Tax mediation in Portuguese legal ordinance: De Iure Condendo(?)

Abstract

Mediation is an ADR which falls within the category of means of self-determination and which presupposes the intervention of a third party a mediator whose function is to bring the parties together in a dispute in order to conclude an agreement between them. In the Portuguese legal system, it is not possible to mediate disputes between taxable persons and the Tax Administration. There are several obstacles to the mediatability of litigation in tax matters. In particular, we are thinking about the principles of legality, the unavailability of the tax credit, and equality. In this paper, it is sought to ascertain if these obstacles are absolute, not allowing any openness to the legality of legal-tax disputes, or if, on the contrary, they are not absolute, making feasible the thinking of creating a relation between Law Taxation and mediation. Adopting a method based essentially on dogmatic analysis, it is believed that it is possible to recognize the legality of legal-tax disputes, albeit within certain limits. The mediation will allow a closer approximation between the parties - taxable person and the Tax Administration - thus contributing to the creation of a greater ethical-tax awareness and, in this way, to the reduction of litigation.