Lusíada. Economia & Empresa. n.º 29 (2020) 119
TAX SYSTEM IN TIMES OF CRISIS: THE CASE OF THE
COVID-19 PANDEMIC
Guilherme Waldemar d’Oliveira Martins
Associate Professor of Law School of the University of Lisboa, PhD in Public Finance
guilherme.o.martins@mirandalawfirm.com
Joana Graça Moura
Tax Lawyer
DOI: https://doi.org/10.34628/9wft-wb24
Recebido: 29.09.2020
Aprovado: 07.02.2021
Tax system in times of crisis, p. 119-140
Lusíada. Economia & Empresa. n.º 29 (2020) 121
Summary: 1. Fiscal system, tax benefits, taxpayer’s ability to pay and indirect
goals of taxation 2. Tax benefits as a derogation to the principle of tax equality
2.1. Tax benefits and the derogation to the principle of tax equality 2.2. The
essential core of a tax, tax benefits and the derogation to the ability to pay principle
2.3. Indirect goals for taxation and the ability to pay principle 3. Tax benefits as
tax policy instruments to struggle global crisis: the case of COVID-19 pandemic
1. Fiscal system, tax benefits, taxpayer’s ability to pay and indirect goals of
taxation
Tax benefits
1 2
are the result of a system of tax monopolization by the State.
In the particular case of Portugal, that process of centralization was set in motion
with the Portuguese tax reform of 1830, which began to dismantle the tax system
of the old regime that was, in fact, a coexistence of three systems: the Church’s
tax system, the State’ tax system and the manor’ tax system.
1
Tax benefit is a similar expression to tax subsidy, tax relief, tax concession, and, in german, Indirekte
Förderungen. Each of these names identifies the positive part of the concept, that is, the advantage
coming from the public will to waive certain public revenue. Nevertheless, each of them has a
specific nature within the wider concept of tax expense (which all of them are).
2
On the concept of tax benefit see, in portuguese, NuNo Sá GomeS, Manual de direito Fiscal, cadernos
de ciência técnica e Fiscal, CeNtro de eStudoS FiSCaiS, dGCi, LiSboa, 1993, p. 323; NuNo Sá GomeS,
teoria Geral dos BeneFícios Fiscais, LiSboa: CCtF, 1991, p. 12; maria pauLa Vaz Freire, nasciMento,
ModiFicação e extinção dos BeneFícios Fiscais, LiSboa, 1995, passiM; aLberto XaVier, Manual de direito
Fiscal, LiSboa, 1974, paGeS 291-293; amáVeL SíLVio da CoSta/J. H. pauLo rato raiNHa/FreitaS
pereira, BeneFícios Fiscais eM portuGal, Coimbra, 1987, paGeS 15-16; aNd iN itaLiaN, NiCoLa d’amati,
aGevolazioni ed esenzioni triButarie, iN novissiMo diG. it., appeNdiCe, toriNo 1980, p. 153; FraNCo
FiCHera, le aGevolazioni Fiscali, padoVa, 1992, passiM; FraNCo FiCHera, iMposizione ed extraFiscalità
nel sisteMa costituzionale, eSi, NapoLi, 1973, passiM; moSCHetti-zeNNaro, “aGeVoLazioNi FiSCaLi”, iN
diGesto, iV ed., toriNo, 1988, i, p. 84; SaLVatore La roSa, “eSeNzioNi e aGeVoLazioNi tributarie”, iN
enc. Giur. treccani, Xiii, roma, 1989, passiM; SaLVatore La roSa, “eSeNzioNe” (diritto tributario), in
enc. dir., XV, miLaNo, 1966, p. 567; SaLVatore La roSa, “Le aGeVoLazioNi tributarie”, in trattato di
diritto triButario (aNdrea amatuCCi ed.), i, 1, padoVa, 1994, p. 401; SaLVatore La roSa, “VerSo La
SComparSa deLLe aGeVoLazioNi tributarie?”, in riv. dir. triB., 1991, i, p. 173.
Guilherme Waldemar d‘Oliveira Martins e Joana Graça Moura
122 Lusíada. Economia & Empresa. n.º 29 (2020)
In fact, despite the fact that the Renaissance’ taxation system had a national
component, it was very distant from the characteristics of generality and equality
that stand out in modern tax systems, which induced the development of the
concept of “tax privilege”.
“Tax privileges” or “tax favors” “are situations of tax advantage characterized
by excessive favoring of certain tax subjects in violation of the principle of
equality, which occurred in the period prior to the current constitutionalism”.
3
The starting point of this concept resides in the notion of “ability to pay”, which is
a logic and conceptual condition of all principles that justify and simultaneously
impose limits on the duty of contribution.
4
The ability to pay is generally seen as
5
:
a) One of the criteria on which a given taxation policy should be drawn
upon - though not the only one – and one that expresses the idea of tax
justice (since it is a part of a wider principle which is tax equality);
b) The basis of “the normative system of taxation”
6
- for where a given
3
JorGe baCeLar GouVeia, “oS iNCeNtiVoS FiSCaiS CoNtratuaiS ao iNVeStimeNto eStraNGeiro No direito
FiSCaL portuGuêS reGime JurídiCo e impLiCaçõeS CoNStituCioNaiS”, in miNiStério daS FiNaNçaS
dGCi, XXX aNiVerSário do CeNtro de eStudoS FiSCaiS – CoLóquio Sobre “a iNterNaCioNaLização da
eCoNomia e a FiSCaLidade”, LiSboa, dGCi, 1993, p. 277.
4
In the draft bill of the “Tax Benefits Code”, prepared by aLberto piNHeiro XaVier/aNtóNio LuCiaNo
de SouSa FraNCo, LiSboa, 1969, we CaN FiNd, iN artiCLe 1/1, tHat Same idea tHat we Hereby reproduCe:
“aLL peopLe are obLiGed, uNder tHe Law, to CoNtribute, iN aCCordaNCe to tHeir perSoNaL aSSetS, to
pubLiC CoStS.”
5
See MiGueL áNGeL martíNez LaGo, LeoNardo GarCía de La mora, lecciones de derecho Financiero y
triButario, 2Nd ed., madrid: iuSteL, portaL dereCHo, Sa., 2005, paGeS 73-75.
