Process: 97/2017-T

Date: February 19, 2018

Tax Type: IRS

Source: Original CAAD Decision

Summary

This arbitration case (Process 97/2017-T) addresses the contested reclassification of a dental surgeon from the organized accounting regime to the simplified taxation regime for IRS purposes in 2012. The taxpayer, operating under organized accounting since 1986, challenged an additional IRS assessment of €37,076.39 issued after the Tax Authority reclassified them to the simplified regime based on 2011 turnover falling below the mandatory threshold established in Article 28 of the IRS Code.

The Tax Authority raised a preliminary exception of lack of jurisdiction, arguing the CAAD arbitration tribunal could not review the administrative decision to reclassify the taxpayer's regime. The Arbitral Tribunal rejected this exception, relying on Article 54 of the Tax Procedure Code (CPPT), which permits taxpayers to challenge final tax assessments based on illegalities committed in prior procedural acts, including interlocutory decisions like regime classification changes.

The tribunal clarified that while interlocutory acts are generally not independently challengeable unless immediately harmful, taxpayers retain the right to invoke procedural illegalities when contesting the final assessment. Since the request sought to challenge the additional IRS liquidation itself—not merely the reclassification decision—the tribunal held it had material jurisdiction under Article 2(1)(a) of the RJAT.

The substantive dispute centers on whether the Tax Authority can unilaterally reclassify a taxpayer to the simplified regime when prior year turnover falls below the mandatory threshold for organized accounting, particularly for professionals with long-standing organized accounting systems. This decision reinforces taxpayers' procedural rights in tax arbitration, confirming that challenges to final assessments can encompass review of all underlying administrative acts and that CAAD tribunals possess broad jurisdiction to examine IRS assessment legality, including regime classification irregularities based on turnover criteria.

Full Decision

ARBITRAL DECISION

REPORT

On 2 February 2017, A…, taxpayer no. …, resident at …, no. …, …-… Lisbon ("Applicant"), submitted a request for arbitral determination with the intervention of a single arbitral tribunal, in accordance with articles 2, no. 1, paragraph a), and 10, no. 1, paragraph a), of the Legal Framework for Arbitration in Tax Matters ("RJAT").

The AUTHORITY FOR TAX AND CUSTOMS ("Respondent Entity") is hereby made a respondent.

In the request for arbitral determination, the Applicant requested from the Arbitral Tribunal a declaration of illegality of the additional Personal Income Tax assessment ("IRS") no. 2016…, of 4 November 2016, relating to the year 2012, in the total amount of EUR 37,076.39 (……).

Specifically, with reference to the year 2012, the Applicant contests its classification under the simplified taxation regime for purposes of IRS, having regard to the provisions of article 28 of the IRS Code.

Conversely, motivated by the fact that in the year 2011 the Applicant had not reached the turnover volume corresponding to the minimum value for mandatory classification under the organised accounting regime, the Respondent Entity considers that the simplified taxation regime for purposes of IRS applies to it in the year 2012.

The request for constitution of the Arbitral Tribunal was accepted on 6 February 2017 by the Honourable President of the CAAD, and the Respondent Entity was then notified.

Subsequently, in accordance with article 6, no. 1, of the RJAT, the Undersigned Arbitrator was appointed by the President of the Deontological Council of the CAAD to constitute this single arbitral tribunal, and the respective appointment was accepted as legally provided.

On 21 March 2017, the Parties were notified of this appointment, and did not manifest any intention to refuse it, in accordance with the combined provisions of article 11, no. 1, paragraphs a) and b), of the RJAT, and articles 6 and 7 of the Deontological Code of the CAAD.

The Arbitral Tribunal was constituted on 5 April 2017, in accordance with article 11, no. 1, paragraph c), of the RJAT.

On 11 May 2017, the Respondent Entity submitted its reply, having previously attached the administrative file.

On 19 May 2017, the Applicant made submissions on the exception raised by the Respondent Entity in its reply.

By order of 6 October 2017, the holding of the hearing provided for in article 18 of the RJAT and the submission of arguments by the Parties were waived.

CLARIFICATION OF ISSUES

The Arbitral Tribunal is materially competent and is regularly constituted, in accordance with articles 2, no. 1, paragraph a), 5 and 6, of the RJAT.

The parties have legal personality and capacity, are properly entitled and are represented, in accordance with articles 4 and 10 of the RJAT and 1 of Order no. 112-A/2011, of 22 March.

There are no nullities, but a preliminary exception was raised by the Respondent Entity, requiring its examination by the Arbitral Tribunal.

