Process: 732/2016-T

Date: April 26, 2017

Tax Type: IRC

Source: Original CAAD Decision

Summary

CAAD arbitration case 732/2016-T addressed whether financial costs from loans obtained by a parent company but used to finance subsidiaries are tax-deductible under Article 23 of the Portuguese IRC Code. The taxpayer, a pharmaceutical wholesaler, challenged an IRC assessment for 2012 that disallowed €239,071.54 in financial expenses related to loans and credits granted to subsidiaries (including a 100% subsidiary C Lda and 50% subsidiary B Lda). The Tax Authority argued these costs were not incurred in the company's own interest but for third parties, lacked indispensability, and constituted gratuitous transfers analogous to donations with no corresponding income. The taxpayer contended the AT failed to prove the financing was not applied to its business activity and that the loans did not increase equity rights in subsidiaries but merely created repayment rights. The dispute centered on the burden of proof for fiscal cost deductibility, the principle of taxation on actual profit, and whether the AT improperly used presumptive methods under Articles 81, 87, and 88 of the General Tax Law (LGT). The case illustrates key tensions in Portuguese corporate tax law regarding intercompany financing arrangements, the indispensability requirement for cost deduction, and the allocation of proof obligations between taxpayers and tax authorities in IRC assessments involving cross-company financial transactions.

Full Decision

ARBITRAL DECISION

1. REPORT

1.1. A…, S.A. (Claimant), legal entity no. …, with registered office at Street …, no. …, …, in Amadora, filed on 11/12/2016 a request for arbitral award, in which it petitions for the annulment of the Corporate Income Tax (IRC) assessment deed no. 2016 …, relating to the tax period of 2012, which results in the amount payable of € 12,089.71 (twelve thousand eighty-nine euros and seventy-one cents), as tax and compensatory interest (see compensation statement no. 2016 …).

1.2. The Honorable President of the Deontological Council of the Administrative Arbitration Centre (CAAD) appointed, on 26/01/2017, the undersigned as sole arbitrator of this decision.

1.3. On 20/02/2017 the arbitral tribunal was constituted.

1.4. In compliance with the provisions of no. 1 of article 17 of the Legal Regime of Tax Arbitration (RJAT), the Tax and Customs Authority (AT) was notified on 20/02/2017 to, if it so wished, submit a response and request the production of additional evidence.

1.5. On 22/03/2017 the AT submitted its response, attaching the respective inspection report.

1.6. On 22/03/2017 the arbitral tribunal decided to waive the holding of the meeting referred to in no. 1 of article 18 of the RJAT, on the grounds of the principle of the autonomy of the arbitral tribunal in the conduct of the proceedings, inviting both parties to, if they so wished, submit optional written submissions and scheduled the date for the pronouncement of the final decision.

1.7. On 03/04/2017 the Claimant submitted optional written submissions, reproducing all that was alleged in the request for arbitral award.

1.8. On 24/04/2017 the AT submitted optional written submissions.

2. PROCEDURAL MATTERS

The arbitral tribunal was duly constituted and is materially competent.

The parties have legal capacity and standing, and there are no defects in representation.

There are no irregularities, exceptions or preliminary questions that would bar the examination of the merits and which the tribunal is required to determine of its own motion.

The request for constitution of the arbitral tribunal is timely.

Consequently, the conditions are met for the pronouncement of the final decision.

3. POSITIONS OF THE PARTIES

There are two conflicting positions: that of the Claimant, set out in the request for arbitral award and respective subsequent submissions, and that of the AT in its response.

As a ground, the Claimant alleges, in summary, that the AT has not demonstrated that the financing contracted and which gave rise to financial costs was not applied to the activity and operation of the Claimant, but rather was the subject of financing operations of its subsidiaries not generating any income, and that such financing did not, in itself, result in an increase in the Claimant's equity rights in the various subsidiaries, giving only the right to repayment at nominal value.

