Process: 65/2016-T

Date: October 6, 2016

Tax Type: IRS

Source: Original CAAD Decision

Summary

This arbitral decision from CAAD addresses the legality of an official IRS assessment issued for the 2010 tax year after a taxpayer failed to properly submit their tax return. The claimant, a lawyer who earned over €10,000 in 2010, attempted to file their Model 3 IRS return electronically but the system rejected the submission because the taxpayer was classified under the organized bookkeeping regime while attempting to file under the simplified taxation regime. After multiple rejection attempts, the taxpayer delivered a paper return to the tax office on November 2, 2011. Subsequently, the Tax Authority issued an official assessment (No. 2012...) for €2,853.23 that excluded certain tax-reducing deductions for health and education expenses. The claimant argued that the declarative obligation was fulfilled through the paper filing, which was necessitated by a technical system error beyond their control, and that the Tax Authority should have included all deductions in the official assessment. The Tax Authority countered that electronic filing was mandatory for taxpayers earning over €10,000 in Category B income, that paper filing did not satisfy this legal requirement, and that the system correctly rejected the return because the taxpayer was properly classified under organized bookkeeping in 2010 (having exceeded the simplified regime thresholds in 2009). Furthermore, the Tax Authority argued that tax-reducing deductions fall within the assessment phase rather than the determination of taxable matter, placing them outside the scope of official review proceedings. The case raises important questions about taxpayer obligations when facing technical impediments in electronic filing systems and the scope of official assessments.

Full Decision

ARBITRAL DECISION

  1. REPORT

1.1. A..., taxpayer no. ..., resident at Avenue ..., ... - ... left, ...-... ..., hereinafter referred to as the Claimant, submitted on 03/02/2016 a request for arbitral decision, in which he requests the annulment of the express dismissal of the hierarchical appeal presented against the order of dismissal of the request for official review and mediately of the assessment act no. 2012 ... of Personal Income Tax (IRS) for 2010, in the amount of € 2,853.23, on the grounds of its illegality.

1.2. His Excellency the President of the Deontological Council of the Administrative Arbitration Center (CAAD), designated on 05/04/2016 as arbitrator, Francisco Nicolau Domingos.

1.3. On 20/04/2016 the arbitral tribunal was constituted.

1.4. In compliance with the provision of article 17.º, nos. 1 and 2 of Decree-Law no. 10/2011, of 20 January (RJAT), the Respondent was notified on 21/04/2016 to, if willing, submit a response, request the production of additional evidence and to remit the administrative file (PA).

1.5. On 18/05/2016 the Respondent submitted its response, in which it argues that the request should be judged completely without merit and attached the PA to the record.

1.6. On 06/07/2016 the Tribunal decided to dispense with the holding of the meeting referred to in article 18.º, no. 1 of the RJAT, on the grounds of the principle of autonomy of the arbitral tribunal in conducting the proceedings and in determining the rules to be observed in order to obtain, in a reasonable time, a decision on the merits of the claims formulated, cf. article 16.º, para. c) of the RJAT, granted a period for the parties, if willing, to submit written final submissions and set a deadline for issuing the arbitral decision.

1.7. The Claimant submitted on 01/09/2016 its written final submissions in which it argues and concludes as in the request for arbitral decision.

1.8. The Respondent on 06/09/2016 attached to the record its written final submissions arguing for the complete lack of merit of the request for arbitral decision and requested the attachment to the record of new documents.

1.9. Consequently, the tribunal on 07/09/2016, with the normative authority described in article 16.º, paras. a) and c) of the RJAT, determined that the Claimant, if willing, would pronounce itself regarding the documents presented with the Respondent's submissions.

1.10. The Claimant on 21/09/2016 responded to the tribunal's invitation, arguing that it should conclude as in the request for arbitral decision.

  1. SUBJECT MATTER OF THE CASE

The Claimant alleges, in summary, the following factual matters: i) that it earned income as a lawyer exceeding € 10,000 in the year 2010; ii) that it attempted to submit its model 3 IRS return through electronic data transmission, but such submission was rejected by the system since it assumed that it was classified under the organized bookkeeping regime and not under the simplified taxation regime; iii) that following notification of 06/10/2011 to comply with the missing declarative obligation it again attempted to submit the said return, classified under the simplified regime, but it was rejected; iv) that faced with such difficulties it went, on 02/11/2011, to the Tax Service of ... ... where it delivered, in paper form, the income declaration model 3, for the year 2010 and v) that on 17/01/2012 it submitted a new request to the Tax Service of ... ..., in which it argued that the declaration was delivered in paper form due to computer impediment.

