Regulation no. 355/2012, published on 13 August

ICP - Autoridade Nacional de Comunicações

Regulation

(This is not an official translation of the law)

Regulation governing the settlement and collection of fees due to ICP-ANACOM

I - REPORT

1- By determination of 1 July 2009, the Board of Directors approved the Regulation governing the settlement and collection of fees due to ICP-ANACOM, having also approved the public consultation report on the same date.

This Regulation was published in the Diário da República (the Official Gazette), 2^nd series, No. 135, of 15 July 2009 and entered into force on 20 July 2009.

Subsequent to the approval of the Regulation several important statutory instruments on electronic communications were published:

Decree-Law No. 123/2009, of 21 May, which governs the regime that applies to the construction of infrastructures suitable for the accommodation of electronic communications networks, the setup of electronic communications networks and the construction of infrastructures for telecommunications in housing developments, urban settlements, concentrations of buildings and buildings, which repealed Decree-Law No. 59/2000, of 19 April, and which has been amended since by Decree-Law No. 258/2009, of 25 September.

Decree-Law No. 264/2009, of 28 September, amending Decree-Law No. 151-A/2000, of 20 July, which enshrines the legal provisions applicable to the licensing of radiocommunications networks and stations, supervision of the installation of the said stations and use of radio spectrum;

Law No. 99/2009, of 4 September, which establishes the framework scheme of administrative offences within the communications sector;

Law No. 51/2011, of 12 September, which amended and republished Law No. 5/2004, of 10 February.

Administrative Rule No. 291-A/2011, of 4 November, amending Administrative Rule No. 1473-B/2008, of 17 December.

The publication of these statutory instruments does not introduce any substantive change to the Regulation governing the settlement and collection of fees due to ICP-ANACOM, requiring only the update of some of the legislative references, either in the preamble or in the text of articles, as well as some changes in terminology.

Accordingly, various adjustments were carried out stemming, in the first place, from terminology changes determined by Decree-Law No. 123/2009 and, secondly, from amendments introduced by Administrative Rule No. 291-A/2011, of 4 November, in particular, regarding the incorporation of fees for use of spectrum related to complementary earth stations inherent to the implementation of the mobile satellite service in the 2 GHz band.

2 - Furthermore, more than two years after its entry into force, it has become necessary to make some specific changes to the Regulation in the light of experience gained in its practical implementation.

As such, from the outset and taking into account the specificity entailed in the payment of fees due for the issue of temporary licenses, it is now expressly provided that fees must be paid prior to the issue of the license.

With regard to fees set out in points a) to f) of paragraph 1 of article 19 of Decree-Law No. 53/2009, of 2 March, and in articles 56 and 86 of Decree-Law No. 123/2009, of 21 May, the reference to the payment of fees upon satisfaction of the application is eliminated. These fees are now payable upon submission of the respective application, clearing up any uncertainty pertaining to the interpretation of the statutory instrument, while making provision for cases where the fee is paid through online services.

However, the most significant changes concern payments made in instalments and rules governing notifications ICP-ANACOM is required to make.

In fact, since it was found that some of the operators have used the option to pay fees due to ICP-ANACOM in instalments, also applying for the waiver of the guarantee, it was deemed necessary to expressly provide for the possibility, on an exceptional basis, to waive the provision of a guarantee where the applicant justifies that it does not have the economic and financial conditions to provide it, without prejudice to ICP-ANACOM being able to request evidence of such claim.

In parallel, and still with regard to payments in instalments, it has been laid down, also on an exceptional basis, that the application for payment of the fee in instalments may be submitted up to the date of issue of the debt certificate, thus allowing taxable persons to pay in instalments following expiry of the deadline for voluntary payment.

These amendments are in compliance with the rules of procedure provided for in the General Taxation Law and the Code of Tax Procedure and Proceedings.

At another level, and as regards rules governing notifications, it was expressly provided that ICP-ANACOM may notify taxable persons by ordinary post, telefax or electronic data transmission, where the settlement does not involve a change in the taxable person’s tax situation, the requirement for registered notification with acknowledgement of receipt being reserved for those cases where the notification involves acts or decisions that may change the tax situation of taxable persons or where the latter are summoned to attend or participate in procedures.

The failure to identify the cases where notifications could be made by registered post or ordinary post resulted in all ICP-ANACOM notifications always having been made by registered post with acknowledgement of receipt, with financial losses for ICP-ANACOM and for operators themselves, many of whom were forced to go to CTT offices to collect notifications.