The Claimant concludes that the conclusions stated by the AT and which underpin the IRC assessment are illegal for not being proven and substantiated, in violation of the provisions of article 23 of the IRC Code and the principle of taxation of enterprises on actual profit, as well as in violation of articles 81, 87 and 88 of the General Tax Law (LGT) inasmuch as the AT resorted to presumptive methods without alleging and demonstrating legally admissible justification for doing so.

For its part, the AT alleges, in summary, that:

a) For the purposes of determining the taxable income subject to IRC, it is not immaterial whether an expense incurred by the company was incurred in its interest or in the interest of third parties and, furthermore, even when incurred also in its interest, it must be attributable to it for the purposes of the provisions of article 23 of the IRC Code.

b) The Claimant has not demonstrated that the loan contracted was not only in the interest of the company that contracted it, but that it also had downstream application in accordance with the necessary criterion of indispensability in the subsidiary companies.

c) Contrary to the merely corporate justification that the Claimant seeks to attribute to the charges incurred with the aforementioned financing, the AT considers that these do not appear to have an immediate interest, but rather only align with the interest of the subsidiary company as a reflection thereof.

d) On the other hand, any gratuitous transfer, for tax purposes, is considered a donation, which is subject to Stamp Duty.

e) According to the AT, opening the door to the deductibility of costs that had as their purpose the making of donations is manifestly at odds with the entire system of the IRC, the cost incurred not being accompanied by the respective income, contradicting the necessary binomial.

f) As for the alleged violation of the constitutional principle of taxation on actual income, the AT concludes that the tax act under challenge does not violate such principle, as it permits exceptions, among many, the limitations on the deductibility of charges for tax purposes, arising from article 23 of the IRC Code.

4. FACTS

4.1. FACTS DEEMED PROVEN

In light of the documents submitted to the proceedings, it is deemed proven that:

4.1.1. The Claimant's object is the activity of wholesale trade in pharmaceutical products.

4.1.2. Under Service Order no. OI2015…, issued by the Tax Inspection Services of the Finance Directorate of Lisbon, an internal inspection action was carried out, which focused on the tax period of 2012, and had the purpose of controlling the indebtedness of the Claimant and respective financial expenses/income.

4.1.3. In the course of the aforementioned procedure, a correction to taxable profit was made, in the amount of € 239,071.54, relating to the disregard of the deduction for tax purposes of loans obtained and credits granted:

4.1.4. In the tax period in question, the Claimant held 50% of company B…, Lda., 100% of company C… Lda. and 65% of the Spanish company D…, S.L..

4.1.5. On 22/06/2016 the Claimant exercised, with the Finance Directorate of Lisbon, its right of hearing regarding the draft decision.

4.1.6. By Official Letter no. …, of 06/07/2016, from the Finance Directorate of Lisbon, the Claimant was notified of the tax inspection report that gave rise to the additional IRC assessment no. 2016 … and the act of assessment of compensatory interest no. 2016 …, the payment deadline for which ended on 14/09/2016.

4.1.7. On 11/12/2016 the Claimant filed the request for arbitral award that gave rise to the proceedings identified above.

4.2. FACTS NOT DEEMED PROVEN

There are no facts with relevance to the decision that have not been deemed proven.

5. THE LAW

5.1. ILLEGALITY OF THE ASSESSMENT ACT

In section III.1 – "Accounting and tax analysis" of the tax inspection report, the AT frames the financial situation of the Claimant, identifying and quantifying the financing obtained and the financing granted.

Thus, it was verified that the Claimant recorded in account 25 – "Financing obtained", the total amount of € 2,437,991.75, which corresponds to the sum of bank loans (sub-account 2511 with a balance of € 1,601,466.50), with financial leases (sub-account 2513 with a balance of € 167,400.69), with credit cards (sub-account 2514 with a balance of € 3,164.45) and with Factoring (sub-account 2515 with a balance of € 665,960.11).

In the analysis of sub-account 4113 – "Financial Investments – Loans granted", the AT ascertained that the Claimant granted loans to company C…, Lda., of which it holds 100%, presenting on 31/12/2012 a debtor balance of € 449,869.12.

