Process: 251/2017-T

Date: February 21, 2018

Tax Type: IRS

Source: Original CAAD Decision

Summary

This CAAD arbitration (Process 251/2017-T) addresses the classification of swimming pool installation, assembly, treatment, and cleaning services under the IRS simplified regime, specifically determining whether such income attracts a 0.75 or 0.10 coefficient under Article 31(2) CIRS. The taxpayer earned €98,124.10 in 2014 from pool-related services under CAE codes 43992 (specialized construction activities) and 81292 (cleaning activities). The Tax Authority issued an additional assessment of €25,870.64, applying the 0.75 coefficient per Article 31(2)(b) CIRS, which governs professional activities listed in Article 151's table. The taxpayers contested this classification, arguing that their activities constitute residual Category B income under Article 31(2)(e) CIRS, warranting the significantly lower 0.10 coefficient. The Tax Authority's position rests on the premise that pool services cannot be classified as civil construction works and therefore must fall under Article 3(1)(b) CIRS as professional services. The taxpayers counter that their commercial and industrial activities are not enumerated in Article 151's table of professional services. This distinction carries substantial tax implications: the 0.75 coefficient deems 75% of gross income as taxable, while the 0.10 coefficient only subjects 10% to taxation. The tribunal must determine whether swimming pool installation and maintenance constitutes specialized professional services (attracting higher taxation) or commercial/industrial activities (qualifying for preferential treatment). The case has broader significance for taxpayers in construction-adjacent sectors operating under the simplified regime, particularly those providing specialized installation and maintenance services that straddle the boundary between professional and commercial activities.

Full Decision

ARBITRATION DECISION

REPORT

On 7 April 2017, A… and B…, respectively taxpayers nos. … and …, resident at Avenue …, no.…, …-… …, Braga ("1st and 2nd Applicants" or "Applicants"), submitted a request for arbitration ruling with the intervention of a single arbitral tribunal, in accordance with articles 2, no. 1, paragraph a), and 10, no. 1, paragraph a), of the Legal Regime of Arbitration in Tax Matters ("LRATM").

The PORTUGUESE TAX AND CUSTOMS AUTHORITY ("Respondent Entity") is the respondent.

In the request for arbitration ruling, the Applicants requested that the Arbitral Tribunal declare illegal the additional assessment of Personal Income Tax ("PIT") no. 2015…, of 11 November 2015, relating to the year 2014, in the total amount of EUR 25,870.64.

Specifically, with reference to the year 2014, the Applicants contest the application of article 31, no. 2, paragraph b), of the Personal Income Tax Code ("PITC"), according to which "taxable income is obtained by adding to income derived from services rendered by the partner to a company covered by the tax transparency regime [...] the amount resulting from the application of the following coefficients: 0.75 of income from professional activities listed in the table referred to in article 151", considering instead that the coefficient of 0.10 provided for in paragraph e) of the same legal provision is applicable, as the income earned by the 1st Applicant, in the amount of EUR 98,124.10, relating to the sale, assembly, treatment and cleaning of swimming pools, constitute "income of category B not provided for in the preceding paragraphs", namely in the aforementioned paragraph b).

Conversely, the Respondent Entity understands that paragraph b) is applicable to said income, basing its position on the fact that such income cannot be classified as "civil construction works", being subsumable under article 3, no. 1, paragraph b), of the PITC, and thus applying the coefficient of 0.75. According to the position adopted by the Respondent Entity, to income provided for in article 3, no. 1, paragraph b), of the PITC, the provision of article 31, no. 2, paragraph b), of the PITC is applicable and, as a result, the coefficient of 0.75 instead of any other coefficient, namely the coefficient of 0.10 contemplated in paragraph e) of the latter legal provision. In turn, this latter coefficient is applicable to income provided for in article 4 of the PITC.

The request for constitution of the Arbitral Tribunal was accepted on 10 April 2017 by the Honourable President of CAAD, after which the Respondent Entity was notified.

Subsequently, in accordance with article 6, no. 1, of the LRATM, the Undersigned Arbitrator was appointed by the President of the Deontological Council of CAAD to constitute the present single arbitral tribunal, and the respective appointment was accepted in accordance with the legally foreseen terms.

On 9 June 2017, the Parties were notified of this appointment and did not manifest any intention to refuse it, in accordance with the combined provisions of article 11, no. 1, paragraphs a) and b), of the LRATM, and articles 6 and 7 of the CAAD Code of Conduct.

The Arbitral Tribunal was constituted on 27 June 2017, in compliance with article 11, no. 1, paragraph c), of the LRATM.

