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1 DRAFT law No. 712/X/4th DETERMINES the derogation of BANKING SECRECY AS an INSTRUMENT for combating TAX FRAUD explanatory statement in your application Program-and then in the Government program – the Socialist Party pledged to defend a rule to lift the banking secrecy that accompany "the best European practices" in combating tax evasion and tax fraud. A year and a half after he started the activity of the Government, it was clarified that "the best European practices" are the rules applied in Belgium for access to information in cases of tax complaints against the decisions of the tax administration.
It is written in the report on the fight against fraud and Tax Evasion, in January 2006, presented by the Ministry of finance and Public Administration: "the foregoing does not prevent us, however, to admit that, like the Belgian scheme, you can associate the plea in tax acts to the required access to information protected by banking secrecy, in exact extent that is essential for the administrative decision. This would be, too, a way to deter litigation less sustained. "
However, an annex to the report, prepared by the Directorate General of taxes (report "Combating Fraud and Tax Evasion", January 2006, p. 60) featured a different analysis than they are today "best practices" to access information bank 2 in the OECD countries, suggesting a much wider scope than the relevant information for the purpose of treating complaints. The report says: "the laws of most countries authorize the tax authorities to have access to banking information, such as exception to the general rule that defines the confidentiality of such information."
And continues: "the tax authorities can obtain the banking information in various ways, one of them goes through automatic Declaration of information by banks. In General, the Declaration concerning the interest paid and the amount of the deductions made. Other countries require a statement with the list of accounts opened and closed, the account balances at the end of the year and the interest on the loans. The most important of banking information through the Bank's specific request of elements relative to a particular taxpayer banking. Several countries can obtain bank information for tax purposes, without any limit. In other countries the tax authority to obtain this information, you should use a specific process such as an injunction or administrative authorization of an independent Commissioner. "
Following these opinions, the Government presented in Parliament a Bill which introduced the standard of Belgian law, requiring the lifting of banking secrecy in cases of complaints. This law was submitted to the Constitutional Court, which declared it unconstitutional. This law, impaired, was insufficient and inadequate, since only covered taxpayers who had claimed tax decisions, leaving therefore outside all that, having defrauded the internal revenue service, have not complained of its decisions.
Later, the Government proposed new measures, within the framework of the 2009 State budget, determining rules of lifting the secret before evidence of outward signs of wealth.
3 Despite this progress, international financial authorities continue to consider that the leak to the tax authorities in Portugal will be between 5 and 10% of GDP.
The current legislation and its limits bank secrecy was legally enshrined in Portugal in 1975, a period of great social and institutional changes, through the organic law of the Banco de Portugal, approved by Decree-Law No. 644/75, of 15 November, and reinforced by Decree-Law No. 729-F/75, of 22 December. Various resolutions of the Council of Ministers will in the same sense, defending the principle of secrecy to ensure the interest of the citizen (resolution of 9 January 1976). Decree-Law No. 475/76, of 16 June, establishes the penalty for breach of secrecy.
From then on, the principle of banking secrecy was always enforced: Decree-Law No. 2/78, of 9 January, prohibits the disclosure of bank information, as well as the Regulatory Decree No 357/79, the Secretariat of State for the Treasury. A few years later, passes legislation to establish exceptions, such as, for example, the law No. 45/86, of October 1, which empowered the high authority against corruption for information, but restricted this ability when you weren't covered by the duty of confidentiality protected by law-as a result, there has been no research could support in banking information.
More recent legislation, such as establishing a General Regime for credit institutions the financial corporations (Decree-Law No. 298/92 of 31 December), confirms this duty of absolute secrecy (article 78), though I do admit after certain exceptions, as the information due to the Bank of Portugal, the Comissão do Mercado de Valores Imobiliários or deposit guarantee fund. The exception is of course very meaningful, because, in addition to the monitoring role of the banking system that it is up to the Bank of Portugal, this law defines another institution with power to obtain all the information to understand relevant: the Securities Market Commission, which seek, quite legitimately, to fight the inside trading. Now, to be able to conduct investigations and gather evidence against the suspects this Commission, without recourse to any judicial instance, have access to information to understand. In a Word, 4 banking secrecy falls to enforce transparency in the capital market.
But this procedure is exceptional and, surprisingly, is not given to the tax authority the same capacity which is granted to the Securities markets. So, either the code of tax proceedings and processes (approved by Decree-Law No. 433/99, of 26 October), as the general tax law (adopted by Decree-Law No. 398/98, of 17 December) maintain the absolute secrecy in relation to public administration.
Only in recent years measures have been taken to extend the capacity of the tax administration access to banking information. Decree-Law No. 6/99, de 8, defines the possibility of tax authorities require information protected by bank secrecy for the purposes of preparation of tax inspection report. The law No. 5/2000, soon after, established standards for breach of professional secrecy in the context of the fight against organized crime and economic crime, allowing police authorities access to tax information before evidence of certain types of crimes. And the most profound legislative change was introduced with the 2000 tax reform, with the law No. 30-G/2000, in particular when the general tax law, defining the conditions for derogation from the duty of confidentiality and the requirement to provide information relevant to the tax investigation, and when even the code of tax proceedings and processes by establishing the special process conditions of derogation, including when there is action brought by the taxpayer of the tax office decision. This is the code that the current Government intended to get a clarification, when followed the Belgian model of lifting banking secrecy in the case of complaints about decisions of the tax administration.
Finally, the budget law for 2005 and, more recently, in OE of 2009, standards have been introduced providing for the lifting of secrecy in other cases.