Loans were also granted to the respective associated companies in the total amount of € 114,798.58, the balance of sub-account 412301 – B…, Lda., in which it holds 50%, being € 24,798.58 and the balance of sub-account 412302 – D…, S.L., in which it holds 65%, being € 90,000.00.

Already in section III.1.3.2. – "Determination of non-fiscally accepted expenses" of the tax inspection report, the AT concludes that the amount of € 40,966.03 corresponding to financial expenses (interest, bank charges and Stamp Duty) which, in its view, will not be accepted for tax purposes as a cost under article 23 of the IRC Code.

Indeed, the AT considers that these costs correspond to "(…) expenses that are not fiscally deductible pursuant to subparagraph c) of no. 1 of article 23 of the IRC Code, insofar as for the taxpayer such expenses are not indispensable for the realization of income subject to taxation nor for the maintenance of its productive source, being intended solely for the possible realization of income or for the maintenance of the productive source of its subsidiaries / subsidiary and only in these could be considered expenses".

The AT considers that such expenses are not deductible because they concern third-party capital that was not applied in the operation and activity of the Claimant, having instead been the subject of financing operations of its subsidiaries not generating any income, and such financing did not, in itself, result in an increase in the Claimant's equity rights in the various subsidiaries, giving only the right to repayment at nominal value.

Notwithstanding the above, the AT has not demonstrated that the financing contracted by the Claimant and which gave rise to the financial costs in question were not applied to the activity and, likewise, to the operation of the Claimant.

Indeed, to assess the deductibility or otherwise of the aforementioned financial charges, it is important to determine the actual and concrete application of the financing obtained, that is, to evaluate the destination or use of the available funds received and in relation to which the taxpayer intends to fiscally deduct the interest it bore.

The arbitral tribunal considers that the AT merely verified that the Claimant made non-remunerated financing to its subsidiaries and presumed that the funds made available would originate from third-party capital that gave rise to financial charges for the Claimant.

Now, in light of the distribution of the burden of proof, in particular the provisions of article 75, no. 1, of the LGT, "the declarations of taxpayers presented in accordance with the law, as well as the data and calculations recorded in their accounting or records, when these are organized in accordance with commercial and tax legislation, are presumed to be true and made in good faith.".

However, this presumption is immediately rebutted by no. 2 of the same article, if the taxpayer has not complied with its tax obligations, in particular, the duties of clarifying its tax situation. [1]

Indeed, it would be incumbent upon the AT to allege and prove facts that would allow the conclusion that part of the funds borrowed by the Claimant would have been effectively used in the operation and activity of its subsidiaries and not of the Claimant, since the latter benefits from the legal presumption of veracity and correctness of its accounting and income tax returns filed.

As mentioned, it remains to be demonstrated that the third-party capital was not used by the Claimant for the realization of income subject to taxation or for the maintenance of the productive source, a demonstration that would be incumbent upon the AT itself.

In this measure, the correction made cannot be accepted and therefore the additional assessment contested is illegal, as it is not proven and substantiated, constituting a violation of article 23 of the IRC Code.

Notwithstanding this, even if it could be concluded that the borrowed funds that gave rise to charges for the Claimant were channeled directly to the subsidiaries on a gratuitous basis, it also remains to be demonstrated that this financing did not contribute to the realization of income subject to taxation or to the maintenance of the productive source of the Claimant.

In fact, and contrary to what the AT seems to consider, the subsidiary uses funds that are provided to it by the parent company for its activity and in its interest, but those funds are also used in the interest of the parent company itself, in the context of normal acts of management and administration of its assets that can be encompassed within its scope or purpose of making profit, since they allow the creation of the expectation of future economic benefits.

This conclusion is all the more evident in situations where the parent company holds the entirety of the capital of the subsidiary, as is the case in the present matter in relation to company C… Lda..

