Os juros indemnizatórios no Direito Fiscal

: o pressuposto do erro imputável aos serviços

Abstract

The right to compensatory interest (juros indemnizatórios) in the context of annulment of a tax assessment has given rise to a debate in legal doctrine, particularly in situations of annulment on the grounds of procedural breach or formal defect. Notwithstanding the relative consensus in case law regarding the notion of ‘error attributable to services’ (erro imputável aos serviços), the restrictive approach followed by tax courts on the right to compensatory interest have been criticized by legal doctrine. Considering the notion of interest provided by civil law, we analyse how compensatory interest (juros indemnizatórios) are treated for tax purposes. In this context, the nature of compensatory interest is decisive, in particular, its structural suitability for the early determination of the damage resulting from the violation of pecuniary obligations. In fact, in our opinion, it is the illegality of the behaviour as opposed to the illegality of the act, in a tax litigation process of a markedly ‘annulling nature’ (mera anulação), that explains the Administrative Supreme Court case law. However, the essential question - and which, in our opinion, implies a re-reading of the institute under analysis - is the systemic incoherence caused by the aforementioned case-law approach based on a distinction between ‘illegal act’ and ‘illegal behaviour’. In fact the strict notion of ‘illegality’ under the compensatory interest legal framework (erro imputável aos serviços) is not coherent with the broad notion of ‘unlawful act’ as established in the non-contractual liability of the State and other public bodies legal framework. Furthermore, in the context of the latter, it is necessary to address the problem of licit alternative behaviour (real or hypothetical) resulting from the renewal of the primary act now without the formal defect that caused its illegality. One may conclude that the notion of illegality under Article 43 of the LGT (and therefore the notion of ‘error attributable to the services’) should be influenced by the notion of illegality resulting from the regime of non-contractual liability of the State and other public bodies as a paramount legal regime. Thus, a new broaden approach to art. 43 LGT is defensible de iure condito or de iure condendo. In any case, we understand that the effective renewal of the act should not exclude the taxpayer's right to damages resulting from the formal or procedural defect in the original act, nor the right to be compensated for the interim damage resulting from the unavailability of the tax amounts unduly assessed.

Date of Award	12 Oct 2020
Original language	Portuguese
Awarding Institution	Universidade Católica Portuguesa
Supervisor	Rui Duarte Morais (Supervisor)