Banking Secrecy and Fiscal Evasion

Pedro Meneses nº39906

João Tavares nº40639
Pedro Saldanha nº39192
António Magalhães nº39192

Economia
Fiscalidade
Natacha Silva

Data: 28/04/2020
Abstract

The importance of studying tax evasion derives from its effects. The state budget
of public revenues, which could be used to finance public health services, education, public
order and safety, etc., is being damaged by evasion. At the same time, tax evasion also has
negative effects in the market economy, generating unfair competition. The study of tax
evasion is of major relevance in determining the degree of economic, social and even
cultural development of a country. The analysis of tax evasion aims at identifying the
causes that lead to tax evasion, as well as identifying new solutions for higher voluntary
compliance. The work is focused on the analysis of the causes and effects that will indicate
the possible solutions to be applied in order to reduce the phenomenon of evasion tax. The
results of the research show the impact of fiscal policies on the economy and the ways in
which the reduction of tax evasion generates a considerable increase of the macroeconomic
indicators that characterize the economy of a country.

2
Resumo e Palavras Chave

O combate à fraude e evasão fiscal revela-se uma obrigação do Estado já com um longo
histórico, por uma questão de justiça. Para fazer face a este facto, a Autoridade Tributária
(A.T.), através do Plano Estratégico no triénio 2018/2020 implementou medidas para combater
a fraude e evasão fiscal estruturando um plano de ação para aumentar a eficácia e eficiência dos
impostos.

Para isso, foi necessário um maior cruzamento de informação através de um vasto conjunto de
obrigações declarativas e acessórias por parte de todos os agentes económicos.

A A.T. evoluiu, progressivamente, na área da tecnologia nos últimos três anos, no qual está no
grupo de administrações fiscais que lidera a revolução tecnológica na cobrança de impostos,
onde simplifica a relação com os contribuintes e melhora o combate à fraude e evasão fiscal.

Face às medidas implementadas nos Planos Estratégicos da A.T., foi necessário relacionar as
obrigações declarativas e acessórias, a que os sujeitos passivos estão obrigados a cumprir, para
se ter uma perceção do vasto conjunto de informação que é cruzada pela AT, por forma a
detetar as divergências das declarações prestadas e à consequente diminuição de fraude e evasão
fiscal em Portugal.

O trabalho realizado pela A.T. é fundamental neste combate, mas não será único, e só poderá ter
sucesso se for devidamente sustentado numa legislação robusta, numa educação fiscal
consistente e numa ação penal eficaz.

Na realização deste trabalho teve-se o intuito de esclarecer dúvidas sobre qual é o propósito que
o sigilo bancário tem na vida fiscal da sociedade, o seu impacto sobre a privacidade fiscal, quais
os prós e contras de manter o sigilo bancário e a sua relação com a evasão fiscal.

Foram utilizadas diversas fontes: artigos; e-books; documentários de modo a tornar este
trabalho o mais imparcial possível visto ser um tópico que se pode tornar bastante parcial e
influenciado por pontos de vista políticos subjetivos.

Palavras-chave: fraude fiscal, evasão fiscal, medidas de combate à fraude e evasão fiscal,
agressividade fiscal, impostos, taxa efetiva de imposto

3
General Index

Content
1. Introduction..........................................................................................................................9
2.1. Globalization.......................................................................................................................12
2.1.1. Peacock and Wiseman's hypothesis:............................................................................12
2.1.2. The Laffer Curve – “achieving the perfect tax rate”.....................................................13
2.2. Tax evasion and banking secrecy...................................................................................15
2.2.1. Customary Theory..................................................................................................17
2.2.2. Theory of Professional Secrecy....................................................................................18
2.2.3. Theory of Civil Liability..............................................................................................19
2.2.4. Theory of Good Faith...................................................................................................19
2.2.5. Legal Theory................................................................................................................20
3. Combating tax evasion and fraud (2018-2020)...................................................................21
3.1. Tax and Customs Authority (Autoridade Tributária e Aduaneira)..............................21
4. Consequences of Tax Evasion on the National / World Economy.........................................25
4.1. To what extent can the removal of bank secrecy help to combat tax evasion?................27
4.2. How to combat tax evasion without compromising the fiscal privacy that bank secrecy
confers?..................................................................................................................................28
5. Real Cases..........................................................................................................................30
5.1. The Portuguese Case, “Zona Franca da Madeira”. A tax heaven?..................................30
5.2. The Netherlands case......................................................................................................31
5.2.1. The “escape” of the PSI-20..........................................................................................32
6. Concluding Remarks..............................................................................................................33
Bibliography..............................................................................................................................36
Annexes.....................................................................................................................................38

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Figure/Tables Index

Figures
Figure 1 - "Top tech companies by amount held offshore in the U.S.A. in 2014" 9
Figure 2 - Distribution of Tax Havens Worldwide 11
Figure 3 - "Achieving the perfect tax, the Laffer Curve" 13
Figure 4 - The Funambulist Pamphlets - Volume 04" 20
Figure 5 - Countries that receive the most investment from abroad 25
Figure 6 - Estimate loss of state revenue across the E.U. 29
Figure 7 - “Zona Franca da Madeira” 31
Figure 8 - " The escape of the PSI-20 to the Netherlands" 32
Figure 9 - What is the meaning of Tax Evasion? 35

Illustrations

Illustration 1 - "tax weight / tax revenue ratio"...........................................................................12

Schemes

Scheme 1 - "Means in the fight against tax evasion"..................................................................22

Scheme 2 - The Shadow/Undercover Economy in the EU (data from 1995-2006)....................26

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Lista de Abreviaturas (ordenadas por ordem alfabética)

B.E.P.S.- Base erosion and profit shifting

C.E.O.- Chief Executive Officer

C.P.I.- Comissão Parlamentar de Inquérito (Parliamentary Committee of Inquiry)

C.M.V.M. – Comissão de Mercado de Valores Mobiliários (Securities Market Commission)

C.R.P.- Constituição da República Portuguesa (Constitution of the Portuguese Republic)

E.T.R.- Effective Tax Rate

R.G.I.T.– Regime Geral das Infrações Tributárias (General Regime of Tax Infractions)

O.E.C.D. - Organization for Economic Cooperation and Development

6
Glossary

A.E.O.I. - The new global standard on Automatic Exchange of Information (AEOI) reduces the
possibility for tax evasion. It provides for the exchange of non-resident financial account
information with the tax authorities in the account holders’ country of residence. Participating
jurisdictions that implement AEOI send and receive pre-agreed information each year, without
having to send a specific request.

Corporate Governance - The combination of rules, processes or laws by which businesses are
operated, regulated or controlled. The term encompasses the internal and external factors that
affect the interests of a company's stakeholders, including shareholders, customers, suppliers,
government regulators and management.

Fiscal aggressiveness - Actions aimed at reducing corporate taxes, through aggressive fiscal
activities

Tax compliance - Is the degree to which a taxpayer complies (or fails to comply) with the tax
rules of his or her country, for example by declaring income, filing a return, and paying the tax
due in a timely manner.

O.E.C.D. - Is an intergovernmental economic organization with 36 member countries, founded in

1961 to stimulate economic progress and world trade, that is, it is a forum for countries that describe
themselves committed to democracy and the market economy, offering a platform to compare
experiences policies, seek answers to common problems, identify good practices and coordinate the
domestic and international policies of its members. Most OECD members are high-income
economies with a very high Human Development Index (HDI) and considered developed countries.

C.P.I. - Is an index that scores countries on how corrupt their governments are believed to be. The
CPI is published by Transparency International, an organization that seeks to stop bribery and other
forms of public corruption. A country's score can range from zero to 100, with zero indicating high
levels of corruption and 100 indicating low levels. Transparency International launched the index in
1995, and today it scores 176 countries and territories. It is published annually.

B.E.P.S. - It is a technical term used to design aggressive tax planning schemes practiced by
multinational companies or economic groups, which take advantage of regulatory gaps and
asymmetries in national tax systems to transfer, artificially or not, profits to countries with low or
nonexistent taxation.

C.E.O. - represents the highest position in a company's organizational hierarchy, that of

president. This function does not exist in all companies and has long been best known in the
universe of large multinationals. In this sense, where there is no president, the CEO is
represented by the director general, who governs the entire organization and is considered the
most important member of the institution. It is up to the Chief Executive Officer (CEO) to
define the company's vision and mission and make strategic decisions that contribute to its
growth. It is also his role to manage and represent the organization, to be a brand ambassador
and to make public his market positioning vis-à-vis customers, employees, society, competitors,
suppliers, that is, all his stakeholders.

E.T.R. - it is an average tax rate paid by a corporation or individual. The effective tax rate for
individuals is the average rate at which their earned income, such as salaries and unearned
income, such as stock dividends, are taxed. The effective tax rate for a corporation is the
average rate at which its pre-tax profits are taxed, while the legal tax rate is the legal percentage
established by law.

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Tax Haven - Tax havens are countries or jurisdictions where foreign companies or individuals
register to pay less or no taxes. Tax havens guarantee the anonymity of their "customers".

