Process: 375/2016-T

Date: July 14, 2017

Tax Type: IRC

Source: Original CAAD Decision

Summary

CAAD arbitral decision 375/2016-T addresses a dispute where the Portuguese Tax Authority (AT) issued an official IRC assessment against a Dutch company, alleging it operated through a permanent establishment in Portugal. The company acquired non-performing loan (NPL) portfolios whose servicing was contracted to H... in Portugal. The taxpayer challenged the 2010 assessment on multiple grounds: (i) AT failed to comply with mandatory procedures for applying indirect assessment methods under articles 87 et seq. of the General Tax Law (LGT); (ii) AT did not properly justify the quantification of tax adjustments, violating articles 125(2) CPA, 77 LGT and 268(2) CRP; (iii) AT applied criteria lacking legal foundation, breaching the legality principle; (iv) AT relied on unvalidated data from H... without requesting information from the taxpayer, creating doubts that under article 100 CPPT should favor the applicant. The taxpayer argued that if direct assessment was impossible, AT should have formally justified resorting to indirect methods per article 77(4) LGT, demonstrating one of the closed-list situations in article 87(1) LGT. Furthermore, the taxpayer contended that proper accounting under NCRF 27 should follow a portfolio approach for financial instruments measured at amortized cost, not individual loan-by-loan assessment as AT applied. The case illustrates critical requirements for establishing permanent establishment taxation and procedural safeguards protecting taxpayers against arbitrary quantification methods.

Full Decision

also the quantification then made by the AT are put into question, and the appreciation of this arbitral tribunal is awaited;

153. The quantification made by the AT for 2010 is illegal (being in consequence illegal the corresponding assessment that in that arbitral proceeding is contested), since in the quantification of the tax facts:

(i) The AT disregarded the rules and procedure necessary for the application of indirect methods;

(ii) The AT did not properly justify the quantification of the corrections carried out, in violation of the provisions of articles 125, section 2 of the CPA, 77 of the LGT and 268, section 2 of the CRP.

(iii) The AT used criteria that find no legal basis, in manifest violation of the principle of legality as provided for in articles 165, section 1, paragraph i) and 103, section 2 of the CRP and 8 of the LGT;

(iv) The AT took as a basis criteria and elements (acquisition values, sale values, and other elements) that were provided to it by H… and whose suitability is at least doubtful, which by application of article 100 of the CPPT, implies that the doubt be resolved in favor of the Applicant;

154. In fact, the AT at no moment requested from the Applicant any element, such as the reporting information it received from H… regarding the performance of the NPL portfolios it acquired and whose Servicing had been contracted and was ensured in Portugal by H…, to determine such taxable base for 2010;

155. There are no documentary elements that support, even by sampling, that the amounts recovered are those contained in the files used by the AT (which were provided to it by H…), and it is certain that the AT did not confirm (or does not attach any elements in that sense) such amounts, taking as good and unquestionable the values that were provided to it by H… in computer files, which it did not bother to validate or verify by any other means;

156. Thus, the AT resorted to mere presumptions or indications to on the basis of the same determine the alleged taxable base of the Applicant. Now, the determination of the taxable base based on indications follows its own procedures and rules, established in articles 87 et seq. of the LGT, which were likewise not observed by the AT;

157. Furthermore, the AT did not justify, as legally required, the quantification of the corrections carried out, whereby such corrections suffer from a defect of lack of justification, under article 152, section 2 of the CPA - applicable ex vi paragraph d), of article 2 of the CPPT and paragraph c) of article 2 of the LGT - that [e]quivalent to lack of justification the adoption of grounds that by obscurity, contradiction or insufficiency, do not concretely clarify the motivation of the act;

158. The criteria used by the AT in the quantification of the taxable base on the basis of the corrections carried out find no legal basis, as there simply exists no tax incidence rule that supports them (whereby their illegality and unconstitutionality is manifest due to violation of the principle of legality);

159. If it were not possible to promote such direct evaluation – since the Applicant does not have accounts organized according to the criteria applicable in the Portuguese legal system -, the AT could resort to indirect evaluation, which would imply not only the special justification of the recourse to such indirect method (as imposed on it by section 4 of article 77 of the LGT), and the verification of one of the situations listed in section 1 of article 87 of the LGT (closed list of cases in which by law the recourse to indirect methods is permitted);

