Summary
Full Decision
ARBITRAL DECISION
I – REPORT
1. A…, Tax Identification Number … and B…, Tax Identification Number …, resident in …, number …, …, … – …-…, in Brazil, filed, on 08-02-2017, a request for constitution of an arbitral tribunal, in accordance with the provisions of Articles 2 and 10 of Decree-Law No. 10/2011, of 20 January (Legal Framework for Arbitration in Tax Matters, hereinafter referred to only as RJAT), in conjunction with Article 102 of the CPPT, against the Tax and Customs Authority (hereinafter referred to only as the Respondent).
2. The applicants seek, through their request, a declaration of illegality of the IRS assessment No. 2016…, relating to the year 2014, and of the act rejecting the gracious complaint lodged against it (which bore the number …2016…), with the consequent reimbursement of the tax paid, as well as recognition of the right to compensatory interest.
3. The request for constitution of the arbitral tribunal was accepted by the President of CAAD and automatically notified to the Tax and Customs Authority on 08-02-2017.
3.1. The applicants did not appoint an arbitrator, wherefore, under the provisions of paragraph a) of section 2 of Article 6 and paragraph b) of section 1 of Article 11 of the RJAT, the President of the Deontological Council appointed the undersigned as arbitrator of the arbitral tribunal, who communicated acceptance of the appointment within the legal deadline.
3.2. On 03-04-2017 the parties were notified of the appointment of the arbitrator, and no impediment was raised.
3.3. In compliance with what is provided in paragraph c) of section 1 of Article 11 of the RJAT, the arbitral tribunal was constituted on 20-04-2017.
3.4. Accordingly, the Arbitral Tribunal is duly constituted to hear and decide on the subject matter of the proceedings.
4. To support the request for arbitral pronouncement, the applicants alleged, in summary, the following:
In May 2014, they executed a deed of sale and purchase through which they transferred ownership of the autonomous fraction designated by the letter "R" of the urban property located in …, …, in the civil parish of …, municipality of Cascais; described in the Second Land Registry Office of Cascais under the number … of the same civil parish and registered in the respective property tax roll under article P-…, for the value of €640,000.00.
This fraction had been acquired by them on 04-07-2006, by exchange with fractions A and CR, of which they were then owners, of the urban property called "…", in the civil parish of …, municipality of Cascais, registered in the property tax roll of the civil parish of … under article … and described in the Second Land Registry Office of Cascais under the number … of that civil parish.
On that date, the fractions in question had the following tax asset values: € 7,823.93 - A -, € 98,901.88 – CR – and € 399,700.00 – R.
By virtue of the necessity of assigning an alienation value, the applicants and the exchanging entity agreed that fraction "R" would have the value of €450,000.00 and that fractions "A" and "CR" would have, jointly, the value of € 450,000.00 (with the delivery of the properties and the payment of a monetary consideration).
The applicants and the mentioned entity established that, in addition to the mutual transfer of ownership of the real property, it would be necessary to assign a monetary counterpart valued at €230,000.00, on the part of the applicants.
For the payment of the aforementioned amount, the applicants used the balance of their "emigrant savings account" – regulated by Decree-Law No. 323/95 of 29 November – for which reason it was considered that they were exempt from the payment of IMT.
With regard to the sale made in May 2014, the applicants submitted their income declaration for IRS purposes for the year 2014, making reference to the aforementioned sale where the sale value of €640,000.00 and the acquisition value of €450,000.00 were declared, together with expenses totalling €51,899.55, having, as a consequence, paid IRS in the amount of € 26,544.81.
As the Tax and Customs Authority did not accept all of the expenses indicated, but only those relating to real estate agency expenses and energy certificate and considered that the acquisition value would be € 292,974.19, they were notified of the assessment in question, which resulted in an IRS adjustment of € 51,589.62.