Tax agreements - Tax agreements are written declarations issued by tax authorities,
establishing in advance how a company's tax will be calculated and which tax provisions will be
used. They are legal mechanisms, but European standards may consider that they include state
aid and thus be subject to inspection by the European Commission. The morality of tax
agreements can be questioned by taxpayers when they discover that multinationals may have
less tax burden than other companies.

Erosion of the tax base and profit transfer - The erosion of the tax base and profit transfer
refers, according to the O.E.C.D. (Organization for Economic Cooperation and Development),
to tax planning strategies that exploit the gaps in the international tax system to artificially
transfer profits to places where there is little or no economic activity or taxation, resulting in
little or no taxation on corporate income.

Beneficiary - The beneficial owner is the true owner of a company or other legal entity that
may be hidden under a number of ghost companies. Parliament had already ensured the creation
of central registers by Member States with information on beneficial owners of companies. In
January 2018, MEPs gave the green light to a new law that will allow any citizen to access data
on the beneficial owners of companies operating in the EU.

The common consolidated corporate tax base - In March 2018, Parliament approved the
creation of a common consolidated corporate tax base. Companies will have to pay taxes where
they earn their profits. Your digital presence would also be taken into account; personal data is a
valuable resource used by companies like Facebook, Amazon and Google to create their wealth,
but they are not taken into account when calculating their tax obligations.

Preferential tax regime for patents - The preferential tax regime for patents is a special tax
regime for intellectual property rights created to help encourage innovation. Some EU countries
offer technology companies an exemption from income that can be traced back to patents. In
order to qualify for this type of exemption and pay less tax, some companies have been accused
of applying irrelevant patents to their products. Parliament says that many companies have been
using the exemption as a form of aggressive tax planning. The report of the second special
commission for early tax decisions argues that the European Commission should prohibit its
misuse.

8
 1. Introduction
Since ancient times, civilization, as we know it, is familiar with the payment of taxes in a
context of consideration. Presenting themselves as the main source of state revenue, taxes take
on a redistributive nature according to the objectives of satisfying the common welfare of the
nation. Recently, in a context near the 2008 crisis that the country has gone through and is once
again seeing new signs of its resurgence, this time in more worrying circumstances, not only at
the economic level. The manipulation of this instrument has placed Portuguese companies in the
face of choices whose primary purpose is to maximize the value created by the company itself,
because in the business domain, decisions in the economic-financial context conveyed by the
CEO's mainly depend on this factor, so the design of actions that benefit from existing gaps in
tax matters have been increasingly observed over time. In reality, a company has the right to
increase its resources, by reducing taxes, if these practices are in accordance with the law,
however a strategy whose purpose is to deliberately reduce the impact of the tax burden on the
company's accounting plan, while ensuring non-compliance with the law in force, it gives it an
illegitimate character (Lanis & Richardson, 2015).

The recent confrontation with less ethical attitudes on the part of multinational companies,
which intentionally transferred income to countries with reduced taxation or intentionally
enjoyed tax benefits, proved to be the main preponderant factor for the present reflection, which
is presented, in a national context. As an example, mention only the well-known technological
companies Amazon, Apple and Google whose strategic location of subsidiaries in different
countries allowed the transmission of results, in order to benefit from the existing agreements
and thus limit or even cancel the income taxation. Thus, this work will focus on investigating
and analyzing tax evasion patterns of Portuguese companies and how they try to minimize tax
burdens.

The globalization of financial flows and the easy mobility of people and capital combined with
technological transformation, make total transparency of income movement unfeasible. In this
domain, the O.E.C.D. (Organization for Economic Cooperation and Development) has been
actively implementing actions that mitigate this type of procedures, for example through the
implementation of agreements for the exchange of financial information in tax matters (standard
AEOI), in order to raise reactions conducive to the legislation, where Portugal is said to have
recently adopted this measure (2017). Previously, in 2002, the so-called “Tax Information
Exchange Agreements” were also implemented, with the aim of promoting international
cooperation in tax matters and avoiding, at this level, abusive practices.

Figure 1 - "Top tech companies by amount held offshore in the U.S.A. in 2014"

9
Efforts in this direction are appreciated for the sake of fiscal transparency, but reality dictates
that they are insufficient to mitigate abusive behavior. In a study carried out on tax evasion in
O.E.C.D. countries by Kemme et al. (2017), “the evidence on the impact of these agreements in
this context is reduced, meaning that their effectiveness is low”.

As stated in the Corruption Perceptions Index - CPI for 2018 published annually by
Transparency International, Portugal faces levels of transparency below the Western European
average, validating the existence of some inertia and inefficiency in the fight against sensitive
issues, including the tax segment. On the contrary, the “Strategic Plan to Combat Fraud and Tax
and Customs Evasion” for the years 2018 to 2020, aims to bridge the growing trend of this
phenomenon and encourage voluntary compliance with tax rules. At the corporate level,
concerns are related to aggressive tax planning, since the modification of the tax base is
considered “an immoral practice that seriously affects the functioning of the internal market
”(Strategic Plan to Combat Fraud and Tax and Customs Evasion 2018-2020)”. Also in this plan,
the O.E.C.D. presents a set of common measures against the practice of tax avoidance, through
BEPS1 (Base erosion and profit shifting, whose core purpose is the action plan against erosion
of the tax base and transfer of profits).

Academics, researchers and even your own students have always been concerned with the topic
of tax evasion, in an attempt to better understand this generalized phenomenon within the scope
of corporate tax performance. Although the concept of tax evasion is being debated in
academia, it is consensual to define this term as an “implicit reduction in tax obligations”
(Hanlon & Heitzman, 2010 and Dyreng et al., 2008). On the other hand, the definition of this
term has taken the attention of researchers in order to infer a reasonable boundary between
another similar concept: tax avoidance. Both concepts refer to tax planning, distinguishing
themselves only by the illegal or legal character of their strategies, respectively (Lee, 2017).

It is a difficult topic to observe, in which data are difficult to count and obtain, in addition to tax
avoidance can take different forms. Lisowsky (2010), Wilson (2009), Frank et al. (2009) and
Graham & Tucker (2006) use tax shelters (equivalent to tax havens in Portugal), ERT's
(effective rate of tax) are also used as proxies (intermediaries) by several authors (Thomsen &
Watrin, 2018; Platiknova, 2017; Markle & Shackelford, 2012; Rego, 2003), others still use the
variable tax noncompliance (Lee, 2017). They are distant in the measures they use but have a
common goal: to study tax avoidance / tax evasion behaviors.

That said and extending the current of thought to the national territory, the way to assess it is
through the analysis of effective tax rates, the availability of financial information disclosed.

At the international level, the understanding of these phenomena and their foundations are,
likewise, the target of this study. With tax avoidance taking on extraordinary proportions,
clarification and identification is therefore necessary to make combat systems effective.
Generally, the sector in which they are located, the characteristics of the tax system, the
perception of corruption in the country as well as the proximity to locations with reduced tax
rates, present themselves as causes of this type of positions (Atwood et al, 2010; Lumir
Abdixhiku et al., 2017; Kemme et al., 2017). Not least, the size of the company, the presence of
deferred tax assets, the location of subsidiaries, the different forms of financing, the type of
assets, expenses with research and development, corporate governance, the implementation of
tax compliance systems as well as changes to the tax system, present themselves as
determinants (Gupta & Newberry, 1997; Zimmerman, 1983; Chen et al., 2010; Frank et al.,
2009; Wilson, 2009; Rego, 2003; Lanis & Richardson, 2015; Lee, 2017).

The result of this work lead to the conclusion that in the space of time in question there was
a tax avoidance, the times when the corporate income tax rates are higher or lower than the EU
average. Specifically, the negative link between the erosion of tax-relevant income and the

10
effective decrease in tax expense has been demonstrated, similarly, recourse to indebtedness
seems to have a similar effect.

The present work was organized as follows: in chapter 2, information related to the definition of
concepts and the determinants of tax evasion was presented as long as some economic theories
on the relation between tax rate and tax receipt. In the next chapter, ways of combating tax fraud
between the 2018-2020 period were studied. In chapter 4, the effects of tax evasion on the
economy were discussed and the banking secrecy concept. Finally, Chapter 5 analyzed some
real cases of manipulation of the tax burden.

Figure 2 - Distribution of Tax Havens Worldwide

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2.1. Globalization
In the context of globalization, tax evasion is a phenomenon that affects the economies of
all countries.
A reduction in market entry costs increases the tax evasion ratio, i.e. the amount of taxes
evaded divided by hypothetical tax revenue. The reason is that lower barriers to entry increase
the number of firms and reduce turnover per firm, as output per firm and the market price
decline. Therefore, firms use tax evasion as substitute for market power which they lose due to
more intense competition. Firms evade relatively more taxes in order to compensate for the loss
in revenues. In contrast, lower marginal production costs can reduce tax evasion. This is the
case as a reduction in marginal production costs, ceteris paribus, gives firms an incentive to
increase output, provided this increase does not reduce marginal revenues too much. The latter
condition is shown to be satisfied if market demand is convex. If, additionally, demand is
elastic, then the increase in output will outweigh the reduction in the market price and turnover
per firm will rise. As a consequence, firms evade a smaller fraction of their tax bill. The same
result is obtained if the price elasticity of demand rises. With a more elastic demand function,
the market price and output per firm increases. This results in higher turnover per firm so that its
incentives to evade taxes become weaker.

