Process: 558/2017-T

Date: June 1, 2018

Tax Type: IRC

Source: Original CAAD Decision

Summary

This CAAD arbitral decision (Process 558/2017-T) addresses whether an allegedly inactive company must be included in a tax group under Portugal's Special Tax Regime for Groups of Companies (RETGS) for IRC purposes. The claimant, A… S.A., challenged an additional IRC assessment of €138,464.84 for fiscal year 2013, arguing that subsidiary C… Lda. was properly excluded from the RETGS perimeter as inactive. The company B… SGPS S.A. headed the corporate group and opted for RETGS but deliberately excluded C… Lda., claiming it had no operational activity—only expense rechargings from prior years, reversals, and minimal costs (accountant fees, bank commissions, utilities). The Tax Authority contested this exclusion, arguing C… Lda. was active based on filed financial statements showing €6,965.75 in income and €14,071.17 in expenses, with total assets of €113,874.27. The AT maintained that failure to include all legally qualifying companies invalidates RETGS application for the entire group, requiring individual taxation. The dispute centers on defining 'inactive' status under RETGS rules: whether mere accounting movements and rechargings constitute activity, and whether re-invoicing itself represents taxable operations. The claimant argued the exclusion was deliberate and proper, even though inclusion would have been tax-beneficial due to C… Lda.'s tax losses. This case highlights critical compliance requirements for corporate groups applying RETGS and the strict interpretation of eligibility criteria by Portuguese tax authorities.

Full Decision

ARBITRAL DECISION

The Arbitrators, Dr. José Poças Falcão (Presiding Arbitrator), Dr. Amândio Silva and Dr. José Calejo Guerra (Arbitrator Members), appointed by the Deontological Council of the Administrative Arbitration Centre (CAAD) to form the Collective Arbitral Tribunal constituted on 28 December 2017, agree as follows:

I. REPORT

On 20 October 2017, the company A…, S.A., with the Tax Identification Number … and with registered office at …, …-… ... (hereinafter referred to as the Claimant), came, pursuant to article 2, paragraph 1, of Decree-Law No. 10/2011, of 20 January, which approved the Legal Regime for Arbitration in Tax Matters (RJAT) and of Order No. 112-A, of 22 March, to request the constitution of an Arbitral Tribunal, in which the Tax and Customs Authority (hereinafter AT or Respondent) is the Respondent, with a view to the declaration of illegality and consequent annulment of the additional assessment of Corporate Income Tax (IRC) with the number 2017…, relating to the fiscal year 2013, and respective compensatory interest, in the total amount of € 138,464.84.

The request for constitution of the arbitral tribunal was accepted by the Esteemed President of CAAD on 28 December 2017 and notified to the Tax and Customs Authority on that same date. The Deontological Council appointed as arbitrators the undersigned herein who communicated acceptance of the appointment within the applicable timeframe.

On 07 December 2017, the Parties were duly notified of such appointment, having not manifested the intention to refuse the appointment of the arbitrators, in accordance with the combined provisions of article 11, paragraph 1, subparagraphs a) and b) of RJAT and articles 6 and 7 of the Deontological Code.

In accordance with the provision of subparagraph e) of paragraph 1 of article 11 of RJAT, the singular arbitral tribunal was constituted on 28 December 2017.

Notified to submit its response, the AT presented a reply in which it petitioned that the request for arbitral pronouncement be judged unproven, with the additional IRC assessment acts and compensatory interest challenged remaining in the legal order and the Respondent entity being absolved accordingly from the claim.

Following a request made by the Claimant, the witness appointed, the certified accountant R..., was examined on 04 April 2018.

The Parties submitted arguments within their respective timeframes.

Summary of the Parties' Positions

a. Of the Claimant:

From the request made, arguments and other elements attached to the case file, it results, in the understanding of the Claimant, as follows:

The Claimant is a company within a corporate group headed by company B… SGPS, S.A., by which it is held, albeit indirectly, in 99.80%.

