e-legal® APRIL 2019

case-legal19

I. EDITORIAL – BENEFICIAL OWNER REGISTRATION – EXTENSION OF THE DEADLINE

April was a busy month for most of the Portuguese companies, due to the end of the deadline for the submission of the beneficial owner declaration, foreseen in the Central Register of Central Register of Beneficial Owners («Registo Central do Beneficiário Efetivo»), regarding legal entities subject to registration on the commercial register incorporated before 1 October 2018.

However, in the last days of April, the deadline was postponed until June 30, 2019, without any penalties, as established in the Order issued by Secretary of State for Tax Affairs and the State Secretary of Justice.

In April, we also highlight the publication of the Decree-Law No. 53/2019 of April 17 which establishes the concept of Dry Port and defines the rules, proceedings and dematerialisation necessary to its implantation.

Regarding case-law, it is worth noting the Judgment of the Court of the European Union of 11 April 2019, in the Case-Law C-295/18, which addresses the issue of undue payment of the tax by the recipient of services to the suppliers on the basis of an invoice drawn up incorrectly according to the rules on ordinary taxation, and the tax authority’s decision holding that the recipient of services has an outstanding tax liability and refusing a claim for deduction.

Equally noteworthy is the Judgment of the Constitutional Court No. 134/2019, of April 04, which declares unconstitutional, with general obligatory force, the norm of the segment of article 43º, paragraph 1, of Retirement Statute, with wording given by the Law n.º 66-B/2012, of December 31, which determines that voluntary retirement is governed by the law in force at the time the order recognizing the right to retire is issued.

Finally, in the area of Miscellaneous, we would like to draw attention to the approval by Council of Ministers of the Decree-Law which amends the regime of the collective management of copyright and related rights, proceeding to the clarification of the rules of transparency of those entities in the management of the funds allocated to the social and cultural function , ensuring the respective autonomy.

II. LEGISLATION

Ordinance no. 99/2019 of April 4: Proceeds to the first amendment of the Ordinance no. 328/2018 19 December, which lay down the company certification scheme with a view to the reception third nationals with intent to develop a highly activity in Portugal.
https://data.dre.pt/eli/port/99/2019/04/04/p/dre/pt/html

Ordinance no. 110/2019 of April 12: Regulates the terms and conditions foreseen in the paragraphs 2, 3, 4 and 5 of Article 72 of Personal Income Tax Code, in the wording conferred it by the article 2 of Law no. 3/2019, of January 9.
https://data.dre.pt/eli/port/110/2019/04/12/p/dre/pt/html

Ordinance no. 111/2019 of April 12: Defines the procedures to speed-up the issuing of visas for foreign students.
https://data.dre.pt/eli/port/111/2019/04/12/p/dre/pt/html

Decree-Law no. 52/2019 of April 17: Amends the Statute of the Judicial Administrator and the regime of the Commission for the Monitoring of the Court Auxiliaries.
https://data.dre.pt/eli/dec-lei/52/2019/04/17/p/dre/pt/html

Decree-Law no. 53/2019 of April 17: Establishes the concept of Dry Port and defines the rules, proceedings and dematerialisation necessary to their implantation.
https://data.dre.pt/eli/dec-lei/53/2019/04/17/p/dre/pt/html

Decree-Law no. 54/2019 of April 18: Establishes the rules of the XVI General Census of the Population and the VI General Housing Census.
https://data.dre.pt/eli/dec-lei/54/2019/04/18/p/dre/pt/html

Law no. 30/2019 of April 23: Introduces restrictions on the advertising of foodstuffs and drinks containing high level of energetic value, salt, sugar, saturated fatty acids and processed fatty acids, to persons under 16 years of age, proceeding the 14º amendment of the Advertising Code, approved by the Decree-Law nº 330/90 of October 23.
https://data.dre.pt/eli/lei/30/2019/04/23/p/dre/pt/html

Decree-Law nº. 55/2019 of April 24: Creates the Statute of the higher education student-athlete.
https://data.dre.pt/eli/dec-lei/55/2019/04/24/p/dre/pt/html

Decree-Law no. 56/2019 of April 26: Reinforces the powers and incentives applicable to the collection of social security debt.
https://data.dre.pt/eli/dec-lei/56/2019/04/26/p/dre/pt/html

Decree-Law no. 57/2019 of April 30: Transfer of competencies from municipalities to the bodies of the local authorities.
https://data.dre.pt/eli/dec-lei/57/2019/04/30/p/dre/pt/html

Decree-Law no. 58/2019 of April 30: Implements the framework for the transfer of competences to municipal bodies in the field of tourist transport of passengers and the regular public passenger transport service on inland waterway.
https://data.dre.pt/eli/dec-lei/58/2019/04/30/p/dre/pt/html