2.1.1. Peacock and Wiseman's hypothesis:

In a study on UK public expenditure between 1890 and the late 1950s, these authors noted that
public spending did not grow steadily, but that it had jumped between discrete time intervals.
The authors link these leaps to socially disruptive events, such as war.

Their hypothesis is that there is a ceiling on people's tolerance of tax collection. However, in
times of emergency, voters accept increases in both rates and bases. However, voters would get
used to this fiscal effort, which would persist even after the national emergency, with the public
spending remaining, but with a different composition.

In line with the aforementioned, we can see that the State's capacity to increase tax revenue
tends to increase with economic development itself. Not only does the tax base increase, with
the multiplication and complexity of activities, or with the increase in income. But the
effectiveness of the “tax machine” itself has increased. As well as the imagination of the State
agent and the disproportionality of some of his measures.

That said, “too much tax kills tax”, that is, as taxes increase (usually direct taxes like “ I.R.S”
tax) the practice of tax evasion and tax avoidance also increases.

Illustration 1 - "tax weight / tax revenue ratio"

12
2.1.2. The Laffer Curve – “achieving the perfect tax rate”

Economist Arthur Laffer (and others) popularized an idea, originally proposed in a limited form
by North African philosopher and social scientist Ibn Khaldun around AD 1377, that the
relationship between tax rates and tax revenue is not a simple straight line, but that increasing
tax rates beyond some point results in lower tax revenues. Thus, there is a revenue-maximizing
tax rate. Tax rates above this maximizing rate (in the “prohibitive range” according to Laffer)
are counterproductive in that they harm the economy so much, and/or drive enough of it
underground, that tax revenue is reduced due to the loss of taxable income. Tax rates below the
revenue maximizing rate also produce less revenue, but allow the economy to grow faster, thus
such low rates may be desirable.

Governments usually rely on some form of taxation to fund their activities. Thus, one purpose
of the body of tax laws and regulations is to provide income for governments. Other purposes of
taxation (income redistribution, control of business activity, etc.) are outside the scope of this
paper. A model of how taxes affect an economy and how high tax rates can be self-defeating
can provide governments useful guidance on the structure of tax laws. Without such guidance,
as noted by economist Jean-Baptiste Say, “Taxation, pushed to the extreme, has the lamentable
effect of impoverishing the individual, without enriching the state....”

Figure 3 - "Achieving the perfect tax, the Laffer Curve"

Laffer describes the situation thus: “At a tax rate of 0 percent, the government would collect
no tax revenues, no matter how large the tax base. Likewise, at a tax rate of 100 percent, the
government would also collect no tax revenues because no one would be willing to work for
an after-tax wage of zero (i.e., there would be no tax base). Between these two extremes
there are two tax rates that will collect the same amount of revenue: a high tax rate on a
small tax base and a low tax rate on a large tax base.”

Other economists have provided evidence in support of Laffer's statement. A former

member of President Barak Obama's Council of Economic Advisers, Austan Goolsbee,
wrote in 1999 that “by leading people to shift income out of taxable form when rates rise,
high marginal rates and progressivity in the tax code can create a substantial deadweight
loss while raising little revenue, even if the elasticity of labor supply is zero.”

13
Economist John Maynard Keynes wrote “Nor should the argument seem strange that
taxation may be so high as to defeat its object, and that, given sufficient time to gather the
fruits, a reduction of taxation will run a better chance than an increase of balancing the
budget.”

Figure 4 - Laffer Curve - 2004 Data

14
2.2. Tax evasion and banking secrecy

Tax evasion: concept

Tax fraud is a tax crime, provided for and punished in articles 103 rd and 104th of the RGIT.
Some examples, within the scope of business or professional income:

“Omissão da declaração de renda tributável (…); ocultação de fatos,

rendimentos ou valores que devem ser declarados; falha na entrega do
imposto retido na fonte ou do IVA pago (que pode dar origem ao crime
tributário de abuso de confiança, artigo 105º do RGIT); falsa qualificação
de fatos ou transações sujeitas a impostos; falsificação ou viés contábil, a
saber: não contabilização de transações; contabilizar operações fictícias ou
não relacionadas à atividade executada (…); inexistência, ocultação ou
destruição da contabilidade ”(Pereira, 2018)

States have been confronted, on the one hand, with the need to adopt competitive and
attractive tax systems for foreign investors, suitable for promoting economic growth and job
creation, and, on the other, with the need to promote social justice, through the implementation
of a fair and uniform tax system, and so that there is a certain transparency in the system itself.
In an attempt to reconcile these objectives lies the complexity of the tax systems, since a
complex tax system presents itself as an ideal space for more informed taxpayers, or with the
possibility of hiring specialized technical services in tax matters, to take advantage of the
deficiencies existing in the framework legal-tax and thus minimize their tax burdens. The
complexity of the tax system contributes to a material inequality that generates tax injustice, in
as much as it creates modalities that make it possible to avoid paying taxes, further aggravated
by the difficulty that the tax administration has to ensure effective fiscal control.

Minimizing tax burdens means that individuals, acting rationally, seek to pay as little
tax as possible, that is, from the point of view of rationality, taxpayers seek more benefits and
less tax costs. The minimization of tax burdens can be done in three fundamental ways: (i) a
lawful way and admitted by the legislator itself, as is the case of lawful tax planning, through
which taxpayers, natural and legal persons, use the possibilities that the tax legislator puts at
your disposal in relation to the payment of taxes and that is why we are within the scope of an
“intra-legem” action; (ii) or illegally through tax evasion behavior in which there is a frontal
violation of the law, therefore “contra-legem” action; (iii) an intermediate route between what
is clearly lawful and what is illegal which corresponds to tax avoidance, sometimes also called
abusive tax planning, associated with “extra-legem” behavior. Thus, when dealing with matters
related to the phenomenon of tax evasion and fraud, a first problem clearly arises, which is
precisely that of its terminological delimitation.

The question of linguistic differences between countries leads to great conceptual

discrepancies due to the fact that it is a topic theorized in different world languages, so it is
essential to adopt concepts that promote terminological harmonization, which is essential to this
area of strong importance. cross-border and multilingual component. Therefore, tax evasion
designates behaviors that circumvent the tax law, and in which the inconsistencies and flaws of
the tax law are exploited to obtain benefits, and for that reason it is already in an area of “extra-
legem” action since they are behaviors outside the law . It constitutes a complex social
phenomenon present in most countries, which corresponds to the deliberate and fraudulent
failure of taxpayers to pay mandatory taxes, thus having serious consequences for economic
development and social justice, against which the main international organizations claim to be
fundamental to fight. Most of the doctrine tends to accept that tax evasion involves illicit

15
behavior that goes against the tax purposes of the legal system, however there are positions that
argue that individuals have the right to choose the most advantageous tax route, that is,
defenders of freedom of planning. Tax planning refers to cases in which it is intended to adopt a
set of strategies as lawful and legitimate, that is, “intra-legem”, which results in a lower tax
burden and only this is legitimate.

Tax evasion is not just about reducing public revenues and eroding the tax base.
Tax evasion has been fought from a legal point of view, for example, through the
implementation of anti-abuse clauses that are legal instruments, provided for “in tax laws”,
aimed at combating tax evasion practices, and which can take two forms: the general anti-abuse
clauses and the specific anti-abuse clauses that mostly relate to tax havens and transfer pricing,
among other privileged situations that constitute a risk and that must be regulated through anti-
abuse clauses. Although it is not possible to characterize all forms of tax evasion, in the
following sections we analyze the abusive tax practices most frequently used by these
companies, namely, transfer prices and tax arbitration.

Banking Secrecy: Concept

Bank secrecy is a theme with a vast amount of theories and that is more and more
frequently witnessing doctrinal discussions to better discipline in legal matters. In a new culture
of information and communication, where technological means are increasingly dominating in a
broad and fast way, capable of storing an unimaginable amount of information and transmission
at a global level, these means end up dehumanizing man. In this sense, the reserve of privacy is
questioned. (Carinae Carla, 2010).

Banking secrecy is first and foremost a duty to describe the economic and personal life
of all citizens, which maintains relations with banking institutions that aim to protect public and
private interests. It is in this perspective of protecting public and private interests that our
jurisprudence of the Constitutional Court, in its Decision 278/95 of 31 May 1995, assumes that
public interests aim to regulate the functioning of banking activity, where a climate of trust is
assumed that institutions deserve. On the other hand, in the judgment, the protection of private
interests is also emphasized since there is a delivery of personal information about the
patrimonial and economic situation of its clients. The approach to banking secrecy cannot end
with a mere protection of public and private interests, but it also includes contractual liability
also known as contractual theory, civil liability, professional secrecy, the right to personal
privacy, the secrecy of data and customary theory.

16
2.2.1. Customary Theory

The customary theory goes back to the times of customs and commercial practices, in
which banks preserve secrecy, that is, since bank contracts are acts of commerce, they must be
interpreted with the customs and practices of long ago, as explained by a Spanish jurist
Garrigues (1958: 51):

“Em nossa opinião, o fundamento do dever de segredo que têm os bancos

há que buscá-lo uma vez mais em normas usuais de vigência geral, e o
fundamento, por sua vez, deste uso bancário há que buscar na natureza
antes apontada do contrato bancário como uma relação de confiança.
(..........) Os remotos antecedentes deste uso bancário se situam por algum
autor nas operações do trapezista grego, mas é nos estatutos dos bancos
criados na Europa a partir do século XV que se encontram cláusulas pelas
quais o banco se compromete a guardar cuidadoso segredo de suas
operações com a clientela (....)”
This theory presents only a legal relationship between social and non-legal relations. It does not
explain the origin of bank secrecy, only its formal origin.