On 10 August 2017, the Respondent Entity submitted its reply, having previously attached the administrative file.

The date of 28 February of the current year was designated as the expected date for rendering the arbitral decision.

PRELIMINARY RULING

The Arbitral Tribunal is materially competent and is regularly constituted, in accordance with articles 2, no. 1, paragraph a), 5 and 6, of the LRATM.

The parties have legal personality and capacity, are legitimate and are represented, in accordance with articles 4 and 10 of the LRATM and 1 of Regulation no. 112-A/2011, of 22 March.

No irregularities are present, nor have any exceptions been raised, and the arbitral tribunal must proceed to consider the merits of the case.

SUBJECT MATTER OF THE ARBITRATION RULING

The thema decidendum subject of the present arbitration ruling consists in the determination of the coefficient applicable to income earned by the 1st Applicant, in the amount of EUR 98,124.10, derived from its activity of sale, assembly, treatment and cleaning of swimming pools: whether the coefficient of 0.75 provided for in article 31, no. 2, paragraph b), of the PITC (as defended by the Respondent Entity) or whether the coefficient of 0.10 provided for in article 31, no. 2, paragraph e), of the PITC (as argued by the Applicants).

FACTUAL MATTER

With respect to the factual matter, the Arbitral Tribunal is not under the obligation to rule on all facts alleged by the parties, but has the duty to select those that matter for a proper decision of the case and to distinguish between proven and unproven facts (see articles 123, no. 2, of the Code of Tax Procedure and Process ("CTPP") and 607, no. 3, of the Code of Civil Procedure ("CCP"), applicable by virtue of article 29, no. 1, paragraphs a) and e), of the LRATM).

Thus, the facts relevant to the judgment of the case were selected and defined according to their legal relevance, which was established based on the various plausible solutions to the legal question(s) (see article 596 of the CCP, applicable by virtue of article 29, no. 1, paragraph e), of the LRATM).

PROVEN FACTS

The Arbitral Tribunal considers the following facts to be proven:

On 1 March 2014, the 1st Applicant initiated its activity relating to the main CAE 43992 ("other specialized diverse construction activities") and, as well, to the secondary CAE 81292 ("other cleaning activities"), having, by election, been classified under the simplified tax regime for PIT purposes (see document no. 2 attached to the request for arbitration ruling);

In the year 2014, the 1st Applicant earned income, in the amount of EUR 98,124.10, derived from its activity of sale, assembly, treatment and cleaning of swimming pools (see document no. 3 attached to the request for arbitration ruling);

The 1st Applicant completed field 11, of table A, of annex B of its periodic income tax return ("PIT Form 3") for the year 2014, concerning the "CAE Code (Professional, Commercial and Industrial Income)" [43992] (see document no. 3 attached to the request for arbitration ruling);

The 1st Applicant did not complete field 10, of table A, of annex B of its periodic income tax return ("PIT Form 3") for the year 2014, concerning the "Activity Table Code Article 151 of the PITC" (see document no. 3 attached to the request for arbitration ruling);

The 1st Applicant reflected the above income in field 443, of table 4 A, of annex B of its periodic income tax return ("PIT Form 3") for the year 2014, concerning "Income from Category B not included in the preceding fields" (see document no. 3 attached to the request for arbitration ruling);

By own motion, the Tax Authority corrected said return, having classified such income in field 440, of table 4 A, of annex B, concerning "Income from professional activities provided for in the Table of article 151 of the PITC and/or in the CAE" (see page 58 of the administrative file);

In November 2015, the Applicants were notified of the additional PIT assessment no. 2015…, of 11 November 2015, relating to the year 2014, in the total amount of EUR 25,870.64, reflecting the application by the Tax Authority of the coefficient of 0.75 provided for in article 31, no. 2, paragraph b), of the PITC to the above income (see document no. 5 attached to the request for arbitration ruling);

The Applicants filed an administrative complaint and, subsequently, a hierarchical appeal in which they contested the legality of the above-mentioned tax act, as they considered the coefficient of 0.10 provided for in article 31, no. 2, paragraph e), of the PITC applicable to said income (see document no. 1 attached to the request for arbitration ruling; pages 1 to 23 and 39 to 59 of the administrative file);

Both the administrative complaint and the hierarchical appeal were dismissed, with the Tax Authority sustaining that the provision of article 31, no. 2, paragraph b), of the PITC is applicable (see pages 16 to 20 and 25 to 34 of the administrative file);

On 7 April 2017, the Applicants submitted a request for arbitration ruling aimed at annulling the above-mentioned additional PIT assessment, on the grounds of a violation of law arising from the disregard of article 31, no. 2, paragraph e), of the PITC.

