Process: 502/2017-T

Date: March 5, 2018

Tax Type: IRS

Source: Original CAAD Decision

Summary

CAAD arbitration case 502/2017-T addresses a critical dispute regarding IRS taxation of severance compensation under Article 2(4)(b) of the Portuguese IRS Code (CIRS). The taxpayer, a banking professional, received €87,790 in termination compensation after ending his employment contract with Bank B in June 2013, where he worked for 7.03 years. However, his total banking career spanned 24 years, including prior service at Bank C from 1989 to 2006. The central legal question concerns how to calculate 'seniority' for determining the tax-exempt portion of severance pay. The Portuguese Tax Authority (ATA) issued an additional IRS assessment of €30,762.03, arguing that seniority should count only the 7.03 years with the debtor entity (Bank B), limiting the exempt amount to €25,517.80. The taxpayer contested this interpretation, claiming that his full 24-year banking career should be considered, making the entire severance payment exempt under CIRS Article 2(4)(b). He supported his position with case law precedents, his employment contract stipulating seniority recognition, union membership records, and coverage under the banking sector Collective Labor Agreement (CLA) throughout his career. The arbitration tribunal must determine whether the statutory phrase 'number of years or fraction of seniority with the debtor entity' refers exclusively to time served with the final employer or encompasses total professional seniority within the same sector, especially when employees transition between entities covered by the same collective bargaining framework. This interpretation has significant implications for tax treatment of severance compensation in Portugal, particularly affecting professionals in regulated sectors with strong union representation and collective agreements that recognize career-long seniority.

Full Decision

ARBITRAL DECISION

I – REPORT

A..., TC[1]..., with tax residence at Rua..., nº..., ... Dtº, ...-... ..., area of the financial services office of ..., filed a request for arbitral decision, under the provisions of paragraph a) of item 1 of article 2, of item 1 of article 3 and of paragraph a) of item 1 of article 10, all of RJAT[2], with ATA[3] being requested, with a view to reviewing the legality of the assessment notice nº 2017... of PIT[4], relating to the tax year 2013, resulting from an inspection procedure instituted by ATA, which corrected the income declared by the applicant from € 48,506.75 to € 110,478.55.

The request was made without exercising the option of appointing an arbitrator, and was accepted by the Esteemed President of CAAD[5] on 12/09/2017 and notified to ATA on the same date.

Pursuant to and for the purposes of item 2 of article 6 of RJAT, by decision of the Esteemed President of the Deontological Council, duly communicated to the parties within the legally applicable time limits, on 08/11/2017, arbitrator Arlindo José Francisco was appointed to the tribunal, who communicated acceptance of the assignment within the legally stipulated time limit.

The tribunal was constituted on 28/11/2017 in accordance with the provisions contained in paragraph c) of item 1 of article 11 of RJAT, in the wording introduced by article 228 of Law nº 66-B/2012, of 31 December.

With his request, the applicant aims at the annulment of assessment nº 2017... of PIT for the year 2013, in the amount of € 30,762.03, resulting from an inspection procedure instituted by ATA with nº 012017... of 11/04/2017, concerning the taxation of amounts earned by virtue of the termination of the employment contract and, consequently, that ATA be condemned to pay the costs of the proceedings and the charges it had to bear with the establishment of guarantees for the suspension of execution.

He supports his position, in summary, in the understanding that the counting of seniority for PIT purposes, in the situation of termination of the employment contract, should take into account all his history in the sector and not just the time of service provided to the last employer entity, in this case, Bank B....

He considers that case law has been unanimous in so considering, contrary to the understanding of ATA which restricts seniority to the time of service provided to the debtor entity.

That the value of the indemnity received of € 87,790.00, for the termination of the employment contract corresponds to the average monthly remuneration of € 3,645.40 times 24 years of seniority, is exempt from taxation, pursuant to paragraph b) of item 4 of article 2 of CIRS[6].

Thus, he considers that there was no omission or inaccuracy in his declarations submitted to ATA, whereby the assessment challenged here should be annulled with the respective consequences.

In the response, the defendant, and also in summary, considers that the assessment in question is supported by the inspection report, by means of which the technical corrections that originated it were made.

