Acórdão nº 0147/15.9BEPDL de Supremo Tribunal Administrativo, 16 de Dezembro de 2020
Magistrado Responsável: | FRANCISCO ROTHES |
Data da Resolução: | 16 de Dezembro de 2020 |
Emissor: | Supremo Tribunal Administrativo |
Recurso jurisdicional da decisão proferida no processo de impugnação judicial da decisão de aplicação da coima com o n.º 147/15.9BEPDL 1. RELATÓRIO 1.1 O Representante da Fazenda Pública junto do Tribunal Administrativo e Fiscal de Ponta Delgada, inconformado com a decisão proferida pelo Juiz desse Tribunal, que julgou procedente o recurso judicial interposto pela sociedade acima identificada (adiante Arguida ou Recorrida) da decisão administrativa que lhe aplicou uma coima por considerar que a mesma praticou uma contra-ordenação tributária, veio recorrer para este Supremo Tribunal Administrativo.
1.2 Apresentou para o efeito alegações, com o seguinte quadro conclusivo: «A) O presente recurso é motivado pela anulação da coima aplicada pela AT, por incumprimento por parte da ora recorrida do pagamento devido do PEC referente ao ano de 2013; B) O n.º 2 do artigo 106.º do Código do IRC (CIRC) estabelece a fórmula de cálculo do pagamento especial por conta, referindo que «O montante do pagamento especial por conta é igual a 1 % do volume de negócios relativo ao período de tributação anterior, com o limite mínimo de (euro) 1000, e, quando superior, é igual a este limite acrescido de 20 % da parte excedente, com o limite máximo de (euro) 70 000»; C) A Região Autónoma dos Açores aplicava uma redução de 30% do IRC e do PEC no ano de 2013, nos termos dos números 1 e 5 do artigo 5.º do Decreto Legislativo Regional n.º 2/99/A, na redacção que lhe foi conferida pelo Decreto Legislativo Regional N.º 3/2004/A, de 28 de Janeiro, estabelecendo o n.º 1 que «Às taxas nacionais do imposto sobre o rendimento das pessoas colectivas, em vigor em cada ano, é aplicada uma redução de 30%», e o n.º 5 que «A redução referida nos números anteriores aplica-se à percentagem prevista na fórmula de cálculo para o apuramento do pagamento especial por conta, bem como aos limites mínimo e máximo fixados»; D) O Tribunal a quo incorreu em erro de julgamento ao considerar que «o montante do pagamento especial por conta passa a ser igual a 0,7% (e não 1%) do volume de negócios relativo ao período de tributação anterior, com o limite máximo de € 700,00 (e, vez de € 1.000,00) e, quando superior, é igual a este limite acrescido de 14% (em vez de 20%) da parte excedente, com o limite máximo de € 49.00,00 (e não € 70.000,00)»; E) Tendo, em consequência, concluído que «a recorrente pagou o valor de € 21.190,00, a título de pagamento especial por conta, quantia que cifra o valor legalmente devido»; F) Discorda a AT da aplicação da redução dos 30% à segunda percentagem presente na fórmula – a percentagem a aplicar à quantia que seja superior ao limite mínimo, cifrada em 20% – que o TAFPD também reduziu em 30% (para 14%), alterando o resultado final e o objectivo de redução na RAA da taxa do imposto, e que, a aplicar-se da forma como o TAFPD decidiu, implicaria uma redução superior a 30%; G) Por um lado, o legislador estabeleceu no singular a referência à percentagem do n.º 5 do artigo 5.º do DLR n.º 2/99/A, na redacção que lhe foi conferida pelo DLR n.º 3/2004/A: «A redução referida nos números...
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