6
In an attempt to answer the question raised by maNueL HeNrique de FreitaS pereira, in Fiscalidade,
Coimbra, aLmediNa, p. 355, Note 518, aS to tHe idea tHat tHe meaNiNG oF NormatiVe SyStem oF a taX
iS Not quite eStabLiSHed iN tHe SCieNtiFiC CommuNity, we tHiNk tHat tHe aNaLySiS SHouLd CoNCeNtrate
FirStLy oN wHat iS tHe pLaCe oCCupied by NormS tHat Create taX beNeFitS witHiN tHe LeGaL order aNd,
aFterwardS, oN SettiNG out tHe LimitS oF tHe aForemeNtioNed NormatiVe SyStem. oN tHe SubJeCt, See
kLauS tipke, JoaCHim LaNG, steuerrecht (17tH ed.), köLN, VerLaG dr. otto SCHimdt, 2002, paGeS
719-722, aNd JoSé CaSaLta NabaiS, o dever FundaMental de paGar iMpostos, Coimbra, aLmediNa,
1998, paGeS 645 654. For FurtHer deVeLopmeNtS See karL HeiNriCH FriauF, verFassunGsrechtliche
Grezen der WirtschaFtslenkunG und socialGestaltunG, tübiNGeN, 1966, kraiNer werNSmaNN, “die
VerFaSSuNGSreCHtLiCHe reCHtFertiGuNG der abzuGSFäHiGkeit VoN VorSorGeauFweNduNGeN - zuGLeiCH
zum uNterSCHied zwiSCHeN eXiSteNzNotweNdiGem uNd iNdiSpoNibLem eiNkommeN”, steuer und WirtschaFt
(stuW), 1998, paGeS 317-333, m. SCHadeN, die steuerverGünstiGunGen als staatliche leistunG,
FinanzverFassunG und Gleichheitssatz, SiNzHeim, 1998, kLauS VoGeL, “VerFaSSuNGSreCHtSpreCHuNG
zum SteuerreCHt”, iN schriFtenreihe der Juristischen GesellschaFt zu Berlin, HeFt 160, 1999, raiNer
werNSmaNN, das GleichheitsWidriGe steuerGesetz - rechtsFolGen und rechtsschutz, müNSteriSCHe
beiträGe zur reCHtSwiSSeNSCHaFt, bd. 128, berLiN, 2000, raiNer werNSmaNN, “VerFaSSuNGSreCHtLiCHe
aNForderuNGeN aN die eiNFüHruNG uNd auSGeStaLtuNG VoN SteuerVerGüNStiGuNGeN”, neue Juristische
WochenschriFt (NJw), 2000, paGeS 2078-2080.
Tax system in times of crisis, p. 119-140
Lusíada. Economia & Empresa. n.º 29 (2020) 123
tax does not consider the taxpayer’s ability to pay it can be deemed as
confiscatory;
c) A sort of moral justification for the duty to pay taxes, thus contributing
to their vindication;
d) An underlying component of all public policy decisions, thus leading
public decision makers to bear in mind the social and economic status of
all taxpayers throughout the decision making process;
e) Having an elastic content that has to be determined on a case-by-case
basis, notwithstanding the need to establish its basic core;
f) The foundation and expression of the contributory principle that can be
applied in other kinds of public charges.
In light of the foregoing, the concept of tax benefit can in fact be considered
as a derogation of the principle of the ability to pay, which is one of the
representations of the notion of tax equality, since it disregards the social and
economic position of the taxpayer.
Actually, the origin of the tax benefit concept is associated with the doctrine
of limitations to instruments of political power, which began in the medieval
period
7
, making a case that the limitations to political power reside in the private
sphere – with the legitimacy of a tax benefit beginning where the legitimacy
to tax ends. The underlying idea is that citizens should only contribute to the
satisfaction of public needs in view of their economic and social benefit. This
means that the moment in which the State imposes a tax that has no relationship
whatsoever with the taxpayer’s ability to pay is the moment in which the State
enters the private sphere in an illegitimate way, which should be safe from public
intervention. Ultimately, this is a matter of social responsibility of the State
8
.
Thus, tax benefits as such are outside the traditional unavailability
framework of taxation regulation and enter the field of availability that resides
outside that regulation’s core
9
.
7
On the doctrine of limitations to instruments of political power see, among others, the work of
aNtóNio maNueL HeSpaNHa, as vésperas do leviathan instituições e poder político, portuGal,
século xvii, Coimbra, aLmediNa, 1994, paGeS 472-487.
8
On the evolution and actual meaning of the idea of Welfare State see, among others, HaroLd L.
wiLeNSky, rich deMocratiespolitical econoMy, puBlic policy and perForMance, LoNdoN, uNiVerSity
oF CaLiForNia preSS, 2002, paGeS 430-493, aNd, more GeNeraLLy, robert NoziCk, anarchy state and
utopia, baSiC bookS, 1974, C murray, losinG Ground, baSiC bookS, 1974, Lutz LeiSeriNG, robert
waLker (edS), the dynaMics oF Modern society, poLiCy preSS, 1988, GoSta eSpiNG-aNderSeN, the three
Worlds oF WelFare capitalisM, poLity, 1990, p. SpiCker, social policy: theMes and approaches, preNtiCe
HaLL, 1995, p. aLCoCk, a. erSkiNe, m may (edS), the students coMpanion to social policy, bLaCkweLL
2003, r. m. titmuSS, essays on the WelFare state, aLLeN aNd uNwiN, 1963, J. LeGraNd/C. propper/r.
robiNSoN, the econoMics oF social proBleMs, maCmiLLaN 1992, pauL pierSoN (ed.), the neW politics oF
the WelFare state, oXFord, 2001.
