2012 and 2013, a situation which, obviously, the law does not intend.

• Material truth must prevail as the criterion for determining income earned, and a merely formal reality based exclusively on the date of issue of the receipts cannot be imposed over it, so the impugned assessment should be annulled.

8. The Response

The Respondent responds, in summary (our translation):

• The Applicant's claim for a declaration of illegality of the IRS assessment concerns the assessment for 2013 with No. 2014…, invoking double taxation (tax years 2012 and 2013) for the year 2012.

• However, with regard to the year 2012, the Applicant issued receipts in the total amount of € 73,333.33 but in the income declaration for the same year declared income of category B in the amount of only € 70,000.00.

• In the year 2013 the Applicant issued receipts in the total amount of € 75,000.00 and in the income declaration for that year 2013, declared income of category B in the amount of € 70,000.00.

• Such discrepancies, between the values of receipts issued and the values declared gave rise to the correction from which resulted the assessment now being reviewed.

• The Request cannot be upheld because the evidence in the administrative file unequivocally demonstrates that the AT could not have acted otherwise, since the values declared by the Applicant are lower than the values of the amounts actually earned and contained in the receipts he issued.

• The Applicant failed to prove the statements contained in the PI, in paragraphs 8, 9, 11, 13, 15, 20 and 21.

• The listings of receipts issued show that the Applicant on 25 January 2013 deliberately proceeded to cancel receipt No. 16 which he had issued on 17/01/2013, but issued a receipt, No. 17, declaring income earned also on 25/01/2015, so it is not understood that he committed the lapse again, it being implausible that, at the exact moment when he corrects an error by cancelling a receipt, he issues another one not paying attention to its content.

• If the Applicant's thesis were correct, he should have corrected the declarations of 2011 and 2012 which he alleges include receipts from the previous year, as he declared higher values in them.

• The situation at hand could never constitute a situation of double taxation, a figure that concerns the incidence of two taxes of a different nature on the same taxable fact, which is not the case in this matter, so the request for arbitral pronouncement should be judged entirely without merit as unproven, and consequently the Respondent should be absolved.

9. Issues to be decided

The fundamental issue object of the Request consists in determining whether the IRS assessment for 2013 is tainted by illegality due to the existence of facts that confirm that the same taxable situation was subject to taxation in two different tax years.

10. Sanitation

The collective arbitral tribunal is materially competent, in accordance with the provisions of Articles 2(1)(a) of the Legal Regime of Tax Arbitration.

The parties have legal personality and capacity and have standing in accordance with Articles 4 and 10(2) of the Legal Regime of Tax Arbitration (RJAT) and Article 1 of Order No. 112-A/2011, of 22 March.

The proceedings do not suffer from any nullity, with the conditions for the issuance of the arbitral decision being met.

II Reasoning

11. Proven Facts

11.1. The Applicant signed with "B…, SA", on 16 September 2011, a service provision contract valid for three years, starting on 1 May 2011, having as its object the provision of consulting services regarding various real estate projects of the Bank Pension Fund against payment of a monthly fee net of € 5,000.00 paid 14 times per year (Doc. No. 1 attached to the Request and which is reproduced in its entirety).

11.2. B…, in compliance with the provisions of Article 119(1)(b) of the IRS Code, in declarations dated respectively 20 January 2012, 20 January 2013 and 20 January 2014, declared that it had paid the Applicant, in the years 2011, 2012 and 2013, as category B income, effecting the respective IRS withholding, all in the following amounts: in 2011, income of € 46,666.66, withholding of € 10,033.34; in 2012, income of € 70,000.00, withholding of € 15,050.00; in 2013, income of € 70,000.00, withholding of € 17,500.00 (Docs. No. 3, 4 and 5 attached to the Request and which are reproduced in their entirety).