With respect to the fiscal year 2013, company B… SGPS, S.A. decided to opt for the Special Tax Regime for Groups of Companies ("RETGS"), including within its scope all companies it considered to meet the legal requirements for this purpose.

Accordingly, it was decided to exclude from the said group company C…, Lda., in that, notwithstanding meeting the other legally defined criteria, it was understood to be inactive, thus not qualifying for purposes of RETGS.

The Claimant contends that the exclusion of company C…, Lda., from the said (tax) group cannot be opposed on the argument that it was not inactive because values and movements were verified in the accounting statements.

The Claimant contends that the said company was effectively inactive, "in that the so-called declared income does not correspond to income from operational activity, but rather to rechargings of expenses incurred in prior years and which were allocated to another company that assumed management of the shopping centre as well as reversals, with no invoice, service provision or sale of goods existing. In addition, the incurred expenses correspond essentially to expenses with the company's accountant, as well as bank maintenance commissions and discount interest, with expenses beyond this relating to supply contracts for electricity, water and waste collection and waste fees that were charged to the company in question due to difficulties and delays in transferring the ownership of these contracts, always being charged to the company that assumed operation of the shopping centre, as mentioned above.".

The decision to exclude the said company was thus taken in a conscious and deliberate manner in that it was understood that its inclusion would, in fact, be an element tending to prevent the application of the aforementioned RETGS.

And such was the decision of the (economic) group, even understanding that the inclusion of the said company would have had a beneficial tax outcome in that it presented a tax loss which could be used to offset profits of other entities of the (tax) group.

In conclusion, the Claimant considers that the non-application of RETGS in the circumstances described constitutes a violation of the fundamental principles of the system of taxation of companies and the activity of the Tax Administration, and seeks the finding of inactivity of company C…, Lda., for purposes of IRC and, accordingly, of RETGS itself.

b. Of the Respondent:

Notified in accordance with the terms and for the purposes provided in article 17 of RJAT, the AT presented a Reply and attached the administrative file (PA), defending the legality and maintenance of the assessment subject to the present request for arbitral pronouncement.

The Respondent understands, with respect to company C…, Lda., that, being the same active, because its accounting elements demonstrate this, it should have been included within the scope of the (tax) group for purposes of RETGS.

In fact, by not doing so, the (economic) group failed to comply with the obligation to include within its tax scope all companies that should legally form part of it, and one should therefore necessarily conclude for the non-application of the said special regime in relation to any of the companies of the tax group, calculating the tax owed on an individual basis.

And it bases its position on the fact that the company in question "(...) was not closed for IRC or VAT purposes, and timely submitted to the AT the Financial Statement No. … in which it not only did not present zero values, but in the income statement that forms part of it declared € 6,965.75 of income and € 14,071.17 of expenses and in the balance sheet the assets total € 113,874.27 and liabilities € 266,465.71 (...)".

In response to the Claimant's allegation that the movements verified do not result from any activity but from mere rechargings, the Respondent understands that the explanations provided by the witness examined were not sufficient, and one should still consider that "(...) re-invoicing, for VAT purposes, constitutes a onerous service provision subject to tax triggering the obligation to account for VAT and conferring the right to deduct VAT incurred in the upstream acquisition of services.".

In this regard the Respondent states "(...) that there are companies whose sole business is re-invoicing and regarding re-invoiced amounts Rui Duarte Morais makes the following observation: 'Special mention should be made of re-invoicing companies, which limit themselves to purchasing goods or services from entities outside (often companies of the same group) which they then resell to other entities, also seated outside, most often entities with which there are special relationships.'".

The Respondent further contends that, being inactive, the company in question would not have the right to the consideration of any costs, since "a cost, to be fiscally relevant, must be related to the operation, in the sense that there must be a causal relationship between such cost and the company's revenues.".