9
The Portuguese legislator, in a somehow unclear way, prefers to talk about “rule-taxation” or “normal-
Guilherme Waldemar d‘Oliveira Martins e Joana Graça Moura
124 Lusíada. Economia & Empresa. n.º 29 (2020)
From this perspective, the concept of tax benefit may well be considered
as the result of a semantic evolution of the concept of privilege over time, one
that had its beginning with Roman law, where there was a certain terminological
vagueness around the two concepts that made it difficult to distinguish between
them. Today, we can say that the concept of privilege refers to a form of private
law, whether individual or collective, which derogates the general law, while the
concept of benefit relates to a privilege granted by grace or liberality, in addition
to general law
10
.
In Portugal, the notion of privilege exists since what is usually called the “tax
revolution”, which occurred in 1249
11
- the year that marks the end of taxation
policy stemming from predatory borders -, since it was in the Spring of that year
that the last Muslim square was occupied in the Algarve. On the other hand, it
began to be seriously challenged with the advent of nineteenth-century liberal
revolutions, although back then only on the grounds of a principle of formal
equality (i.e., equality before the law) which was very far from the material
concept of equality that is now recognized
12
. It is thus in the realm of the principle
of equality that the notion of privilege begins its approximation to the notion of
benefit as a “special right that the law grants in favor of certain people or things,
as an exception or exemption from the general law”
13
. At that time, though, that
still didn’t mean that the notion of tax equality was being born (since the idea
stemmed solely from a formal concept of equality, one which was very dear to
that period of history).
taxation” (see Article 12 of Tax Benefits Code – EBF) without ever specifying of that is. However,
we were able to put together a few clues, which allow us to highlight the following circumstance:
the legislator wants to keep that concept because certain types of tax benefits contemplate partial
reliefs, which could become problematic at the time of their revocation. Let us imagine a certain tax
benefit that provided for a lower tax rate to certain entities (say 20% instead o f 25%). If that benefit
was revoked it would not be enough to establish that the revocation of such benefit would simply
reinstate the application of that tax to those entities, since they were already taxed, only in a smaller
rate. Therefore, what the legislator means by “rule-taxation” is that the reinstatement of the “rule-
taxation” means the reinstatement of the taxation that is usually applicable to similar entities, if no
discrimination is applied. This concept of “rule-taxation” does not match, however, the essential
core of the tax that we hereby present, as the latter has an evaluative element that the first doesn’t
have as it refers to the mere disappearance of partial reliefs from the legal order.
10
See the terminological clues identifyed with reference to the study of the Modern State, in aNtóNio
pedro barbaS Homem, o espírito das instituições uM estudo de história do estado, Coimbra,
aLmediNa, 2006, paGeS 203-224.
11
See riCHard boNNey/w. m. ormrod, «CriSiS, reVoLutioNS aNd SeLF-SuStaiNed GrowtH: towardS a
CoNCeptuaL modeL oF CHaNGe iN FiSCaL HiStory», in, w. m. ormrod, marGaret boNNey aNd riCHard
boNNey (edS.), crisis, revolutions and selF-sustained GroWth. essays in european Fiscal history, 1130-
1830, StamFord, 1999, paGeS 1-21.
12
aNtóNio pedro barbaS Homem, o espírito..., op. cit., paGeS 230-231.
13
The statement belongs to aNtóNio pedro barbaS Homem, in o espírito..., op. cit., p. 231.
Tax system in times of crisis, p. 119-140
Lusíada. Economia & Empresa. n.º 29 (2020) 125
The idea of benefit as a mere exception or exemption from general law
would undergo a serious change in the beginning of the welfare state
14
. It is only
then that the principle of tax equality arises per se, understood in a material sense
and embodied in two important corollaries: generality and equality of taxes
15
.
Generality means that no one can be excluded from the duty to pay taxes, while
equality demands that the payment of taxes meets the same condition. That is
also the moment in which the ability to pay begins to be understood as something
unavailable, working as a standardizing criteria for the payment of taxes.
This nature is only considered, however, in a jusnaturalistic economical
and sociological fashion
16
as it is only in that plan that the fair distribution of
the duty to contribute can be designed in terms of equality, proportionality and
progressivity or degressivity. Out of these parameters, the legislator / decision
maker may decide within the limits provided by the financial functions of the
State. And this is where other indirect goals of taxation step into action since
outside the field of unavailability that characterizes the very essence of any
taxation policy, the main constraint isn’t the one of tax equality, but the one of
policy options which are determined by the government or the legislator.
It should, however, be noted that not all tax reliefs show the existence of a
tax benefit, since the latter implies a certain positioning of the taxpayer as to the
satisfaction of his needs, in a public-private duality. Furthermore, the derogation
implicated in a tax benefit results from a decision making process that is focused
in encouraging certain economic, social or cultural behavior of taxpayers. We will
try, therefore, to disentangle the various elements of the concept in the following
paragraphs.
2. Tax benefits as a derogation to the principle of tax equality
2.1. Tax benefits as a derogation to the principle of tax equality
A rule that creates a tax benefit derogates the principle of tax equality,
however being legitimized or even required by a particular constitutional
14
The moment in which the Welfare State had its beginning is not consensual. However, an important
milestone of its founding process in England is attributed to the commonly known “Beverige
Report” (“The Report of the Inter-Departmental Committee on Social Insurance and Allied
Services”), dated 1942, which formed the basis for the post-war reforms that would become known
as the Welfare State, which include the expansion of National Insurance and the creation of the
National Health Service. The Welfare State went on from 1945 until 1980, when a new wave of
monetarism was promoted as an alternative macroeconomic theory based on a free market with
minimal intervention, namely in the United Kingdom.
15
For further developments see JoSé CaSaLta NabaiS, o dever..., op. cit., paGeS 438-443.
16
Vítor FaVeiro, o estatuto do contriBuinte a pessoa do contriBuinte no estado social de direito,
Coimbra, Coimbra editora, 2002, paGeS 154-155.
Guilherme Waldemar d‘Oliveira Martins e Joana Graça Moura
126 Lusíada. Economia & Empresa. n.º 29 (2020)
requirement. From this perspective, it is of utmost importance to focus both on
the concept and on the extension of tax equality.
