Recurso contencioso
Autor: | Helder Martins Leitão |
Cargo do Autor: | Advogado |
Páginas: | 59-62 |
Page 59
TRIBUNAL CENTRAL ADMINISTRATIVO NORTE
Alfredina Bajula, contribuinte nº 150 202 705, residente na Rua 13 de Maio, nº 16, Estarreja, vem interpor
do despacho do Director-Geral dos Impostos de 10/03/04, com os seguintes fundamentos:
Na sequência de mútuos efectuados pela recorrente à sociedade «Alonso & Cervantes, Ldaª», foi esta tributada pelos juros, presumivelmente, recebidos à taxa de 15%.
Os empréstimos concedidos foram-no sem qualquer contrapartida, constituindo antecipação da quota de que veio a ser titular.
Pelo que deduziu reclamação da liquidação do respectivo imposto, com base, precisamente, na gratuitidade dos empréstimos efectuados.
Essa reclamação foi indeferida por despacho constante do ofício nº 987, de 13/04/02, do Serviço de Finanças de Estarreja, no qual se sugere a ilisão da presunção legal do vencimento de juros, em acção judicial a intentar contra o Estado (vide doc. 1).
A aqui recorrente assim o fez.
Em acção ordinária interposta contra o Estado, ficou decidido que em razão do financiamento concedido à firma «Alonso & Cervantes, Lda», não foram recebidos, antecipadamente, quaisquer juros, nem foi estipulado o seu vencimento pela quantia mutuada (vide doc. 2). Page 60
Entretanto, a recorrente solicitou, ao abrigo do disposto no art. 35º do Dec.-Lei nº 155/92, de 28/07, a restituição das importâncias pagas.
Este pedido, veio a merecer despacho do Director-Geral dos Impostos do seguinte teor:
Sendo este o despacho de que se recorre e estando ele lançado sobre parecer de outra entidade, a autoridade recorrida perfilhou não só a solução proposta, mas também os respectivos fundamentos.
Ora, os motivos da decisão prendem-se com o facto da recorrente não ter exercido, tempestivamente, os meios de reacção contra o acto tributário ao seu alcance.
Não o tendo feito, e segundo o parecer, «prescreveram os seus direitos à anulação e restituição dos impostos pagos, não tendo o disposto no art. 35º do Dec.-Lei nº 155/92, o condão de restituir à contribuinte a tempestividade de reagir contra as liquidações feitas, que não pôde ou não soube usar.»
Trata-se de uma fundamentação errada.
Provém de erro de direito, pois a norma invocada - o art. 35º do Dec.-Lei nº 155/92 - não tem a interpretação suposta, devendo considerar-se o erro relevante dado que altera por completo os dados essenciais sobre que deve assentar a resolução (Marcello Caetano, in...
Para continuar a ler
PEÇA SUA AVALIAÇÃO- Formulário de Contencioso Tributário
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