11.3. In the IRS model 3 declarations delivered for the period between 2011 and 2014, the Applicant entered as category B income the following incomes: in the 2011 declaration, filed on 15 May 2012, € 46,666.66; in the 2012 declaration, filed on 5 June 2013, € 70,000.00; in the 2013 declaration, filed in 2014[1], € 70,000.00 and in the 2014 declaration, filed on 8 May 2015, € 70,000.00 (Documents attached to the case by the Applicant on 18.11.2015 and PA pages 27 and 28).

11.4. During the fiscal years 2011 to 2014, the Applicant issued forty receipts in the following amounts, respectively: dated 2011, three receipts (Nos. … to …) in the total amount of € 38,333.33; dated 2012, twelve receipts (Nos. … to …) in the total amount of € 73,333.33; dated 2013, eleven receipts (Nos. … to …) in the total amount of € 60,000.00 and dated 2014, fourteen receipts (Nos. … to …), in the latter case, two receipts in the total amount of € 15,000.00, relating to services rendered in 2013 and twelve receipts, in the total amount of € 70,000.00, relating to services rendered in 2014 (Document No. 2, attached to the Request).

11.5. The Applicant included the amount of € 8,333.33 corresponding to receipt No. …, issued on 10 January 2012 in the 2011 IRS declaration because he considered it to refer to December 2011 (Document No. 2 attached to the Request).

11.6. The Applicant included the amount of € 5,000.00, corresponding to receipt No. …, issued on 25 January 2013, in the 2012 IRS declaration because he considered it to refer to December 2012 (Document No. 2 attached to the Request).

11.7. The Applicant included the amounts corresponding to receipts Nos. … and … of € 5,000.00 and € 10,000.00, issued, respectively, in January and February 2014, in the 2013 IRS declaration because he considered them, and expressly indicated them as such, to refer to November and December 2013, respectively (Document No. 2 attached to the Request).

11.8. Through notification (GIC1/…) of 2 June 2014 the AT notified the Applicant that his declaration for the year 2013 had been selected for analysis because it had been detected that "the business and professional income declared are lower than those known" so he should "provide the appropriate clarifications on the Finance Portal website" (...) "and/or automatically regularize the situation by submitting a declaration correcting the facts that prompted the analysis" or "contact the Tax Service of the area of his residence" (gracious complaint II submitted by the Applicant on 18 November following).

11.9. The Applicant responded to the notification referred to in the previous paragraph, clarifying that "the reason for the discrepancy in category B income is due to a lapse in filling out the green receipts" because "the system automatically takes the date of receipt issuance as the date of service provision", "hence in January 2013 the system recognizes two service provisions of € 5,000.00 each when one of them refers to December 2012". And he adds that he had already communicated the fact to the tax service in the provision of clarifications to the previous notification regarding the 2012 declaration and that the situation had been considered regularized for VAT purposes (PA, pages 11 and document submitted by the Applicant).

11.10. The Applicant had already received in the previous year a notification (GIC1/…) dated 25 July 2013, requesting clarifications on the discrepancy regarding the amounts of green receipts issued in 2012 and the amount of category B income contained in the income declarations, to which he had responded explaining such discrepancies with the automatic assumption by the system of the date of issue of the receipts, and explaining that the declarations of 2011 and 2012 were correct and in accordance with the declarations of the entity that carries out the withholdings at source and with the periodic VAT declarations, adding that the VAT services had considered the situation as regularized because it did not result in any prejudice to the Public Treasury (document submitted by the Applicant on 18.11.2015 as gracious complaint III).

11.11. The Respondent, through the letter sent on 17 November 2014, notified the Applicant that from the identification of inaccuracies relating to the IRS declaration model 3 for the year 2013, it was not verified, by analysis of the declarations of 2012 and 2013, the occurrence of double collection. Clarification was requested on the discrepancies and withholdings declared in model 10 by comparison with the receipts issued by the taxpayer with Nos. … to … and … and …, to be provided within ten days. And he was invited to replace the declaration in case of inaccuracy and given a deadline for the exercise of prior hearing within 15 days (PA, pages 12 to 14).