Whether in an alternative or cumulative fashion, the State can only tax and
spend:
a) According to the so-called benefit logic (which we would call quid pro
quo logic), by taking into account what the taxpayer receives, that is, the
public services of which he can enjoy
17
;
or
b) According to the so-called “ability to pay logic” (following the ideas
presented by Guicciardini in the 16th century, who advocated the ideal
of progressive taxation on the ability to pay, or even the thought of
Bodin, who argued the idea of contributive faculty as a basis for taxation
under the rule of proportionality), the State can only tax within certain
limits which are defined with reference to degrees of wealth, income or
expenditure.
According to the principle of benefit, taxation should be defined in terms
of consideration as tax justice should be understood under a reciprocity logic. In
accordance, taxes should be regarded as prices for the protection and coordination
functions attributed to the State, whenever they are needed or requested by the
individual. Under this logic, there is obviously no space to tax an individual who
does not benefit from public services.
However, the principle subsides when one takes into account certain public
goods or services which cannot be waived by citizens (although under the logic
of the Social State this ability to waive public services should not be mistaken
for the non-enjoyment of public goods or services – this would leads us to the
discussion as to the notion of pure public goods which is outside the scope of
this work)
18
. The principle of benefit or equivalence is, thus, overridden by the
fact that there are functions pursued by the State which may not be waived
voluntarily by the taxpayer.
On the other hand, the unilateral nature of the tax concept
19
, which
17
According to Griziotti, iN “iL potere FiNaNziario”, in SaGGi SuL riNNoVameNto deGLi Studi di SCieNza
deLLe FiNaNze e di diritto FiNaNziario, miLaNo, 1953, páGS. 289 e SS..
18
Public goods are goods that are both non-excludable and non-rivalrous in that individuals cannot
be effectively excluded from use and where use by one individual does not reduce availability to
others. Pure public goods (or services) are equally available to all members of the relevant community.
A single unit of the good, as produced, provides a multiplicity of consumption units, all of which
are somehow identical. Impure public goods are goods that are neither purely private nor purely
public. Impurity or imperfect publicness in this respect has been defined as any departure from
the availability of “equal quantities of homogeneous-quality consumption units” to all customers.
19
Õn the concept of tax see, in Portugal, pedro SoareS martiNez, direito Fiscal, Coimbra, aLmediNa,
1995, paGeS 26-57, JoSé CaSaLta NabaiS, direito Fiscal (4tH ed.), Coimbra, aLmediNa, 2006, paGeS 10-66,
Tax system in times of crisis, p. 119-140
Lusíada. Economia & Empresa. n.º 29 (2020) 127
distinguishes it from other kinds of public charges, is a stranger to the idea of
consideration implied in the principle of benefit, allowing us to put forward the
following assertion: all tax benefits, because they are located in the field of taxes,
constitute a derogation to the ability to pay and not to the principle of benefit.
According to the ability to pay principle, taxation should be designed to
meet every taxpayer’s personal situation. In fact, the fair tax
20
is one that ensures
the substantive equality in the distribution of tax burdens, i.e., that ensures that
those who have the same ability to pay are charged with the same tax (horizontal
equity) and that those who have different abilities to pay are charged differently
(vertical equity).
Furthermore, the ability to pay principle does not require an autonomous
constitutional support since it stems from the general principle of equality in
articulation “with the constitutional rules and principles relating to taxes or even
to fundamental rights”
21
.
2.2. The essential core of a tax, tax benefits and the derogation to the ability
to pay principle
The starting point of this analysis is, in our view, the rehabilitation of the
doctrinal principle of the ability to pay (or of economic capacity)
22
. Recently, the
importance of the ability to pay as a measure of taxation and even as a criterion
for the allocation of certain public benefits has become a focal point in the debate
on taxes and measures of taxation. In fact, the importance of that principle
has allowed for the construction of a new fundamental right to “an adequate
contribution”, one that certainly binds the legislator namely by forcing him to
JoSé LuíS SaLdaNHa SaNCHeS, Manual de direito Fiscal (2Nd ed.), Coimbra, Coimbra editora, 2002,
paGeS 13-16.
20
On tax justice see kLauS tipke, die steuerrechtsordnunG, ..., 1993, paGeS 260-261 aNd, From tHe Same
autHor, BesteuerunGsMoral und steuerMoral, köLN, weStdeutSCHer VerLaG GmbH.
21
JoSé CaSaLta NabaiS, o dever..., op. cit., p. 449.
22
We assume the conceptual identity of the two concepts. Although one could argue in favor of
their distinction, there’s no relevant normative reason to do it. About thus subject see F. moSCHetti
(“La CapaCità CoNtributiVa proFiLi GeNeraLi”, in F. moSCHetti et aL., la capacità contriButiva,
miLaNo, Cedam, 1993, paGeS 25-26) to wHom tHe eVaLuatioN oF tHe abiLity to pay iS a SyNtHeSiS oF
tHe FoLLowiNG eLemeNtS: a) artiCLe 53 [oF tHe itaLiaN CoNStitutioN] aimS at eStabLiSHiNG a JuStiCe
CriterioN iN taXatioN iSSueS; b) tHe meNtioNed CriterioN iS diFFereNt From tHe priNCipLe oF equaLity
aNd From FormaL StaNdardS Like SimpLe ratioNaLity aNd LeGiSLatiVe CoHereNCe; C) tHe Same CriterioN
aSSumeS, aS a NeCeSSary but NoN-SuFFiCieNt CoNditioN, tHe eCoNomiC CapaCity oF tHe taXpayer; d) tHe
eCoNomiC CapaCity SHouLd be aboVe a miNimum aNd SHouLd be CoNSidered aS adequate CoNSideriNG tHe
LeVeL oF pubLiC eXpeNSeS aNd GiVeN tHe VaLueS eStabLiSHed iN tHe CoNStitutioN; e) tHe aForemeNtioNed
parity may tHereFore reSuLt iN a CoNCeptuaL diFFereNCe betweeN tHe abiLity to pay aNd tHe eCoNomiC
CapaCity”. From tHiS perSpeCtiVe, tHe abiLity to pay reFerS oNLy to a meaNS oF FiNaNCiNG aNd CaN be
CompoSed oF SeVeraL deGreeS aCCordiNG to tHe eVideNCed eCoNomiC CapaCity.