Taking into account what is provided in item 4 of article 2 of CIRS, amounts earned that exceed the value corresponding to the average of monthly remuneration times the number of years or fraction of seniority with the debtor entity are subject to PIT.

In this perspective and taking into account that the applicant's seniority with the debtor entity is only 7.03 years, the corrections made took this into account, whereby the assessment in question does not suffer from any defect that calls into question its legality and validity.

II - PROCEDURAL MATTERS

The tribunal was regularly constituted, the parties have legal personality and capacity, show themselves to be legitimate and are regularly represented in accordance with articles 4 and 10, item 2 of RJAT and article 1 of Ordinance nº 112-A/2011, of 22 March.

In view of the defendant's response, the tribunal delivered, on 22/01/2018, the following order: "Given that no additional evidence production is requested, beyond the documentary evidence already incorporated in the proceedings, there are no matters of exception on which the parties need to pronounce themselves and taking into account that in arbitral proceedings the general procedural principles of procedural economy and the prohibition of the practice of useless acts apply, the tribunal considers unnecessary the holding of the meeting referred to in article 18 of RJAT as well as the presentation of oral or written arguments by the parties, whereby, within the same period of 10 days, the parties may pronounce themselves on this understanding".

On 23/01/2018 the joining of documents by the applicant was admitted, with notification to the respondent on 26 of the same month and on 16/02/2018 the tribunal considered the conditions met to render a decision, setting 05 March for that purpose.

In this manner, the proceedings not suffering from nullities, it is necessary to decide.

III - GROUNDS

– The issues to be resolved, with interest for the proceedings, are the following:

To assess the concept of seniority used by the parties in the sustainability of each one's point of view and, consequently, declare whether or not there is cause for annulment of the PIT assessment act 2017..., concerning the year 2013, in the amount of € 30,762.03.

If affirmatively, whether or not there is cause for payment of the charges borne by the applicant, with a view to suspension of execution.

– Factual Matter

The applicant worked from 29 May 2006 to 07 June 2013 at Bank B..., the date on which they terminated his employment contract and, as a consequence of the termination, the applicant received indemnity in the amount of € 87,790.00.

Previously the applicant performed functions at Bank C... from May 1989 to May 2006 and proved to be unionized and covered by the CLA[7] of bankers, from 01/06/2006 to 07/06/2013 and that his last employer entity was part of the collective labor agreement.

ATA instituted on 11 April 2017 an inspection procedure, with a view to assessing the tax situation of the applicant, concerning the PIT income for the year 2013, from which resulted the additional PIT assessment challenged here.

The said additional assessment is based on the inspection report in which it was concluded and decided that the seniority to be considered for the purposes of calculating the limit referred to in paragraph b) of item 4 of article 2 of CIRS, is only the number of years or fraction served with the last employer entity, debtor of the indemnity.

From this conclusion and decision it resulted that ATA only accepted the exemption from PIT of the value of € 25,517.80, taxing the excess of the indemnity, from which resulted the additional assessment already referred to.

The applicant joined to the proceedings the employment contract celebrated between him and Bank B..., in which the question of seniority is regulated in its clause 7.

He also joined a statement from the Independent Banking Union, in which it is verified that B... was part of the collective labor agreement, that the applicant began his banking activity on 30 May 1989 and was unionized from 01 June 2006 to 07 June 2013.

Proof of these facts results from the documents joined to the proceedings which were not contested by the parties, as well as from the content of the administrative file joined and are those which the tribunal considers relevant for the decision.

3 - Matters of Law

3.1 – Of the illegality of the assessment

With a view to assessing the legality of the assessment we must resolve the legal issue under discussion, which pertains to knowing whether the multiplier that the law establishes in paragraph b) of item 4 of article 2 of CIRS, in the wording given by Law 64-B/2011 of 30 December, will be the number of years of seniority in the company debtor of the indemnity, or whether it should be taken into account the sum of the time of service provided in all the entities for which the applicant worked as a banker.

ATA considers that this multiplier corresponds to the number of years of seniority in the company debtor and that pays the indemnity, while the applicant considers that this multiplier should correspond to the sum of the time of service provided in all banking entities.

The rule under examination, paragraph b) of item 4 of article 2 of CIRS states "... number of years or fraction of seniority or of exercise of functions with the debtor entity, in other cases..."