It transpires that, in the year 2012, it was notified of an official assessment of IRS (no. 2012 ...), in which not all the tax-reducing deductions to which it claims to be entitled were taken into account, namely those relating to health and education expenses, and which calculated a value to be paid of € 2,853.23.

In this manner, the Claimant submitted on 07/05/2013 a request for official review of such assessment act with a view to the inclusion of tax-reducing deductions. That request was dismissed by official letter dated 05/11/2013.

As to the matter of law, it argues that there is no breach whatsoever of the underlying declarative obligation, but, in its view, a performance outside the legal deadline, as a result of the impossibility of submitting the declaration by the system in the form that was legally imposed. In this connection it adds that, when the taxpayer is prevented from doing so due to an error of the computer system and, to that extent, it is not attributable to it, the possibility of delivering the declaration in paper form must be safeguarded, with a view to protecting it from facts that are not attributable to it and may lead to an official assessment.

In summary, there are three grounds it alleges to support its claim: i) that the official assessment of IRS is illegal, since the declarative obligation was fulfilled in paper form; ii) that it is incumbent upon the Tax and Customs Authority (AT) to ensure the correct functioning of the computer system that allows the submission of income declarations by taxpayers and that an error of such system prevented the submission of the declaration by computer means and iii) that even if the Claimant had not fulfilled such obligation, the services should have included in the official assessment the tax-reducing deductions, since they had all the necessary data to do so.

Finally, it also requests the payment of compensatory interest.

For its part, the Respondent defends itself by stating that it is the Claimant itself who acknowledges its obligation to submit electronically the model 3 IRS return, given the fact that in the year 2010 it earned income of category B in a gross amount exceeding € 10,000. Consequently, the failure to submit a declaration, in legal terms, is equivalent to the failure to submit the declaration.

Otherwise, it states that the reason why the model 3 declaration submitted by electronic means was not validated consists in the circumstance that the Claimant, in 2010, was classified under the organized bookkeeping regime, given that, in 2009 it exceeded the limits provided for in article 28.º of the Personal Income Tax Code (CIRS) in force at the date of the facts and that it submitted the declaration under the simplified taxation regime.

Subsequently it argues that the determination of taxable matter comprises, in respect of IRS, from the year 2008, the following moments: i) declaration of the gross income of each of the categories and ii) deduction from the gross income, of each of the categories of their respective specific deductions and the sum of the net income per category obtaining the total net income. Tax-reducing deductions are made within the scope of the assessment of IRS and not within the framework of the determination of taxable matter, thus, the expenses that the Claimant seeks to have deducted, as they do not integrate such concept, fall outside the scope of the official review of the tax act. In this manner, in its view, no defect can be attributed to the act that decided the request for review and also to the hierarchical appeal.

It concludes by stating that on the basis of the above reasoning there will be no entitlement to compensatory interest.

Consequently, the following are the matters that the tribunal must assess:

a) Whether the act of official assessment of IRS for the year 2010 is illegal due to error in the factual and legal assumptions;

b) Whether the Claimant is entitled to compensatory interest.

  1. SANITATION

The cumulation of requests underlying the present case is admissible, since there is identity between the factual matter and its admissibility depends on the interpretation of the same principles and rules of law, cf. article 3.º, no. 1 of the RJAT.

The proceedings are not affected by any vices, the arbitral tribunal is regularly constituted and is materially competent to know and decide the request, consequently verifying the conditions for the final decision to be issued.

  1. FACTUAL MATTER

4.1. Facts considered proven

4.1.1. The Claimant earned income from category B of IRS, in the year 2010, exceeding € 10,000.

4.1.2. The Claimant, in the years 2008 and 2009, was classified under the simplified taxation regime in IRS.

4.1.3. On 03/06/2011 the Claimant submitted the model 3 IRS return, for the year 2010.

4.1.4. Such declaration was not considered, since the simplified taxation regime was recorded in the same, when in the registry the Claimant was classified under the organized bookkeeping regime.

4.1.5. On 06/10/2011 the Claimant was notified to, within 30 days, comply with the missing declarative obligation.

4.1.6. The model 3 IRS return was delivered, in paper form, to the Tax Service of ... ... on 02/11/2011, having in this the simplified taxation regime marked.

4.1.7. The Tax Service of ... ... sent to the Claimant, by official letter dated 12/12/2011, registered with return receipt, a message informing that the declaration delivered in paper form had no effects whatsoever, since it was not delivered by electronic data transmission.