In the present case, there is no doubt that we are dealing with an exchange contract – a contract by which a person transfers ownership of a property or other right in exchange for the ownership of another property or right given in return – and, in particular, what is designated as a "complex exchange," because in addition to the mutual transfer of ownership of real properties, the assignment of counterparts in non-real property is established, as the tax asset values of the properties are different.
It is accepted, both by the Tax and Customs Authority and by the applicants, the realization value, or in other words, the value attributed in the contract to the properties, in accordance with Article 44, section 1, paragraph a) of the CIRS, is € 640,000.00. However, the divergence arises as to the acquisition value, or in other words, that which served for purposes of taxation under the municipal tax on onerous transfers of real property, which in accordance with Article 46, sections 1 and 2, should be understood as the value that the parties considered for purposes of the exchange, or in other words, €450,000.00.
Under section 1 of Article 46 of the CIRS: "… if the property has been acquired for valuable consideration, the acquisition value shall be considered to be the one that served for purposes of taxation under the Municipal Tax on Onerous Property Transfers (IMT) …". In other words, the legislator does not expressly state that the acquisition value is the value on which IMT is levied.
As such, the Tax Authority's interpretation that the provision of paragraph b) of section 5 of Article 2 of the CIMT is applicable has no place in the aforementioned provision – Article 46, section 1 of the CIRS.
In the case in question, the truth is that the parties established the value of the transaction as the amount of 450,000.00 € (four hundred and fifty thousand euros) and it is this amount that should be considered as the true price, on which IMT would be levied.
The interpretation made by the Tax Authority is reductive and does not take into account the aforementioned economic substance of the transaction, which was considered fair for both parties and thus contracted, and the acquisition value mentioned by the applicants in their tax declaration should be considered as actually practised and consequently is not subject to any correction.
Moreover, the truth is that with the Tax Authority's interpretation, the aforementioned payment of 230,000.00 € (two hundred and thirty thousand euros) is not even considered, and to disregard that the applicants made, part of the payment for the acquisition of the real property through a monetary amount would be manifestly unfair and contrary to the notion of capital gain.
They do not understand how the Tax Authority, for purposes of calculating the acquisition value, only considers the difference between the Tax Asset Values of the fractions, without considering the monetary amount actually spent.
If the Tax Authority does not consider that the price of the transaction was 450,000.00 €, the truth is that, at least it should consider the acquisition value as being equivalent to the means of which the now applicants were deprived by the exchange carried out.
Given the foregoing, given the reasoning demonstrated, it would be contrary to the principles set out in the Fiscal Constitution to completely disregard the amount paid valued at € 230,000.00. Both because it violates the principle of tax capacity in calculating the acquisition value, and subsequently, it violates the same principle, because it will affect the difference between the realization value and the acquisition value that will result in a distorted calculation of the gain obtained.
The question of the "ratio legis" of the provision of the IMT Code under which in the case of exchange of properties, tax is only due by the acquirer of the property of greater value and only applies to the differential value between the properties subject to exchange should be posed. It seems evident that, like any neutrality regime, the legislator did not intend, in creating a neutrality regime under IMT, to proceed to the elimination of the historical acquisition value of the property for purposes of IRS.
The interpretation of the Tax Authority would imply that the taxpayer who receives in exchange the property of lesser value and, as such, does not bear any IMT with that acquisition, in a subsequent sale would not have any acquisition value for IRS purposes, erasing the historical acquisition value, whereby in a future sale of the property the taxpayer would be taxed on the entirety of the realization value and not on the income gain.
On the other hand, the Tax and Customs Authority's decision to consider only as an expense, for the determination of capital gains, the real estate agency expenses and the energy certificate valued at € 47,471.85, disregarding the expenses incurred with the provision of legal services, valued at €4,480.00, appears to us inadequate because it admits that the taxpayer has a tax capacity that, in fact, they do not have.
The role of lawyers is considered to be crucial for the transfer of ownership rights of the property in question not only because they carried out the necessary steps to obtain documentation for the fraction but also for the payment of the Notary's services and also represented the applicants in the said sale.