The right to reserve the intimacy of private life

The right to reserve the privacy of privacy is provided for in art. 26th of the Portuguese
Constitution (CRP), in the following terms:

“A todos são reconhecidos os direitos à identidade pessoal, ao

desenvolvimento da personalidade, à capacidade civil, à cidadania, ao bom
nome e reputação, à imagem, à palavra, à reserva da intimidade da vida
privada e familiar e à proteção legal contra quaisquer formas de
discriminação.”
The right to privacy is a relatively recent constitutional acquisition whose origin goes
back to the 1976 Portuguese Constitution. It was with the 1976 Basic Law that the right to
privacy started to gain some relevance, since it was enshrined in article 33rd, nowadays 26th.
This enshrines a set of common rights, inasmuch as it presents a general right of the personality
of the human person.
Gomes Canotilho e Vital, Moreira (1993: 181) wrote that - the right to reserve the
privacy of private and family life is analyzed “mainly in two minor rights: (a) the right to
prevent strangers from accessing information about private and family life and (b) the right to
no one disclose the information you have about the private and family life of others (art. 80
Civil Code) ”. In this sense, art. 25th, no. 1 of the CPR (Constitution of the Portuguese
Republic) sublimates that “The moral integrity of people is inviolable.”, As well as art. 12th,
paragraph 1 “All citizens enjoy their rights and are subject to the duties enshrined in the
Constitution.” Every human person has legal personality, rights are born with the person,
everyone has the right to life, to the good name, to health, to their personal intimacy and to all
other rights inherent to the human condition. In this sense, this theory is based on the right to
privacy, which includes in the list of personality rights, the foundation of financial secrecy,
which has the aim of guaranteeing people's right to private life. In the case of banking secrecy in
Switzerland it is the privacy of the citizen.
Covello (1991: 137) defends the theory at his disposal:

“O sigilo bancário existe para proteger a intimidade do cidadão. Esta é a

sua causa de ser. Sua causa final. Os bancos, no exercício de seu comércio,
adentram na vida privada de seus clientes e outras pessoas, inteirando-se
de dados, aos quais, não fosse o desempenho de seu mister, jamais teriam
acesso, porque geralmente aparecem excluídos do conhecimento alheio. Se,

17
 para exercer sua profissão, os bancos adentram na esfera da intimidade das
pessoas, logicamente devem respeitá-la. Na intimidade, incluem-se tantos
fatos de ordem espiritual como de ordem material, valendo ressaltar que o
património e atividade negocial de uma pessoa constituem,
indubitavelmente, projeção de sua personalidade, máximo e numa
sociedade capitalista como a ocidental, e é muito compreensível que as
pessoas tenham interesse em preservar este aspeto da personalidade da
indiscrição alheia. Nota-se, em quase todas as pessoas, certo pudor natural
no que concerne à soma de seus bens, ao seu ordenado, a sua renda, a suas
dívidas e a seu sucesso ou fracasso nas operações..."
However, many authors disagree with this position because they believe that rights are
innate, born with the person, the right to life, health, a name, physical integrity, honor, to have
an intimate life, among others but no one born with the right to bank secrecy, because wherever
he is born there may be no banks, or he may never become a customer of an institution. The
concept of banking secrecy was born before the notion of personality rights, which is why many
authors suggest that secrecy is only for protection in commercial activity. On the other hand,
intimacy is understood as something that is attached to the interior of each one. If banking
activities generate new rights relations with other holders, it is no longer a matter of mere
intimacy. It cannot be admitted that in the name of a subjective right the individual may harm
the subjective right of others. Therefore, it is not possible to admit absolute banking secrecy.

2.2.2. Theory of Professional Secrecy

The theory of professional secrecy is designed to protect a specialized range of

professional activities, in the exercise of which, from the outset, are bound by the duty to relate
to people they trust. In this sense, it is obvious that there is a trust and a right to secrecy as the
corresponding duty. In other words, banking secrecy is based on a need to protect banking
activity where relations with customers and institutions are maintained on a basis of trust.
Professional secrecy is based on the fundamental principle of the inviolability of the individual,
in aspects related to the sphere of his private life, namely manifestations of a moral, artistic,
economic, legal, sentimental, intellectual, religious, physical nature. The basis for bank secrecy
is thus identified with the existence of a duty of professional secrecy. The defense of this legal
asset assumes a fundamental value in banking activity, “due to the special function of banking
to create, manage and improve the circulation channels of “capitals” (Pires, 1995: 79),
guaranteeing the security of savings. This security presupposes an atmosphere of trust and
description:

“Todas as informações resultantes da celebração de contratos, a que os co-

contratantes tenham acesso, devem ser objeto de sigilo sob pena de lesar as
relações de confiança entre estes. O dever de segredo, para além de ser
implícito nas relações contratuais, é também imposto por deontologias
profissionais. O segredo profissional resulta da necessidade social de
confiança em determinados profissionais.” como é o caso dos médicos, dos
advogados, entre muitos outros.”
Considering the relationship between a banker-client and a contract, we are witnessing
the evolution of the concept of duty of secrecy in general to banking secrecy. The duty of
banking secrecy is of fundamental importance since the movements that individuals make
before their banking institution reflect a large part of their life. Namely, the restaurants he
frequents, stores where he buys personal goods, trips. When making their purchases
electronically, the customer allows his bank that, with historical data, can draw a profile of his
customer's consumption and, through this profile, he can reach political, religious ideologies,
etc. This fact is sufficient to understand the need and the rigor that is imposed on banking
secrecy. To this extent, banking secrecy has “been the subject of considerations regarding the

18
emergence of computerized databases and various diplomas designed to protect people's rights,
in view of the resulting dangers.” (Cordeiro, 2001: 345). The foundation of banking secrecy is
based on the principle of protecting the privacy of individuals, the right to privacy and that these
principles must prevail over the right to information. The duty of secrecy is regulated by article
78th, no. 1 of the General Regime of Credit Institutions (RGIC) and art. 84th of the same
regime that decides that its violation is punishable under the terms of the Penal Code (“Código
Penal”) in Articles 195th to 198th. Therefore, the foundation of banking secrecy is identified
with professional secrecy. Based on Portuguese legislation and according to José Maria Pires,
the duty of secrecy can be established in the following terms:

“Dever profissional, a que estão adstritas determinadas pessoas, de não

revelar ou utilizar informações sobre factos ou elementos respeitantes à
vida de instituição de crédito ou sociedade financeira ou às relações destas
com os seus clientes cujo conhecimento lhes advenha exclusivamente do
exercício das suas funções ou da prestação dos seus serviços. O dever de
segredo deve criar, fomentar e estimular condições de confiança que devem
presidir às relações entre as instituições e os clientes, sejam estas pessoas
singulares ou coletivas.”

2.2.3. Theory of Civil Liability

The theory of civil liability is generally based on the fact that secrecy is based on the
bank's obligation not to disclose its customers' secret data and information, with losses for them.
In the case of banking secrecy, namely financial secrecy, it is the responsibility of financial
institutions for the losses they may cause to customers or third parties.
As Covello expresses (2001:

“Na verdade, a responsabilidade civil é relação derivada que só aparece

quando se descumpre uma outra obrigação que a antecede, isto é, quando
alguém desatende a uma norma preexistente. A responsabilidade civil
funciona como sanção e instrumento de reparação do prejuízo sofrido, mas
não embasa nenhum direito, a não ser o direito ao ressarcimento.[...] a
teoria da responsabilidade civil pode levar ao extremo de concluir que o
sigilo bancário só obrigaria o Banco quando a violação do segredo pudesse
causar algum dano material ao titular da situação protegida, o que não se
harmoniza com a realidade da figura em estudo, apesar de a noção de dano
ser bastante ampla na doutrina moderna. A tese, no entanto, tem o mérito
de ressaltar que a notícia coberta pelo sigilo pode não derivar da relação
contratual cliente/Banco, validando, assim, o conceito amplo de sigilo
bancário, e de indicar que esse sigilo é um direito que deve ser respeitado
sob pena de sanção.”
The theory of good faith is based on the general principles of fundamental rights to
support the derogation from bank secrecy. It is a theory very similar to customary theory since
the principle of good faith derives from the customs and practices of banking and commercial
activities. Covello analyzing this theory points to some shortcomings:

2.2.4. Theory of Good Faith

The theory of good faith is based on the general principles of fundamental rights to
support the derogation from bank secrecy. It is a theory very similar to customary theory since
the principle of good faith derives from the customs and practices of banking and commercial
activities. Covello analyzing this theory points to some shortcomings:

19
 “A teoria da boa fé ou do dever de lisura é válida, mas não satisfaz.
Primeiro, porque não deixa de ser uma teoria contratualista, ressentindo-
se, assim das mesmas falhas dessa corrente de pensamento. Segundo,
porque o dever de lisura só pode ser invocado, como fonte de obrigação, em
países como a Itália, onde existe consagração legislativa expressa. Nas
legislações onde falta regra parecida, esta teoria não encontra amparo que
lhe dê validade, a menos que se recorra aos princípios gerais de direito –
porquanto a boa fé como o dever de lisura são princípios gerais do direito –
e, então chegaremos ao direito natural, cujo princípio básico é fazer o bem
e evitar o mal.

