Ministério das Finanças (Ministry for Finance)
Decree-Law
The present statutory instrument transposes to the internal legal system Council Internal or External hyperlink. Connections to external websites will open in a new window. Directive 2001/115/EC , of 20 December, which amends Council Directive 77/388/EEC, of 17 May, on the common system of value added tax (VAT).
The adoption, at Community level, of the directive hereby transposed, aims at simplifying, modernising and harmonising several aspects and conditions laid down for the invoicing obligation in respect of VAT.
Among such aspects, the establishment of a harmonised list of the particulars that must compulsorily be included on invoices issued by taxable persons should be highlighted, as well as the rules on the drawing up, archiving and storage thereof, including the respective transfer and storage by electronic means, as well as the possibility to resort, in certain conditions, to the so-called “self-billing” and the contracting of third parties for the drawing up of invoices.
As regards in particular the transfer and storage of invoices by electronic means, with a view to use the recent technological developments as the privileged means of modernising and dynamising undertakings and fiscal administrations themselves, the VAT Code established that possibility, as well as the principles and general conditions for the use thereof, and the regulation of aspects related to the legal framework on specifications of a technical and computer nature was left to be provided for in special legislation.
The transposition of the present directive has involved, in addition to the amendment of the VAT Code provisions, some detail adjustments in other statutory instruments of the Portuguese tax system.
Therefore:
Pursuant to point a) of paragraph 1 of article 198 of the Constitution, the Government hereby decrees the following:
Article 1
Object
The present statutory instrument transposes to the internal legal system Council Directive 2001/115/EC, of 20 December, which amends Council Directive 77/388/EEC, of 17 May, with a view to simplifying, modernising and harmonising the conditions laid down for invoicing in respect of value added tax.
Article 2
Amendment to the VAT Code
Articles 19, 28, 35, 39, 45, 48, 52 and 72 of the Value Added Tax Code, approved by Decree-Law no. 394-B/84 of 26 December, are hereby amended to read as follows:
«Article 19
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5 – In case of invoices or equivalent documents issued by the recipients of goods or services themselves, the exercise of the right to deduct is subject to the verification of the conditions provided for in paragraph 11 of article 35.
6 – For the purpose of the exercise of the right to deduct, invoices or equivalent documents comprising the elements provided for in article 35 are deemed legally issued.
Article 28
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13 - Documents equivalent to invoices mean documents, and, in case of electronic invoicing, messages, which aim at amending the initial invoice and make reference thereto, comprising invoice requirements.
14 - For the purposes of compliance with the provision of point b) of paragraph 1, invoices or equivalent documents may be drawn up by the recipient of goods or services himself or by a third party, in the name and on behalf of the taxable person.
Article 35
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f) The date in which the goods were made available to the recipient, the services were performed or payments previous to the performance of such operations were made, if this date does not coincide with that of the invoice issue. Where the invoice concerns an operation or operations that relate to goods or services subject to different tax rates, the particulars mentioned in points b), c) and d) shall be identified in separate, according to the applicable rate.
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9 - In case of taxable persons who do not have the seat of their economic activity, fixed establishment or domicile in the national territory, who have appointed a representative pursuant to article 29, the issued invoices or equivalent documents, in addition to the particulars provided for in paragraph 5, shall also comprise the name or trade name and the seat of economic activity, fixed establishment or domicile of the representative, as well as the respective tax reference number.
10 - Invoices or equivalent documents may be issued by electronic means, subject to an acceptance by the recipient, provided that the authenticity of the origin and integrity of the contents are guaranteed, by means of an advanced electronic signature or of electronic data interchange.
11 - Invoices or equivalent documents may be drawn up by the recipient of goods or services, provided that the following conditions are met:
a) Existence at the outset of a written agreement between the taxable person supplying goods or providing services and the recipient thereof;
b) Evidence presented by the recipient that the supplier of goods or service provider acknowledged the invoice issue and accepted the contents thereof.
12 - Without prejudice to the provision of the preceding number, the drawing up of invoices or equivalent documents by recipients of goods or services or third parties, who do not have a seat of economic activity, fixed establishment or domicile in any Member State, is subject to the prior authorization of the Directorate-General for Taxes, which is empowered to lay down specific conditions for the effectiveness thereof.
Article 39
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b) Common name of goods supplied or services provided;
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Article 45
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2 - For this purpose, invoices, equivalent documents and delivery receipts or notes, including those issued in the name and on behalf of the taxable person, by the recipient of goods and services or by a third party, shall be numbered in sequence, in one or more series duly referenced, the respective duplicates being stored in the respective order, as well as all annulled or cancelled copies, with the endorsements necessary to identify the replacement copies, where appropriate.