- Preliminary exception of absolute lack of jurisdiction ratione materiae

The Respondent Entity raises a preliminary exception of absolute lack of jurisdiction ratione materiae on the grounds that, in its view, the Applicant seeks to have the Arbitral Tribunal declare the illegality of the official decision to classify it under the simplified regime, this tribunal having no powers to do so, having regard to the delimitation of jurisdiction effected by article 2 of the RJAT.

The Applicant disagrees with this position, noting that the subject-matter of the present proceedings consists of the additional IRS assessment no. 2016…, of 4 November 2016, relating to the year 2012, in the total amount of EUR 37,076.39, seeking to have its legal compliance examined in the light, in particular, of article 28 of the IRS Code.

Let us see who is right.

As a general rule, interlocutory acts of the tax procedure, being merely instrumental or preparatory to the respective final decision, are not harmful to the rights or legally protected interests of the taxpayer, since they do not define or resolve its tax situation.

Indeed, since the tax assessment procedure is formed by a series of preparatory and instrumental acts directed towards the assessment proper, typically only this latter, as a tax act in the strict sense, is capable of causing objective, immediate and actual injury to the taxpayer's interests, thus constituting the act that may be contentiously challenged.

However, if interlocutory acts of the procedure are harmful within the terms set out (objectively, immediately and currently) or by express provision to the contrary, they may be subject to autonomous contentious challenge, as provided, a contrario sensu, by the regime inherent in article 54, first part, of the Code of Tax Procedure and Process ("CPPT"), according to which "unless they are immediately harmful to the rights of the taxpayer or unless express provision is to the contrary, interlocutory acts of the procedure are not susceptible to contentious challenge [...]".

However, the final part of the same legal provision further provides that the general non-challengeability in isolation, or the non-challenge in isolation in the present case, always occurs "[...] without prejudice to the possibility of invoking in the challenge to the final decision any illegality previously committed".

Accordingly, regardless of what may be submitted concerning the possible harmfulness of the interlocutory act of official alteration of the taxpayer's tax registration classification (transition from organised accounting regime to simplified regime), or concerning the possible existence of express provision providing for its autonomous challenge, the fact remains that the said legal provision does not impose upon the taxpayer's inertia any preclusive effect on the right to challenge the final decision of the procedure – in the present case, the right to challenge the additional IRS assessment no. 2016…, of 4 November 2016, relating to the year 2012, in the total amount of EUR 37,076.39.

On the contrary, article 54 of the CPPT expressly provides that any illegality committed in the course of the procedure may be invoked in challenging the final decision of the procedure.

In light of the above, the Applicant's claim expressed in its request for arbitral determination, to the effect that the illegality of the aforementioned additional IRS assessment is declared, is entirely justified, since, as this constitutes the final act of the tax procedure in question, it may be challenged on the basis of any illegalities, including those relating to interlocutory acts, such as the official alteration of the Applicant's tax registration classification for purposes of IRS.

Without prejudice to the grounds (cause of action) underlying the request for arbitral determination, the fact remains that this request has as its subject-matter the aforementioned tax assessment and not any other act, so the Arbitral Tribunal is competent to examine its (il)legality in accordance with article 2, no. 1, paragraph a), of the RJAT, and the exception of absolute lack of jurisdiction ratione materiae alleged by the Respondent Entity does not obtain.

Accordingly, the preliminary exception raised is held to be without merit, and there are no obstacles to the examination of the merits of the case.

SUBJECT-MATTER OF THE ARBITRAL DETERMINATION

The thema decidendum subject of the arbitral determination consists in determining the correct classification for purposes of IRS of the Applicant in the year 2012: whether under the simplified taxation regime (as defended by the Respondent Entity) or under the organised accounting regime (as advocated by the Applicant).

FACTUAL MATTERS

Findings of Fact

The following facts are deemed proven:

The Applicant commenced its activities as a dental surgeon on 1 January 1986, and was classified for purposes of IRS under the organised accounting regime until 31 December 2011 (see documents nos. 1, 4 and 5 attached to the request for arbitral determination);

During the triennium 2012-2014, the Applicant was officially classified by the Tax Administration under the simplified taxation regime for IRS purposes, as in the preceding year of that triennium it had recorded a turnover below EUR 150,000.00 (see document no. 5 attached to the request for arbitral determination);

On 4 July 2013, disagreeing with its inclusion in the said regime, the Applicant submitted a submission to the Director of Taxpayer Registration Services, in which it requested its maintenance under the organised accounting regime (see document no. 3 attached to the request for arbitral determination);