The Respondent also questions whether in the case of "(...) a company that has no activity for a period exceeding 2 years, and only for VAT purposes, would not the company's administrators, within the framework of diligent and careful management, be obliged to submit declarations reflecting this same reality.".

Finally, the Respondent cites the position of the STA reflected in the judgment handed down in Case 01039/10, of 02/03/2011 in the following terms:

"Now, corporate income tax (IRC) is assessed on income obtained, even if arising from unlawful acts, in the taxation period, by the respective taxpayers, in accordance with CIRC, and among these taxpayers are commercial companies with registered office or effective management in Portuguese territory (article 2, paragraph 1, subparagraph a) of CIRC), and the basis of the tax, in accordance with article 3 of CIRC, is constituted by the respective profit, when they conduct as a principal activity an activity of a commercial, industrial or agricultural nature (see article 30, paragraph 1, subparagraph a) of CIRC).

Being so, in light of the norms of subjective tax liability of IRC, it seems that the inactivity of the company does not prevent it from being a taxpayer, as it maintains its legal existence notwithstanding the non-exercise of its corporate purpose (although legal personality is not, in fact, a prerequisite of its potential subjection - see subparagraph b) of paragraph 1 of article 2 of CIRC) and may have obtained other taxable income.

However, this shall only occur if the tax assumption is verified, that is, if it has obtained income, even if arising from unlawful acts (article 1 of CIRC), as it is not sufficient that it may be a taxpayer, it is also necessary that the constitutive fact of the IRC legal relationship be verified."

(...)

Thus, the existence of taxable income is not only a prerequisite of the simplified taxation regime, but of the constitution of any IRC legal relationship, which is defined, precisely, as a tax on income, fundamentally actual, and not as a tax with "open doors".

(...)

"In the present case, and as results from facts 2 and 4 of the probative findings, Company B…, Ldª, submitted on 29.06.2004 the declarations Form 22 relating to the years 2001 and 2002, mentioning zero income.

Being so, and the Tax Administration not having established the existence of taxable income, it could not proceed with assessments based solely on the fact that that company - taxpayer - was subject to the simplified taxation regime.

For as flows from the doctrine set forth above, article 53, paragraph 3 cited does not constitute a norm of incidence, but only of quantification of the taxable matter. And, there being no taxable matter, there can be no tax, by virtue of article 1 of the same statute."

II. PROCEDURAL EXAMINATION

1. The Arbitral Tribunal is competent and was regularly constituted, in accordance with articles 2, paragraph 1, subparagraph a), 5 and 6, all of RJAT.

2. The parties have legal personality and capacity, are legitimate and are legally represented, in accordance with articles 4 and 10 of RJAT, and article 1 of Order No. 112-A/2011, of 22 March.

3. No exceptions were invoked requiring consideration.

4. The proceedings do not suffer from defects that would invalidate them.

III. LEGAL REASONING

III.1. FACTUAL MATTERS

The factual matters relevant for the understanding and decision of the case, after critical examination of the documentary evidence attached to the initial petition, the request filed by the Claimant, the administrative file, the witness testimony and the submission of documents by the Respondent, is established as follows:

A – Proven Facts

1. The Claimant was, at the time of the facts, a company forming part of a corporate group of which company B… SGPS, S.A. was, directly or indirectly, the parent company.

2. Company B… SGPS, S.A. opted, with respect to the fiscal year 2013, for the use of RETGS, having included within the scope of the tax group the following companies:

a) D…, S.A.;

b) E… SGPS, S.A.;

c) F…, Lda.;

d) A…, S.A. (the Claimant);

e) G…, Lda.;

f) H…, S.A.;

g) I…, Lda.;

3. The said companies met the legal requirements for inclusion in the Group.

4. In parallel, company B… SGPS, S.A. opted, in the same fiscal year, not to include in the Group the following companies:

a) J…, Lda.;

b) K…, Lda.;

c) L…, Lda.;

d) C…, Lda.;

e) M…, Lda.;

f) N…, Lda.;

g) O…, Lda.;

h) P…, Lda.;

i) Q…, Lda..

