Author(s) Andreia Isabel Dias Barbosa
Advisor(s) Joaquim Freitas Rocha
Synopsis The legal regime for the provision and the constitution of guarantees in the procedure and in the tributary process was created within the coordinates imposed by a sense of justice and reflects the idea that neither taxpayers are irredeemably doomed to support the adversities of the administrative actions, nor the tax Administration has to be feared for the non-compliance of tax credits. Thus, in an attempt to execute a difficult balancing act, we find a legal regime which, while looking for safeguarding the legal sphere of the taxpayers, giving them the opportunity to require the provision of guarantees or to ask for its exemption, also intends to, essentially on behalf of the public interest, ensure the good future charge of the tax credit, giving the tax Administration the possibility (or the duty) to constitute guarantees. We believe, however, that the legislative acrobacy is not accomplished in the best way, sometimes denoting an imbalance to the detriment of the taxpayers. In fact, the issues concerning the regime of provision and constitution of guarantees has been the origin of a growing conflict between the taxpayers and tax Administration. Therefore, considering the current legal framework and the jurisprudential and doctrinal developments identified within the scope of the matter under review, we will seek to contribute to the improvement of the state of the art, to move forward with some proposals aiming at the balance between the positions and interests involved, which is deemed desirable. The terms on which this master dissertation is structured reflects the differential treatment that should be provided to each of the dimensions on which we work through: the guarantees, the provision of guarantees and the constitution of guarantees. Thus, being sure that the definition, a priori, of the object of the study and the crossbeams that guide it, proves to be essential for its good understanding, we reserve the first chapter to account for the plurality of meanings that may be associated with the concept of «guarantees» and also to define those which are, or should be, the underpinning principles of the regime under analysis. Thereafter, in the second and in the third chapters, we drive and focus our efforts to the topic of the provision and the constitution of guarantees, respectively. Indeed, the concepts of «provision» and «constitution» of guarantees do not get confused and should not be confused, since, starting from distinct subjects and pursuing several purposes, such a differentiation is worthy of a clear distinction.
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