Francisca Marabuto Tavares assina o artigo de opinião “The increase in compensatory interest under GAAR: an unconstitutional penalty?”, publicado recentemente no ITR (International Tax Review).
A advogada analisa a polémica sobre a aplicação das regras GAAR em Portugal e pondera se a aplicação de juros compensatórios poderá ser inconstitucional ou não.
«The application of the general anti-abuse rule (GAAR) to transactions considered tax abusive, as provided for in article 38, no. 6, of the Portuguese General Tax Law, entails three tax consequences:
- The evident payment of the omitted tax;
- The consideration as a tax infraction for failure to assess and timely pay the tax due, the fine of which varies. In case of willful misconduct, it is between the value of the missing instalment and its double, and, in case of negligence, between 15% and half of the missing tax; and
- The application of compensatory interest calculated at the rate of 19% per year (the current legal rate of 4% plus 15%), to run from the time of the tax default (failure by the taxpayer to pay the tax spontaneously) until the date on which the additional tax assessment is issued.
The final point raises several constitutional doubts, as well as doubts as to compliance with EU law. […]».
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