11.12. The Applicant submitted, on 5 December 2014, at the Tax Service Lisbon…, a Request identified as the exercise of prior hearing in which he explains the discrepancies between the dates of issue of the receipts and the periods to which they actually say they correspond, considering that the "intended correction of the income declaration for 2013 would be equivalent to double taxation of the income of December 2012, since that income was actually taxed in the taxation of income from 2012 and would now be again taxed in 2013 (PA, pages 32 to 36).

11.13. A correction document and official declaration were issued relating to 2013 (referring to 02-12-2014 as the analysis date), with € 75,000.00 recorded in box 403 and in boxes 1102, 1104 and 1106 a total of service provision of € 75,000 in the year 2013, € 73,333.33 in year N-1 and € 46,666.66 in year N-2 (PA, pages 46 to 51).

11.14. Through letter No. …, from Tax Service Lisbon…, dated 10 December 2014, the Applicant was notified that "on 5/12/2014 he exercised the right to prior hearing, declaring that the allegedly omitted income (...) was declared in 2012" and that "from the analysis of the total electronic receipts for the services rendered in 2012 and 2013 by the taxpayer it was verified that in 2012 he declared the value corresponding to the receipts issued (€ 73,333.33) and that in 2013 he declared € 70,000.00 when the value received was € 75,000.00". "Thus, an official declaration will be prepared and the tax owed will be calculated, plus compensatory interest due and proceedings will be instituted against administrative offences for the requirement of a fine" (PA, pages 41).

11.15. On 15 December 2014, and in response to letter GI-…., of 17 November 2014, B… informed that it proceeded to pay the Applicant during the year 2013 category B income in the amount of € 70,000.00, corresponding to receipts … to … relating to services rendered in 2013 issued by the taxpayer in 2013 and receipts … and … relating to consulting services rendered in 2013 issued by the taxpayer in 2014 (processed by B… in 2013). It further stated that the incomes of receipts 29 and 31 had been included in B… model 10 relating to the 2013 tax year and that receipt No. … issued in January 2013 referred to service provision rendered in December 2012 (PA, pages 43).

11.16. On 16 December 2014 the collection note was issued in the amount of € 703.38, relating to IRS for the period 01-01-2013 to 31-12-2013, for payment by 21 January 2015 (Document attached to the Request).

11.17. Payment of the assessment referred to in the previous number was made on 19 December 2014 (PA, pages 2 and 56).

11.18. On the income declared for the tax year 2014 the assessment No. 2015…, dated 7 June 2015, with a payment deadline of 31 August 2015, was issued, which the Applicant paid on 19 August 2015 (document submitted by the Applicant on 18 November 2015).

11.19. On 10 March 2015, the Applicant submitted the request for arbitral pronouncement that gave rise to the present proceedings.

12. Unproven Facts

There are no unproven facts to be considered as relevant to the decision of the present proceedings.

13. Reasoning for Proven and Unproven Facts

The facts were determined as proven and unproven based on the evaluation made by the tribunal of the case documents submitted by the Parties and the documents attached to the case, namely the administrative file, as referenced regarding each of the points of the factual matter established.

The examination of witnesses on 10 November 2015 helped to clarify the reading of the documentation attached to the case, confirming that the 2012 assessment was not subject to any challenge and was paid.

14. Application of Law

14.1. The Applicable Law

14.1.1. The taxable situation and the Request for arbitral pronouncement

The Applicant seeks to have annulled the assessment for the year 2013 by proving that he made incorrect records of invoices/receipts that gave rise in successive years to incorrect assessments, with duplication of taxation, claiming that such assessment constitutes taxation of income not actually earned in that year and already previously subject to taxation.

The issue concerns the taxation in IRS of income that is subject to the incidence of this tax as category B, "business and professional income" (Article 3(1)(b) of the IRS Code).

