The unbearable lightness of tax damage: constitutionality of determining tax crime damages without prior administrative assessment

Published as the lead article in Cadernos de Justiça Tributária, No. 50 (October/December 2025, pp. 3–17, CEJUR), “The Unbearable Lightness of Tax Damage: Constitutionality of Determining Tax Crime Damages Without Prior Administrative Assessment” addresses a critical intersection between Constitutional Tax Law, Tax Procedure, and Criminal Tax Law (General Regime for Tax Offences — RGIT).

The study critiques the judicial practice whereby criminal courts independently quantify "unlawful tax advantage" or "tax damage" in tax fraud prosecutions (Articles 103 and 104 RGIT) — whether to establish the statutory threshold of criminality, order the confiscation of proceeds of crime (Article 110 of the Criminal Code), or condition the suspension of prison sentences on tax payment (Article 14 RGIT) — in the absence of a prior, valid administrative tax assessment, or even where the Tax Authority's right to assess tax has lapsed under the four-year statute of limitations (Article 45 LGT) or been annulled by the tax courts.

The article demonstrates that:

1.Constitutional Reserve of the Tax Assessment Procedure: Quantifying taxable income and issuing a tax assessment are strictly bound administrative acts (Article 103(3) of the Constitution and Article 54 LGT) governed by non-derogable taxpayer guarantees that criminal courts lack jurisdiction to bypass;

2.Substantive Accessoriness of Criminal Tax Law: Where no valid, enforceable tax liability exists under substantive and procedural tax law, a criminal court cannot construct an autonomous "tax damage" without infringing the principles of tax and criminal legality (Articles 29 and 103 CRP), separation of powers, and systemic legal unity;

3.Unconstitutionality of Confiscation as a Substitute for Time-Barred Tax Assessments: Using criminal confiscation (Article 110 Criminal Code) or Article 14 RGIT payment conditions to collect unassessed or time-barred taxes turns criminal proceedings into an unconstitutional mechanism for extra-statutory tax collection.

Institutional Note: José Avilez Ogando heads the Tax Law and Tax Litigation practice at Seabra, Cunha, Távora e Associados, S.A., R.L., and is a researcher and coordinator at the NOVA Tax Research Lab (NOVA School of Law), serving on the Editorial Board of the NOVA Tax Research Series. For strategic counsel on high-stakes tax litigation and tax crime defence, please reach out via our Contact (/contact) page or explore our dedicated Research (/research) and Cases (/cases) sections.