4.1.8. Such service proceeded to the 2nd notification with similar content, by official letter dated 04/01/2012, registered with return receipt, the latter having been signed.

4.1.9. The Claimant delivered on 17/01/2012 a request to the Tax Service of ... ..., in which it argued that the declaration was delivered in paper form due to computer impediment.

4.1.10. The Tax Service ... ..., by official letter of 09/02/2012 notified, again the Claimant that the IRS model 3 declaration should, in the concrete case, be submitted by electronic data transmission, as well as annex C to be completed, since it was classified under the organized bookkeeping regime in the year 2010.

4.1.11. By official letter, dated 12/03/2012, the Claimant was notified that the model 3 IRS declaration delivered on 02/11/2011 was considered without effect and that it would have to submit such declaration by electronic data transmission.

4.1.12. The Claimant was notified of an official assessment (no. 2012…) of IRS for the year 2010 with a voluntary payment deadline until 17/10/2012 and in which a total of € 2,853.23 was calculated, as IRS (€ 2,734.28) and compensatory interest (€ 118.95).

4.1.13. In such assessment the AT did not consider the following deductions: a) health – € 1,565; b) education – € 11,527; c) individual pension savings plans – € 1,791.46; d) contribution to pension fund – € 185; e) insurance – € 1,326.70; and f) interest and amortizations of debt – € 7,688.31.

4.1.14. The value of such assessment was paid.

4.1.15. The Claimant on 07/05/2013 made a request for official review of the IRS assessment for the year 2010, in which it requests that the following tax-reducing deductions be fully considered in the model 3 income declaration: a) health – € 1,565; b) education – € 11,527; c) individual pension savings plans – € 1,791.46; d) contribution to pension fund – € 185; e) insurance – € 1,326.70; and f) interest and amortizations of debt – € 7,688.31.

4.1.16. By official letter, dated 05/11/2013, the Claimant was notified of the express dismissal of the request for review of the assessment act.

4.1.17. On 17/12/2013 it submitted hierarchical appeal against the decision of dismissal of the request for review of the assessment act identified above.

4.1.18. Such hierarchical appeal was expressly and definitively dismissed by official letter dated 23/10/2015, the Claimant becoming aware of the decision on 05/11/2015.

4.1.19. The request for arbitral decision was submitted on 03/02/2016.

4.2. Facts not considered proven

There are no other facts with relevance to the arbitral decision that have not been given as proven.

4.3. Reasoning of the factual matter considered proven

The factual matter given as proven stems from the documents used for each of the alleged facts and whose authenticity was not challenged.

  1. MATTER OF LAW

The first matter that the tribunal must know consists in determining whether the Respondent should have reviewed the tax act on the grounds of "error attributable to the services" or "serious or notorious injustice", as results from the request for review and equally from the hierarchical appeal.

To do so it is necessary to identify, from the outset, the applicable norm, that is, article 78.º of the General Tax Law (LGT), which provides as follows:

"1. The review of tax acts by the entity that practiced them may be carried out by initiative of the taxpayer, within the administrative complaint period and on the grounds of any illegality, or, by initiative of the tax administration, within four years after the assessment or at any time if the tax has not yet been paid, on the grounds of error attributable to the services.

  1. Without prejudice to the legal burdens of complaint or challenge by the taxpayer, the error in self-assessment is considered attributable to the services, for the purposes of the previous paragraph.

  2. The review of tax acts in accordance with no. 1, regardless of whether it is a material or legal error, implies its due recognition based on no. 1 of the previous article.

  3. The highest head of the service may authorize, exceptionally, within the three years following that of the tax act the review of the taxable matter determined on the grounds of serious or notorious injustice, provided that the error is not attributable to negligent conduct of the taxpayer.

  4. For the purposes of the previous paragraph, only flagrant and unequivocal injustice is considered notorious and grave that resulting from taxation manifestly exaggerated and disproportionate to the reality or from which resulted high prejudice to the National Treasury.

  5. The review of the tax act on account of double collection can be carried out, whatever the grounds, within four years.

  6. The period for official review of the tax act or taxable matter is interrupted by the taxpayer's request addressed to the competent body of the tax administration for its realization."

The institute of review constitutes a concretization of the duty to revoke illegal acts and, as such, the AT should proceed in this manner in the hypotheses in which errors occur in the assessments that are embodied in the collection of taxes in an amount greater than legally provided. The principles of justice, equality and legality that inform the activity of the AT impose this official correction.