160. From the comparison of the paragraphs of article 87 of the LGT it is verified that, if the recourse to indirect methods were possible, only paragraph b) could be applicable to the case sub judice - "impossibility of proof and direct and exact quantification of the elements essential to the correct determination of the taxable base of any tax;

161. The AT would have had to rely on the absence or insufficiency of the Applicant's accounts, to conclude from it the impossibility of direct and exact determination of the taxable base, as provided for in article 88 of the LGT;

162. Not having the AT demonstrated that impossibility or justified, in any way, the very use of indirect methods, and not being permitted to resort to the indirect method provided for in paragraph b) of section 1 of article 90 of the IRC Code as the deadline for doing so is barred, it cannot be but concluded by its inadmissibility;

163. Whereby the assessment issued is illegal due to violation of paragraph b) of section 1 of article 90 of the IRC Code and section 4 of article 77 and article 87 of the LGT;

164. Even if this is not understood, the recourse to simple rules of experience would always lead to the conclusion that the taxable base determined with reference to the year 2010 (even if valid and legal) could never be identical to the taxable base determined in 2014 (four years later), because the simple rules of experience and the nature of the Applicant's activity demonstrate that the passage of time and the progressive closure of loans within each portfolio lead to a decrease in the amounts recovered;

165. As easily understood, the first years of management of a portfolio are those in which the volume/amount recovered is greatest, which decreases over time with the progressive closure of loans within the portfolios;

166. Considering that the Applicant did not acquire new portfolios in Portugal, the volume of loans recovered in 2014 was necessarily much less than the volume of loans recovered in 2010;

167. Furthermore, if there were organized accounts in Portugal (as the AT intends and attempts to reconstitute to determine the tax due in 2010), in 2014 this would be drawn up in accordance with the rules of the SNC, and therefore, in a portfolio logic and not of each of the loans individually considered;

168. According to the Applicant's understanding, it would always have to be determined the accounting result (which under article 3, section 1, paragraph c), section 3 and article 55, which refers to article 17 et seq., all of the IRC Code, is the basis for the determination of the profit attributable to a permanent establishment), in order to then be possible, under the applicable rules of the IRC Code (namely of article 55 cited by the AT), to determine the tax result;

169. Now, the accounting method to be adopted in Portugal should not differ from the method adopted by the Applicant as an entity resident in the Netherlands without a permanent establishment in Portugal;

170. In fact, according to NCRF 27 applicable to financial instruments (which includes the loans at issue here), the financial instruments in question (loans) should be measured according to amortized cost using the effective interest rate method (under paragraph 12, a) of the said NCRF), minus impairment losses, as the Applicant did for accounting and tax purposes in the Netherlands;

171. NCRF 27 expressly admits the possibility for the taxpayer to choose to make its accounting records on a portfolio basis (portfolio by portfolio – i.e., by grouping loans based on similar credit risk characteristics, as did the Applicant), rather than proceeding with such calculation on an individualized basis as decided by the AT for the fiscal years 2008, 2009 and 2010;

172. Indeed, the same results from the international accounting standards (in this case, IAS 39) that are the basis of the said NCRF, and it is certain that according to the aforesaid NCRF 27, "An entity may not apply this Standard if it chooses to apply in full IAS 32 – Financial Instruments: Presentation, IAS 39 – Financial Instruments: Recognition and Measurement and IFRS 7 – Financial Instruments: Disclosures and Information" (cf. NCRF 27, paragraph 2);

173. In IAS 39 the accounting treatment to be given to financial instruments is prescribed, which includes "Loans granted and accounts receivable" (cf. paragraph 9), determining that after initial recognition, an entity shall measure such financial assets at amortized cost using the effective interest method (cf. paragraph 46. a) of IAS 39 adopted by the original text of Regulation (EC) no. 1126/2008 of the Commission, of 3 November;