The expenses that can be framed, within the scope of paragraph a) of Article 51 of the CIRS are, first and foremost, those necessarily incurred for the purpose of obtaining a certain income, provided they are connected to acquisition and sale transactions. Accordingly, in compliance with what has been established for real estate brokerage companies in Portugal, in Dispatch 12/2008, it is understood that, given that these are non-residents, these legal services expenses should be equivalent to the fees paid to brokers because they are effectively connected to the obtaining of the capital gain and without these services the specific transaction that gave rise to the income would not be possible.
They do not accept the decision rejecting that gracious complaint.
Consequently, the applicants conclude by the illegality of the assessment which is the object of the arbitral request, as well as the aforementioned decision rejecting the gracious complaint, requesting that the assessment in question be annulled or, subsidiarily, that it be corrected by considering as the acquisition value € 336,725.81 €, and the tax paid should be reimbursed to them plus compensatory interest.
5. The Tax and Customs Authority presented its response, having sustained in summary:
The only matter of fact in dispute concerns the expense incurred with the provision of legal services, as it was not proven, either in the administrative proceedings, as results from the Administrative File attached, or in this arbitral instance.
Section 1 of Article 46 of the CIRS provides that the acquisition value to be considered in calculating capital gain is the value that served for purposes of taxation of the Municipal Tax on Onerous Property Transfers (IMT), with section 2 of that legal provision further determining that, if there is no taxation of IMT, the value that would serve as its basis is considered, if it were due, determined in accordance with the rules applicable to that tax.
In the present case, there was no taxation of IMT by virtue of the claimant having applied the balance of their emigrant savings account. But, if it were due, the value of IMT would be calculated in accordance with paragraph b) of section 5 of Article 2 of the CIMT, in accordance with which "exchanges are subject to IMT for the difference declared or for the difference between the tax asset values, whichever is greater."
There is, therefore, no doubt that if IMT were due, the value that would serve as the basis for its calculation would be the value of € 292,974.19, and that is the value to be considered for purposes of acquisition of the said property in the determination of capital gains in accordance with sections 1 and 2 of Article 46 of the CIRS.
It is therefore clear, from the combination of section 2 of Article 46 of the CIRS with paragraph b) of section 5 of Article 2 of the CIMT that the legislator's intention was to elect, for what matters to the present case, the difference in tax asset values as the acquisition value to be considered for purposes of calculation of the capital gain obtained from the sale of the property received in the exchange.
Of the amounts entered by the Applicants as expenses and charges, the amount of € 4,480.00, allegedly incurred with the provision of legal services, was disregarded, which was not at all proven by the Applicants, as the respective supporting document was not exhibited, either in the administrative proceedings or in this arbitral instance, as it is considered that the same is not susceptible to being framed in paragraph a) of Article 51 of the CIRS.
Thus, regarding "necessary and actually incurred expenses, inherent in the acquisition and sale," regard must be had to the wording of the law, from which it is clear that not all expenses that appear necessary, in view of the specific circumstances of each transaction, can accrue to the acquisition value, but only those that are objectively necessary, because they arise from a legal requirement, and those that appear inherent to the transaction, because they constitute a necessary counterpart of the same.
Even if, in view of the specific circumstances of the transaction, it appears necessary to resort to legal support, that provision of services does not fit within that legal provision as it is neither objectively necessary nor inherent to its execution.
More than that, the provision of legal services constitutes an obligation of means that does not depend on the achievement of the result. In other words, legal support services are due when provided, even if the sale does not materialize, from which it results that the same cannot be considered inherent to the sale now in question.
As provisions of legal services are not objectively necessary, because they do not arise from a legal requirement, nor are they inherent to the transaction, since their payment does not constitute a counterpart of the transaction, they are not susceptible to being framed in that legal provision.
The Respondent therefore concludes by the legality of the assessment act contested by the applicants, which should therefore be maintained.