Thus, if on the one hand the review of the act by initiative of the taxpayer is admissible within the period of administrative challenge, on the other hand, the AT, at the impulse of the taxpayer, can also promote the so-called "official review".

In this sense, case law[1] states that: "It follows from the law and constitutes settled case law of this Supreme Court that the official review of tax acts to which the final part of no. 1, article 78.º of the LGT refers "by initiative of the tax administration" may be carried out at the request of the taxpayer (article 78.º, no. 7 of the LGT), being the dismissal, express or tacit, of such review request susceptible to contentious challenge, under article 95.º, nos. 1 and 2, para. d) of the LGT and article 97.º, no. 1, para. d) of the CPPT, when the assessment of the legality of the assessment act is at issue and this possibility is not prejudiced by the circumstance that the request for official review was submitted long after the administrative challenge periods have been exhausted, but within 4 years for the review of the assessment act "by initiative of the tax administration"".

It transpires that such review request must be based on "error attributable to the services" and be submitted within the period of 4 years. Now, that error encompasses the lapse, the material or factual error, as well as the legal error.

In support of the last conclusion, case law[2] also states that: "...this Supreme Court has long understood in a settled manner that where there is a legal error in an assessment carried out by the services of the tax administration, and such erroneous application of the law does not result from any information or declaration of the taxpayer, the error in question is attributable to the services, since both no. 2 of article 266.º of the Constitution and article 55.º of the General Tax Law establish the generic obligation for the tax administration to act in full compliance with the law, reason why any illegality not resulting from an action of the taxpayer will be attributable to the Administration itself, being that this attribution to the services is independent of the demonstration of fault of any of the officials involved in the issuance of the act affected by the error,..."

Thus, "official review" requires that, cumulatively, the following requirements be met: i) the request is formulated within 4 years counted from the act whose review is requested or at any time when the tax is not yet paid; ii) it originates from "error attributable to the services" and iii) it proceeds from the initiative of the taxpayer or is carried out officially by the AT.

On the other hand, no. 4 of article 78.º of the LGT provides for a possibility of exceptional review of the taxable matter within the period of 3 years following that in which the tax act was practiced, always on the condition that its grounds are found in "serious or notorious injustice" and provided that the error is not attributable to negligent conduct of the taxpayer. That is, not only the occurrence of flagrant injustice in the determination of the taxable matter is required, but also that such error does not originate from conduct of the taxpayer susceptible to legal censure.

The concept of "serious or notorious injustice" should be interpreted based on the degree of deviation from reality, although always on the condition of the unequivocal nature of the injustice, since it is in this sense that we should interpret article 78.º, nos. 4 and 5 of the LGT.

In this manner, this exceptional review depends on the following requirements: i) the formulation of the request within 3 years from the practice of the act whose review is intended; ii) the injustice is serious or notorious and iii) the error does not originate from negligent conduct of the taxpayer.

Now, as stated, the error to which the law refers in article 78.º, nos. 1 and 4 of the LGT may be of fact or of law. It transpires that, if the grounds for review is the verification of error, no. 1 requires, cumulatively, that it be attributable to the AT and, in no. 4 of the same provision, that such error justifying the injustice is not due to negligent conduct of the taxpayer.

In the concrete case, the Claimant argues that it fulfilled the declarative obligation to submit the income declaration for the year 2010 with the completion and receipt of model 3 of IRS by the Tax Service of ... ..., wherefore, the official assessment would be illegal.

To ascertain whether this is the case, it is necessary to mobilize the pertinent legal framework, that is, articles 57.º and 76.º, both of the CIRS in the wording in force at the date of the tax fact, as well as article 4.º of Ordinance no. 1404/2009, of 10 December.

Article 57.º, no. 1 of the CIRS provided that: "The taxpayers must present, annually, a declaration in an official model, relating to the income of the previous year and to other informative elements relevant to their concrete tax situation, namely for the purposes of article 89.º-A of the general law, and must be attached, forming an integral part thereof: a) The annexes and other documents for which are mentioned in the referred model..." Otherwise, article 76.º, no. 1, para. b) of such diploma determined that: "Where no declaration has been submitted, the assessment is based on the elements which the General Directorate of Taxes has available". In concretization of such legislative option article 76.º, no. 2 of the CIRS also specified that: "In the situation referred to in para. b) of the previous paragraph, the net income of category B is determined in accordance with the rules of the simplified taxation regime, with the application of the highest coefficient of no. 2 of article 31.º". It being certain that: "When no declaration is submitted, the holder of income is notified by registered letter to comply with the missing obligation within 30 days, after which the assessment is carried out, not taking into account the provisions of article 70.º and being only the deductions provided for in para. a) of no. 1 of article 79.º and in no. 3 of article 97.º effected", as per article 76.º, no. 3 of the CIRS at the date of the tax fact.