In November 2016, the Applicant was notified of the additional IRS assessment nos. 2016…, of 4 November 2016, relating to the year 2012, in the total amount of EUR 37,076.39, reflecting its classification under the simplified regime (see document no. 1 attached to the request for arbitral determination);

By official letter no. …, of 19 December 2016, from the Director of IRS Services, and with reference to the aforementioned submission, the Applicant was informed of the following:

"Having consulted the AT databases, it is verified that the taxable person has been in the Organised Accounting Regime since 2001 by legal requirement by virtue of the turnover it had (taxpayer prior to registration). As in the year 2011 it did not exceed the annual net amount of €150,000.00 and did not express any option, evidenced by the submission of a statement of change of activity, by the end of March 2012, with the option for the Organised Accounting Regime, it was classified for the triennium 2012-2014 in the Simplified Regime" (see document no. 5 attached to the request for arbitral determination);

On 2 February 2017, the Applicant submitted a request for arbitral determination with a view to annulling the additional IRS assessment on the grounds of breach of article 28 of the IRS Code ("CIRS") and/or articles 349 and 334 of the Civil Code ("CC").

Facts Not Proven

Of the facts with interest for the decision of the case, contained in the request for arbitral determination and in the reply, all subject to concrete examination, those which do not appear in the factuality above listed are deemed not proven.

C) Justification of the decision on the factual matters

The facts were deemed proven on the basis of the documents attached to the request for arbitral determination and to the administrative file.

LEGAL MATTERS

In light of the legal matters to be determined in this case being identical to those duly decided in the context of case no. 760/2015-T, the legal grounds set out therein are transcribed below, which are entirely endorsed:

"The organised accounting regime should be considered as the standard regime for taxation, as follows from the principle of taxation according to real contributory capacity, determined in accordance with the income actually earned [...].

Practical considerations have, however, necessitated the possibility that, for smaller values, only turnover (gross income) may be considered, reduced by expenses presumed as a percentage thereof. This is to reduce the compliance costs of taxable persons and the audit costs of AT [...]. But the legislature understands that such simplification cannot occur for values of high income. For this reason, the law provides that, even if the taxable person opts for the simplified regime, this option ceases to be effective if, in the preceding year [...], by reason of the value of the deviation, the gross income of the taxable person exceeds a certain amount (as, in that case, the consideration of deductible expenses would make the deviation from the principle of taxation based on actual income more evident).

These considerations serve to explain that whereas the official change from the "simplified" regime to the "organised accounting" regime is motivated by reasons of coherence of the system, the inverse is not true (it might even be said that it is contrary to this coherence, based, rightly or wrongly, on the paradigm of "actual values") [...]. This without prejudice to the exercise of free choice by taxable persons, but they are also free from "official" reclassifications with which they could legitimately not have reckoned.

This finding helps us better understand the discipline of art. 28 [...]. Having the taxable person opted for the faculty of using the "simplified" regime, this option ceases to be valid if the income assumes a magnitude which the legislature advises against. And, for this reason, the new classification is mandatory and can be officially processed by AT.

If the variation is the inverse, whether or not it was preceded by voluntary option of the taxable person or by automatic insertion, there is no imperative reason that requires the classification (once again) in the simplified regime. It is even advisable that this option be left to the discretion of the taxable person. This amounts to saying that, in that case, the classification may remain unchanged. And it must remain unchanged as this is the best way to ensure protection of the taxable person's legal certainty [...].

Moreover, the interpretation proposed, being the most consistent with the principles of income taxation and with the income taxation system, has full support in the letter of the law [...]. For all the foregoing reasons, the Applicant's interpretation should be upheld and not that of the [Respondent Entity]".

With regard to the breach of articles 349 and 334 of the CC, the Arbitral Tribunal holds that this is a matter whose examination became moot by the solution previously adopted. In fact, the Arbitral Tribunal is under an obligation to examine and resolve all matters submitted for its examination, regardless of their relevance or viability, with the exception of matters whose examination and decision have become moot by the solution given to others (see article 608, no. 2, of the Code of Civil Procedure ("CPC")).

DECISION

In light of the above, the request for arbitral determination submitted by the Applicant is held to be entirely meritorious and, accordingly, the additional IRS assessment nos. 2016…, of 4 November 2016, relating to the year 2012, in the total amount of EUR 37,076.39, is declared illegal and is annulled, on the grounds of a breach involving violation of law, by breach of the regime inherent in article 28 of the IRS Code.

