Portugal: Right to be Notified in Requested State

Abstract

This book chapter examines comprehensively a Portuguese decision concerning the need to notify the taxpayer before exchanging information with another Contracting State in the framework of tax treaty obligations. This specific case deals with very fundamental issues in terms of the procedural rights of individuals and companies somehow involved in a treaty or EU-based MAP (in casu, exchange of information). A matter that was (conscientiously or not) ignored at the moment when the procedures were designed. The conclusion that the Supreme Administrative Court reached, in its main pillars, is innovative within the Portuguese tax system but goes along with the decisions of many other Supreme Courts in Europe, the ECHR and the ECJ. The conclusion is that supra-national law (ius cogens, fundamental principles of (international) law and positive law) does not provide a sufficient basis for regulating the procedural position of the persons (taxpayer, required subject) involved in a MAP. Neither allows for a judicial review of the decision of the tax authorities that abide by national law, granting the involved persons only the remedies conferred by national law. The current situation may lead to some surprising conclusions. Firstly, and in the context of the same bilateral tax treaty, the position of the person (involved in a MAP) may be quite different in the two contracting states (depending on how they have developed their internal systems of procedural protection of taxpayers). Secondly, if nothing stems from supra-national law, states continue to be entirely free to radically change their internal systems of procedural protection as long as (if they are EU Member States) the changes are done in accordance with the principles of equivalency and effectiveness.[24] Thirdly, and even if this was not anticipated by those who designed the current rules, the absence of regulation at the person level may even harm the validity of the information exchanged itself. This can happen, for instance, when the requesting state and the requested state adopt different standards for the protection of taxpayers' rights. For instance, if the requesting state requires some audition or grants intervention rights of the taxpayer at the moment of gathering evidence and those conditions are not foreseen in the requested state, the requested state will collect all information without any intervention of the taxpayer, which, in the end, may claim that the evidence gathered was not in line with the procedural rights in force in the requesting state. And, as we are dealing with different jurisdictions, there is hardly the possibility of any novatio or reform of the procedure. The deficiencies of this mode of creation of supra-national law should also be noted. The current system of mutual assistance is the result of the sedimentation of several changes that were based on the assumption that all that matters is the horizontal relations between states. As the previous comments show, this seems to be a deficient way of regulating matters, particularly at the tax treaty level, where no higher jurisdiction will be responsible for a consistent and harmonized interpretation. Moreover, it is the author's opinion that the rule of law, and in particular the idea of predominance of the individual in the construction of legal rules, prevents a system where the individual appears completely abandoned, being the object of several duties and obligations but deprived of any added protection. This objectification of the regulation seems to be in contradiction with most legal philosophers of the last half century. It is urgent for supra-national law to set minimal standards in this field. Standards that would ensure that, regardless of what happens in domestic law, there is a minimum densification of the rule of law and in particular of the right to be heard. This densification is even more pressing in the framework of EU law as the system currently in force allows for a substantive increase of exchange of information requests, which needs to be safeguarded by a sound system of procedural protection of the citizen.