UNPROVEN FACTS

Of the facts of interest for the decision of the case, set out in the request for arbitration ruling and in the administrative file, all of which were subject to concrete analysis, those not listed in the above-stated factuality were not proven.

C) Justification of the decision on the factual matter

The facts were deemed proven on the basis of documents attached to the request for arbitration ruling and to the administrative file.

LEGAL MATTER

With reference to the year 2014, article 31, no. 2, paragraphs b) and e), of the PITC provides as follows:

"Until the approval of the indicators mentioned in the preceding number [objective indicators of a technical-scientific basis], or in their absence, taxable income is obtained by adding to income derived from services rendered by the partner to a company covered by the tax transparency regime, in accordance with paragraph b) of no. 1 of article 6 of the Corporate Income Tax Code, the amount resulting from the application of the following coefficients: [...] 0.75 of income from professional activities listed in the table referred to in article 151 [paragraph b)]; [...] 0.10 of subsidies intended for operation and other income of category B not provided for in the preceding paragraphs [paragraph e)].

From the above it follows that the coefficient of 0.75 is applicable to income derived from the activities listed in the table referred to in article 151 of the PITC, with the coefficient of 0.10 being applicable as a supplementary matter – that is, whenever the income received is not subsumable under any of the other paragraphs of the legal provision under review.

In the present situation, the Applicants and the Respondent Entity agree as to the non-classification of the income under paragraphs a), c) and d) of no. 2 of article 31 of the PITC, disagreeing as to the scope of application of the remaining paragraphs – that is, of paragraphs b) and e).

However, as paragraph e) is of supplementary application, it is necessary only to verify whether the activity conducted by the 1st Applicant – activity of sale, assembly, treatment and cleaning of swimming pools – is covered by the above-mentioned table. If affirmative, the coefficient of 0.75 shall be applicable to the income earned by the 1st Applicant (see article 31, no. 2, paragraph b), of the PITC), and the Respondent Entity shall be correct. If negative, the coefficient of 0.10 shall be, by exclusion, applicable (see article 31, no. 2, paragraph e), of the PITC), and the Applicants shall be correct.

After reading the aforementioned table and analysing the activities listed therein, it is apparent that the activity of sale, assembly, treatment and cleaning of swimming pools is not capable of being classified under any of those activities, including those belonging to point 15 "Other activities exclusively of service provision".

In effect, the aforementioned activity does not consist of a service provision tout court, also involving the sale of goods – in the case at hand, of swimming pools.

In accordance therewith, as to what specifically concerns the nature of the activity in question, the Respondent Entity also pronounced itself in the decision dismissing the hierarchical appeal: "In conclusion, the Appellant [1st Applicant] thus exercises the activity of sale of swimming pools, followed by the provision of services of assembly and cleaning in the post-sale" (see document no. 1 attached to the request for arbitration ruling [page 9]). As such this factuality (inclusion of the sale of goods in the activity conducted by the Applicant) is not even disputed between the parties.

Thus, the Applicants are correct, and the coefficient of 0.10 provided for in article 31, no. 2, paragraph e), of the PITC is applicable.

The adoption of a different understanding would be contrary to law, and would infringe the provision of article 31, no. 2, paragraph b), of the PITC, from which it expressly results that the coefficient of 0.75 is only applicable to "income from professional activities listed in the table referred to in article 151" of the PITC.

In the same sense, see the arbitration decisions rendered in the course of proceedings nos. 107/2016-T and 196/2017-T:

"Starting from the literal element, the result of the interpretation appears to us to be univocal – the coefficient of 0.75 is applicable, only, to income from professional activities listed in the table referred to in article 151.

It is not possible to see, therefore, how it is possible to include in that scope income derived from activities that are not "professional activities listed in the table referred to in article 151".

Being the letter of the law the maximum limit of the interpretive task, it is not possible to conclude that other income beyond this should receive the same treatment, especially when the legislator itself created, in parallel to that specific category of income, a residual category contained in paragraph e) of the same no. 2 of article 31 of the PITC – where are included the "other income of category B not provided for in the preceding paragraphs". It must be considered, therefore, that the income from service provisions in question in the present case, obtained in the year 2014 by the Applicant, should be calculated on the basis of the coefficient provided for in paragraph e) and not in paragraph b) of no. 2 of article 31 of the PITC then in force".