Além desses senões, a teoria não dá o fundamento do sigilo bancário,

porque não aponta, senão de passagem, o fato do qual decorre a
obrigação.”. (2011)

2.2.5. Legal Theory

According to this theory, the legal basis of bank secrecy is based on the law. All the
theories enunciated have a relation with the legalist theory since the main source is the law, both
in terms of principles, customs, contracts and responsibilities. The problem with its reasoning
lies in the fact that there is no way in the legal systems in which this obligation is confirmed.

Figure 5 - The Funambulist Pamphlets - Volume 04"

20
1. Combating tax evasion and fraud (2018-2020)
1.1. Tax and Customs Authority (Autoridade Tributária e Aduaneira)
The Tax Authority (Autoridade Tributária), is a central service of the Portuguese
Ministry of Finance, integrated in the direct administration of the State and endowed with
administrative autonomy.
The Tax Authority’s annual strategic plans highlight its vision, mission and values that match its
attitude towards combating fraud and tax evasion.
As a vision, the central service tries to respond effectively to the challenges that the economy
presents, in order to reduce fraud and tax evasion, using quality technological means and human
capital, constituting a reference in the Portuguese public administration for the provision of a
public service of Quality.
Consequently, the mission involves administering taxes, customs duties and other taxes that are
attributed to it, as well as exercising control over the external border of the European Union,
and the national customs territory, for tax, economic and social protection purposes, in
accordance with the policies defined by the Government and European Union law.

In accordance with Article 2nd of Decree-Law No. 118/2011 of 15 December, with a view to
continuing its mission, it pursues the following tasks:

 Ensure the settlement and collection of taxes on income, wealth and consumption,
customs duties and other taxes that are responsible for the administration, as well as
collect other revenues from the State or public bodies under public law;

 Exercise tax and customs inspection action, guarantee the application of the rules to
which goods introduced in the territory of the European Union are subject and carry out
controls related to the entry, exit and circulation of goods in national territory,
preventing, investigating and fighting against tax and customs fraud and evasion and
illicit trafficking, within the scope of its duties;

 Exercise tax justice action and ensure representation of the Public Treasury before the
judicial bodies;

 Ensure technical negotiation and implement international agreements and conventions

in tax and customs matters, cooperate with European and international organizations
and other tax and customs administrations, and participate in the work of European and
international organizations specialized in their field of activity;

 Promote the correct application of legislation and administrative decisions related to its
attributions and propose the normative, technical and organizational measures that
prove to be adequate;

 Develop and manage the infrastructures, equipment and information technologies

necessary to carry out its duties and to provide support, clarification and quality
services to taxpayers;

 Conduct and promote technical and scientific research in the tax and customs field, with
a view to improving legal and administrative measures, the permanent qualification of
human resources, as well as the necessary support to the Government in the definition
of fiscal and customs policy;
 Inform taxpayers and economic operators about their tax and customs obligations and
support them in complying with them;

21
  Ensure the licensing of foreign trade for products typified in special legislation and
manage the restrictive regimes of the respective foreign trade.

Core Values of the Tributary Authority:

Organizational Ethics, where it will guarantee, both to taxpayers and economic agents with
whom it relates, and to its employees, a relationship based on principles of justice and equity.

Transparency, where it provides all the information related to the tax and customs relationship it
maintains with citizens, societies and other types of legal persons, in an open, clear and timely
manner, to all interested parties who, under the law, are entitled to access that same information.

Impartiality, relates to taxpayers in an objective and impartial manner, always bearing in mind
that all citizens are equal before the law.

Accountability, guarantees the accountability of its activity and performance to all citizens,
making this information publicly available.

Collaboration, where it collaborates with other national and international bodies in pursuing the
public interest and provides citizens with an effective and appropriate service.

Professionalism, provides citizens with a high level of technical service based on the domain, by
their employees, of a diverse range of skills.

Innovation, adopts an open and receptive attitude to innovation, promoting both the
development of new work and management instruments, as well as the dissemination of
knowledge and best practices from international tax and customs administrations.

In the fight against tax and customs fraud and evasion, the Government has
implemented strategic measures as a way to guarantee a fair distribution of the tax effort and to
sanction tax defaults in a more effective way. With the behavior of fraud and tax evasion, the
loss of revenue caused by these behaviors, known as parallel trade, deprives the State of the
collection of revenue necessary to meet the State Budget.
 In this context, it must adopt strategies that aim to facilitate and encourage compliance with tax
obligations and the sustained increase in levels of voluntary compliance. Likewise, they must
deter, detect and penalize non-compliance, increasing the perception of risk and costs associated
with non-compliance.
Scheme 1 - "Means in the fight against tax evasion"

Legislative Tax education

Tax Tax Tax justice

Inspection control
nnnn

Prosecution

22
Strategic Plan for 2018-2020

The Strategic Plan to Combat Fraud and Tax and Customs Evasion for the 2018-2020 three-year
period highlights the efforts that are intended to be taken in the fight against fraud, tax evasion
and the black economy, based on three strategic vectors of priority intervention:

• Reinforce the Fight against Fraud and Tax and Customs Evasion and the Parallel
Economy;
• Intensify National and International Cooperation and Guarantee the Protection and
Security of the External Border;

• Simplify and Promote Voluntary Compliance with Tax and Customs Obligations.

Through this Strategic Plan, the Government proposes, in the context of these three
strategic vectors of priority intervention, the implementation of a wide range of measures in the
areas: legislative, operational, penal, institutional relationship with other national and
international public entities and relationship with the taxpayer.
In the legislative sphere, the Government's priority will be to ensure the fairness of the tax
system, namely through the strengthening of national rules aimed at combating the erosion of
tax bases and the transfer of profits to other jurisdictions.
At the operational level, the priority will be to implement a set of measures that will make
operational a more effective and more efficient fight against tax and customs evasion and
evasion, leading to an increase in voluntary compliance levels.
Regarding strategies in the criminal sphere, the measures will be oriented towards a faster and
more effective sanctioning of behavior that is harmful to the interests of the State and citizens.

Within the scope of the relationship with the taxpayer, the Government will bet on
measures that promote voluntary compliance by taxpayers, namely, in terms of simplifying the
language of communication and improving the quality and availability of service through
multiplatform channels.
Within the scope of institutional relations with other national and international public entities,
the Government will have the benefit of permanent contact with these entities, as well as an
increase in cooperation and information exchange mechanisms.
It’s fundamental objective of is to raise the levels of voluntary compliance by taxpayers through
two main areas of action: simplifying and supporting.
In this Strategic Plan, the strategies of action in the face of citizens' behaviors must be different,
with the following model:

• Simplify: For taxpayers who are willing to comply voluntarily, simplification

strategies and support for compliance have been followed, in which examples are the alerts and
massive communications through electronic mail or using the media.

• Supporting compliance: The strategy involves informing or, alternatively, relieving

them of the need for knowledge, reducing obligations or replacing the taxpayer himself in
fulfilling them (for example, automatic “I.R.S.”).

• Control: For taxpayers who try not to comply due to the high costs associated with
compliance, the measures will obviously aim to reduce those costs. This can be achieved by
simplifying procedures and / or legislative simplification. The use of new technologies has
already made it possible to reduce or eliminate the costs of taxpayers' physical travel.

• Combat: For taxpayers who fail to comply because there is an opportunity to do so,
the action strategy should focus on reducing these opportunities by increasing the perception of
risk. Therefore, the strategies implemented are: divergences, unofficial settlements and field

23
validations in declarations delivered via the internet or existence of pre-filled fields using third
party data.

It is important that society in general understands that fraud and evasion lead to slower
economic growth and greater difficulty in guaranteeing quality public services, as it is on the tax
revenue that all basic services provided by the State are based, such as health, safety or
education.
In short, the presence of Inspection by it on the ground has a strong preventive effect on society
in general, as it increases the perception that non-compliance has a high probability of being
detected and corrected, which will necessarily contribute to maintaining high levels of voluntary
compliance.

This strategic plan addresses the topic of information and communication technologies,
which is currently under development, where we have observed in recent years that it has been
an accelerator in the digital transformation process of organizations. There is an evolution of tax
administrations in terms of digital transformation, where AT has already taken some steps in all
the following five levels:

• e-Filing: mandatory or optional electronic submission forms (for example, Electronic

Declarations);

• e-Accounting: periodic submission of accounting, invoicing and other relevant data in

a standard electronic format (namely, e-Invoice and IES);

• e-Matching: crossing of information based on information from third parties, and

from the taxpayers themselves, enhancing the control of value chains (such as Alerts
and Differences);

• e-Audit: inspections carried out based on electronic records (namely through the
SAF-T);

• e-Assessment: filling and automatic settlement of declarations based on the

information available of which the IRS Automatic is an example.