As is also concluded in the arbitral decision rendered in case no. 585/2014-T, "In situations where the parent company holds the entirety of the capital of the subsidiary and, therefore, has full ability to intervene in the management of the subsidiary and ensure that the investment is used in its interest, the investment in the subsidiary reduces to the management of the equity interest and constitutes indirect exercise by the parent company of the economic activity carried out by the subsidiary, whose positive or negative effects end up being reflected entirely in the legal sphere of the parent company through the appreciation or depreciation of its equity interest, so that the charges necessary to ensure the investment that generates future benefits fall within the concept of economic indispensability, with the aforementioned meaning of expenses entirely incurred in the interest of the enterprise.". [5]

Notwithstanding this, this rationale is also applicable to subsidiary companies in relation to which the parent company, while not holding the entirety of the capital, has an equity interest that allows it a position of control.

As stated in the cited arbitral decision, "In cases where the parent company holds part of the capital of the subsidiary, costs can only be considered to be «demonstrably» indispensable, as required by article 23, no. 1, of the CIRC, in the wording in force before Law no. 2/2014, of 16 January, if the possibility of the parent company's influence in the subsidiary company is ensured, for if this possibility does not exist, if the investment is made without any possibility of the parent company influencing its destination, it cannot be considered assured (proven) that it will be used in its interest.".

In this measure, if the significant influence of the parent company in the management of the subsidiary is proven, the financing of the latter by the former will be in the economic interest of the first, falling within the scope of normal management operations of the parent company.

Indeed, this position of control and ability to influence the management of the subsidiary should be determined concretely, based on the legal and corporate relationship existing between the entities involved.

In the case at hand, there is no doubt that, taking into account the equity interest held by the Claimant in B…, Lda. (50%) and in the Spanish company D…, S.L. (65%), the Claimant exercises significant influence over the management of both companies, for the purposes that concern us here, so that the gratuitous transfer of funds by the Claimant to these subsidiaries was made in its interest, corresponding to an act of management and administration within the scope of its legal capacity and forming part of its business activity as an activity directed towards the generation of profit.

Based on all of the above, it is concluded that the assessment now contested is illegal insofar as it is based on the AT's refusal to allow the Claimant the deduction of part of the financial charges incurred, in violation of article 23 of the IRC Code.

The examination of the other issues raised by the Claimant is thus rendered moot, as the illegality of the assessment identified above has been declared, due to a substantive defect that prevents the renewal of the act, thereby effectively ensuring the protection of the Claimant's rights, in accordance with the provisions of article 124 of the CPPT. [6]

6. DECISION

With the grounds set out above, the arbitral tribunal decides:

a) To find the request for arbitral award well-founded and, consequently, to declare illegal the IRC assessment for the year 2012, with all legal consequences;

b) To find well-founded the request for recognition of the Claimant's right to payment of indemnificatory interest;

c) To order the AT to refund to the Claimant the amount unduly paid;

d) To order the AT to pay the costs.

7. VALUE OF THE PROCEEDINGS

The value of the proceedings is fixed at € 12,089.71 (twelve thousand eighty-nine euros and seventy-one cents), pursuant to article 97-A of the Code of Tax Procedure and Process (CPPT), applicable by virtue of subparagraphs a) and b) of no. 1 of article 29 of the RJAT and no. 2 of article 3 of the Regulation on Costs in Tax Arbitration Proceedings (RCPAT).

8. COSTS

Costs to be borne by the AT, in the amount of € 918 (nine hundred and eighteen euros), pursuant to Table I of the Regulation on Costs in Tax Arbitration Proceedings, in accordance with no. 2 of article 22 of the RJAT.

Notify.

Lisbon, 26 April 2017

The Arbitrator,

(Hélder Filipe Faustino)

Text prepared by computer, in accordance with the provisions of no. 5 of article 131 of the Code of Civil Procedure, applicable by reference from subparagraph e) of no. 1 of article 29 of the RJAT.

The wording of this decision is governed by the spelling prior to the Orthographic Agreement of 1990.

[1] As pointed out by José Maria Fernandes Pires (Coordinator), Gonçalo Bulcão, José Ramos Vidal and Maria João Menezes, in annotation to article 75 of the LGT, "In cases of non-cooperation of the taxpayer in ascertaining the truth, the presumption of veracity of its declaration and accounting ceases. Likewise, the presumption of truth does not apply in cases where the taxpayer does not comply with its duties to provide information, except if its refusal is legitimate.", "General Tax Law Annotated and Commented", Almedina, 2015, p. 821.