While regarding category A income what matters is the moment when the income is paid or made available to the holder (Article 2(1) of the IRS Code), regarding category B, Article 3(6) of the IRS Code provides: "The income referred to in this article is subject to taxation from the moment when for VAT purposes the issuance of an invoice or equivalent document is mandatory or, if its issuance is not mandatory, from the moment of payment or making available to the respective holders, without prejudice to the application of Article 18 of the Corporate Income Tax Code, whenever the income is determined on the basis of accounting"[2].

In the case at hand the taxpayer earns an amount of category B income that makes the issuance of an invoice/receipt mandatory with no further information on the regime to which he is subject. However, the existing controversy does not concern the determination of the date on which, in the specific case, the income earned would have been made available by the paying entity or the provision of services subject to taxation would have been rendered, but rather, given the issuance of invoices in successive years, whether the corrections introduced by the AT to the income declaration for the year 2013 and which gave rise to the IRS assessment No. 2014… constitute double taxation.

14.1.2. Double Taxation

The Applicant characterizes the alleged illegality as double taxation, which is contested by the Respondent.

Double taxation is a concept used in tax law to designate cases of concurrence of rules, which occurs when the same fact is encompassed in the provision of two different rules, giving rise to more than one tax obligation.[3]

Thus, in the present case, what is not at issue is a phenomenon of double taxation – the application of two distinct rules – but rather a plurality of applications of the same rule, which constitutes the figure of duplication of collection referred to in Article 205 of the Tax Code of Procedure (CPPT) when it establishes: "There shall be duplication of collection for purposes of the preceding article when, with a tax entirely paid, another of equal nature is demanded from the same or different person, relating to the same taxable fact and the same period of time". "Unlike what happens in double taxation, there is not in this case a concurrence of claims but rather a single claim twice demanded. This is here the institute of duplication, prohibited by the principle ne bis in idem, which places itself in the plane of concrete or secondary tributary activity, in the terminology of Alessi, and not in that of abstract or primary activity"[4]

In the case at hand, in which the Request for arbitral pronouncement invokes that different IRS assessments were made that actually concerned the same income (the object of assessment No. 2014…), what must be examined is whether the same tax was indeed collected twice[5], originating duplication of collection.

Duplication of collection is provided for fundamentally as a ground for invalidity of the tax obligation (ground for opposition to execution, in accordance with Article 205(1) of the CPPT) and not as a defect of the tax act. However, in addition to being a ground for opposition to fiscal execution, it constitutes an illegality that affects the validity of the tax act[6], so it will be subject to examination in the proceedings.

14.1.3. Prior Hearing

The Applicant in pleadings came to invoke the nullity of the tax act due to the fact that the AT proceeded to issue the additional assessment before the prior hearing period had even elapsed.

This issue was not raised by the Applicant in the initial Request, the document where the facts and legal reasons supporting the Request are set out, in accordance with Article 108(1) of the CPPT, applicable by virtue of Article 29(1)(a) of the RJAT[7].

In any case, it should be said that although commented on by the tribunal, at the meeting held for the examination of witnesses, the fact that the date of the correction of the IRS declaration appears as 2 December, prior to the submission of the response given by the taxpayer at prior hearing, is not proven (cf. proven facts, 11.11 to 11.14) nor that the latter was timely nor that the AT did not yet take it into consideration, despite not having upheld the reasons invoked therein.

14.2. The Factual Situation and the Legal Framework of the Situation in the Present Case

The Applicant invokes the errors he committed in filling out the green receipts/invoices registered in the months of January 2012 and 2013, alleging that, because he did not enter the date to which the service provision referred, the system automatically assumed the date on which the receipt was issued, and that this was the cause of the inaccuracies detected and the corrective assessments made. But, he says, such receipts/invoices (although dated 2012 and 2013) correspond to service provisions rendered in December of the immediately preceding years (2011 and 2012) and whose value was actually declared and properly taxed, respectively, in these same fiscal years (of 2011 and 2012).