Guilherme Waldemar d‘Oliveira Martins e Joana Graça Moura
128 Lusíada. Economia & Empresa. n.º 29 (2020)
balance that principle with others that, in a given situation, point to a different
direction
23
.
The general principle of equality claims, according to Leibholz, for a
particular set of individual rights, which are directed at omissions, i.e., “omissions
or arbitrary disruptions of the de jure equality”.
24 25
From this perspective, we can
identify three different types of rights: definitive and abstract equality rights,
definitive and concrete equality rights and prima facie abstract equality rights. All
abstract rights lead to a set of concrete and very different rights that are usually
called “defense rights”. It is this dialogic relationship that explains the failure of
the State, which, in turn, can lead to a demand for factual protection whether of
a positive status (requiring public action) or of a negative one (requirement not
public performance)
26
.
2.3. Indirect goals for taxation and the ability to pay principle
According to Maffezzoni
27
, the legislator is entitled with a significant degree
of freedom in shaping the content of the ability to pay principle, i.e., in defining
the most suitable way to finance public expenditure through various normative
schemes that define the amount of revenue necessary to afford the proper mix of
public services
28
.
23
On the rehabilitation of the ability to pay principle and its double standard as a measure of taxation
and as a fundamental right see pedro m. Herrera moLiNa, CapaCidad eCoNómiCa y SiStema FiSCaL
aNáLiSiS deL ordeNamieNto eSpañoL a La Luz deL dereCHo aLemáN, madrid, marCiaL poNS, 1998, paGeS
23-80 aNd, more reCeNtLy, SérGio VaSqueS, “CapaCidade CoNtributiVa, reNdimeNto e patrimôNio”, in
FóruM de direito triButário, braSiL, Nr. 11, 2004.
24
Cfr. GerHard LeibHoLz, die Gleichheit vor deM Gesetz. eine studie auF rechtsverGleichender und
rechtsphilosophischer GrundlaGe (2
Nd
ed.), muNiCH/berLiN, 1959, p. 235.
25
Legal equality is a product of a collision of principles and therefore is different from factual equality
– hence the “equality-paradox” (since what is equal treatment according to one is unequal
treatment according to the other, and vice versa, if both equalities are put together under a single
principle of equality that principle would contain an equality-paradox) [robert aLeXy, teoria de
los derechos FundaMentales (trad. erNeSto GarzóN VaLdéS), madrid, CeNtro de eStudioS poLítiCoS
y CoNStituCioNaLeS, 2002, p. 404]. For eXampLe, uNtiL 2010, artiCLe 31/2 oF CirS, wHiCH CreateS a
SimpLiFied reGime oF taXatioN oN proFeSSioNaL iNCome eStabLiSHed tHat tHe determiNatioN oF Net iNCome
iN tHe CaSe oF proFeSSioNaL iNCome depeNded oN tHe appLiCatioN oF tHe ratioS proVided For tHat LeGaL
ruLe aS LoNG aS a miNimum oF taXabLe iNCome waS preSerVed. tHiS miNimum taXabLe iNCome eNSured
LeGaL equaLity oF aLL taXpayerS For aS LoNG aS tHeir iNCome waS beLow tHat miNimum tHey aLL Had to
pay tHe Same amouNt oF taX. HoweVer, it did Not GuaraNtee FaCtuaL equaLity SiNCe maNy taXpayerS
Had to pay tHat miNimum deSpite tHe FaCt tHat tHey did Not raiSe iNCome at aLL.
26
See robert aLeXy, teoria..., op. cit., paGeS 415-418.
27
FederiCo maFFezzoNi, il principio..., op. cit., paGeS 325-326.
28
As an example, the author refers to the fact that progressive taxes may assume several ways: taxes
on real income that include several kinds of income, progressive taxes on unitary and global
Tax system in times of crisis, p. 119-140
Lusíada. Economia & Empresa. n.º 29 (2020) 129
However, the discretion assigned to the legislator “cannot be used
arbitrarily and should be used in a way that allows for the achievement of the
public purposes that have been previously defined”
29
such as “the expansion or
contraction of investment and consumption, redistribution, etc.”. Thus, it is the
previously established set of goals that defines the content and extension of the
ability to pay principle.
Let us not forget, however, that the ability to pay is an instrument of taxation
as a way of raising revenue to finance direct public expenditure and not public
expenditure related to other indirect goals. From this perspective, the sharing
of public revenue would not be possible unless some kind of modeling of the
content of the ability to pay principle
30
, whether according to the benefit deriving
from public expenditure or to indicators of the taxpayer’s ability to pay, could
be applied.
At this point, it should be noted that the ability to pay principle cannot be
disregarded as it stands a basic principle in defining the concrete measure of
taxation that can be imposed. That doesn’t mean, however, that it shouldn’t be
modeled after other goals elected by the Constitution and concretely singled out
by the legislator from the ensemble of public services and goods to be provided,
as well as after the economic capacity of the taxpayers
31 32
. So, as long as there are
income whether spread or not spread over several categories; singular income can be efective or
presumed; corporate income can be determined through ordinary or accelerated depreciation, etc.
29
FederiCo maFFezzoNi, il principio..., op. cit., p. 326.
30
Similarly, see the economic analysis of LeoNard dudLey/CLaude moNtmarquette, “iS pubLiC SpeNdiNG
determiNed by Voter CHoiCe or FiSCaL CapaCity?”, in the revieW oF econoMics and statistics, VoL.