24
4. Consequences of Tax Evasion on the National / World
Economy
Tax evasion has visible effects on the Portuguese economy: directly because it has a
negative effect on the budget deficit and on investment in public goods and, indirectly, because
it reduces budget revenue, namely through the growth of economic activities where tax evasion
presents itself at an attractive level.
In practice, it is the phenomenon of tax evasion that consists of the true “evasion of taxes”,
carried out through the direct violation of certain rules enshrined by the legislator, and more
specifically in the direct violation of those that involve duties of cooperation to be fulfilled by
the taxable person. It is certain that it would not be plausible to include all the behaviors
practiced by the taxable person and considered to be illicit in the concept of tax evasion, which
would be excessive, so it will be necessary to take this definition into account. Now, as a direct
consequence of the execution of these acts considered to be unlawful, the taxable person will be
charged with certain tax infractions, of administrative or criminal scope, depending on the type
and severity of the offense, which will result in the resulting application of a sanction, and
which we will deal with. The crime of tax fraud is usually confused with the phenomenon of tax
evasion, the former usually being associated exclusively with its content. However, it cannot be
so understood. The crime of tax fraud will correspond to the practice of an infraction of the
taxable person that is related to the phenomenon of tax evasion, but tax evasion is not limited to
the crime of tax fraud.

 Tax evasion designates behaviors that circumvent the tax law, and in which the
inconsistencies and flaws of the tax law are used to obtain benefits, and for that reason it is
already in an area of “extra-legem” action since they are behaviors outside the law. It
constitutes a complex social phenomenon present in most countries, which corresponds to the
deliberate and fraudulent failure of taxpayers to pay mandatory taxes, thus having serious
consequences for economic development and social justice, against which the main
international organizations claim to be fundamental to fight.

Figure 6 - Countries that receive the most investment from abroad

25
 In the current scenario, tax evasion has reached a very worrying dimension, which has
led, as already mentioned, to an erosion in the national tax bases because “when there is
evasion, the tax administration will not be able to know the taxable fact, therefore, it will not be
able to settle the tax. ”The explanation for this phenomenon is related to the crisis in the
financial system and the world economy, encouraging a recourse to the black or “unregistered”
economy, which is the type of economy common to all countries that escapes taxation
processes, demonstrating the rationality effect of taxpayers who prefer the least costly and most
advantageous route.

It also has serious consequences in terms of equity as it ends up benefiting those who
have knowledge / information or those who have the financial capacity to pay tax advisers in
order to prepare tax planning, the elites, as well as aggravating tax injustice as they if there are
high levels of tax evasion in a society, someone has to pay taxes instead of those who do not, so
that public services can be financed. This tends to demand more taxes from those who are less
able to pay, in general groups that cannot resort to sophisticated evasion mechanisms. And it has
consequences in terms of worsening the tax burden, as the solution is to raise taxes for
compliant individuals, which is a bad sign for foreign investors and a factor in the country's loss
of competitiveness.

Scheme 2 - The Shadow/Undercover Economy in the EU (data from 1995-2006)

“The principle is simple: evasion and fraud cannot decrease the total
amount of revenue that the State needs, and then, in order to obtain it,
complying taxpayers – the “geeks” of the tax system - are overburdened - to
compensate for what it is not possible to obtain from the non-compliers”
(Pereira, 2018)

26
4.1. To what extent can the removal of bank secrecy help to combat tax evasion?
This topic will present to what extent the breach of bank secrecy helps to combat tax
evasion and international tax avoidance. As we know, both evasion and avoidance are
maneuvers used by taxpayers in order to decrease, delay or hide the tax due. In which the
harmed States to try to combat such practices seek, by breaking bank secrecy, to compare the
data contained in the taxpayer’s accounts and financial transactions with the information
obtained from the tax declarations they receive. This measure to break bank secrecy in the
interest of collecting and inspecting taxes is one of the ways to combat international tax evasion.
Data confidentiality is characterized as a fundamental right of the individual, inviolable. In
order to resolve this impasse, a balance of constitutionally protected interests is proposed.

There are several causes that lead the taxpayer to evade taxes, and can quote, by way of
example, from the lack of knowledge of the law to the feeling of tax injustice. With the
consequences of reducing the collection by the Tax Authorities and the imbalance in
commercial relations. That results from the violation of the principle of equality, overburdening
taxpayers who comply with their fiscal duties. Being analyzed the protection that the
Constitution gives to taxpayers, the influence exercised by the model of Democratic State of
Law and, in parallel, the repercussion of the insertion of the duty to pay taxes as a fundamental
duty. In which the weighting of constitutionally protected interests will be proposed as a
solution to the question of the constitutionality of the bank breach measure, in order to minimize
the problem of tax evasion and international tax avoidance.

Banking secrecy, today, is understood as the duty of banks to keep information and
documents related to the financial transactions of their customers secret, ensuring the security
that information about banking transactions that do not reach third parties. All the protection
afforded to the account holder collides with the inspection activity of the public entity of
compliance with tax obligations. This being unable to check the veracity of the declarations and
payments made by the taxpayers. On the other hand, there are still problems related to the lack
of tax awareness and the heavy tax burden, which are the main causes of tax evasion and tax
avoidance practices. Thus, breaking bank secrecy is a necessary measure to contain the problem
of tax evasion, since the tax authorities were given the function of supervising and collecting
taxes. Access to the taxpayer’s financial transactions is inherent in the inspection competence,
that is, it will investigate the taxpayer's papers and documents, representative of their business
and personal operations, chosen by the legislator as the cause for paying taxes, as well as also
investigating papers and third-party documents relating to these taxpayer transactions that
constitute a legal function, ordinarily granted to an administrative authority, which has
unlimited power to choose the time, and the convenient and timely way, to fulfill this
supervisory function. The Constitution, in turn, protects the confidentiality of data as an
expression of fundamental rights of the individual.

We conclude that the lack of bank secrecy is one of the measures that helps in
combating tax evasion and tax avoidance. Individuals, due to lack of knowledge of the law, or
feeling that the tax system is unfair towards them seek through tax evasion and tax avoidance to
achieve some form of unlawful social justice, or at least, in their own eyes, but this creates
moral ambiguity and problems in it of it’s own. Making it appealing for governments who see
their public budgets harmed by these fiscal attitudes to resort to means such the removal of bank
secrecy, in order to be able to address such individuals, because, by having access to their
accounts and financial transactions, the government is able to obtain the tax returns that they’ve
received and confront them with this evidence thus showing that the breach/removal of bank
secrecy is one of the most effective measures in combating tax evasion and tax avoidance.

27
4.2. How to combat tax evasion without compromising the fiscal privacy that
bank secrecy confers?
There are several measures to combat tax evasion, in which we will analyze some of these
measures at this point.
One of those measures that has been combating tax evasion from the legal point of view is the
implementation of anti-abuse clauses, which are legal instruments, provided for in tax laws,
aimed at combating tax evasion practices, and which can take two forms: the clauses general
anti-abuse and specific anti-abuse clauses that mostly relate to tax havens and transfer pricing,
among other privileged situations that pose a risk and have to be regulated through anti-abuse
clauses.
Another measure that we will analyze is the Tributary Authority. Having annual strategic plans
as evidence of the it’s vision, mission and values that meet it’s attitude towards combating fraud
and tax evasion. In which his vision will effectively respond to the challenges that the economy
presents, in order to reduce fraud and tax evasion, having at its disposal technological means of
quality and human capital, constituting a reference in the Portuguese public administration for
the provision of services.

In order to continue its mission, in accordance with Article 2nd of Decree-Law No. 118/2011 of
15th December, the Tributary Authority continues with the following duties:

• Ensuring the settlement and collection of taxes on income, wealth and consumption,
customs duties and other taxes that it is responsible for administering, as well as collecting and
collecting other revenues from the State or public bodies under public law;

• Exercise tax and customs inspection action, guarantee the application of the rules to
which goods introduced in the territory of the European Union are subject and carry out controls
related to the entry, exit and circulation of goods in the national territory, preventing,
investigating and combating tax and customs fraud and evasion and illicit trafficking, within the
scope of its duties;

• Exercise tax justice action and ensure the representation of the Public Treasury with
the judicial bodies;

 • Ensure technical negotiation and implement international agreements and conventions

in tax and customs matters, cooperate with European and international organizations and other
tax and customs administrations, and participate in the work of European and international
organizations specialized in their field of activity;

• Promote the correct application of legislation and administrative decisions related to

its attributions and propose the normative, technical and organizational measures that prove to
be adequate;

• Develop and manage the infrastructures, equipment and information technologies

necessary to carry out its duties and to provide support, clarification and quality services to
taxpayers;

 • Conduct and promote technical and scientific research in the tax and customs field,
with a view to improving legal and administrative measures, the permanent qualification of
human resources, as well as the necessary support to the Government in the definition of fiscal
and customs policy;

28
 • Inform taxpayers and economic operators about their tax and customs obligations and
support them in complying with them;
• Ensure the licensing of foreign trade for products typified in special legislation and
manage the restrictive regimes of the respective foreign trade.
Figure 7 - Estimate loss of state revenue across the E.U.