6. By order of 26-07-2017, the meeting provided for in Article 18 of the RJAT was dispensed with and, with the consent of the parties, the presentation of statements.
II – CLARIFICATION
7.1. The tribunal is competent and duly constituted.
7.2. The parties have legal personality and capacity, show themselves to be entitled and are duly represented (Articles 4 and 10, section 2, of the RJAT and Article 1 of Regulation No. 112-A/2011, of 22 March).
7.3. The proceedings do not suffer from any defects of form.
III – MATTERS OF FACT AND LAW
III.1. Matter of Fact
8. Matter of Fact
8.1. Having regard to the positions assumed by the parties and the documentary evidence attached to the proceedings - bearing in mind that the Tribunal is not required to pronounce on everything alleged by the parties, but rather has the duty to select the facts that matter for the decision and distinguish the proven facts from the unproven facts (cf. Article 123, section 2, of the CPPT and Article 607, sections 3 and 4, of the CPC, applicable ex vi Article 29, section 1, paragraphs a) and e), of the RJAT) - the following facts are considered proven, being relevant to the assessment and decision of the questions raised:
- The applicants executed, on 30-05-2014, a deed of sale and purchase through which they sold, for the price of 640,000.00 €, the autonomous fraction designated by the letter "R" of the urban property located in …, …, union of the civil parishes of … and …, described in the Second Land Registry Office of Cascais under the number … and registered in the respective property tax roll under article …;
- Fraction which had been acquired by them on 04-07-2006, by exchange with fractions A and CR, of which they were then owners, of the urban property called "…", then of the civil parish of … and on that date registered in the property tax roll under article … and described in the Second Land Registry Office of Cascais under the number …;
- In that deed of exchange, the value of 450,000.00 € was assigned to fraction "R", which the applicants acquired, and the value of 220,000.00 € to fractions "A" and "CR", which they transferred, whereby, in addition to these fractions, the applicants also paid the sum of 230,000.00 €.
- When the deed of exchange was executed, the exchanged properties had the following tax asset values:
- Fraction A: 7,823.93 €
- Fraction CR: 98,901.88 €
- Fraction R: 399,700.00 €
- As a result of the exchange contract executed in 2006, the applicants did not declare, in their respective income declaration, any capital gain;
- The applicants presented, in their capacity as non-residents in Portuguese territory, on 22-05-2015, an income declaration, where they declared the capital gain obtained from the aforementioned sale of fraction "R" which occurred in May 2014;
- Declaration of income which they subsequently replaced with another, in which they also declared income from Category A;
- Following a prior "analysis of divergencies in IRS for 2014," the Tax Authority communicated by e-mail, as follows:
"From the documents received, the real estate agency and energy certificate expenses are accepted, in total of 47,471.85 € but the expense of invoice 2014…, of 4,428.00 for the provision of legal services, does not fit within Article 51 of the IRS Code. The acquisition value must be in accordance with Article 46 of the IRS Code, combined with paragraph b) of section 5 of Article 2 of the IMT Code. In the present case, the greater difference is that of the tax asset values: fraction R had TAV of 399,700.00 and fractions A+CR had TAV of 106,725.81. The difference is 292,974.19 eur and this shall be the acquisition value."
- As a result, the applicants were notified of assessment No. 2016…, in the amount of 51,589.62 €;
- The applicants filed a gracious complaint of the said assessment, which received a decision rejecting it that was notified to them, in the person of their judicial representative, by registered letter with proof of receipt, received on 29-11-2016;
- The applicants proceeded to pay the tax in question.
8.2. Reasoning for the Matter of Fact:
The matter of fact determined as proven is based on critical examination of the documentary evidence, not contested, as well as of the administrative file attached to the proceedings.
It is not considered proven that the applicants expended the sum of 4,480.00 €, with the provision of legal services for the purpose of the transfer of the property in question.
III.2. Matter of Law
As results from the arbitral request and the response presented, the issue submitted for consideration by the tribunal is confined to the determination of the capital gain resulting from the sale of property carried out by the applicants in the year 2014, which they acquired by exchange in the year 2006.
