Tax Mediation in Portuguese Legal Ordinance: De Iure Condendo(?)

• Author: Cláudia Sofia Figueiras
• Profession: Assistant professor at Portucalense University
• Pages: 229-246

Tax Mediation in Portuguese Legal Ordinance: De Iure Condendo(?)

Assistant professor Cláudia FIGUEIRAS

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Abstract

Mediation is an ADR which falls within the category of means of self-determi-

nation and which presupposes the intervention of a third party a mediator whose function

is to bring the parties together in a dispute in order to co nclude an ag reement between

them. In the Portuguese legal system, it is not possible to mediate disputes between taxa-

ble persons and the Tax Administration. There are several obstacles to the mediatability

of litigation in tax matters. In particular, we are thinking about the principles of legality,

the unavailability of the tax credit, and equality. In this paper, it is so ught to ascertain if

these obstacles are absolute, not allowing any openness to the legality of legal-tax dis-

putes, or if, on the contrary, they are not absolute, making feasible the thinking of creating

a relation between Law Taxation and mediation. Adopting a method based essentially on

dogmatic analysis, it is believed that it is possible to recognize the legality of legal-tax

disputes, albeit within certain limits. The mediation will allow a closer approxima tion

between the parties - taxable person and the Tax Administration - thus contributing to the

creation of a greater ethical-tax awareness and, in this way, to the reduction of litigation.

Keywords: litigation, mediation, legality, unavailability, equality.

JEL Classification: K34; K41.

1. Introductory note

The present text is entitled "Tax mediation in the Portuguese legal sys-

tem: de iure condendo (?)" and we will focus on the possible mediation of litiga-

tion in legal and tax matters. Indeed, it is believed that mediation as a means of

settling disputes may, on the one hand, to allow faster resolution of disputes in-

volving the Tax Authorities and taxable persons and, on the other hand, to pro-

mote a closer approximation of the parties. To this extent, because it reconciles

the parties, mediation can exercise a preventive function of new tax disputes.

Our investigation presupposes, essentially, a dogmatic analysis. In this

context, we will identify and reflect on some of the positions of the doctrine, not

only at the national level (Portuguese legal system), but also at the international

level. Based on these positions, we will reflect on the possible mediation of liti-

gation in tax matters. Reality, that does not exist in Portugal.

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Cláudia F igueiras - Assistant professor at Portucalense University and V isiting Professor at

University of Minho Law School, Researcher at Portucalense Institute for Legal Research,

cfigueiras@upt.pt .

Diversity and Interdisciplinarity in Business Law 230

Let us divide the present work into two fundamental parts. A first part

will be called “Mediation in tax matters: what future for the Portuguese legal

system?”. This part, in turn, is subdivided into four sub-parts: the first subpart

will have as study object the "Notion of mediation: in particular, the distinction

of related figures" and in it we will present a notion of mediation and distinguish

it from others means of settling disputes such as conciliation and arbitration and

the second subpart will have as its sub-theme “Obstacles to the mediatability of

tax disputes and their overrun”, and we will now present the main obstacles to

the mediatability of tax disputes and the respective way of overcoming. This sec-

ond subpart will be divided into three sections, which take the following name:

“The principle of legality”; “The principle of the unavailability of the tax credit”;

“The principle of equality”. The third subpart is entitled "The constitutional re-

quirement of the mediation of legal and tax litigation" and it seeks to assess the

constitutional requirement of tax mediation. Finally, the fourth subpart has as its

object "The process of mediation: a proposal iure condendo" and here is a pro-

posal for a possible process of tax mediation. The second part of this paper will

be titled "Tax mediation from a comparative law perspective: the American and

Italian case - a brief reference" and a brief study of comparative law will be made.

In the end, we will present the main conclusions of the present study.

2. Mediation in tax matters: which future for the Portuguese legal

system?

2.1. Notion of mediation: the distinction of related figures

Mediation is an alternative means of settling disputes

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(MARL/ADR),

together with conciliation and arbitration, among others

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. As to its classification

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The expression alternative dispute resolution mechanism was born in the USA in 1976 to mean a

set of means of resolving litigation alternative to traditional means, such as recourse to State Courts

(on the historical evolution of alternative means of dispute resolution , among others, can be seen

Jerome T Barrett and Joseph P Barrett, A History of Alternative Dispute Resolution: The Story of a

Political, Cultural, and Social Movement (Jossey-Bass: San Francisco, 2004); Carrie Menkel-

Meadow, Roots and Inspirations - A Brief History of the Foundations of Dispute Resolution, in

"The Handbook of Dispute Resolution", ed. by Michael L. Moffitt and Robert C. Bordone (Jossey-

Bass: San Francisco, 2005), pp. 13 a 32 (p. 13 a 32). Em especial, no ordenamento jurídico

português, entre outros, pode ver-se Mariana França Gouveia, Curso de Resolução Alternativa de

Litígios (Almedina: Coimbra, 2014), em especial pp. 34 e 35.

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With regard to mediation, conciliation and arbitration, it can be said that alternative dispute reso-

lution means are the traditional means of alternative dispute resolution. However, there are others

that have been implemented in various legal systems and which sometimes result in a perfect mar-

riage between two of the traditional means of alternative dispute resolution. By way of example,

the following alternative means of dispute resolution: o mini trial, o private trial, o court annexed

arbitration, o summary jury trial , o neutral listener, o neutral expert factfinding, med-arb or arb-

med (for further developments on these newer alternative dispute resolution means, it can be seen,