29
 5. Real Cases
5.1. The Portuguese Case, “Zona Franca da Madeira”. A tax heaven?
Not being the objective of this work an exhaustive analysis of the problems of “Zona Franca da
Madeira”, it is nonetheless interesting and important to understand whether or not stasis is a
Tax Haven.

It’s is located in the Autonomous Region of Madeira and is characterized by being a privileged
tax regime, with a special tax status approved by the European Commission. It has a specific
State aid regime, not violating the principles enshrined in the Treaty of Rome and the
Portuguese Code. This regime aims to contribute to promote employment, investment and
taxation taking into account the international competitiveness of the Portuguese economy. It
lays on itself the objective of regional development, overcoming the constraints of the
outermost region and strong economic dependence. It has often been referred to as the
Portuguese offshore. But should this regime be seen as a tax haven?

“Zona Franca da Madeira” is completely transparent and the same rules regarding inspection,
control and supervision apply in the national territory, not being part of the list that identifies tax
havens published by the OECD. The most striking feature, from a tax point of view, is the fact
that it is effectively a low tax area, however it has always collaborated with the authorities in
sending information and is subject to supervision.

It is true that “Zona Franca da Madeira” is a low-tax territory and therefore falls easily into the
concept of tax haven, with regard to the criterion that determines tax haven as being a taxation
jurisdiction that is frankly lower than what it would be normal (for example, the income
taxation rates, practiced in the region, are considerably lower than those practiced by mainland
Portugal - well below the 60% that Portuguese Law determines to consider a more favorable
area in terms of taxation) , but it is also true that this region has been subject to permanent
approval by the European Commission.

This place is considered to be an outermost area of the European Union, similar to the Canary
Islands and it is through this statute and with the objective of developing the Autonomous
Region of Madeira, which benefits from a State aid regime and which it has approval by the
European Commission and is therefore subject to Brussels control. It is subject to state
supervision and regulation. That is, for example, financial institutions operating in the region
are subject to the supervision of Banco de Portugal, like any financial institution operating in
Portuguese territory and, consequently, subject to the necessary authorizations by the regulator
as well as the provision of adequate minimum capital. operations that intend to carry out or
maintain guarantees to which they are legally obliged, to the same extent as financial
institutions operating in the remaining Portuguese territory.

The entities operating in the area are obliged to comply with the declarative tax rules and to
carry out the necessary records of the acts required to do so, as is the case with all entities
operating in the rest of Portuguese territory. With these characteristics, the absence of
transparency and an opaque environment surrounding the operations taking place in the region
are ruled out.

Licensed entities in this area are obliged to create jobs locally and this fact brings to the territory
somehow some substance to the activities that these entities carry out in this territory. On the
other hand, the entities that are installed in the area, in addition to being required to have
organized accounting according to the same rules to which all entities in any part of the

30
Portuguese territory are obliged, are also obliged to maintain an accounting that allows to
evidence separately the activities that are attributable to the area, which reflects some
transparency for the operations developed there.

Also in terms of information to be provided to other States, the region follows the same rules as
entities that are anywhere in Portuguese territory. The concept of a tax haven is not consensual
and it would be exaggerated to admit that the area is not at all a tax haven.

It would not be necessary to elaborate a study of great depth to be able to affirm, that
this region also shows signs and lets pass some situations that refer this territory to a
classification of fiscal paradise. It could be said that it is a legal tax haven or offshore, if not
more, because it is authorized by the European Union and with the appropriate permission from
the OECD, as it is not on its list of tax havens.

Figure 8 - “Zona Franca da Madeira”

5.2. The Netherlands case

The Netherlands does not tax dividend income from resident and non-resident
companies, which means that a holding company resident there is exempt from the taxation of
dividends it receives from subsidiaries based in Portugal, contrary to what would happen if the
holding company had its headquarters in Portugal ( art. 20º, nº 1, c) CIRC). In addition to this
“exemption from participation” or “exempt participation” regime, there is also the possibility of
“negotiating” in advance with the Dutch tax authorities the tax regime applicable to a given
business structure (“advance ruling”), as well as that of benefiting from the high number of
CSDs celebrated by that country. Some authors refer to the Netherlands as the “European
Delaware effect”. (Manuel Poirer, 2010)

31
5.2.1. The “escape” of the PSI-20
In a statement sent to the Securities Market Commission (CMVM), Jerónimo Martins,
SGPS, S.A. reported that on December 30, 2011:

“A Sociedade Francisco Manuel dos Santos, SGPS S.A. vendeu à

Sociedade Francisco Manuel dos Santos B.V., que comprou àquela,
353.260.814 ações da sociedade aberta Jerónimo Martins, SGPS S.A.,
representativas de 56,136% do capital social e 56,213% dos respetivos
direitos de voto.”

As a result of this sale, the Francisco Manuel dos Santos Society, SGPS, S.A. is no
longer the holder of any share in Jerónimo Martins, SGPS, S.A.

Despite the aforementioned transaction, in which the entire stake in Jerónimo Martins, SGPS,
SA was transferred, the two intervening companies previously entered into a shareholder
agreement establishing that the voting rights inherent in the shares transferred would remain in
the Francisco Manuel Company dos Santos, SGPS, SA.

This relocation of the registered office of Jerónimo Martins, SGPS, SA to the Netherlands
constituted a tax planning strategy, implemented with the aim of avoiding the future double
taxation of dividends from Colombia and taking advantage of the tax benefits that that country
offered to companies based there . Despite the evidence, the group rejected that a more
attractive tax system was behind the decision. He stated that, as he aspired to increase his range
of investments and that, given the situation in which the Portuguese financial system was, it was
necessary to relocate to Holland, because that country provided greater stability in its financial
system, as well as easier access to credit.

Figure 9 - " The escape of the PSI-20 to the Netherlands"

32
6. Concluding Remarks
This work was related to the theme of tax evasion in order to assess the effectiveness of
the measures implemented in Portugal. Thus, the objectives of this study were: i) to explain the
different concepts of tax evasion / fraud / avoidance that can cause some confusion, ii) to
understand how the Tax Authority reacts to the tax evasion and what were the main measures
implemented in this three-year period , iii) analyze some real cases in Portugal, iv) an attempt
was made to provide information as impartially as possible so that an opinion can be formed on
the topic of bank secrecy.

When we talk about tax evasion, it results from the practice of illegal acts. “All tax savings
made through acts prohibited by law correspond to illegal tax evasion, also called fraudulent tax
evasion or“ tax evasion ”(Amorim, 2007, p. 17).

According to Tavares, João (2009), in economic terms, a country's tax burden influences the
decision on tax compliance, as compliance is considered to be something that will substantially
decrease disposable income.

Portuguese companies spend around 275 hours per year to pay taxes, compared to an average of
185 hours per year for OECD countries (PwC, 2016). The complexity of the tax system is great,
and before a country composed mostly of small and medium-sized companies, there is a lot of
ignorance of the laws. From the empirical study, we conclude that the legislation is increasingly
complex and people do not have linguistic knowledge and should make tax legislation more
accessible to people and implement tax literacy from an early age, enabling companies to
legally reduce their tax burden .
With the advent of tax havens, this was an open door to tax evasion (Magalhães, António,
2011). According to the Government of Portugal, 29 of the 87 schemes communicated in 2010
were related to the use of entities subject to special regimes and tax havens, which tend to
intend to concentrate profits in these regions. According to Anjos (2016), 37.1% of Portugal's
wealth is in tax havens.

It is essential to emphasize that evasion is a very difficult phenomenon to quantify. The data
obtained from the document analysis and the conclusion to the interviewees, allow us to
conclude that this fight has been positive. The Portuguese Government has implemented several
anti-abuse measures and, together with international cooperation, efforts are added in an attempt
to minimize tax evasion. Thus, we believe that these efforts, namely the implementation of anti-
abuse measures, have been contributing significantly to the fight against tax evasion at different
levels. We understand that we are facing a complex issue, and there must be other
considerations on the part of States, namely tax education for taxpayers and increased union
with other countries, in order to act together to curb this phenomenon.
Currently, the concern with tax evasion as well as its combat play a decisive role in the society
in which we operate, as a result of the crisis with which the country has struggled since 2008.
Since then, many mechanisms have been implemented to mitigate the effect of “Evasion” of
taxes, with the majority succeeding in the form of legislation. However, given the complexity
with regard to the definition of this concept, sometimes their means of combatting become
ineffective, creating gaps in themselves.

Analyzing the socio-economic context of tax planning, it appears that its genesis lies in the
trend of optimizing results on the part of taxpayers, which in periods of increased tax burden is
even more evident.

In point 2.2., Different concepts on tax evasion, avoidance and fraud were defined, namely
intra, extra and “contra-legem”, but as there are several doctrinal and jurisprudential positions

33
that distinguish between tax planning, evasion and fraud, we consider that distinction made
through the concepts of intra, extra and “contra-legem” planning should be avoided, as it can
lead to greater terminological confusion.

Defining each of these categories, we can assume that tax planning is, from the
perspective of Saldanha, Pedro, a way of reducing the tax burden, in which the taxpayer
renounces behavior because it leads to payment of tax, or choose a less costly tax
solution. In other words, the practice of behaviors that aim to reduce, eliminate or defer
the payment of the tax, within a framework of lawfulness, is at issue, using instruments
provided by the legislator itself, such as tax exclusions, specific deductions, deductions
for tax base or tax exemptions.