In accordance with articles 306, nos. 1 and 2, of the Code of Civil Procedure, 97-A, no. 1, paragraph a), of the CPPT, and 3, no. 2, of the Regulation of Costs in Tax Arbitration Proceedings, the value of the case is fixed at EUR 37,076.39, and the Respondent Entity is ordered to pay the costs of the proceedings, which amount to EUR 1,836.00, under article 22, no. 4, of the RJAT and also under Table I annexed to the Regulation of Costs in Tax Arbitration Proceedings.

Text prepared on computer, in accordance with the CPC, applicable by reference in article 29, no. 1, paragraph e), of the RJAT, with blank lines and revised by the Undersigned Arbitrator.

Lisbon, 19-02-2018

The Arbitrator

(Jaime Carvalho Esteves)

Frequently Asked Questions

Automatically Created

What determines whether a taxpayer is subject to the simplified regime or organized accounting for IRS purposes under Article 28 of the CIRS?
Article 28 of the IRS Code establishes turnover thresholds that determine classification between the simplified regime and organized accounting. When annual turnover reaches or exceeds the statutory minimum threshold, taxpayers are mandatorily classified under organized accounting. Conversely, taxpayers with turnover below this threshold may be subject to the simplified regime. Classification is based on the prior year's turnover volume, meaning 2011 revenues determine the 2012 regime. This case examines whether the Tax Authority can automatically reclassify taxpayers to the simplified regime when prior year turnover drops below the mandatory threshold, particularly for professionals who have historically maintained organized accounting systems.
Can the Tax Authority reclassify a taxpayer to the simplified regime based on the prior year's turnover falling below the mandatory threshold?
According to the Tax Authority's position, they may reclassify taxpayers to the simplified regime when prior year turnover fails to reach the minimum threshold for mandatory organized accounting. In this case, the Tax Authority reclassified the dental surgeon to the simplified regime for 2012 because 2011 turnover did not reach the statutory minimum. However, the taxpayer contests this automatic reclassification, arguing they should remain under organized accounting despite the turnover decrease. The arbitral decision addresses the legality of such unilateral reclassifications and whether Article 28 CIRS permits this administrative action without taxpayer consent or option to voluntarily maintain organized accounting.
What is the CAAD arbitration process for challenging an additional IRS tax assessment in Portugal?
The CAAD arbitration process begins with filing a request for arbitral determination under the RJAT (Legal Framework for Arbitration in Tax Matters). Taxpayers submit requests to challenge tax assessments, which the CAAD President accepts before notifying the Tax Authority. An arbitrator is appointed by the President of the Deontological Council, with parties having the right to refuse the appointment. Once constituted, the arbitral tribunal examines preliminary exceptions, reviews the administrative file, and determines whether hearings are necessary. The Tax Authority submits its reply, parties may file submissions on exceptions, and the tribunal issues a binding decision. Article 54 CPPT allows taxpayers to challenge final assessments while invoking illegalities from prior procedural acts, giving CAAD tribunals broad jurisdiction to review the entire tax procedure.
How does the turnover threshold in Article 28 of the CIRS affect the transition between the simplified regime and organized accounting?
The turnover threshold in Article 28 CIRS creates a dynamic classification system where taxpayers transition between regimes based on annual revenue performance. When turnover exceeds the statutory minimum in a given year, the taxpayer becomes subject to organized accounting in the following year. Conversely, if turnover falls below the threshold, the Tax Authority's position suggests automatic transition to the simplified regime. This case highlights tensions in this transitional mechanism: whether the shift is mandatory and automatic, whether taxpayers can voluntarily maintain organized accounting despite lower turnover, and whether long-standing regime classifications carry presumptive weight. The threshold mechanism aims to align taxation complexity with business size but raises questions about administrative discretion and taxpayer autonomy.
What are the taxpayer's rights when contesting an additional IRS liquidation issued by the Portuguese Tax Authority?
Taxpayers have robust procedural rights when contesting additional IRS assessments. Under Article 54 CPPT, they can challenge final tax liquidations while invoking any illegalities committed during prior procedural stages, including interlocutory acts like regime classifications. Taxpayers may access tax arbitration through CAAD under Article 2(1)(a) RJAT, providing an alternative to judicial courts with specialized tax expertise. The arbitration process allows contesting both substantive legality of assessments and procedural irregularities. Crucially, this decision confirms that failure to immediately challenge interlocutory administrative acts does not preclude raising those illegalities when contesting the final assessment, preserving taxpayers' rights without imposing preclusive effects and ensuring comprehensive review of the entire tax procedure.