The position of ATA is supported, essentially, by the inspection report, considered entirely reproduced in the response, which is based on the opinion of CEF[8] nº 1/2016, endorsed by Order of 21/03/2016 of the Lady Director General, in the binding information – Opinion nº 1818/10 and in comments to the rule by tax practitioners (Dr. Manuel Faustino, Dr. Fraústo da Silva and Dr. Cláudia Reis Duarte) which we consider.

However, the literal interpretation made by ATA leads us, in practical terms, to the multiplier always being the same, whether taking into account seniority or the exercise of functions.

The point of view of the applicant who intends that he be recognized all the time of service provided in the banking sector, is supported, essentially, on the interpretation of the rule which, without neglecting the literal element, gives it another amplitude, also listing, in the sense advocated by him, several judgments of the Central Administrative Court[9] of the South and a decision of CAAD.

Taking into account that fiscal law does not establish any concept of seniority itself, we will have to resort to other branches of law where the term is used, as set forth in item 2 of article 11 of LGT[10], which determines that whenever fiscal law uses concepts peculiar to other branches of law, the same should be interpreted in the identical sense they have in their respective branches of origin. Seniority being a concept with origin in Labor Law we must make its interpretation according to labor law. However, also within the scope of the Labor Code we do not arrive at a precise concept of seniority and we will have to seek it in the individual employment contract or in the CLA of the banking sector (in this sense see the judgment of the Central Administrative Court SOUTH of 21/09/2010, Opinion 03748/10 which we accompany).

As we have already seen, the interpretation advocated by ATA, leads us to the multiplier being always the same which was not the legislator's intention, in referring to "... in other cases...", therefore, the rule intends to contemplate other situations such as number of years or fraction of seniority or numbers of years or fraction of exercise of functions with the debtor entity. This interpretation which, without neglecting the literal element of the rule, allows finding different multipliers, according to the concrete reality, at the same time that it gives content to the legislator's thinking in referring to "...in other cases..."

From the verification of the different decisions delivered, in this context, by the Central Administrative Court of the South, they all go in the sense of considering all the time of service provided in the banking sector, it being certain that we are in the presence of decisions from the years 2010, 2012 and 2013, without the legislator having so far modified or corrected the law, we must consider that the interpretation made is in accordance with his intention and shows itself to be welcoming and comprehensive of different realities.

Also, the employer entity when assigning the indemnity, took into account the service provided by the applicant to other banking institutions, when it would have been much more favorable to have only considered the time the worker was in its service, and it did so, because it considered itself bound by the banking CLA in force.

Such procedure limited itself to complying with what was provided in the respective CLA for the banking sector, then in force, subscribed by the employer entity debtor of the indemnity, which determined the counting of time, for the purpose of seniority of all time of service provided in credit institutions with activities in Portuguese territory.

From the analysis we made of the positions of the parties, of the decisions of the Central Administrative Court of the South and of the proven factual matter, we consider that the interpretation we must give to the rule, respecting not only its letter but also the "mens legislatoris" is the one that allows us to obtain differentiated solutions in the face of different situations of fact and law and not the one that points us always to the same solution regardless of the situations.

In this perspective the multiplier of seniority to be applied should correspond to the number of years of service provided in the Portuguese banking sector, in the specific case 24, proceeding with the request.

3.2 – Of the right to payment of charges borne by the applicant

The applicant further requests the condemnation of the defendant to payment of the charges it had to bear with the establishment of guarantees, with a view to suspension of execution, however, besides not quantifying them and it being possible to suspend execution through attachment, it is not incumbent on this tribunal to pronounce itself on acts practiced in the execution proceedings, but rather on the Execution Judge as determined by item 2 of article 103 of LGT, whereby this pretension does not proceed.

IV - DECISION

Thus the tribunal decides:

Declare the request for arbitral decision procedurally well-founded as to the request for annulment of assessment nº 2017... of PIT for the year 2013, in the amount of € 30,762.03, with all legal consequences arising therefrom.

Declare not procedurally well-founded the request as to the payment of charges borne with a view to suspension of execution.