It really does seem to follow from the proven facts that the amount of € 8,333.33 contained in receipt No. … issued on 10 January, relating to service provision of the same date would have been included in the Applicant's 2011 declaration and, because not challenged, subject to taxation for that year, as well as included by the AT in the corrections made to the income declaration for the year 2012. But the amount contained in the receipt issued in January 2013, and which appears to relate to services rendered on a day in that month - although the Applicant contends that it relates to services rendered on 12/2012 - was only included by the AT in 2013 and excluded by the AT from the year 2012 (in the declaration for 2012, the amount corrected by the AT of € 73,333.33 corresponds to € 70,000.00 - € 5,000.00 + € 8,333.33[8]).

It is thus verified that dated 2013 and making express reference to services rendered in 2013 thirteen invoices were issued, of which one (receipt …, dated 25 January 2013) the Applicant considers to refer to 2012 but which the services of the Respondent, in the corrective assessment made, did not include in the year 2012 but only in the year 2013).

It was those 13 invoices (Nos. … to …, … and …) that were included and considered in the corrective assessment relating to 2013 – totalling the amount of € 75,000.00 euros, and subject to taxation in IRS.

It is also verified that the two receipts Nos. … and …, issued in January and February 2014 but declared as relating to services rendered in November and December 2013, were taxed in that year (2013) and not in 2014 since the taxation of that year concerned only the 12 receipts, relating to services rendered between January and December 2014, in the amount of € 70,000.00.

It should be recalled that the object of the current Request is the 2013 assessment and for consideration of whose legality it is of no avail to invoke that the amount of € 8,333.33 (eight thousand three hundred thirty-three euros and three cents) had, without AT correction, been included by the Applicant in the income declaration for the year 2011 – its subsequent consideration, in 2012, by the Respondent could indeed affect the 2012 assessment and not that of 2013...

And as to the inclusion of the invoice/receipt No. …, in the amount of € 5,000.00 (five thousand euros) in the income declaration for the year 2013, it is seen that although considered by the Applicant as relating to 2012, it was not thus considered by the AT which disregarded it in 2012.

Thus, the allegation of the Applicant that "the correction of the income declaration for 2013 and 2012 would be equivalent to double taxation of the income relating to December 2012 and 2011, since that income was actually declared and taxed in the income of 2011 and 2012 and would now be again taxed with respect to 2012 and 2013, a situation which, obviously, the law does not intend" does not hold.

That is, as analyzed above, if there had been inclusion of the same taxable matter taxed in different tax years, this would not have occurred between 2012 and 2013[9].

And the taxation in 2013 of € 75,000.00 corresponds to the sum of € 70,000.00 (twelve receipts numbered between … and …) plus one receipt (No. …) of € 5,000.00 which was (although, for the alleged lapse by the Applicant, in a manner not corresponding to the real situation) issued dated 25 January 2013. On the other hand, receipts Nos. … and …, issued, respectively, dated 3 January and 3 February 2014 but declared as relating to 2013, were considered, appropriately according to the Applicant's own argument, in the aggregation of 2013, with nothing to criticize.

That is, even if it were confirmed, as it appears, that the invoice/receipt No. …, in the amount of € 8,333.33 (eight thousand three hundred thirty-three euros and three cents) was included by the AT in the income declaration for the year 2012, despite already being declared in the 2011 declaration and subject to taxation in that fiscal year, it does not follow from the case that the invoice/receipt No. …, in the amount of € 5,000.00 (five thousand euros), declared in the income for the year 2012 by the Applicant, was included in the taxation that resulted from the corrections relating to that tax year of 2012 made by the AT (which rather would have only included it in the official income declaration for the year 2013).