II – AMENDMENT TO THE REGULATION GOVERNING THE SETTLEMENT AND COLLECTION OF FEES DUE TO ICP-ANACOM

Regulation No. 300/2009 - Regulation governing the settlement and collection of fees due to ICP-ANACOM, was approved by determination of ICP-ANACOM’s Board of Directors of 1 July 2009, entering into force on 20 July 2009.

More than two years after the Regulation has been in force, specific amendments are warranted in light of its practical implementation.

Accordingly, the obligation to pay fees prior to the issue of temporary licenses is now expressly provided for, having also been determined that fees due under the regime governing the construction of infrastructures suitable for the accommodation of electronic communications networks, the setup of electronic communications networks and the construction of infrastructures for telecommunications in housing developments, urban settlements, concentrations of buildings and buildings are payable upon the submission of the respective application, which also applies in the case of fees specified in points a) to f) of paragraph 1 of article 19 of Decree-Law No. 53/2009, of 2 March.

Furthermore, it is now expressly provided that the taxable person may - under exceptional circumstances -, apply for a waiver of the guarantee, having also been established - also on an exceptional basis - that applications for fee payments in instalments may be made until a debt certificate is issued.

Finally, as regards rules governing notifications, it was expressly provided that ICP-ANACOM may notify taxable persons by ordinary post, telefax or electronic data transmission, where the settlement does not involve a change in the taxable person’s tax situation, the requirement for registered notification with acknowledgement of receipt being reserved for those cases where the notification involves acts or decisions that may change the tax situation of taxable persons or where the latter are summoned to attend or participate in procedures.

Amendments introduced to the Regulation governing the settlement and collection of fees due to ICP-ANACOM apply to assessment, settlement and collection procedures which are under way.

Accordingly, ICP-ANACOM’s Board of Directors, following a public consultation on the matter, and pursuant to articles 9, point a) and 26, points b) and g) of ICP-ANACOM's Statutes, has determined to approve the following amendment to the Regulation governing the settlement and collection of fees due to ICP-ANACOM.

Article 1

Amendment to Regulation No. 300/2009, of 1 July 2009

Articles 2, 5, 16, 18, 19, 20 and 22 of Regulation No. 300/2009, of 1 July 2009, are hereby amended to read as follows:

"Article 2

Fees

1 - (...)

2 - The following fees shall be associated with administrative costs:

a) (...)

b) (...)

c) (...)

d) (...)

e) (...)

f) Fees for the setup of infrastructures for telecommunications in housing developments, urban settlements and concentrations of buildings (ITUR) and for the setup of infrastructures for telecommunications in buildings (ITED);

g) (...)

h) (...)

3 -The following fees are associated with the optimisation of the use of common resources:

a) Fees for the use of frequencies for terrestrial electronic communications services;

b) (...)

c) (...)

d) (...)

e) (...)

f) (...)

g) (...)

h) (...)

i) (...)

j) (...)

k) (...)

Article 5

1 - (...)

2 - Without prejudice to other penalties applicable in the event of failure to comply with obligations set out in the preceding paragraph, ICP-ANACOM may impose mandatory penalty payments, pursuant to article 8 of Law No. 99/2009 of 4 September, article 113, paragraph 9 and 10, and article 116 of Law No. 5/2004, of 10 February, as amended by Law No. 51/2011, of 13 September, and article 49, paragraphs 8 and 9, and article 52 of Law No. 17/2012 of 26 April.

Article 16

Deadline for payment

Fees due to ICP-ANACOM shall be paid:

a) (...)

b) Upon the submission of the application, in the case of fees set out in points a) to f) of paragraph 1 of article 19 of Decree-Law No. 53/2009, of 2 March and in articles 56 and 86 of Decree-Law No. 123/2009, of 21 May, as amended by Decree-Law No. 258/2009, of 25 September;

c) Prior to the issue of the licence, where a temporary license is applied for.

Article 18

Non-compliance

1 - Where the taxable person fails to pay fees due in accordance with deadlines established herein, late payment interest shall be due, in accordance with article 44 of the General Taxation Law, without prejudice to any surcharges that may be due, in particular pursuant to paragraph 8 of article 19 of Decree-Law No. 151-A/2000, of 20 July, as amended by Decree-Law No. 264/2009, of 28 September.

2 - (...)