5. The companies referred to in subparagraphs a), b), c), e), f), g), h) and i) do not meet the legal requirements to be integrated in the tax group in accordance with RETGS.

6. Company C…, Lda. was held, directly, at 98% by company B… SGPS, S.A.

7. Company C…, Lda. had its registered office and effective management in Portuguese territory.

8. All income of company C…, Lda. was subject to the general IRC regime.

9. Company C…, Lda. was constituted in one of the legal forms admitted within the scope of RETGS.

10. Company C…, Lda. submitted VAT and IRC declarations relating to fiscal year 2012, with movements.

11. In accordance with the documents attached by the Claimant with its Request of 09 February 2018, and confirmed by the witness presented, company C…, Lda. incurred the following costs in fiscal year 2012:

a) TOC - € 1,750.00;

b) Solicitor fees - € 430.84;

c) Light vehicle maintenance - € 442.29;

d) Electricity - € 1,331.15;

e) Gasoline - € 668.42;

f) Water - € 208.45;

g) Tolls and parking - € 40.70;

h) Insurance - € 28.24;

i) Litigation and notary - € 85.00;

j) Waste collection - € 5,475.99;

k) Solid waste - € 1,419.18;

l) Sanitation - € 367.14;

m) Depreciation and amortization of fixed assets - € 988.41;

n) Audiovisual contribution - € 13.50;

o) Water resources fee - € 9.62;

p) Availability tariff - € 165.35;

q) Bank services - € 633.89;

r) Interest - € 13.90.

12. Also in fiscal year 2012, company C…, Lda. obtained income corresponding to rechargings of expenses incurred in prior years and which were allocated to another company that assumed management of the shopping centre which company C…, Lda. had previously operated.

13. In fiscal year 2012, company C…, Lda. did not issue any invoice nor provide any service or sale of goods, other than those already mentioned.

III.2. ON THE LAW

1. The question to be decided:

Considering the positions of the Claimant and the Respondent, as well as the established facts, the question that requires an answer shall be whether a company, which forms part of the economic group of a group of companies, can be excluded from the tax group in a given fiscal year, meeting all other legally fixed requirements, by being considered that it was inactive in prior fiscal years, if it is demonstrated that the company nonetheless registered some operating costs and income arising from rechargings of expenses incurred in prior years.

It shall be necessary, in concrete terms, to decide whether, in light of article 69 of the IRC Code, as worded on the date of the facts, one can consider a company inactive knowing that it incurred expenses and registered income in its accounting records.

The answer to be given to the question to be decided shall depend, first and foremost, on the analysis to be made regarding the nature of the expenses and income recorded, as well as regarding the concept of "activity" relevant for purposes of the said RETGS.

Being so, and considering the expenses and income recorded by company C…, Lda., it appears that the same relate solely to the maintenance of "minimum services" required to maintain the company in legal existence.

In fact, having analyzed the list of expenses incurred by company C…, Lda., the conclusion drawn is that the said expenses relate only to administrative services and to the maintenance of public service supply contracts and equivalents, which do not reveal a genuine activity, but a mere legal existence, and the same are inseparable from this.

Having regard to the corporate purpose of the said company, it would be expected that it would incur other costs such as personnel costs, equipment and other elements essential for the operation of this company, as with any business.

In this regard, the question raised by the Respondent regarding the (non-)acceptance for tax purposes of the expenses incurred is considered irrelevant since that is not the question at issue, but rather to establish the duty to include company C…, Lda. in the tax group headed by company B… SGPS, S.A.

As to income, and in accordance with the allegations made by the Claimant in the various submissions made and reinforced by the witness indicated, it is considered that one is in fact faced with a mere accounting operation of rechargings of expenses incurred in prior years and resulting from the very inactivity of company C…, Lda., with the consequence that the same do not reveal any actual activity of the company.