In accordance with the provision of section 1, paragraph a) of Article 10 of the CIRS, capital gains constitute gains obtained that, not being considered business and professional income, income from capital or from property, result from the onerous transfer of real rights over real property.
The gain subject to IRS is, in accordance with the provision of section 4 of the same provision, constituted by the difference between the realization value and the acquisition value.
If it is consensual between the parties that, for purposes of determining capital gain, the realization value resulting from the aforementioned sale is 640,000.00 €, by virtue of the provision of paragraph f) of section 1 of Article 44 of the CIRS, the same is not true with respect to the acquisition value of the same.
For this purpose, section 1 of Article 46 of the CIRS provides that, having the property been acquired for valuable consideration, the acquisition value is considered to be the one that served for purposes of taxation of the municipal tax on onerous transfers of real property (IMT), with section 2 concluding that, "if there is no taxation of IMT, the value that would serve as its basis is considered, if it were due, determined in accordance with the rules applicable to that tax."
As has been said, the property sold by the applicants came into their patrimony by virtue of an exchange contract.
Although the exchange contract was provided for in the first Portuguese civil code – with the designation of "barter" or "exchange" - it does not appear, in the current civil code, in the list of contracts that it expressly provides for and regulates, basically because it was understood "to be unnecessary such regulation" [1].
As is stated in the STJ Decision of 9-10-2007 – Case 07A2761: "The exchange contract, also called exchange or barter, is today an atypical contract, unnamed, as it has no specific regulation in our law, since the Civil Code of 1966. In the exchange or exchange contract, the regulation of reference must be sought, adaptedly, in the sale and purchase contract". [2]
And so it is in that an exchange contract is an onerous contract, with the synallagmatic character underlying it, similar to the sale and purchase contract, constituting the sinallagma of each of the transfers the inverse acquisition that derives precisely from the alienation made by the other contracting party.
Preliminarily, it must be clarified that, in this case, there was no taxation of IMT solely by the fact that the applicants applied the balance of the "emigrant savings account" of which they were holders and, to that extent, benefited from the exemption from IMT payment provided for in, then in force, DL 323/94, of 29 November.
Having stated this, the provision of section 2 of Article 46 of the CIRS must be applied when it determines that, having no taxation of IMT, the value that would serve as its basis must be considered, "if it were due, determined in accordance with the rules applicable to that tax."
Now, in accordance with the provision of paragraph b) of section 5 of Article 2 of the CIMT, in the case of exchanges, the IMT applies to the difference declared or the difference between the tax asset values, whichever is greater.
On this subject, the Respondent makes an interpretation of the provision under analysis to conclude, without reservation, that, had there been taxation of IMT, it would have applied to the difference in tax asset values (292,974.19 €), as it is greater than the difference in declared values (230,000.00 €).
From which to draw the conclusion that it is that value – 292,974.19 € - to be considered as acquisition value, for determination of the capital gain, by application of section 2 of Article 46 of the CIMT.
For their part, the applicants consider that the Tax Authority's interpretation that the provision of paragraph b) of section 5 of Article 2 of the CIMT is applicable has no place in the aforementioned provision – Article 46, section 1 of the CIRS, concluding that such interpretation is reductive and does not take into account the aforementioned economic substance of the transaction, which was considered fair by both parties and thus contracted.
Let us then examine this.
Contrary to what the applicants allege, the provision of the aforementioned Article 2, section 5, b) of the CIMT cannot fail to be applied to the case, in light of what sections 1 and 2 of Article 46 of the CIRS provide.
We believe, however, that neither party makes a proper interpretation of what is provided in the CIMT regarding the taxation of that tax in exchange contracts.
In accordance with Article 12, section 4, rule 4 of the CIMT, "in exchanges of properties, the declared difference in values is taken as the basis for taxation, when greater than the difference between the tax asset values."