LXXiV, Nr. 3, 1992 (auGuSt), paGeS 522-529. tHe autHorS arGue tHat wHeN taX abiLity iS diStiNCt From
tHe amouNt oF pubLiC SpeNdiNG deSired by VoterS, itS tHe Side witH tHe LeaSt ComparatiVe ForCe (SHort
Side) tHat determiNeS tHe LeVeL oF eFFeCtiVe SpeNdiNG. tHuS, wHeN a CommuNityS oVeraLL abiLity to pay
eXCeedS tHe amouNt oF SpeNdiNG deSired by tHat Same CommuNity, poLitiCaL CompetitioN eNSureS tHat
tHe VoterS CHoiCe preVaiLS. NeVertHeLeSS, wHeN tHe pubLiC deCiSioN maker iS iNCapabLe oF GeNeratiNG
eNouGH reVeNue tHrouGH taXatioN, Credit or SeiGNoriaGe”(tHuS deCreaSiNG CoNSumerS purCHaSiNG
power tHrouGH aN iNCreaSe iN tHe moNey SuppLy) to FiNaNCe pubLiC SpeNdiNG, eXpeNSeS SHouLd deCreaSe
iN reaL termS (…) iN order to preVeNt iNFLatioN”. tHiS meaNS, iN Sum, tHat tHe deroGatioN oF tHe
CoNteNt oF tHe abiLity to ay priNCipLe depeNdS oN tHe LeVeL oF pubLiC SpeNdiNG deSired by VoterS aNd
eXpLored iN eLeCtioNS.
31
Consider the need to help a country’s least developed areas or even the ones hit by natural
disasters. In each of these situations, there are different “abilities to pay”. Which allows us to
argue, like F. moSCHetti (“La CapaCità...”, op. cit., paGeS 42-47), tHat tHe abiLity to pay HaS SeVeraL
deGreeS aCCordiNG to eaCH oF itS VariabLeS, tHe CoNteNt oF wHiCH iS deNSiFied witH reFereNCe to tHe
CoNStitutioNaL SyStem at Stake.
32
According to moSCHetti (F. moSCHetti, “La CapaCità...”, op. cit., paGeS 46-47), tHe SCope oF diSCretioN
GraNted to tHe itaLiaN LeGiSLator aS to tHe eStabLiSHmeNt oF iNdireCt GoaLS For taXatioN SHouLd be
Guided by tHe FoLLLowiNG priNCipLeS: (1) SituatioNS or FaCtS tHat do Not SHow aNy kiNd oF eCoNomiC
CapaCity CaNNot be SubJeCt to taXatioN; (2) aS a reSuLt oF a SyStematiC iNterpretatioN oF artiCLe 53 oF
Guilherme Waldemar d‘Oliveira Martins e Joana Graça Moura
130 Lusíada. Economia & Empresa. n.º 29 (2020)
other indirect goals for taxation demanding the compression of the ability to pay
principle in a proportional way, there’s no reason why that can’t be admitted,
namely by the Constitutional Court
33
.
3. Tax benefits as tax policy instruments to struggle global crisis: the case of the
COVID-19 pandemic
Being an economic, social or cultural incentive
34
, the tax benefit represents
all the advantages granted to taxpayers with a view to obtaining a particular
behavior, which would otherwise be achieved in a smaller scale. As an incentive,
the tax benefit is somehow of a dynamic nature and should always be regarded
in a prospective way instead of a static one, along with the tax preferences that
it creates (except for those situations in which the reliefs apply to past situations,
whether for political, social, defense, diplomatic or other reasons because in that
case the incentive becomes a prize)
35
.
The material content of the incentive is variable
36
but ultimately related
to the right to development
37
, which is internationally recognized, not only
generally in Article 28 of the Universal Declaration of Human Rights
38
but mainly
in Article 1 of the United Nations Covenants on Civil and Political Rights and
on Economic, Social and Cultural Rights
39
, which expressly provides for a right
of the peoples to freely pursue economic, social and cultural development. This
right entails that the peoples may not under any circumstances be deprived of
their own means of subsistence.
In this context, the COVID-19 pandemic has brought about severe concerns
relating to the subsistence of taxpayers jeaopardizing this right to development.
As a major public-health concerns that has spread across the world, the COVID-19
tHe itaLiaN CoNStitutioN aNd oF otHer CoNStitutioNaL NormS, eCoNomiC CapaCity SHouLd be CoNSidered
aS part oF tHe abiLity to pay; (3) NormatiVe priNCipLeS iNVoked by taX ruLeS SHouLd be reSpeCted aLoNG
witH tHoSe ruLeS; (4) tHe priNCipLe oF CoHereNCe, wHiCH StateS tHat taXeS SHouLd be uSed aCCordiNG to
tHeir Nature aNd tHuS aVoidiNG puNitiVe GoaLS SHouLd aLSo be reSpeCted.
33
maFFezzoNi, il principio..., op. cit., p. 329.
34
Cfr. HermeS doS SaNtoS, “iNCeNtiVoS eCoNómiCoS”, polis, VoL. iii, p. 460.
35
As argued by JorGe baCeLar GouVeia, iN “oS iNCeNtiVoS FiSCaiS CoNtratuaiS...”, op. cit., p. 278.
moreoVer, tHe autHor reCoGNizeS tHat iS it obViouS tHat a CertaiN FraiLty HaS to be attributed to tHe
diStiNCtioN (betweeN dyNamiC aNd StatiC taX beNeFitS) wHiCH iS Not eNtireLy SaFe iN FroNtier SituatioNS
iN wHiCH it iS diFFiCuLt to eStabLiSH tHe reLatioNSHip witH oNe oF tHe two termS” (paGe 278, Note 30).
36
Because it depends on the degree os State intervention in that given system.
37
For further developments see eduardo paz Ferreira, valores e interesses desenvolviMento e
política coMunitária de cooperação, Coimbra, aLmediNa, 2004, paGeS 198-200.
38
Signed in the UN in December 10th 1948 (A/RES/217).
39
Both adopted and opened for signature, ratification and adhesion by resolution 2200-A (XXI) of the
General Assembly of the UN, by December 16th 1966.
Tax system in times of crisis, p. 119-140
Lusíada. Economia & Empresa. n.º 29 (2020) 131
pandemic has led to a disruption of global supply chains, paralyzed economic
activity resulting therefrom, particularly in the tourism and services industries,
and resulted in the fall of financial markets. Stemming from this framework is
the expected setback of GDP Growth in 2020 which will probably be inexistent or
even reach negative values.
The main challenge lies in the shift of the economic balance underlying
the ability to pay principle which has been endangered in the case of several
taxpayers both natural and legal persons by the (i) severe loss of income, (ii)
need for significant investments on the taxpayers’ part to create the necessary
biosecurity conditions to prevent the propagation of the virus, (iii) lack of
liquidity for firms.