Fix the value of the case at € 30,762.03 in accordance with the provisions contained in article 299, item 1, of CPC[11], article 97-A of CPPT[12], and article 3, item 2, of RCPAT[13].

Fix the costs, under the authority of item 4 of article 22 of RJAT, in the amount of €1,836.00 in accordance with what is provided in table I referred to in article 4 of RCPAT, which are charged to the defendant ATA.

Notify.

Lisbon, 05 March 2018

Text prepared by computer, in accordance with article 131, item 5 of CPC, applicable by remission of article 29, item 1, paragraph e) of RJAT, with blank verses and revised by the tribunal.

The Arbitrator

Arlindo José Francisco

[1] Acronym for tax contributor
[2] Acronym for Legal Framework of Arbitration in Tax Matters
[3] Acronym for Tax and Customs Authority
[4] Acronym for Personal Income Tax
[5] Acronym for Center for Administrative Arbitration
[6] Acronym for Personal Income Tax Code
[7] Acronym for Collective Labor Agreement
[8] Acronym for Center for Tax Studies
[9] Acronym for Central Administrative Court
[10] Acronym for General Tax Law
[11] Acronym for Civil Procedure Code
[12] Acronym for Tax Procedure and Process Code
[13] Acronym for Rules of Costs in Tax Arbitration Proceedings

Frequently Asked Questions

Automatically Created

How is employee seniority calculated for IRS tax exemption on employment termination compensation in Portugal?
Employee seniority for IRS tax exemption on termination compensation is subject to conflicting interpretations. The Portuguese Tax Authority (ATA) calculates seniority as only the years worked with the debtor entity (the employer paying the severance), while taxpayers argue that total career seniority in the same professional sector should be counted, especially when covered by collective labor agreements. Case 502/2017-T specifically addresses this dispute where the taxpayer claimed 24 years of banking seniority versus ATA's recognition of only 7.03 years with the final employer.
What does Article 2(4)(b) of the Portuguese IRS Code (CIRS) establish regarding severance pay taxation?
Article 2(4)(b) of the Portuguese IRS Code (CIRS), as amended by Law 64-B/2011 of 30 December, establishes that severance compensation is exempt from IRS taxation up to the amount corresponding to the average monthly remuneration multiplied by the number of years or fraction of seniority with the debtor entity. Any amount exceeding this calculation is subject to IRS taxation. The critical interpretative issue is defining 'seniority with the debtor entity' - whether it means only service time with the last employer or can include total professional career seniority.
Can full career seniority across multiple employers be considered for the IRS exemption on termination payments?
The taxpayer in case 502/2017-T argues that full career seniority across multiple employers should be considered for the IRS exemption on termination payments, particularly when: (1) all employment was within the same professional sector (banking), (2) the worker was covered by the same Collective Labor Agreement (CLA), (3) the employment contract recognizes prior seniority, and (4) case law supports this broader interpretation. However, the Tax Authority maintains that only years with the debtor entity count, creating a fundamental dispute requiring arbitral resolution.
What was the outcome of CAAD arbitration process 502/2017-T regarding the IRS tax correction on severance compensation?
Process 502/2017-T was filed on 12 September 2017 before CAAD to challenge an IRS assessment of €30,762.03 for tax year 2013. The arbitral tribunal was constituted on 28 November 2017 with arbitrator Arlindo José Francisco. The case involves a taxpayer who received €87,790 in severance from Bank B after 7.03 years of service, but claimed a 24-year banking career should determine the tax exemption. The tribunal must decide whether ATA correctly limited the exempt amount to €25,517.80 or whether the full severance should be exempt based on total sector seniority. The decision date was set for 5 March 2018.
How does the Portuguese Tax Authority (ATA) interpret seniority for calculating exempt termination compensation under IRS rules?
The Portuguese Tax Authority (ATA) interprets seniority for calculating exempt termination compensation under IRS rules strictly as the number of years or fraction of service provided exclusively to the debtor entity - the employer paying the indemnity. In case 502/2017-T, ATA applied this interpretation through inspection procedure 012017..., recognizing only 7.03 years of seniority with Bank B and rejecting the taxpayer's claim that his prior 17 years at Bank C should count toward the exemption threshold, despite continuous coverage under the banking sector's collective labor agreement and employment contract provisions recognizing career seniority.