The debt recovery attempts often bump with difficulties related to the executive judicial procedures to obtain the credit so several companies opt for the recovery of the VAT as a last resort to cut the losses of one particular commercial transaction.
In order to mitigate this losses the law makers changed the recovery mechanisms of VAT resulting from the non-payment of debts as provided in Art. 78 Paragraph 7 of the VAT Code that “taxpayers can deduct even the tax credits in respect of deemed irrecoverable:
a) In process of execution, after registration as referred to in subparagraph c) of paragraph 2 of Article 806 of the Civil Procedure Code;
b) In case of insolvency when it is ordered;
c) In accordance with agreement reached on extrajudicial conciliation procedure in accordance with Decree-Law No. 316/98, 20/10, as amended by Decree-Law No. 201/2004, of 18 August; Extrajudicial conciliation -Procedimento in the award agreement that enables the recovery of the company insolvent, even if merely imminent, in accordance with Article 3 of the CIRE. ”
So for the recovery of VAT already paid could work, would have to exist:
– An executive action which, by the lack of goods, had been suspended;
– Insolvency proceedings – and it was decreed – (published in DR) and, nevertheless, aware of the conduct of the insolvency proceedings, the taxpayer should be able to prove that your credit has been recognized and unpaid under this process (insolvency); or
– Existence of Conciliation Extrajudicial process according – Procedure mediated by IAPMEI;
On one of the requirements – The Insolvency / Bankruptcy – should be added also that the judgment of the Supreme Court of Justice of 23-02-2005, “in a similar matter, which concerns the recovery of VAT, (…) the term to exercise the right to deduction or refund of tax relating to bad debts in the event of bankruptcy, born with the final judgment of the respective judicial declaration can only be exercised within four years, as amended by Decree-Law No 472/99 of 8 November. “
Vanessa Cruz
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