Ilisão de presunções consagradas nas normas de incidência tributária: o art. 73.º da LGT | 2013

Author(s) Jorge Manuel Santos Lopes de Sousa
Advisor(s) João Sérgio Ribeiro
Year 2013

Synopsis In this dissertation we set off in an attempt to attain a useful meaning for LGT’s article 73, which states that presumptions set in fiscal incidence laws shall always be rebuttable. In the first part, basing ourselves in the traditional notions, we establish a delimitation of the notion of presumption and presumption-like figures, with emphasis on legal presumptions and legal fictions. We characterize presumptions with the purpose of stating what can be hold as a true presumption, for such making observations regarding the general theory and philosophy of law. We dissect the approach to the truth inherent to a presumption and we demonstrate how this means, simply, “holding as true” and how it only determines a hypothetical truth, which is why it shall always be rebuttable, in view of the effective taxation of one’s contributory capacity. We pondered the tensions inherent to the principles of taxation according to one’s contributory capacity and the tax system’s efficiency, aiming an equitable distribution of the tax burden, and we demonstrated how practicability demands shall succumb before each case justice demands, in light of, yet, proportionality’s principle. Well so, how LGT’s article 73 can yield an answer to that problem, working as a tax system’s safety valve. In the following part, we inquire as to the extent of the tax incidence law notion, weighting the relevance of the constitutional controversy to this context, as well as to LGT’s tax (tribute) notion. In the last part, we addressed issues of evidentiary and procedural (administrative and judicial) nature in the context of presumptions rebuttal. In this sense, we retrieved implications from the inquisitorial, impartiality and mutual cooperation principles and burden of proof rules for the purpose of presumptions rebuttal. We distinguish the degree of proof necessary to counteract the base fact, the logical link and the presumed fact. Addressing, yet, the special rebuttal procedure laid down in CPPT’s article 64 and the special action for the recognition of a right or rightful interest in tax matters foreseen in CPPT’s article 145.

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