174. In IAS 39 numerous references are made to the treatment of financial instruments in groups (in this case by portfolio), notably, paragraph 64 clearly refers that "[a]n entity first assesses whether objective evidence of impairment exists individually for financial assets that are individually significant, and individually or collectively for financial assets that are not individually significant (see paragraph 59). If it determines that there is no objective evidence of impairment for a financial asset individually assessed, whether it is significant or not, it includes the asset in the group of financial assets with similar credit risk characteristics and assesses them collectively for impairment";

175. Indeed, this logic of analysis by portfolio (and not by each loan individually considered), is the one that underlies the entire activity: it is portfolio by portfolio that the objectives of performance are determined that guide the action of the Servicer; it is the achievement of the recovery objectives by portfolio that determines the right and the quantification of the variable fees of the Servicer, etc;

176. In this manner, and even if following the method it used in the determination of the Applicant's taxable base, the AT would always have to conduct such analysis by portfolio and not by each of the loans, which would necessarily lead to very different results from those it reached;

177. The taxable base determined for the fiscal year 2014 (which was done in an automatic and uncritical manner ignoring all these evidences) has no adherence to reality, which would always impose, under article 100 of the CPPT its annulment, which is here requested;

178. It was due to the evolution of the loans over time (taking into account the increasing closure of loans within each portfolio) that H… contracted the payment of a servicing fee that decreased over time, e.g., a fee that in 2006 amounted to € 100,000 monthly, from 2011 would amount to only € 3,000;

179. What has been said generates doubts. Now, such doubts naturally put into question the contested assessment, insofar as under article 100 of the CPPT, doubts about "existence and quantification of the tax fact" must be decided in favor of the taxpayer.

180. Such provision results as a consequence of the general rules of burden of proof in tax proceedings, according to which the proof of the facts constitutive of rights falls on who invokes them – article 74, section 1 of the LGT (that is, in this case, it would be up to the AT to make such proof).

OF THE RESPONDENT

The Respondent maintains that:

1. In the period between June 2006 and 14 September 2010, the representation in Portugal of the Applicant was exercised on the basis of powers of attorney, configuring the existence of a Permanent Establishment in Portugal – Personal Establishment located at the facilities of H…, whereby, the tax services understood that the company should be registered in Portugal for purposes of IRC and, in consequence, proceed to compliance with the tax obligations provided for under IRC, under the provisions of articles 117 and 120, both of the IRC Code;

2. For this reason, a notification was sent to the tax seat of "N…, UNIPESSOAL LDA.", in the capacity of representative of the Applicant, with the intention of providing for the regularization of the tax situation relating to the fiscal years 2008, 2009 and 2010;

3. An inspection was conducted for the years 2008, 2009 and 2010, which determined the relevant information;

4. In follow-up, the corresponding assessments were issued and notified to the Applicant via electronic tax mailbox;

5. With respect to the period of 2014, there is no record of cessation of activity, for IRC purposes, by the Applicant. Therefore, the AT's computer system detected the absence of delivery of the Income Declaration Model 22 of IRC;

6. The Applicant was informed that the official assessment would be based on the amount of the annual guaranteed minimum monthly remuneration or, when greater, the entire taxable base of the closest period that is determined, but was warned that the official assessment would be prejudiced if, within 15 days, the missing statement was presented;

7. The AT further informed it that the presentation of the income statement has a mandatory nature, even if no activity had been exercised in the respective period, or even if cessation of activity had been declared for VAT purposes, and that in each of these cases the value "zero" should be entered in the mandatory completion fields;

8. The Applicant only submitted a request in which it stated it did not consider itself obligated to present a statement, in accordance with the provisions of section 4 of article 120 of the IRC Code;

9. Regarding the nature of the deadline contained in paragraph b) of section 1 of article 90 of the IRC Code, the AT says (with support in the Judgment of the 2nd Section of STA, of 11/05/16 handed down in Proc. no. 0442/15, which it partially transcribed) that, contrary to the understanding that the Applicant advocates, it is today settled that it is not a limitation period, but rather, as also concluded in the Judgment of the same STA of 16/12/09, handed down in Proc. 095, a merely procedural deadline directed to the AT's administrative services, being the right to assess taxes subject to the general limitation period of four years provided for in article 45 of the LGT.