3 - Where the register mentioned in paragraph 1 concerns invoices or equivalent documents issued by electronic means, the lists of such invoices or equivalent documents shall be stored on paper, for each taxation period, the provision of the preceding paragraph applying hereto with the necessary adjustments.
Article 48
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2 - For this purpose, invoices, equivalent documents and delivery receipts or notes, including those issued as recipient, pursuant to paragraph 14 of article 28, shall be numbered in sequence, in one or more series duly referenced, the respective originals being stored in the respective order, as well as all annulled or cancelled copies, with the endorsements necessary to identify the replacement copies, where appropriate.
3 - Where the register mentioned in paragraph 1 concerns invoices or equivalent documents issued by electronic means, the lists of such invoices or equivalent documents shall be stored on paper, for each taxation period, the provision of the preceding paragraph applying hereto with the necessary adjustments.
Article 52
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3 - Taxable persons who have the seat of their economic activity, fixed establishment or domicile on national territory shall store books, registers and other documents referred to in paragraph 1 in a establishment or installation located on national territory, except where the archiving is carried out by electronic means.
4 - Save for provisions in special legislation, the archiving in electronic form is only permitted as regards invoices or equivalent documents issued by electronic means, and to the extent that the full on-line access to the data concerned is guaranteed and the authenticity of the origin and integrity of the content is ensured.
5 - Taxable persons who have the seat of their economic activity, fixed establishment or domicile on national territory, and wish to store documents referred to in the preceding paragraph in electronic form outside the Community territory, shall request the prior authorization of the Directorate-General for Taxes, which is empowered to lay down specific conditions for the effectiveness thereof.
6 - Taxable persons who do not have the seat of their economic activity, fixed establishment or domicile on national territory, who wish to store books, registers and other documents, including those referred to in paragraph 4, outside the Community territory, shall request the prior authorization of the Directorate-General for Taxes, which is empowered to lay down specific conditions for the effectiveness thereof.
Article 72
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3 - Without prejudice to joint liability for payment provided for in the preceding paragraphs, the liability for the issue of invoices and equivalent documents, for the veracity of the contents thereof and for the payment of the respective tax, in the cases provided for in paragraph 14 of article 28, shall fall upon the taxable person supplying goods or providing services.»
Article 3
Amendment to the Tax Benefits Statute
Article 66 of the Tax Benefits Statute, approved by Decree-Law no. 215/89, of 1 July, is hereby amended to read as follows:
«Article 66
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5 - For the purpose of the deduction provided for in point c) of paragraph 1, taxable persons comprised by the simplified scheme of the IRS or the IRC, who provide vehicle repair services, except for vessels and aircraft, shall include the reference to the scheme application in the invoice or equivalent document.»
Article 4
Amendment to Decree-Law no. 127/90, of 17 April
Article 5 of Decree-Law no. 127/90, of 17 April, is hereby amended to read as follows:
«Article 5
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4 - The competent authorities in another Member State, within the limits set by the regulations thereof, shall have a right to access by electronic means, download and use the data comprised in invoices issued and received by taxable persons who have the seat of their economic activity, fixed establishment or domicile on that Member State, where such invoices are archived by electronic means guaranteeing on-line access to the data, on national territory.
5 - The Portuguese competent authorities, within the limits set by national regulations, shall have a right to access by electronic means, download and use the data comprised in invoices issued and received by taxable persons who have the seat of their economic activity, fixed establishment or domicile on national territory, where such invoices are archived by electronic means guaranteeing on-line access to the data, on the territory of another Member State.»
Article 5
Amendment to Decree-law no. 198/90, of 19 June
Article 5 of Decree-Law no. 198/90, of 19 June, is hereby amended to read as follows:
«Article 5
The numbering and printing of invoices and equivalent documents referred to in article 35 of the VAT Code, shall be subject to the rules provided for in article 5, paragraph 7 of article 6, paragraphs 1 and 2 of article 8 and articles 9 and 12 of Decree-Law no. 147/2003, of 11 June.»
Article 6
Repeal
Decree-Law no. 375/99, of 18 September, Regulatory Decree no. 16/2000, of 2 October, and Administrative Rule no. 52/2002, of 12 January, are hereby repealed.
Article 7
Condition for the use of the system
Until 31 December 2005, the use of the transfer system of invoices or equivalent documents by electronic means is subject to a prior notification made to the Directorate-General for Taxes.
Article 8
Entry into force
The present statutory instrument shall enter into force on 1 January 2004.
Checked and approved at the Council of Ministers of 29 August 2003. - José Manuel Durão Barroso – Norberto Emílio Sequeira da Rosa.
Promulgated on 6 October 2003.
Let it be published.
The President of the Republic, Jorge Sampaio.
Counter-signed on 10 October.
The Prime Minister, José Manuel Durão Barroso.