It is necessary here to evaluate the equation made by the Respondent to the situation of companies dedicated exclusively to re-invoicing activities, recalling that this activity – that of re-invoicing – can indeed constitute an economic activity when conducted as an end in itself.

In fact, the example brought by the Respondent differs from the situation now analyzed in that the rechargings effected by company C…, Lda. were outside the scope of its corporate purpose, nor were those made with any profit margin, as contradicted by the witness considered.

Thus, one must agree with the Claimant that the ratio legis of RETGS is not defeated in a case, such as the present one, in which a company is not included by reason of it not developing an activity – in the economic sense of activity as an expression of the realization of the corporate purpose and the fundamental aim of seeking (even if ultimately unsuccessfully) profit which so intrinsically shapes the corporate institute itself – limiting itself merely to existing, in as neutral a manner as possible.

In this regard, the Respondent's arguments to the effect that the maintenance of a company without activity would be contrary to diligent and careful management are also poorly understood, since it shall not fall to the Tax Administration, and certainly not to this Tribunal, to evaluate the (in)capacities of any of those involved, but solely the strict compliance with legal requirements.

Finally, disagreement is also expressed with the argument produced by the Respondent to the effect that a company could only be considered inactive if the declarations – of VAT and IRC – submitted had been done so at zero, citing, in its defense, the content of the learned judgment delivered by the STA in Case 01039/10.

In fact, not only does the Respondent ignore that the mere legal existence of a company entails the performance of expenses – with the accountant, for example – but it seeks to draw from the learned judgment conclusions which, we understand, do not result from it.

That is, from the circumstance that, in that decision, a zero declaration led to the conclusion of impossibility of assessing IRC (indeed with the argument, not relevant here, that the simplified regime constitutes a methodology for determining taxable income and not a norm of incidence) the Respondent extracts the conclusion that "only by reason of the company having submitted to the AT declarations of zero income supported by accounting records does it allow one to prove non-existent and non-taxable activity.". (bold and underlined in original)

It can thus be concluded that the fact that a company was excluded from the scope of the tax group for purposes of RETGS (and its inclusion would have even benefited the group's tax outcome) by being considered that it was not developing actual activity cannot lead to the consideration that the rules for defining the scope of the tax group within and for the purposes of RETGS were violated, provided it is demonstrated, as is considered demonstrated in the present case, that the expenses and income revealed by the company's accounting are limited to the maintenance of its legal existence, without reflecting the development of any actual economic activity.

IV. DECISION

Based on the factual and legal grounds set forth above and, in accordance with article 2 of RJAT, the Arbitral Tribunal decides:

I) To annul in full the assessment of IRC and compensatory interest challenged;

II) To order the AT to return the amount of tax annulled;

III) To order the AT to pay compensatory interest in favor of the Claimant, in accordance with articles 43 and 100, both of the General Tax Law, and

IV) To order the Respondent to pay all costs, having regard to the full merit of the claim.

VALUE OF THE CASE: In accordance with the provisions of article 306, paragraphs 1 and 2, of the Code of Civil Procedure, 97-A, paragraph 1, subparagraph a), of the Code of Administrative Court Procedure and 3, paragraph 2, of the Costs Regulation in Tax Arbitration Proceedings, the value of the case is fixed at € 138,464.84 (one hundred thirty-eight thousand, four hundred sixty-four euros and eighty-four cents).

COSTS: Calculated in accordance with article 4 of the Costs Regulation in Tax Arbitration Proceedings and Table I attached thereto, in the amount of € 3,060.00 (three thousand and sixty euros).

Lisbon, 1 June 2018.