Consequently, the contested additional PIT assessment is tainted with illegality.

DECISION

In accordance with the above, the request for arbitration ruling presented by the Applicants is granted, and, consequently, the additional PIT assessment no. 2015…, of 11 November 2015, relating to the year 2014, in the total amount of EUR 25,870.64, is declared illegal and annulled, on the grounds of a violation of law, by disregard of the regime inherent in article 31, no. 2, paragraphs b) and e), of the PITC.

Pursuant to articles 306, nos. 1 and 2, of the Code of Civil Procedure, 97-A, no. 1, paragraph a), of the CTPP, and 3, no. 2, of the Regulation of Costs in Tax Arbitration Proceedings, the value of the proceedings is fixed at EUR 25,870.64, condemning the Respondent Entity to the costs of the proceedings, which amount to EUR 1,530.00, under article 22, no. 4, of the LRATM and, likewise, of Table I annexed to the Regulation of Costs in Tax Arbitration Proceedings.

Text produced by computer, in accordance with the CCP, applicable by referral of article 29, no. 1, paragraph e), of the LRATM, with blank lines and reviewed by the Undersigned Arbitrator.

Lisbon, 21 February 2018

The Arbitrator

(Jaime Carvalho Esteves)

Frequently Asked Questions

Automatically Created

What coefficient applies to pool installation and maintenance income under the IRS simplified regime?
The central dispute concerns whether swimming pool installation, treatment, and cleaning services attract the 0.75 coefficient under Article 31(2)(b) CIRS (for professional services listed in Article 151) or the 0.10 coefficient under Article 31(2)(e) CIRS (for residual Category B income). The Tax Authority applied the 0.75 coefficient, classifying these as professional services, while taxpayers argue the 0.10 coefficient applies because their commercial and industrial activities are not specifically enumerated in Article 151's table of professional activities. The coefficient determines what portion of gross income becomes taxable under the simplified regime.
How does the CAAD classify swimming pool services for purposes of Article 31(2) of the CIRS?
The arbitration examines whether swimming pool services (sale, assembly, treatment, and cleaning) classified under CAE codes 43992 and 81292 constitute professional activities listed in Article 151's table (attracting coefficient 0.75 under Article 31(2)(b)) or residual Category B income (attracting coefficient 0.10 under Article 31(2)(e)). The Tax Authority maintains that these services, not qualifying as civil construction works, must be treated as professional services under Article 3(1)(b) CIRS, thus applying the higher 0.75 coefficient rather than the preferential 0.10 coefficient reserved for commercial and industrial activities.
What is the difference between the 0.75 and 0.10 coefficients in the Portuguese IRS simplified regime?
Under Article 31(2) CIRS in the simplified regime, coefficients determine the percentage of gross income deemed taxable. The 0.75 coefficient (paragraph b) applies to professional services enumerated in Article 151's table, rendering 75% of gross receipts as taxable income. The 0.10 coefficient (paragraph e) applies to residual Category B income not covered by preceding paragraphs, subjecting only 10% of gross receipts to taxation. This seven-fold difference significantly impacts tax liability: on €98,124.10 income, the 0.75 coefficient yields €73,593.08 taxable income versus €9,812.41 under the 0.10 coefficient.
Can income from pool construction and cleaning be treated as professional services under Article 151 of the CIRS?
This constitutes the core legal dispute. The Tax Authority argues that pool installation and maintenance services represent professional services under Article 3(1)(b) CIRS, thus falling within Article 31(2)(b) and Article 151's scope, attracting the 0.75 coefficient. Conversely, taxpayers contend their activities—operating under CAE codes 43992 (specialized construction) and 81292 (cleaning)—represent commercial and industrial services not specifically enumerated in Article 151's table of professional activities. Therefore, they qualify as residual Category B income under Article 31(2)(e), warranting the preferential 0.10 coefficient. The classification hinges on whether the services are professional-technical or commercial-industrial in nature.
How does the tax transparency regime affect the taxation of partner income under the simplified IRS regime?
Under Article 31(2)(b) CIRS, when income derives from services rendered by a partner to a company subject to the tax transparency regime, the simplified regime's coefficient applies to income attributed to the partner. Specifically, taxable income is calculated by adding to the partner's attributed income the result of applying the relevant coefficient (0.75 for professional activities in Article 151's table, or 0.10 for residual activities). This means the partner's proportional share of company income is first attributed through transparency, then subjected to the simplified regime's coefficient methodology, potentially resulting in substantially higher taxation if classified as professional rather than commercial activity.