3 - Without prejudice to the preceding paragraphs, the failure to pay fees due to ICP-ANACOM determines application of article 110 of Law No. 5/2004, of 10 February, as amended by Law No. 51/2011, of 13 September, without prejudice to other sanctioning mechanisms provided for.

Article 19

Payment in instalments

1 - (...)

2 - (...)

3 - (...)

4 - Where the deadline for voluntary payment has expired, the application referred to in the preceding paragraph may, on an exceptional basis, be submitted up to the day preceding the issue by ICP-ANACOM of the debt certificate.

5 – At the request of the applicant and on an exceptional basis, the waiver of the guarantee may also be granted, in case of lack of economic conditions for its provision.

6 – The application referred to in paragraphs 4 and 5 shall be properly reasoned, whereby ICP-ANACOM may request additional evidence.

7 - Failure to make timely payment of any of the instalments shall imply the immediate maturity of remaining instalments.

Article 20

Enforced Collection

1 - (...)

2 - ICP-ANACOM shall send a notice to the taxable person, by ordinary post, prior to the issue of the debt certificate for the purpose of enforced collection.

Article 22

Notifications

1 - Notifications shall be made by registered letter with acknowledgement of receipt where acts or decisions that may change the tax situation of taxable persons are concerned or where taxable persons are summoned to attend or participate in acts or procedures.

2 - In cases other than those specified in the preceding paragraph, notifications shall be made by registered post, with or without acknowledgement of receipt, ordinary post, telefax or electronic data transmission.»

Article 2

Entry into force

This Regulation shall enter into force five days following its publication, whereas amendments introduced to the Regulation governing the settlement and collection of fees due to ICP-ANACOM shall apply to assessment, settlement and collection procedures which are under way.

Article 3

Republication

The Regulation governing the settlement and collection of fees due to ICP-ANACOM is republished in annex hereto, with the amendments approved by this Regulation.

2 August 2012. - The Chair of the Board of Directors, Maria de Fátima Henriques da Silva Barros Bertoldi.

ANNEX

(referred to in Article 3)

Republication of Regulation No. 300/2009

Regulation governing the settlement and collection of fees due to ICP-ANACOM

Article 1

Scope and enabling law

This regulation establishes the procedure for the assessment, settlement and collection of fees due to ICP-ANACOM and is approved pursuant to paragraph 2 a) of Decree-Law No. 309/2001, of 7 December, article 9 a), article 11 and article 26 b) of ICP – ANACOM’s Statutes, approved by Decree-Law No. 309/2001, of 7 December.

Article 2

Fees

1 - ICP-ANACOM shall be responsible for the assessment, settlement and collection of fees, associated with administrative costs and with criteria for optimising the use of common resources.

2 - The following fees shall be associated with administrative costs:

a) Fees for the issue of statements attesting rights of providers of electronic communications networks and services;

b) Fees for the provision of electronic communications networks and services;

c) Fees for the allocation of rights of use for frequencies;

d) Fees for the allocation of rights of use for numbers and their reservation;

e) Fees concerning amateur and amateur satellite services, except when associated with the optimisation of the use of common resources referred to in points d) and e) of the following paragraph;

g) Fees for the access to and provision of audiotext services and message-based value-added services;

h) Fees for the access to and provision of postal services.

3 - The following fees are associated with the optimisation of the use of common resources:

a) Fees for the use of frequencies for terrestrial electronic communications services;

b) Fees for the use of frequencies for broadcasting services;

c) Fees for registration of the Personal Radio Service – Citizen Band (CB);

d) Fee for the use of an annual occasional call sign (AOCS);

e) Fee for use of radio spectrum due by holders of national amateur certificates (NAC);

f) Fees for the use of frequencies for the fixed service;

g) Fees for the use of frequencies for radiodetermination services;

h) Fees for the use of frequencies for satellite radio services;

i) Fees for the use of frequencies for other radio services;

j) Fees for the radio data system (RDS);

k) Fees for use of numbers.

Article 3

Taxable person

Taxable person shall mean the natural or legal person, estate or organisation in fact or in law liable to pay the fees due to ICP-ANACOM, either directly, as a substitute party or subsidiary liable party.

Article 4

Assessment

1 - With regard to fees charged by ICP - ANACOM, the taxable amount is determined in compliance with the legal and regulatory provisions that apply to each type of fee.

2 - For the purpose of the assessment of fees due to ICP-ANACOM, the information or documents sent by taxable persons to ICP-ANACOM, which contain information relating to the basis of assessment of each type of fee, shall be deemed to be statements of the respective taxable persons.