These legislative changes could and should have profound consequences on the ability of the Administration in combating tax evasion. However, they are still very rare cases of lifting of secrecy, in a country where tax evasion is given as one of the highest in Europe. The latest report on combating tax evasion Tax 5 announces that last year those rules led to the lifting of the secrecy request in about 1000 cases.
European rules and the need for access to bank information for tax administration tax harmonization process under way in the European Union, has determined the lifting of banking secrecy, defining rules of exchanges of information between Member States about the savings deposited in banks by nationals of other countries. It is assumed that this trend will be reinforced by new coordinated measures to combat the tax evasion. In particular the directive on savings introduces the obligation of the State to inform the Portuguese tax authorities of other EU countries about the amounts of the deposits of its contributors in Portugal, for the purposes of taxation. Paradoxically, the Portuguese tax authorities, as a general rule, does not have the power to obtain information about Portuguese contributors, although it can obtain it in the case of foreign contributors.
Given that this anomaly cannot extend, this draft law extending Portuguese tax authorities the power of access to banking information which is already given by European Union legislation to foreign tax authorities in respect of deposits with financial institutions.
In this sense, presents the conditions for a lifting of banking secrecy in relation to tax transparency rules. Follow in this matter the reasons pointed out by Silva Lopes, on 26 June 2000, to reject insufficient measures since, in the context of «culture unfriendly to the IRS and tax offences ' tolerance, where conditions are adopted limiting access to banking information ' very few would be the tax offenses that could be detected by tax authorities to access bank account information ' and a ' constrained system would open up possibilities of resources and delaying tactics on the part of taxpayers in default and would cause negative reactions of compliant taxpayers '. On the other hand, argues Lee, ' if the query does not depend on any conditions (in particular the existence of elements that do assume the existence of tax offences), taxpayers, both abiding as in default, would not have 6 reasons to complain about tax pursuit», given the routine and universal nature of verification. So, ' the tax office should be empowered, as is the case in most of the OECD countries, to obtain periodic financial institutions on various categories of data relating to customers ' accounts. It is these recommendations that follow in this Bill.
In this sense, the present Bill proposes measures to combat tax evasion and tax fraud that are based on the best practices of the countries of Europe and the OECD, and that are not limited to palliative measures and reduced range.
This Bill proposes a simple, efficient procedure, tutored by the Minister of finance and under its responsibility, which ensures that all citizens are subject to the same type of control and the same obligation of transparency.
The present draft law lays down, in this way, financial institutions are required to provide all relevant information concerning the deposits and financial applications processed in the accounts of their customers, and that this information is cross-referenced with data from the tax returns of people and companies.
Therefore, the proponent of this Bill does not claim that such a survey has targeted a specific sector of the population and, much less, one contributor in particular, but that should be a universal and equitable method of control of tax returns, without any discrimination and therefore in a position to increase the confidence of taxpayers vis-à-vis the tax administration.
The conditions under which tax the lifting of banking secrecy in Portugal despite advances and setbacks in the modernisation of the legislation establishing the banking secrecy in Portugal, there are two cases in which there is unrestricted access to administrative authorities the personal bank information. These are the candidates for the solidarity Supplement for the elderly and Social insertion income: in both cases, it is a condition of application all the information bank made available without restrictions.
7 the reason why this procedure is understandable. This is to ensure the verifiability of the statements. But this same criterion is not applied in any other social provision or public spending. Now, if the verification of the data of the bank account is the most efficient proof of social and fiscal situation of a taxpayer, and for both required to counter potential abuses in these social benefits, it is incomprehensible that this method cannot be used by the IRS as a general rule. There is therefore a class discrimination in the lifting of banking secrecy.
Thus, and in accordance to the rules and constitutional, members of Left block present the following draft law: article 1 (subject matter) this law creates mechanisms for access by the State relevant information on deposits and investments operations or similar held in financial institutions, to unique effect of combating tax evasion and tax fraud.
Article 2 (changes the general scheme of credit institutions and financial corporations) the general scheme of credit institutions and financial corporations, established by Decree-Law No. 298/92 of 31 December, shall be amended as set out in article 79, as follows: ' article 79 (...)
1 — (...) 2 — (...)) (...) b) (...) c) (...) d) (...) and 8) to the Ministry that the tax administration, in the context of its supervisory activity of the compatibility between the movements and operations of financial institutions and the tax returns of taxpayers; f) (former subparagraph (e))) ' article 3 (access to information covered by banking secrecy) article 63-B of the general tax law, approved by Decree-Law No. 398/98, of 17 December, is replaced by the following: "article 63-B (...)
1-the tax administration has the power to access all the information or relevant bank documents without the consent of the owner of the dependency elements protected, whenever the request credit institutions, finance companies and other entities for the purpose of verification of the compatibility of the total deposits and applications and the total income reported for the purposes of calculating the tax on income of individuals. 2-for the purposes of the preceding paragraph, relevant information or bank documents relating to deposits operations and transfers to accounts and results from financial investments of taxpayers, excluding payment orders and other expenses of the taxpayer and the information provided by the customer of the Bank to justify recourse to credit. 3-The inquiries referred to in paragraph 1 fall within the competence of the director general of taxes or the director general of customs and Excise, or their legal substitutes. 4 – it is incumbent upon the Ministry governing the tax authorities determine, by order, the processing rules of the information referred to in the preceding paragraphs, as well as the application of professional secrecy which is required in the treatment of this information. 5-non-compliance with the obligations laid down in this article may not be based on banking secrecy. " 9 Article 4 (Regulation) the Government will regulate this law within 90 days.
Article 5 (entry into force) the law shall enter into force on the day following that of its publication.
The members and members of left-wing Block
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