III.1. Court of Justice of the European Union

Judgment of the Court of February 13, Case C434/17: Reference for a preliminary ruling. Harmonisation of fiscal legislation. Common system of value added tax (VAT). Directive 2006/112/EC. Deduction of VAT. Determination of the taxable person liable for VAT. Retroactive application of a derogating measure. Principle of legal certainty.
Summary: “European Union law precludes national legislation which provides for the application of a measure derogating from Article 193 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, as amended by Council Directive 2013/43/EU of 22 July 2013, before the EU act authorising that derogation has been notified to the Member State which requested it, despite the fact that that EU act does not mention the date of its entry into force or the date from which it applies, even if that Member State has expressed the wish for that derogation to apply with retroactive effect.”
https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:62017CJ0434&from=PT

Judgment of the Court of February 14, Case C154/18: Reference for a preliminary ruling. Equal treatment in employment and occupation. Directive 2000/78/EC. Article 2(2)(b). Indirect discrimination on grounds of age. Newly recruited teachers. Date of recruitment. Salary scale and classification on that scale upon recruitment less advantageous than that applicable to teachers already employed.
Summary: “Article 2(2)(b) of Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted to the effect that a measure such as that at issue in the main proceedings which, as of a specific date, provides for the application on the recruitment of new teachers of a salary scale and classification on that scale which are less advantageous than that applied, under the rules previous to that measure, to teachers recruited before that date does not constitute indirect discrimination on the grounds of age within the meaning of that provision.”
https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:62018CJ0154&from=PT

Judgment of the Court of February 13, Case C434/17: Reference for a preliminary ruling. Harmonisation of fiscal legislation. Common system of value added tax (VAT). Directive 2006/112/EC. Deduction of VAT. Determination of the taxable person liable for VAT. Retroactive application of a derogating measure. Principle of legal certainty.
Summary: “European Union law precludes national legislation which provides for the application of a measure derogating from Article 193 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, as amended by Council Directive 2013/43/EU of 22 July 2013, before the EU act authorising that derogation has been notified to the Member State which requested it, despite the fact that that EU act does not mention the date of its entry into force or the date from which it applies, even if that Member State has expressed the wish for that derogation to apply with retroactive effect.”
https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:62017CJ0434&from=PT

III. CASE-LAW

III.1. Court of Justice of the European Union

Judgment of the Court of 10 April 2019, Case C-214/18: Reference for a preliminary ruling. Directive 2006/112/EC. Value added tax (VAT). Court enforcement officer. Enforcement. Fees laid down by law. Administrative practice of the competent national authorities considering those fees to be inclusive of VAT. Principles of neutrality and proportionality.
Summary: “The provisions of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, as amended by Council Directive 2013/43/EU of 22 July 2013, and the principles of neutrality of value added tax (VAT) and proportionality must be interpreted as not precluding an administrative practice of the competent national authorities, such as that at issue in the main proceedings, under which the VAT relating to supplies of services by a court enforcement officer in an enforcement procedure is regarded as included in the fees charged by that officer.”
http://curia.europa.eu/juris/document/document.jsf?text=&docid=212848&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=1215193

Judgment of the Court of 11 April 2019, Case C-295/18: Reference for a preliminary ruling. Payment services in the internal market. Directive 2007/64/EC. Articles 2 and 58.  Scope. Payment service user. Meaning. Execution of a direct-debit payment order issued by a third party in respect of an account of which that party is not the holder. No authorisation from the holder of the debited account. Unauthorised payment transactions
Summary: “Article2º(1) of Directive 2007/64/EC of the European Parliament and of the Council of 13  November 2007 on payment services in the internal market, amending Directives 97/7/EC, 2002/65/EC, 2005/60/EC and 2006/48/EC and repealing Directive 97/5/EC, must be interpreted to the effect that the notion of ‘payment services’, for the purposes of that provision, includes the execution of direct debits, initiated by the payee, on a payment account of which it is not the holder, where the holder of the account thus debited does not consent to those direct debits.

Article 58º of Directive 2007/64 must be interpreted to the effect that the notion of ‘payment service user’, for the purposes of that article, includes the holder of a payment account on which direct debits were executed without its consent.”
http://curia.europa.eu/juris/document/document.jsf?text=&docid=212905&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=1215406

Judgement of the Court of 11 April 2019, Case C‑691/17: Reference for a preliminary ruling. Taxation. Common system of value added tax. Directive 2006/112/EC. Right to deduct value added tax (VAT) paid as input tax. Article 199(1)(a). Reverse charge procedure.  Undue payment of the tax by the recipient of services to the suppliers on the basis of an invoice drawn up incorrectly according to the rules on ordinary taxation. Tax authority’s decision holding that the recipient of services has an outstanding tax liability and refusing a claim for deduction. No examination by the tax authority of the possibility of reimbursement of the tax.
Summary: “Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, as amended by Council Directive 2010/45/EU of 13 July 2010, and the principles of fiscal neutrality and effectiveness must be interpreted as not precluding a practice of the tax authority whereby, in the absence of any suspicion of tax evasion, that authority refuses an undertaking the right to deduct the value added tax which that undertaking, as the recipient of services, unduly paid to the supplier of those services on the basis of an invoice drawn up by that supplier in accordance with the rules on the ordinary value added tax (VAT) regime, whereas the relevant transaction fell under the reverse charge mechanism, and where the tax authority did not,

  • examine, prior to refusing the right to deduct, whether the issuer of that incorrect invoice could reimburse the recipient of the invoice the amount of VAT unduly paid and could correct that invoice under a self-correction procedure, in accordance with the applicable national rules, in order to recover the tax which it unduly paid to the Treasury, or
  • itself decide to reimburse the recipient of that invoice the tax which the recipient unduly paid to the issuer of the invoice and that the latter, subsequently, unduly paid to the Treasury.