It is thus concluded that, although the sum of global income subject to taxation over four tax years (between 2011 and 2014) may prove to be higher than what would result from what the Applicant claims to be the correct registration of receipts, in accordance with the service provision contract attached to the case, the present Request – whose object is the IRS assessment for the tax year 2013 – cannot be considered as well founded because there is not, in concrete terms, in that 2013 tax year any duplication of taxation.

15. Decision

On the grounds set forth, the arbitral tribunal decides:

a) To judge the arbitral request for a declaration of illegality of the IRS assessment relating to the Applicant and for the year 2013, in the amount of € 1,744.59 (one thousand seven hundred forty-four euros and fifty-nine cents), to be without merit, and the Respondent to be absolved.

b) To condemn the Applicant in costs.

16. Value of the Proceeding

In accordance with the provisions of Article 315(2) of the Code of Civil Procedure, Article 97-A(1)(a) of the Tax Code of Procedure and Article 3(2) of the Regulation of Costs in Tax Arbitration Proceedings, the proceeding is assigned the value of € 703.38 (seven hundred and three euros and thirty-eight cents).

17. Costs

For purposes of the provisions of Article 12(2) and Article 22(4) of the RJAT and Article 4(4) of the Regulation of Costs in Tax Arbitration Proceedings, the amount of costs is fixed at € 306.00 (three hundred and six euros), in accordance with Table I annexed to said Regulation, to be borne entirely by the Applicant.

Lisbon, 21 December 2015.

The Arbitrator

(Maria Manuela Roseiro)

[1] In the PA (declaration filed by the taxpayer, pages 27 and 28) the front of the declaration is not reproduced.

[2] In cases where the regime for determining taxable matter is that of organized accounting, the application of the rules contained in Article 18 of the Corporate Income Tax Code means compliance with the principle of "economic competence", specialization of tax years, with income being subject to tax before being received or made available; and, in cases where there is no organized accounting, there is still a distinction to be made: if the issuance of an invoice is mandatory, the obligation arises at the moment the obligation to issue it arises; if it is not mandatory, tax is due only when the income is paid or made available. Cf. José Guilherme Xavier de Basto, in "IRS Real Incidence and Determination of Net Income", Coimbra Editor, 2007, p. 170 and following.

[3] Cf. Alberto Xavier, International Tax Law, Almedina, 1993, p. 31 and following, studying in detail the two requirements of the concept: the identity of the fact and the plurality of rules.

[4] Cf. Alberto Xavier, ibidem, p. 42 and 43.

[5] "Duplication of collection results from the application of the same legal provision more than once to the same taxable fact or concrete taxable situation" Cf. Jorge Lopes de Sousa, Annotated CPPT, Áreas Editor, 2011, vol. III p. 527. He further observes, in note (7) to Article 205: "If an amount is paid on the basis of a first assessment and a second assessment is made for the same tax, relating to the same taxable fact and the same period of time (if it is a periodic tax) the latter is tainted by duplication of collection (...)"

[6] Jorge Lopes de Sousa, Annotated CPPT, vol. II, p. 113.

[7] Cf. Jorge Lopes de Sousa, Annotated CPPT, Áreas Editor, 6th edition, vol. II p. 209.

[8] € 70,000.00 (receipts … to …) - € 5,000.00 (receipt…) + € 8,333.33 (receipt …).

[9] That is, the reasoning of the Applicant (Request, Articles 10 and 11), that "the Tax Authority intends to include the invoice/receipt No. …, in the amount of € 8,333.33 (eight thousand three hundred thirty-three euros and three cents) in the income declaration for the year 2012" but that the invoice/receipt No. …, in the amount of € 8,333.33 (eight thousand three hundred thirty-three euros and three cents was already included in the income declaration for the year 2011, the Tax Authority having raised no question regarding the tax assessment for that fiscal year", cannot have influence in the present case, in which what is discussed is the legality of the assessment for 2013 and not that of 2012 (and taking into account the situation of 2011).