Frequently Asked Questions

Automatically Created

What constitutes a permanent establishment for IRC (corporate income tax) purposes in Portugal?
A permanent establishment for IRC purposes in Portugal requires demonstrating that a foreign company exercises actual business activity through a fixed place of business in Portuguese territory. The burden of proof lies with the Tax Authority to establish not only the physical presence but also the effective exercise of commercial activity. In this case involving NPL portfolio servicing, merely contracting services to a Portuguese entity (H...) does not automatically create a permanent establishment. The AT must prove the foreign company's direct involvement in business operations in Portugal, beyond passive investment management. Article 55 of the IRC Code requires determining the accounting result attributable to the permanent establishment, which presupposes organized accounts reflecting genuine economic activity conducted in Portugal.
Can the Portuguese Tax Authority issue an official IRC assessment against a foreign company based on alleged permanent establishment?
Yes, the Portuguese Tax Authority can issue an official IRC assessment (liquidação oficiosa) against a foreign company based on alleged permanent establishment, but must comply with strict procedural requirements. Under article 77(4) LGT, if resorting to indirect assessment methods, the AT must specifically justify why direct assessment is impossible and demonstrate one of the closed-list situations in article 87(1) LGT applies. The assessment must be properly substantiated per articles 125(2) CPA and 268(2) CRP, with clear justification of quantification criteria. The AT cannot rely on unverified third-party data or presumptions without validating information. Any doubts in evidence interpretation must favor the taxpayer under article 100 CPPT. Failure to follow these procedures renders the assessment illegal and subject to annulment through administrative or arbitral challenge before CAAD.
What evidence is required to prove a company exercises business activity through a permanent establishment in Portugal?
Proving a company exercises business activity through a permanent establishment in Portugal requires concrete evidence of operational substance beyond contractual arrangements. The Tax Authority must demonstrate: (i) physical presence through fixed facilities or dependent agents; (ii) actual exercise of commercial activity in Portuguese territory; (iii) organized accounting records reflecting operations attributable to the Portuguese establishment; (iv) decision-making or core business functions performed in Portugal. In NPL servicing cases, outsourcing portfolio management to a Portuguese service provider is insufficient. The AT must validate claimed revenues and costs through documentary evidence, not mere computer files from third parties. The taxpayer has the right to provide information per article 88 LGT before AT resorts to indirect methods. Crucially, the AT cannot presume permanent establishment existence based solely on service contracts—substantive economic activity must be proven.
How can a Dutch company challenge an IRC assessment and request arbitration before CAAD?
A Dutch company can challenge an IRC assessment by requesting tax arbitration before CAAD (Centro de Arbitragem Administrativa) under the RJAT (Regime Jurídico da Arbitragem em Matéria Tributária). The taxpayer must file an arbitration request within the legal deadline, typically 90 days from notification of the contested act. The request should detail the grounds for illegality, such as: violations of indirect method application rules (articles 77, 87-88 LGT); lack of proper justification (articles 125(2) CPA, 77(4) LGT); breach of legality principle; improper quantification without validated evidence. The arbitration tribunal examines both legality and merit of the assessment. Foreign companies without Portuguese permanent establishment can invoke double taxation treaties (like Netherlands-Portugal treaty) and challenge the very existence of taxable nexus. CAAD arbitration provides a faster, specialized alternative to administrative courts for resolving complex international tax disputes.
What are the rights to reimbursement and compensatory interest when an IRC official assessment is annulled?
When an IRC official assessment is annulled by CAAD, the taxpayer has automatic rights to reimbursement and compensatory interest under articles 100 and 43 LGT. The Tax Authority must reimburse amounts paid within the statutory timeframe. Compensatory interest (juros indemnizatórios) accrues from the date of undue payment until reimbursement, calculated at the legal rate to compensate the taxpayer for time-value loss of funds wrongfully collected. Article 43(1) LGT establishes this right when tax paid exceeds what was legally due, including cases of illegal assessments. The taxpayer need not prove fault by the AT—illegality of the assessment alone triggers reimbursement rights. Interest calculation follows the legal interest rate applicable to tax matters, ensuring full financial restoration. The AT cannot delay reimbursement once the arbitral decision becomes final; non-compliance allows enforcement through judicial execution proceedings.