The Collective Arbitral Tribunal,

José Poças Falcão

(President)

Amândio Silva

(Member)

José Calejo Guerra

(Member)

Text prepared by computer, in accordance with paragraph 5 of article 131 of the Code of Civil Procedure, applicable by virtue of the reference in subparagraph e) of paragraph 1 of article 29 of Decree-Law 10/2011, of 20 January.

The text of this decision is governed by the 1990 orthographic agreement.

Frequently Asked Questions

Automatically Created

What is the RETGS (Regime Especial de Tributação de Grupos de Sociedades) and how does it apply to group taxation in Portugal?
The RETGS (Regime Especial de Tributação de Grupos de Sociedades) is Portugal's special tax regime for corporate groups under IRC law. It allows a parent company holding at least 75% (directly or indirectly) of subsidiaries to consolidate taxable profits and losses across eligible group companies, calculating a single group tax liability rather than individual company assessments. The regime requires the dominant company to opt-in and include all companies meeting legal requirements, including share ownership thresholds, residence criteria, and activity status. Companies must maintain this structure throughout the fiscal year, and all eligible entities must be included—selective inclusion is not permitted.
Can an inactive commercial company be included in the RETGS perimeter for IRC purposes?
Portuguese tax law generally requires active companies meeting ownership and other criteria to be included in RETGS. An 'inactive' company is typically excluded from the group perimeter. However, defining inactivity is contentious. The Tax Authority considers a company active if it files financial statements showing any income, expenses, assets, or liabilities, or if it remains registered for IRC and VAT purposes. Taxpayers may argue a company is inactive if movements result solely from non-operational activities like expense rechargings, reversals, or minimal administrative costs without genuine business operations. The critical issue is whether accounting movements alone constitute activity or whether operational revenue-generating activity is required. Tax authorities take a strict, formalistic approach based on filed declarations.
What are the legal requirements for a company to be included in the special group taxation regime under Portuguese IRC law?
Under Portuguese IRC law, companies must meet several requirements for RETGS inclusion: (1) the parent must hold at least 75% of share capital and voting rights, directly or through subsidiaries; (2) all companies must be resident in Portugal or have permanent establishments here; (3) companies must not be taxed under other special regimes incompatible with RETGS; (4) companies must be active, not inactive or dormant; (5) the same accounting period must apply; and (6) all companies must use the accrual basis of accounting. Critically, if any company meeting these criteria is excluded, the entire RETGS application may be invalidated, requiring individual taxation of all group members, as the regime demands inclusion of all qualifying entities.
How does the Tax Authority handle additional IRC assessments related to inactive companies within a corporate group?
When the Tax Authority identifies non-compliance with RETGS requirements—such as excluding a company deemed active from the group perimeter—it issues an additional IRC assessment (liquidação adicional) reversing the group taxation treatment. The AT recalculates IRC on an individual company basis for all group members, eliminating consolidation benefits like offset of losses against profits. The assessment includes the principal tax amount plus compensatory interest (juros compensatórios) for the delayed payment period. In this case, the AT issued an additional assessment of €138,464.84 for fiscal year 2013, arguing that C… Lda.'s exclusion violated mandatory inclusion rules, thereby disqualifying the entire group from RETGS benefits and requiring retroactive individual taxation.
What are the grounds for challenging an additional IRC assessment and compensatory interest at the CAAD arbitration tribunal?
Taxpayers can challenge additional IRC assessments at CAAD (Centro de Arbitragem Administrativa) on various grounds including: (1) substantive illegality—arguing the tax assessment incorrectly applied legal provisions, such as misinterpreting 'inactive' status or RETGS eligibility criteria; (2) procedural irregularities in the assessment process; (3) violation of fundamental tax principles like proportionality, legal certainty, or protection of legitimate expectations; (4) factual errors in the Tax Authority's determination; and (5) incorrect calculation of compensatory interest. The arbitration process involves submitting a formal request, exchange of pleadings, potential witness examination (as occurred here with the certified accountant), and written arguments before a panel of three arbitrators who issue a binding decision on the assessment's legality.