However, this framework is not complete without reference to article 4.º of Ordinance no. 1404/2009, of 10 December which provides that: "The taxpayers of IRS holders of business or professional income determined on the basis of bookkeeping, as well as by the simplified taxation regime, when the amount net of such income exceeds (euro) 10,000 and does not result from the practice of an isolated act, are obliged to send the income declaration of the years 2001 and following by electronic data transmission".

Consequently, the tribunal must not only inquire whether the declarative obligation was fulfilled in light of the normative standard identified above, but also whether the AT, faced with the alleged non-compliance with the declarative obligation, complied with what is contained in article 76.º, no. 3 of the CIRS.

In this connection, the Claimant argues that it fulfilled such declaration with the delivery in paper form, since it was prevented from proceeding with electronic submission due to "computer error", that is, it accepts the fact of the system recognizing that it was classified under the organized bookkeeping regime and not under the simplified taxation regime.

It transpires that the legislator imposes that when the taxpayer has an income of category B of IRS exceeding € 10,000, the declarative obligation must be fulfilled electronically, wherefore, it is not seen how it will be possible to sustain that the obligation was fulfilled and, as such, that there exists "error attributable to the services". In effect, if the taxpayer did not agree with the classification, it should have waited for the notification of the additional assessment to discuss whether it should be classified under the organized bookkeeping regime or under the simplified taxation regime, as it claims to hold. However, that was not the option taken, the Claimant having submitted a declaration in paper form and with the indication of the simplified taxation regime.

In truth, a declarative obligation must be fulfilled by obeying solely and exclusively the normative standard fixed in the law, which, in the concrete case, was electronic delivery. It is repeated that such does not prevent the taxpayer from believing that the additional assessment is illegal and, as such, uses the gracious or contentious means that the law attributes to it.

Now, in the case sub judice, the Claimant argues that there is "error attributable to the services" in the practice of the official assessment, since it argues having fulfilled the declarative obligation in paper form and alleges nothing regarding its right of classification under the simplified taxation regime and, if this is the case, it is repeated, the non-consideration of such "declaration" does not configure any "error attributable to the services".

And we arrive at a similar conclusion when the argument invoked by the Claimant is known to the effect that the AT had all the information to consider the tax-reducing deductions. In effect, if the AT before promoting the official assessment, notified the Claimant on several occasions (06/10/2011, 04/01/2012, 09/02/2012 and 12/03/2012) to comply, in the legal form, with the missing obligation and it did not do so, it is necessary to conclude that compliance was given to the content of article 76.º, no. 3 of the CIRS.

Thus, faced with the situation of non-compliance with the declarative duty, the AT promoted the assessment based on the rules of the simplified taxation regime (article 76.º, no. 2 of the CIRS), in which it took into account the elements it had available, although by injunction of article 76.º, no. 3 of the CIRS and taking into account only the deductions provided for in articles 79.º, no. 1, para. a) and 97.º, no. 3, both of the CIRS. Or, put another way, the assessment complied with such normative injunction and, if this is the case, also by here there is no "error attributable to the services".

Now, as stated, the error to which the law refers in article 78.º, no. 1 of the LGT may be of fact or of law. It transpires that, if the grounds for review is the verification of error, no. 1 requires, cumulatively, that it be attributable to the AT. It transpires that, in the concrete case, there is no error of fact or law whatsoever, wherefore, the claim for declaration of illegality of the dismissal of the hierarchical appeal and of review of the act formulated by the Claimant must be entirely without merit, constituting the reimbursement of the amount of tax paid and compensatory interest matters of prejudiced knowledge.

  1. DECISION

On these grounds and with the reasoning described above, it is decided to judge completely without merit the request for arbitral decision, with all legal consequences.

  1. VALUE OF THE PROCESS

The value of the process is set at € 2,853.23, under article 97.º-A of the CPPT, applicable by force of article 29.º, no. 1, para. a) of the RJAT and article 3.º, no. 2 of the Regulation of Costs in Proceedings of Tax Arbitration (RCPAT).

