O regime de eliminação da dupla tributação económica

: um contributo para a limitação da aplicação do requisito relativo à tributação efectiva

Abstract

In the sequence of the Portuguese Budget Law 2011, the elimination mechanism of the economic double taxation of distributed profits has suffered several changes, and the requirement for submission of distributed profits to an “effective taxation” has become more relevant because is considered an objective criterion for the mechanism access. However, the indeterminacy of the notion of “effective taxation” in Portuguese and Community Law affects its practical application and causes a higher degree of legal uncertainty and insecurity. In light with the above, this study focuses elimination mechanism of the economic double taxation with an emphasis on the requirement of submission to “effective taxation” of distributed profits presented in no. 10, article 51 of the Corporate Income Tax Code. In this context, I discuss five issues inherent with the implementation of the mechanism mentioned above that may have significant influence on the structural organization of groups of companies. These issues are: i) Is the requirement of “effective taxation” considered as an anti-abuse measure? ii) The tax liability must be applied on an objective basis (in terms of profits) or a subjective basis (in terms of the taxpayers). iii) What is the point or level of participation in the chain that must occur for accomplish the requirement of the “effective taxation” of distributed profits? iv) The requirement implies the existence of a minimum level of taxation? v) What is the meaning of the term "distributed profits" considered in no. 10, article 51 of the Corporate Income Tax Code? The systematic analysis of the mechanism evolution mentioned above contributes to the understanding of these issues and the definition of “effective taxation”. Additionally, this study contributes to clarify the scope of the practical application of the distributed profits’ submission to “effective taxation”.

Date of Award	29 Dec 2011
Original language	Portuguese
Awarding Institution	Universidade Católica Portuguesa
Supervisor	Luís Janeiro (Supervisor)