In response to this shift, most countries have sought to implement targeted
measures intended to counter the economic pressure incumbent upon economic
markets. Most of these measures – which have been sanctioned on an European
level by the European Union – do not qualify as tax incentives per se (since they
do not imply a waiver of tax revenues). This is the case of tax-payment and
reporting deferrals, accelerated refunds, suspension of tax inspections, direct
financial support, among others, which have been put in place with a special
focus on industries most affected by the spread of the virus across global markets.
The actual tax incentives approved or in the course of approval being
characterized by the three principal elements of a tax incentive (i.e. chargeability,
economic advantage, and financing) can generally be organized around 5 main
areas of concern: (i) securing employment, (ii) facilitating acquisition of materials
and goods to counter the virus outbreak, (iii) economic subsistence of corporate
persons, (iv) mitigation of additional expenditure connected to the prevention
of the virus., and (v) financing of investments and expenses made by State,
regional or local bodies as well non-profit organizations in the management of
the COVID-19 emergency-response. These 5 vectors compose the public policy
option adopted by the Governments in pursuance to the legal mandate granted
by the people under a principle of “no taxation without representation”
40
.
This having been said, one would do well to note that, in line with what
has been detailed above, these options are modelled both by the ability to pay
principle and the Constitutional framework imposing economic, social and
cultural rights. The similitude of these objectives should therefore come as no
surprise in spite of the differences in tax systems across the world and more
specifically across Europe. Accordingly, the nature of the adopted measures
and the manner in which they propose to mold taxpayer behaviors and prevent
adverse economic consequences through the granting of economic advantages is
in itself quite similar also.
Specifically on the securing employment front, actions put into effect or
40
On the subject see GuiLHerme w. d’oLiVeira martiNS, “o priNCípio da autotributação: perSpeCtiVaS
e eVoLuçõeS reCeNteS”, in estudos Jurídicos e econMóMicos eM hoMenaGeM ao proFessor doutor
antónio luciano de sousa Franco, VoL. ii, Coimbra, Coimbra editora, 2006.
Guilherme Waldemar d‘Oliveira Martins e Joana Graça Moura
132 Lusíada. Economia & Empresa. n.º 29 (2020)
announced by governments are mainly connected at reducing the costs borne by
companies with employees. This is achieved, on the one hand, by the supply of
financial support in relation to a part or the entirety of the employee remuneration
(which does not constitute a tax incentive in itself) and, on the other hand, with
the total or partial relief in the payment of social security contributions due by
employers. Inherent to both sets of actions described is the financing by the State
of the preservation of employment contracts during the period of duration of
the suspension of corporate activities in connection with the virus. Whereas in
the first instance this financing is represented by an actual transfer of money, in
the latter only by a virtual one, as represented by the waiver of public revenue
(qualifying as public expense), which is in line with the very nature of the tax
incentive.
On an European level for instance, Hungary has sought to temporarily
modify social security rules for the period comprised between March and June
2020 in certain key-sectors affected by the virus outbreak (e.g. tourism, events,
entertainment). These modified rules provide for the exemption from the social
security contributions due by employers on wages paid during that period and
corresponding lower social security contributions for the employees during that
period. An exemption to employers has also been granted in Spain for social
security contributions due under employment contracts having been temporarily
suspended or subject to reduced working hours on the condition that the relevant
contracts are maintained for a period of 6 months subsequent to the activity being
resumed. Similarly in Croatia an exemption may apply to employers which have
received subsidies intended to provide relief to the payment of salaries on the
portion of the salaries that is borne by them.
In relation to the acquisition of materials and goods to counter the virus
outbreak, the bulk of the adopted initiatives may be subsumed under an
exemption from the VAT or customs duties due on imports of medical, sanitary
and protective equipment, which is the case of France and Croatia. This is in line
with the European Commission decision to temporarily waive VAT and customs
duties on the importation of vital medical equipment from third countries.
Adding to the above, the Greek government has approved a reduced VAT rate
on products which purpose is to prevent COVID-19 propagation (e.g. masks,
gloves, soap, antiseptic products, alcohol) applying until 31 December 2020.
The economic subsistence of corporate persons is one of the main priorities
of government actions in view of the former’s role in the driving of the economy
thus justifying the number of financing mechanisms and grants put in place to
tackle COVID-19 effects. The liquidity concern resulting from the halt in revenues
bears a significant effect on the ability to pay principle. By way of example, whilst
income received in 2019 could justify – under such principle – a given level of tax
charges, such level in the context of the losses incurred in 2020 could no longer be
compatible with this principle to the extent that the tax charges pertaining to 2019
would only be effectively borne in 2020 (as is typical in most tax systems despite
advance payments being put in place). Enforcing the ability to pay standard as
determined in 2019 could therefore lead to significant imbalances in taxpayer
Tax system in times of crisis, p. 119-140
Lusíada. Economia & Empresa. n.º 29 (2020) 133
accounts to the detriment of their economic survival.
With this in mind, some governments have sought to approve systems
enabling the carry-back of losses. In particular, the Czech Republic, Poland or
the Netherlands have approved / announced schemes permitting the total or
partial offset of losses incurred in 2020 against profits obtained in 2019. Other
schemes considered by European governments include the reduction of the
Corporate Income Tax taxable base (notably by excluding subsidies obtained to
mitigate COVID-19 effects) or the granting of tax rebates to companies facing
severe difficulties as a result of the COVID-19 pandemic.
Also on the topic of economic subsistence, the mitigation of additional
expenditure deriving from the virus takes on a vital role in view of the important
amount of investments and additional costs incurred. To this end, Austria is
planning to exempt from stamp taxes any documents and acts which have been
concluded as a direct or indirect result of measures countering the COVID-19
pandemic. Italy, on the other hand, has provided for a tax credit with sanitization
costs including costs with equipment and materials necessary for the protection
of employees’ health.