[2] "The problem of deductibility of interest for the purposes of determining taxable profit", Studies in Homage to Dr. Maria de Lourdes Órfão de Matos Correia e Vale, Lisbon, Notebooks of Science and Fiscal Technique no. 171, Centre for Tax Studies, 1995.

[3] Available at www.dgsi.pt.

[4] Available at www.caad.org.pt.

[5] Available at www.caad.org.pt.

[6] Subsidiarily applicable by virtue of the provisions of subparagraph a) of no. 1 of article 29 of the RJAT.

Frequently Asked Questions

Automatically Created

Are financial costs from loans used to finance subsidiaries deductible for IRC purposes in Portugal?
Under Portuguese IRC law, financial costs from loans used to finance subsidiaries face strict deductibility limitations. Article 23 of the IRC Code requires costs to be incurred in the company's own interest and meet the indispensability criterion. The Tax Authority typically argues that financing provided to subsidiaries serves the subsidiary's interest rather than the parent company's direct business needs, especially when such financing does not increase equity rights but only creates repayment obligations. Courts and CAAD tribunals examine whether the parent company demonstrates a direct business purpose beyond mere corporate ownership structure.
What must the Tax Authority prove to deny the deduction of financial costs under Portuguese corporate tax law?
To deny deduction of financial costs under Portuguese corporate tax law, the Tax Authority must demonstrate that expenses were not incurred in the taxpayer's interest or fail the indispensability test under Article 23 of the IRC Code. However, the burden of proof allocation is contested. The AT argues taxpayers must prove costs meet deductibility criteria, while taxpayers contend the AT must substantiate why costs should be disallowed. In intercompany financing cases, the AT typically must show that loans benefited third parties without corresponding income to the lender, constituting gratuitous transfers. Improper use of presumptive methods without adequate justification violates Articles 81, 87, and 88 of the General Tax Law.
How does CAAD arbitration handle disputes over non-accepted fiscal costs in IRC assessments?
CAAD arbitration provides an alternative dispute resolution forum for IRC assessment challenges, including disputes over non-accepted fiscal costs. The tribunal examines whether the Tax Authority properly substantiated cost disallowances under Article 23 of the IRC Code, reviews compliance with procedural guarantees including the right to be heard, and assesses whether assessment acts violate principles such as taxation on actual profit. In cases involving intercompany financing, CAAD tribunals analyze the economic substance of transactions, the allocation of burden of proof between parties, and whether the AT demonstrated that costs lacked indispensability or served third-party interests rather than the taxpayer's business activity.
Can a company challenge an IRC tax assessment for non-deductible costs through tax arbitration at CAAD?
Yes, companies can challenge IRC tax assessments for non-deductible costs through CAAD tax arbitration. The process involves filing a request for arbitral award within the legal deadline after notification of the assessment act. CAAD provides binding arbitration as an alternative to judicial courts for tax disputes, with sole arbitrators appointed to review the legality of tax acts. Companies must demonstrate grounds for illegality, such as insufficient proof by the Tax Authority, violation of Article 23 IRC Code requirements, or breach of procedural guarantees under the General Tax Law. The arbitral tribunal examines both procedural regularity and substantive legality of the contested assessment.
What is the legal framework for deducting intercompany financing costs under the Portuguese IRC Code?
The legal framework for deducting intercompany financing costs under the Portuguese IRC Code centers on Article 23, which establishes the indispensability requirement and the principle that costs must be incurred in the taxpayer's own interest. Financial expenses are generally deductible if they relate to income-generating activities, but costs benefiting third parties (including subsidiaries) without corresponding income may be treated as gratuitous transfers or donations. Additional limitations apply under thin capitalization rules and transfer pricing provisions. The General Tax Law (Articles 81, 87, 88 LGT) governs the Tax Authority's use of presumptive assessment methods and establishes burden of proof requirements, prohibiting arbitrary disallowances without adequate substantiation of why costs fail deductibility criteria.