Those principles require, however, in the situation where the reimbursement by the supplier of services to the recipient of those services of the VAT unduly invoiced would be impossible or excessively difficult, in particular in the case of the insolvency of the supplier, that the recipient of the services must be able to address its application for reimbursement to the tax authorities directly.”
http://curia.europa.eu/juris/document/document.jsf?text=&docid=212911&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=1215583

III.2. Constitutional Court

Judgment of the Constitutional Court no. 134/2019, of April 04: Declares the unconstitutionality, with general obligatory force, segment norm of article 43.º, nª.1, of Retirement Statue, with wording given by the Law nª. 66-B/2012., of December 31, which declares the voluntary retirement is government by the law in force at the time is issued the order which recognise the right of retirement.
https://dre.pt/web/guest/home/-/dre/121942396/details/maximized?serie=I&day=2019-04-03&date=2019-04-01

III.3. Courts of Justice

Judgment of the Court of Appeal of Guimarães of April 4, Case no. 228 / 16.1T8VNF-A.G1: Extinction of the company. Liability of the shareholders.
http://www.dgsi.pt/jtrg.nsf/86c25a698e4e7cb7802579ec004d3832/191352c08df01425802583ee004683d9?OpenDocument

Judgment of the Court of Appeal of Lisbon of April 11, Case no. 18/18.7T8TVD.L1-: Homebanking. Responsibility. Burden of Proof. General contractual clause. Banking operation.
http://www.dgsi.pt/jtrl.nsf/33182fc732316039802565fa00497eec/49a0fa2be2741959802583e60054824e?OpenDocument

III.4. Administrative and Tax Court

Judgment of the Supreme Administrative Court of April 3, Case no. 076/16.9BEMDL: Municipal Property Tax. Urban building. Eolic parks.
http://www.dgsi.pt/jsta.nsf/35fbbbf22e1bb1e680256f8e003ea931/eb766c536834930d802583d700571f09?OpenDocument&ExpandSection=1#_Section1

Judgment of the Central Administrative Court South of April 11, Case no. 2968 / 12.5BELRS: Subsidiary liability. Presumption of guilt. Burden of proof.
http://www.dgsi.pt/jtca.nsf/170589492546a7fb802575c3004c6d7d/e74acd3d929f8897802583d9004c1a2f?OpenDocument

IV. BRIEFS

IV.1. DOCTRINE
IV.1.1. Monographs and Periodic Publications
José António de França Pitão e Gustavo França Pitão, ARRENDAMENTO URBANO ANOTADO De acordo com as Leis nº s 12/2019 e 13/2019, de 12 de fevereiro, editora Quid Iuris, April of 2019

IV.1.2. Generic Guidelines & Cia
Circular Letter no. 20209/2019, of 01.04.2019, of the Office of Deputy General-Director of Income Taxes and International Relations
Subject: Corporate Income Tax – State Surtax on taxable income of the tax year 2018
http://info.portaldasfinancas.gov.pt/pt/informacao_fiscal/legislacao/instrucoes_administrativas/Documents/Oficio_Circulado_20209_2019.pdf

 Circular Letter no. 20.211, of 04.18.2019 of the Office of Deputy General-Director of Income Taxes and International Relations
Subject: Obligation to declare the deposit or securities accounts in non-resident financial institutions.
http://info.portaldasfinancas.gov.pt/pt/informacao_fiscal/legislacao/instrucoes_administrativas/Documents/Oficio_Circulado_20211_2019.pdf

IV.2. Miscellaneous
IV.2.1. Economy, Finance and Taxation
On April 11, 2019, the Council of Ministers approved the Decree-Law amending the entities of collective management of copyright and related rights  regime, clarifying the rules of transparency of those entities in the management of funds allocated to the social and cultural function, ensuring the respective autonomy. In addition, it clarifies the way of functioning of the arbitration in the period preceding the entry into force of the ordinance regulating the functioning of the commission of experts.
https://www.portugal.gov.pt/pt/gc21/governo/comunicado-de-conselho-de-ministros?i=268

Also, on 15 April ,2019, was approved by the Council of Ministers, by electronic way, the Stability Program 2019 – 2023. The document pursues the economic and budgetary strategy defined in the Government Program, focused on the economic growth, the promotion of social cohesion and the sustainable consolidation of public accounts.
https://www.portugal.gov.pt/pt/gc21/governo/comunicado-de-conselho-de-ministros?i=269

V. INDUSTRIAL PROPERTY

Rules for Submission of Applications under the Patent Cooperation Treaty (PCT): Procedures of the request of the submissions of PCT in INPI, in quality of “Office” receiver.
https://inpi.justica.gov.pt/Noticias-do-INPI/Regras-para-apresentacao-do-pedido-PCT

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