  1. COSTS

Costs to be borne entirely by the Claimant, in the amount of € 612, cf. article 22.º, no. 4 of the RJAT and Table I attached to the RCPAT.

Notify.

Lisbon, 6 October 2016

The Arbitrator,

(Francisco Nicolau Domingos)

[1] Decision of the Supreme Administrative Court issued in the scope of case no. 0886/14, of 19/11/2014, reported by Counselor ISABEL MARQUES DA SILVA.

[2] Decision of the Supreme Administrative Court issued in the scope of case no. 0886/14, of 19/11/2014, reported by Counselor ISABEL MARQUES DA SILVA.

Frequently Asked Questions

Automatically Created

What happens when the Portuguese tax authority issues an official IRS assessment due to a taxpayer's failure to file a return?
When a taxpayer fails to file their IRS return within the legal deadline, the Portuguese Tax Authority (AT) may issue an official assessment (liquidação oficiosa) to determine the tax due. This official assessment is based on available information held by the Tax Authority, which may not include all deductions or expenses the taxpayer would be entitled to claim. The taxpayer is then notified of the amount due and must pay it. However, the official assessment can be challenged through administrative procedures (such as requesting an official review) or through arbitral proceedings at CAAD if the taxpayer believes it contains errors or is based on incorrect legal or factual assumptions.
Can a taxpayer challenge an IRS official assessment if the electronic filing system rejected their tax return submission?
Yes, a taxpayer can challenge an official IRS assessment if the electronic filing system rejected their return, but success depends on the specific circumstances. In this case, the claimant argued that system errors preventing electronic submission justified delivering a paper return and that the official assessment should be annulled. However, the Tax Authority maintains that when electronic filing is mandatory (for taxpayers earning over €10,000 in Category B income), paper filing does not fulfill the legal obligation. The key issue is whether the rejection was due to a system error or to the taxpayer's own mistake (such as selecting the wrong tax regime). If the system rejection was caused by taxpayer error rather than a technical malfunction, the challenge is unlikely to succeed.
What is the difference between the simplified tax regime and organized accounting regime for IRS purposes in Portugal?
Under Portuguese IRS law, taxpayers earning Category B income (self-employment/business income) are subject to either the simplified taxation regime or the organized accounting regime. The simplified regime applies to taxpayers whose income does not exceed certain thresholds (€150,000 in 2010 under Article 28 CIRS). Under this regime, net income is determined by applying coefficients to gross income. The organized accounting regime applies when income exceeds these thresholds or by taxpayer option, requiring full bookkeeping records and actual expense deduction. Importantly, if a taxpayer exceeds the simplified regime limits in one year, they are automatically classified under organized accounting for the following year. In this case, the taxpayer exceeded the limits in 2009, making them subject to organized accounting in 2010, which is why the system rejected their simplified regime return.
How does the hierarchical appeal and request for official review process work before filing an arbitral claim at CAAD?
Before filing an arbitral claim at CAAD, taxpayers must generally exhaust administrative remedies. The process begins with requesting an official review (revisão oficiosa) of the tax assessment within the legal deadline. The Tax Authority then decides whether to grant or dismiss this request. If the request is dismissed, the taxpayer can file a hierarchical appeal (recurso hierárquico) to a superior administrative authority within the Tax Authority. Only after receiving an unfavorable decision on the hierarchical appeal can the taxpayer proceed to arbitral proceedings at CAAD. In this case, the claimant requested official review on May 7, 2013, which was dismissed on November 5, 2013, then filed a hierarchical appeal which was also dismissed, before finally submitting the arbitral claim on February 3, 2016.
What are the legal consequences when a taxpayer's failure to meet a declarative obligation is caused by a technical error in the tax administration's electronic system?
When a taxpayer's failure to meet a declarative obligation is allegedly caused by technical errors in the Tax Administration's electronic system, Portuguese tax law requires careful analysis of causation and fault. If the system malfunction is genuine and prevented compliance despite the taxpayer's diligent efforts, courts and arbitral tribunals may recognize this as justifiable cause that should protect the taxpayer from penalties or adverse consequences. However, the taxpayer bears the burden of proving that: (1) a genuine technical error occurred, (2) they made reasonable attempts to comply, and (3) the error was not attributable to their own mistakes. In this case, the dispute centered on whether the system rejection constituted a technical error or resulted from the taxpayer's incorrect classification under the simplified regime when they should have filed under organized accounting. The Tax Authority's position is that the system functioned correctly by rejecting an improperly classified return.