Legal alert no. 14
It was published, in the Portuguese Official Gazette, on 16 January 2017, the Law n. 3/2017, which aims at establishing a transitory regime applicable to the income tax declarations for purposes of calculation of the personal income tax (“IRS”) related to 2015, in order to foresee the possibility to submit a new income declaration with the option of joint taxation outside the deadlines legally established in the Personal Income Tax Code (“IRS Code”).
The subparagraph c) of n. 2 of Article 59 of the referred IRS Code provides a limitation to the regime of joint taxation of spouses and life partners (unmarried partners), establishing that the option for joint taxation is only considered if it is exercised within the deadlines foreseen in Article 60 of IRS Code, regarding the income declaration delivery.
Nevertheless, this legal provision was applied, for the first time, in the income declarations’ delivery process of 2016, which refers to the income of 2015 – year in which the referred legislative amendment entered into force.
The consequences of this application were generally negative for all taxpayers who, by error or delay, have been prevented from opting for joint taxation, due to the belated submission of the income declarations. This limitation was an excessive penalty for the families to whom the separate taxation regime was imposed and, as a result, have suffered a relevant exacerbation in the liquidation of the due personal income tax.
In this context, the new Law n. 3/2017, now approved and published, provides, in its article 3, that, regarding the year of 2015, the subparagraph c) n. 2 of article 59 of IRS
Code is not applicable to the taxable persons who have opted for the joint taxation through an income declaration submitted outside the deadlines foreseen in n.1 of article 60 of the IRS Code, provided that they have not subsequently submitted income declarations in accordance with the separate taxation regime.
Additionally, n. 2 of article 3 of Law n. 3/2017 also foresees the non-application of the first part of subparagraph c) of n. 2 of article 59 of IRS Code to the taxable persons who, after the entry into force of the law in question (17 January 2017), opt for the joint taxation through the submission of an income declaration indicating such option, within two tears from the expiry of the legal deadline for the delivery of the declaration, not being applied, in this case, the administrative infraction established in article 116 of the General Framework for Tax Infringements, except when it is the first declaration submitted in relation to the income of 2015.
Finally, it should also be noted that the taxable persons who opt for the joint taxation, in accordance with the above mentioned article 3, may require the suspension of the executive procedure which has been initiated as a result of the non-payment of the IRS collection note related to 2015, based on the declaration liquidated in accordance with the separate taxation regime, not being necessary for such purpose the provision of a guarantee.
To access the full wording of the Law, please click on the following hyperlink: