In a time when corporate investment is struggling with the legal uncertainty deriving from systematic changes to the Portuguese tax system, the Constitutional Court has an important role in reassuring corporate taxpayers that the most basic constitutional principles are respected, thus protecting their investments. Three recent cases brought before the court were ultimately decided in favour of the protection of the legitimate expectations of investors and the judicial interpretation and application of the law.
The South Administrative Central Court recently discussed the problem of the admissibility, for accounting and tax purposes, of the depreciation and amortisation of submerged lands within a concession agreement between a company and the Portuguese state relating to the use of a public hydro domain for watering and hydroelectric exploitation. The court concluded that no contradiction existed between the applicable accounting and tax rules.
The Portuguese Tax Administration recently concluded that payments received for the sale of 'standard software' (ie, software not subject to any customisations) do not fall within the scope of Article 12 of the Organisation for Economic Cooperation and Development (OECD) Model Convention. Instead, the right to tax income deriving from such payments falls within the purview of the beneficiary of such payments' state of residence under Article 7 (business income) of the OECD Model Convention.