NEWSLETTER I FISCAL TAX - Cuatrecasas

(Case n.º 05979/12)
In this judgment, the Supreme Administrative Court devoted himself on the subsidiary
liability regime, under article 13.º, n.º 1 CPPT.
The court considered that the fact that there is no legal presumption in that article
stipulating that the proof of de iure management also serve as proof of de facto
management implies that «the burden of proof from the assumption of liability manager
shall be on the Treasury and includes the exercise de facto management».
It is, therefore, concluded that manager’s subsidiary liability can only be effective when
de facto management is proved.
South Central Administrative Court
Judgment of 27 November 2012
(Case n.º 05908/12)
In this judgment, the South Central Administrative Court devoted himself on the
expiration date in tax law and carried out the distinction between compensatory interest
and default interest.
With regard to the first questions, after explaining the statute of limitation concept under
the tax law, the court considered that said regime, under article 45.º LGT, is not
triggered ex officio.
Moreover, further clarifies that the regime does not apply to acts of corrective
settlements the court considered because they do not cot the new act nature.
Finally, with regard to the second question, the court considered that, despite of the
default and compensatory interest are likely to be due to the Treasury, «provide a
compensation for the creditor […] and can configure itself as a genuine penalty clause»
assuming, thus, a delayed settlement.
Rather, the default interest «assumes that the tax already paid was not paid within the
period described by law or by the Tax Authorities ».
Supreme Administrative Court
Judgment of 28 November 2012
(Case n.º 0649/12)
In this judgment, the Supreme Administrative Court explained the concept of “literary
work” for purpose of tax benefit under n. os 1 and 2 of article 56. EBF in the version
before the republishing made by Decree-Law n.º 108/2008, June, 26.
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