The difficulties in distinguishing tax planning are sometimes less clear in view of
“extra-legem” planning, which we call tax avoidance or tax evasion (tax avoidance),
according to the chosen doctrine. Despite all the doctrinal discussion that we saw
around the issue, it is a set of acts with the purpose of optimizing the tax situation, but
in which the use of legal devices not provided for by the rules of incidence occurs, or
that when foreseen is in different ways, with a purpose different from that for which it is
used. There is no frontal violation of the law, but it is circumvented, violating the ratio
of the legal-tax system, so that the acts practiced by taxpayers in these terms, will be
abusive or anomalous.

Regarding the category commonly known as “contra-legem” planning, that we call tax
fraud, we think it’s already more easily identifiable, since there is, with the objective of
obtaining tax savings, a behavior that is undoubtedly in violation of legal and tax rules.
It is necessary to warn here for the prediction of crimes and tax infractions, provided for
in the R.G.I.T..

For many academics and authors, the admissibility of tax planning seems
unquestionable. The same being considered as a result of the principle of private
autonomy and freedom of management (62, 80 (c) and 86 of the Basic Law), there is a
confrontation with article 103 of the CRP, concerning the subsistence of the tax system
and the satisfaction of collective needs. We believe that these are two rights that are
constitutionally recognized, but that clash with each other, so it is necessary to convoke,
in order to obtain their harmonization, the principle of practical agreement. This clashes
with the theory of the abolition of banking secrecy, which dictates that there must be
greater state control over the private autonomy of companies, as they end up losing
some of their freedom of management.

We hope that with this work we have achieved a clarification of the divergences in
around the theme of fiscal planning, given that starting from various positions on the
theme, we advocate our own categorization, as we consider that the existing doctrinal
divergences are so accentuated that they compromise a correct understanding of the
matter by taxpayers.

It was also concluded that one of the main forms of tax evasion / fraud / avoidance was
the use of so-called tax havens. In this respect, globalization has increased harmful tax
competition, since the free movement of goods and people is increasingly easy. and the
proximity to more distant jurisdictions, being just a click away. Currently, it is possible
for a Portuguese taxpayer to access accounts and financial information held in Hong
Kong, or anywhere in the world, through his home computer. This situation makes it

34
easier and more efficient to use tax havens or low tax countries. However, tax
competition is not always detrimental, since it is able to contribute to lower taxation
levels, putting pressure on the expenditure side. It is true that it is also likely to create
fiscal erosion in countries, so there is a growing concern to combat tax competition,
especially harmful tax competition, which is dependent on the goodwill of countries not
to adopt certain behaviors.

The Tax Authority’s performance, through its tax and customs inspection function, is
performed in a complementary perspective to the strategies of inducing voluntary
compliance, seeking to correct situations of recurring non-compliance, not avoided by
these strategies, exercising an educational effect on taxpayers, in order to encourage the
voluntary regularization of verified omissions and an increase in the perception of risk
and costs associated with non-compliance.

The Tax Authority has been implementing effective measures, in order to avoid
deviations from tax revenue and with the objective of increasing voluntary compliance
by citizens.

For future research, the proposal is the digital economy and the future of VAT, namely, in the
great evolution of the new economic agents of online platforms. There is a need to adapt and
establish changes to the VAT rules, to the new reality of the digital economy and to reform the
legislation in order to be more effective.

Figure 10 - What is the meaning of Tax Evasion?

35
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Annexes

37
Annex 1 - Distribution of Tax Havens Worldwide

DECLARAÇÃO DE AUTORIA

38
Nome: Pedro Gonçalo Soares Tojal de Meneses, estudante nº 39906 do curso de
Licenciatura / Mestrado / Doutoramento Economia, declaro que o Trabalho / Projeto /
Dissertaçã o / Relató rio apresentado para avaliaçã o é da minha autoria e cumpre as
normas de integridade académica.

Assim me comprometo a:

-Esclarecer explicitamente se partes do trabalho foram já apresentadas para avaliaçã o de

outras unidades curriculares ou provas de grau na Universidade Portucalense ou noutras
instituiçõ es;

-Identificar corretamente as fontes que utilizei, de forma a que possam ser consultadas e
atestada a autenticidade do trabalho que apresento;

-Assumir, sob compromisso de honra, a responsabilidade da autoria integral do trabalho,

nã o tendo contratado serviços de terceiros para a sua realizaçã o;

-Indicar a supervisã o que recebi para elaboraçã o do trabalho;

-Reconhecer como fraudulentas prá ticas que correspondem a formas de plá gio, có pia
servil, omissã o ou citaçã o deficiente de fontes, percebendo que tais prá ticas infringem
direitos de autoria e sã o contrá rias à integridade académica;

- Submeter, quando solicitado, à consideraçã o do(s) docente(s), relató rios que tenham
sido emitidos por equipamento especializado na deteçã o de plá gio.

Assinatura Data 28/04/2020

Aprovado pela Reitoria em Julho 2017

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DECLARAÇÃO DE AUTORIA

39
 Nome: Pedro Miguel Almeida Saldanha estudante nº 39192 do curso de Licenciatura /
Mestrado / Doutoramento Economia, declaro que o Trabalho / Projeto / Dissertaçã o
/Relató rio apresentado para avaliaçã o é da minha autoria e cumpre as normas de
integridade académica.

Assim me comprometo a:

-Esclarecer explicitamente se partes do trabalho foram já apresentadas para avaliaçã o de

outras unidades curriculares ou provas de grau na Universidade Portucalense ou noutras
instituiçõ es;

-Identificar corretamente as fontes que utilizei, de forma a que possam ser consultadas e
atestada a autenticidade do trabalho que apresento;

-Assumir, sob compromisso de honra, a responsabilidade da autoria integral do trabalho,

nã o tendo contratado serviços de terceiros para a sua realizaçã o;

-Indicar a supervisã o que recebi para elaboraçã o do trabalho;

-Reconhecer como fraudulentas prá ticas que correspondem a formas de plá gio, có pia
servil, omissã o ou citaçã o deficiente de fontes, percebendo que tais prá ticas infringem
direitos de autoria e sã o contrá rias à integridade académica;

- Submeter, quando solicitado, à consideraçã o do(s) docente(s), relató rios que tenham
sido emitidos por equipamento especializado na deteçã o de plá gio.

Assinatura: Data: 28/04/2020

Aprovado pela Reitoria em Julho 2017

RE.GE.08.6

DECLARAÇÃO DE AUTORIA

40
 Nome: João Carlos Correia Tavares estudante nº 40639 do curso de Licenciatura /
Mestrado / Doutoramento Economia, declaro que o Trabalho / Projeto / Dissertaçã o
/Relató rio apresentado para avaliaçã o é da minha autoria e cumpre as normas de
integridade académica.

Assim me comprometo a:

-Esclarecer explicitamente se partes do trabalho foram já apresentadas para avaliaçã o de

outras unidades curriculares ou provas de grau na Universidade Portucalense ou noutras
instituiçõ es;

-Identificar corretamente as fontes que utilizei, de forma a que possam ser consultadas e
atestada a autenticidade do trabalho que apresento;

-Assumir, sob compromisso de honra, a responsabilidade da autoria integral do trabalho,

nã o tendo contratado serviços de terceiros para a sua realizaçã o;

-Indicar a supervisã o que recebi para elaboraçã o do trabalho;

-Reconhecer como fraudulentas prá ticas que correspondem a formas de plá gio, có pia
servil, omissã o ou citaçã o deficiente de fontes, percebendo que tais prá ticas infringem
direitos de autoria e sã o contrá rias à integridade académica;

- Submeter, quando solicitado, à consideraçã o do(s) docente(s), relató rios que tenham
sido emitidos por equipamento especializado na deteçã o de plá gio.

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41
Nome: António Francisco Pinto Magalhães estudante nº 40287 do curso de
Licenciatura / Mestrado / Doutoramento Economia, declaro que o Trabalho / Projeto /
Dissertaçã o / Relató rio apresentado para avaliaçã o é da minha autoria e cumpre as
normas de integridade académica.

Assim me comprometo a:

-Esclarecer explicitamente se partes do trabalho foram já apresentadas para avaliaçã o de

outras unidades curriculares ou provas de grau na Universidade Portucalense ou noutras
instituiçõ es;

-Identificar corretamente as fontes que utilizei, de forma a que possam ser consultadas e
atestada a autenticidade do trabalho que apresento;

-Assumir, sob compromisso de honra, a responsabilidade da autoria integral do trabalho,

nã o tendo contratado serviços de terceiros para a sua realizaçã o;

-Indicar a supervisã o que recebi para elaboraçã o do trabalho;

-Reconhecer como fraudulentas prá ticas que correspondem a formas de plá gio, có pia
servil, omissã o ou citaçã o deficiente de fontes, percebendo que tais prá ticas infringem
direitos de autoria e sã o contrá rias à integridade académica;

- Submeter, quando solicitado, à consideraçã o do(s) docente(s), relató rios que tenham
sido emitidos por equipamento especializado na deteçã o de plá gio.

Assinatura Data 28/04/2020

Aprovado pela Reitoria em Julho 2017

RE.GE.08.6

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