Article 5

Information duties

1 - Taxable persons shall provide ICP - ANACOM, by the deadlines set out in legal and regulatory provisions that apply to each type of fee, with the statements, data or documents required for the purpose of the respective assessment or settlement.

Article 6

Audits

1 - ICP - ANACOM shall be entitled to launch audits in order to:

a) Collect the necessary elements for the assessment and settlement of fees;

b) Check the correctness and accuracy of information provided by taxable persons.

2 - These audits shall be carried out in compliance with the rules of the General Taxation Law relating to tax procedure, general provisions of the Code of Tax Procedure and Proceedings and rules of the Tax Inspection Procedure Supplementary Scheme, which shall apply duly adapted to the specificities of the legal fee relationship of the fee and ICP – ANACOM’s organisational structure.

3 - For the purposes of the preceding paragraphs, ICP - ANACOM is entitled to make use of its own services or specially qualified and empowered external consultants, namely statutory auditors and audit firms.

4 - Persons or bodies involved in inspection measures shall be duly accredited by ICP - ANACOM.

Article 7

Settlement

Fees mentioned in article 2 shall be settled by ICP - ANACOM by means of a settlement and collection notice, which shall include the settlement statement, as well as an indication of the means of defence and the deadline to challenge the notified act.

Article 8

Additional settlement

1 - Upon conclusion of the audit referred to in article 6, and should any errors or omissions, for which the taxable person is accountable, result in losses to ICP-ANACOM, the additional settlement of fees, compensatory interest and expenses referred to in article 9 shall be carried out.

2 - The taxable person shall be notified, in accordance with article 22, to pay within 30 days, failing which the payment shall be enforced.

3 - The grounds for the additional settlement, the respective amount, the deadline for payment and the warning of the consequences of the failure to pay, as well as the indication of the means of defence and the deadline to challenge the notified act, shall be stated in the notification referred to in the preceding paragraph.

Article 9

Expenses

The taxable person shall be liable for the expenses incurred by ICP-ANACOM in carrying out audits where the taxable person’s errors or omissions are committed intentionally or with serious negligence, up to a maximum amount of EUR 100 000, without prejudice to any applicable administrative offence liability.

Article 10

Compensatory interest

Where the settlement of part or all of the fee due is delayed through the fault of the taxable person, compensatory interest shall be due, in accordance with article 35 of the General Taxation Law.

Article 11

Default interest

Where the settlement is based on an error on the part of ICP - ANACOM which results in the payment of a fee in an amount greater than that provided for by law, default interest shall be due pursuant to article 43 of the General Taxation Law.

Article 12

Minimum limits

1 - Where the total amount of the settlement notice is less than EUR 10, fees shall not be enforced, except where this arises from adjustments resulting from a settlement that has already been made.

2 - No reimbursement shall be made where, as a result of the settlement review, the amount of the tax to be reimbursed is less than EUR 10.

Article 13

Offset

1 - Any credits of the taxable person resulting from reimbursement, settlement review, administrative complaint or legal challenge shall be applied to the offsetting of debts owed to ICP-ANACOM, unless an administrative complaint, legal challenge, legal appeal or opposition to enforcement is pending, or debts are being paid in instalments.

2 - Debts owed to ICP-ANACOM may be offset at the request of the taxable person, even where the period for voluntary payment has not yet expired.

Article 14

Settlement review

1 - The review of fee settlements may be carried out ex officio or at the request of the taxable person, within four years of the settlement or at any time where the tax has not yet been paid, where the existence of any illegality, error or omission on the part of ICP-ANACOM or the taxable person is demonstrated.

2 - The settlement review implies the additional settlement or the reimbursement of sums unduly paid and the payment of default or compensatory interest, as the case may be.

3 - The reimbursement of sums unduly paid, where it occurs, shall take place within 30 days from the settlement review.

Article 15

Expiry of the right to settlement

1 - The right to settle fees expires where the settlement is not properly notified to the taxable person within four years from the end of the calendar year in which the taxable fact took place.

2 - In the situation of attested error in the taxable person’s statement, the expiry deadline referred to in the preceding paragraph shall be three years.

3 - The expiry period shall be suspended with the notification to the taxable person of the start of the audit, however, this effect shall cease, and the period shall start counting from the beginning, where the duration of the audit exceeds six months from the notification.