Lastly, on the financing of investments and expenses made by State,
regional or local bodies as well non-profit organizations in the management of
the COVID-19 emergency-response, the purpose of the tax incentives granted
throughout European governments is once again that of shaping taxpayer
behaviors. Adopted measures include exemption from VAT on donations of
goods and services (Croatia, Portugal, Greece) and deduction for corporate
income tax purposes or personal income tax purposes of such donations (Poland,
Italy).
It stems from the above that tax incentives have assumed a crucial role
in the legislative package approved by Governments in response to the social,
health and economic crisis resulting from the COVID-19 pandemic. This role
is two-fold. First, it intends to adapt taxpayer behaviors, notably by mobilizing
private resources towards a concerted emergency response intending to promote
healthcare and social responsibility actions, as well as securing employment
conditions. Secondly, it seeks to adjust the tax charges incumbent upon
taxpayers to their actual ability to pay in view of increasing needs of liquidity.
The cornerstone of these policies is the core of economic, social or cultural rights
which are incumbent upon the State to protect.
Guilherme Waldemar d‘Oliveira Martins e Joana Graça Moura
134 Lusíada. Economia & Empresa. n.º 29 (2020)
Annex 1 – europeAn TAx SySTem reSponSe To CoVID-19
Employment
Acquisition
of goods and
equipment
Economic
subsistence
Additional
Expenditure
Concerted of
emergency
response
Austria
N/A N/A
Possible
exemption on
CIT tax advance
payments
subject to
request (also
applicable to
PIT).
Exemption
from stamp
taxes of any
documents
and acts which
have been
concluded
as a direct or
indirect result
of measures
countering
the COVID-19
pandemic.
N/A
Belgium
N/A N/A
Exemption from
CIT of subsidies
paid by Belgian
Government
intended to
compensate
for the closing
down of
business
establishments.
N/A N/A
Increase of tax
credit deriving
from advance
payments made
during the
third and fourth
quarter of 2020.
Croatia
Exemption
from social
security
contributions
due by
employers
in relation to
wages which
are borne
through
subsidies.
VAT or
customs
duties due
on imports
of medical,
sanitary and
protective
equipment.
Exemption
from CIT or PIT
(as applicable)
on subsidies
received
to mitigate
COVID-19
consequences
N/A N/A
Tax system in times of crisis, p. 119-140
Lusíada. Economia & Empresa. n.º 29 (2020) 135
Employment
Acquisition
of goods and
equipment
Economic
subsistence
Additional
Expenditure
Concerted of
emergency
response
Czech
Republic
N/A N/A
Loss carry-back
(i.e. possibility
to set-off 2020
losses - or a
portion thereof
- against 2019
profit)
N/A N/A
Denmark
N/A N/A N/A N/A N/A
Finland
N/A N/A N/A N/A N/A
France
N/A
Exemption
from customs
duties and
VAT on
import of
sanitary
equipment.
Possible tax
rebates for
companies
in serious
economic
difficulties in
relation to CIT,
Payroll Taxes,
Corporate
Property Taxe,
Contribution
on corporate
added value
N/A N/A
Germany
N/A N/A
Tax base
reduction for
trade taxes
N/A N/A
Hungary
Exemption
from social
security
contributions
due by
employers
in relation
to wages
paid during
March-June
2020 period.
Reduced
contribution
rates
applicable to
employees.
N/A N/A N/A N/A
Guilherme Waldemar d‘Oliveira Martins e Joana Graça Moura
136 Lusíada. Economia & Empresa. n.º 29 (2020)
Employment
Acquisition
of goods and
equipment
Economic
subsistence
Additional
Expenditure
Concerted of
emergency
response
Ireland
N/A
Temporary
exemption
from VAT and
customs duties
of the import
of goods to
combat the
effects of
COVID-19
from outside
the European
Union.
N/A N/A
Temporary
0% rate VAT
on the supply
to hospitals
and other
healthcare
settings of
personal
protection
and specified
medical
equipment
for use in the
treatment of
patients with
Covid-19.
Italy
N/A N/A
Possible
conversion of
deferred tax
assets into tax
credits.
Tax credit with
sanitization
costs including
costs with
equipment
and materials
necessary for
the protection
of employees’
health
Deduction for
PIT purposes
of donations
made to state,
regional,
and local
authorities
as well as
non-profit
organizations
in FY2020
to counter
COVID-19
emergency
Luxembourg
N/A N/A
Exemption on
first and second
quarterly CIT
and municipal
business
tax advance
payments.
N/A N/A
Tax system in times of crisis, p. 119-140
Lusíada. Economia & Empresa. n.º 29 (2020) 137
Employment
Acquisition
of goods and
equipment
Economic
subsistence
Additional
Expenditure
Concerted of
emergency
response
Netherlands
N/A N/A
Loss carry-back
(i.e. possibility
to set-off 2020
losses - or a
portion thereof
- against 2019
profit)
N/A
VAT
exemptions
on business
donations
of medical
equipment
or devices to
medical care
providers and
on the lending
care personnel
to hospitals
and care
institutions.
Poland
Exemtption
of employer
social security
contributions.
N/A
Suspension of
CIT and PIT
bad debt tax-
base increase
obligations
Deduction
of R&D costs
with the
development
of products
necessary
to address
COVID-19
concerns
CIT and PIT
deductions
of donations
made to health
care providers
to counteract
the COVID-19
pandemic.
Exemption
from social
security
contributions
due by
contractors
and self-
employed
professionals.
Loss carry-back
(i.e. possibility
to set-off 2020
losses - or a
portion thereof
- against 2019
profit)
Portugal
N/A N/A N/A N/A
Exemption
from VAT on
donations of
goods to the
government, to
private social
institutions,
and to non-
governmental
non-profit
organizations,
even in the
case that
ownership
is retained
by donating
entity.
Guilherme Waldemar d‘Oliveira Martins e Joana Graça Moura
138 Lusíada. Economia & Empresa. n.º 29 (2020)
Employment
Acquisition
of goods and
equipment
Economic
subsistence
Additional
Expenditure
Concerted of
emergency
response
Spain
Exemption to
employers for
social security
contributions
due under
employment
contracts
having been
temporarily
suspended
or subject
to reduced
working hours
N/A N/A N/A N/A
Sweden
N/A N/A N/A N/A N/A
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