Portugal vs “GAAR S.A.”, January 2022, Supremo Tribunal Administrativo, Case No : JSTA000P28772

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“GAAR S.A” is a holding company with a share capital of EUR 55,000.00. In 2010, “GAAR S.A” was in a situation of excess equity capital resulting from an accumulation of reserves (EUR 402,539.16 of legal reserves and EUR 16,527,875.72 of other reserves).

The Board of Directors, made up of three shareholders – B………… (holder of 21,420 shares, corresponding to 42.84% of the share capital), C………… (holder of a further 21,420 shares, corresponding to 42.84% of the share capital) and D………… (holder of 7. 160 shares, corresponding to the remaining 14.32% of the share capital) – decided to “release this excess of capital” and, following this resolution, the shareholders decided: i) on 22.02.2010 to redeem 30,000 shares, with a share capital reduction, at a price of EUR 500.00 each, with a subsequent share capital increase of EUR 33. 000.00, by means of incorporation of legal reserves, and the share capital of the appellant will be made up of 20,000 shares at the nominal value of €2.75 each; and ii) on 07.05.2010, to cancel 10,000 shares, with a capital reduction, at the price of €1. 000.00 each, with a subsequent share capital increase of 27,500.00 Euros, by means of incorporation of legal reserves, and the share capital of the appellant is now composed of 10,000 shares at a nominal value of 5.50 Euros each (items E and F of the facts).

As a result of this arrangements, payments were made to the shareholders in 2010, 2011 and 2012, with only the payment made on 4 September 2012 being under consideration here. On that date, cheques were issued for the following amounts: B………… – €214,200.00; C………… – €214,200.00; and D………… – €71,600.00. Payments which, according to “GAAR S.A”, since they constitute exempt capital gains, were not subject to taxation, that is, no deduction at source was made.

Following an inspection the tax authorities decided, to disregard the arrangement, claiming that it had been “set up” by the respective shareholders with the aim of obtaining a tax advantage (whilst completely ignoring the economic substance of the arrangement).

In short, the tax authorities considered that the transactions were carried out in order to allow “GAAR S.A” to distribute dividends under the “guise” of share redemption, thus avoiding the tax to which they would be subject.

An appeal filed by “GAAR S.A.” with the Administrative Court was dismissed. An appeal was then filed with the Supreme Administrative Court.

Judgement of the Supreme Administrative Court

The Supreme Administrative Court dismissed the appeal and found that “GAAR S.A.” was liable for the payment of the tax which was not withheld at source and which should have been, we also consider that there is no error in the judgment under appeal in concluding that “at least in terms of negligence, it seems to us that the award of compensatory interest is, in cases such as the present, the natural consequence of the verification of the abuse, especially given the environmental and intellectual elements, demonstrating that there was a deliberate intention to avoid the due withholding tax”

According to the court the tax authorities does not have to prove an “abusive” intention of the taxpayer. The tax authorities is not required to prove that the taxpayer opted for the construction leading to the tax saving in order to intentionally avoid the solution which would be subject to taxation. It is sufficient for the tax authorities to prove that the operation carried out does not have a rational business purpose and that, for this reason, its intentionality is exhausted in the tax saving to which it leads. Having provided this proof, the requirements of article 38(2) of the LGT should be considered to have been met.

When the application of the GAAR results in the disregard of a construction and its replacement by an operation whose legal regulation would impose the practice of a definitive withholding tax act, it is the person who comes to be qualified as the substitute (in the light of the application of the GAAR) who is primarily liable for this tax obligation whenever the advantage that the third party obtains results from an operation carried out by him and it is possible to conclude, that he was the beneficiary of the operation. It is also possible to conclude, under the procedure set out in Article 63 of the CPPT, that the third party had a legal obligation to be aware of the alternative legal transaction that comes to be qualified as legally owed as a result of the disregard of the transaction carried out.

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Supremo Tribunal Administrativo 02507-15

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