4 - The expiry period shall also be suspended in a situation of legal proceedings on whose decision the settlement of the fee depends, from its beginning until the decision becomes final and unappealable, and in case the right to settlement results from a complaint, administrative appeal, request for ex-officio review or challenge, from its application until the decision.

Article 16

Deadline for payment

Fees due to ICP-ANACOM shall be paid:

a) Within 30 days from the issue of the settlement and collection notice, except for the following point;

b) Upon the submission of the application, in the case of fees set out in points a) to f) of paragraph 1 of article 19 of Decree-Law No. 53/2009, of 2 March, and in articles 56 and 86 of Decree-Law No. 123/2009, of 21 May, as amended by Decree-Law No. 258/2009, of 25 September;

c) Prior to the issue of the licence, where a temporary license is applied for.

Article 17

Payment

Fees shall be paid through one of the following methods, as indicated in the settlement and collection notice:

a) In cash, at ICP - ANACOM’s services;

b) By cheque or postal order made payable to ICP - ANACOM;

c) By ATM;

d) By direct debit system;

e) By postal collection.

Article 18

Non-compliance

2 - Debts which are not paid voluntarily shall be subject to enforced collection.

Article 19

Payment in instalments

1 - Fees due to ICP-ANACOM in an amount exceeding EUR 1000 (one thousand euros) may be paid in equal monthly instalments, not exceeding ten, subject to interest at the rate for debts to the State and other public entities.

2 - Payment in instalments is subject to the provision by the applicant of a suitable guarantee, which may consist of a bank guarantee, deposit, bond, deposit insurance or any other means capable of ensuring payment of the total amount of the fee and interest, and which is accepted by ICP-ANACOM.

3 - The application for payment in instalments, as well as the guarantee referred to in the previous paragraph, shall be presented to ICP-ANACOM no later than eight days prior to the deadline for payment.

5 - At the request of the applicant and on an exceptional basis, the waiver of the guarantee may also be granted, in case of lack of economic conditions for its provision.

6 - The application referred to in paragraphs 4 and 5 shall be properly reasoned, whereby ICP-ANACOM may request additional evidence.

7 - Failure to make timely payment of any of the instalments shall imply the immediate maturity of remaining instalments.

Article 20

Enforced Collection

1 - Pursuant to article 2 a) of Decree-Law No. 309/2001, of 7 December, failure to voluntarily pay fees due to ICP - ANACOM shall imply the issue of a debt certificate, which shall be deemed to be an enforcement order in tax enforcement proceedings and shall contain the following information:

a) Identification of the taxable person, including the respective tax number;

b) Origin of the debt and respective amount;

c) Number of the settlement notice;

d) Elements on which the settlement is based;

e) Date from which interest is due and amount which bears such interest;

f) Any other useful indication for effectively conducting enforcement proceedings;

g) Signature of the issuer and date of the certificate.

2 - ICP-ANACOM shall send a notice to the taxable person, by ordinary post, prior to the issue of the debt certificate for the purpose of enforced collection.

Article 21

Time bar

1 - Fee debts to ICP - ANACOM shall become time-barred eight years from the end of the year on which the taxable fact took place.

2 - The time bar shall be interrupted by summons, complaint, administrative appeal, request for ex-officio review and legal challenge.

3 - The time bar shall be suspended during the period of payment in instalments or while there is no final and unappealable decision that puts an end to proceedings, in the case of a complaint, administrative appeal, request for ex-officio review, challenge, legal appeal or opposition to enforcement, where the collection of the debt is suspended.

Article 22

Notifications

Article 23

Supplementary legislation

The rules of the General Taxation Law and of the Code of Tax Procedure and Proceedings, duly adapted, shall be applicable by way of complement.

Article 24

Entry into force

This Regulation shall enter into force five days after its publication.

ANNEX

Means of defence to be indicated in settlement and collection notices referred to in article 7, as well as in notifications of acts referred to in articles 8 and 14

Pursuant to article 68 and 70 of the Code of Tax Procedure and Proceedings, an administrative complaint may be submitted within 120 days from the deadline for voluntary payment. The administrative complaint does not suspend collection, except where an appropriate guarantee is provided.

Pursuant to article 102 of the Code of Tax Procedure and Proceedings, a legal challenge may be submitted before the Lisbon Tax Court within 90 days from the deadline for voluntary payment or, in case the administrative complaint is rejected, within 15 days from the notification of rejection.

Pursuant to article 68, paragraph 2, of the Code of Tax Procedure and Proceedings, an administrative complaint may not be filed where a legal challenge has been lodged on the same grounds.