The solution must therefore be found in the wording of the provision when it refers to "declared difference in values." This is not synonymous with difference in declared values.
Now, the conclusion of the Respondent appears to be based on the difference in declared values, which is not what the law establishes.
Already with regard to what was stipulated in Article 19, § 3, rule 8 of the CIMSISD – which rule 4 of section 4 of Article 12 of the current CIMT replicates - F. Pinto Fernandes and Nuno Pinto Fernandes said – CIMSISD annotated, p. 114, commentary 3.1: "indeed, it is flagrant that in rule 8 of § 3 of article 19 is expressly mentioned the "declared difference in values," a formula that does not have the meaning of "difference in declared values"; now this circumstance is worthy of the greatest attention, evident, as it is at every step, the scrupulousness and rigor with which the language of the Code is imbued."
Regarding the CIMT, Silvério Mateus and Corvelo de Freitas maintain – The Taxes on Real Estate Property, p. 418: "It should be noted that for purposes of taxation, what must be declared by the parties to an exchange is that difference in values and not the value of each of the lots exchanged, as results from the literality of the provision. This choice by the legislator does not translate mere terminological choice. It is based on the fact that, in exchanges, the price is constituted not only by the thing exchanged but also by the part in money or other values or moveable property given in exchange with it."
This is, moreover, the meaning of Circular Dispatch A-2/60, of 18 May, reported to the tax on transfers, with no valid reason existing to alter the respective understanding.
From this it is concluded that by "declared difference in values" should be understood, not the difference in declared values, or in other words, the difference between the values assigned to the real properties, but rather the money, moveable property or other values that come to be delivered by one of the parties to an exchange to the other and that should be integrated into the broad concept of the value of the act or contract declared for purposes of taxation of IMT.
No other could, moreover, be the conclusion since IMT "taxes the wealth effectively transferred and for that reason it applies to the real value of the transferred property on the date of execution of the transaction" [3].
Having stated this, it must be concluded that, had there been taxation of IMT in the exchange contract through which the applicants acquired, in 2006, the property sold in 2014, that taxation would have had as its taxable value the amount of 230,000.00 € (sum then paid in money by the applicants).
This, without prejudice to there being considered that the property then acquired was assigned the value of 336,725.81 € (resulting from the sum of the tax asset values of the properties transferred by the applicants, with the global value of 106,725.81 €, and the sum paid in money, of 230,000.00 €)[4], although the taxable value – since it is an exchange – being only that corresponding to the money paid.
That value which should be considered as the acquisition value borne by the applicants for the purpose of obtaining the realization value of 640,000.00 €.
Indeed, from section 1 of Article 46 of the CIRS it does not result that the acquisition value must correspond to the taxable value for IMT purposes. On the contrary, what is required there is that the value of the property which served as the basis for determining the taxable value subject to IMT be taken into consideration and from which resulted – or would have resulted, if it had existed – the respective taxation.
Which, moreover, within the principle of unity of the tax system, validates the understanding of considering the taxation of income with the obtaining of a capital gain as an increase in patrimony, by assimilation of the principle of tax capacity in the taxation of personal income.
A conclusion which meets the alternative request of the applicants formulated in accordance with the provision of Article 553 of the CPC, which therefore should proceed.
The applicants further request that the value of the expense which they allegedly incurred with the provision of legal services connected with the transaction of the property in question be considered.
Although it is argued that we are inclined not to consider such expenses as part of those provided for in paragraph a) of Article 51 of the CIRS, the fact is that it was not proven that such expenses were incurred, therefore, without necessity of other considerations, the request fails on this point.
COMPENSATORY INTEREST
In addition to the reimbursement of the tax, the applicants request that the right to payment of compensatory interest be declared.
This right is enshrined in Article 43 of the LGT, which has as a prerequisite that it be determined, in a gracious complaint or judicial challenge - or in tax arbitration – that there was an error attributable to the services from which results payment of the debt in an amount greater than legally due.
The recognition of the right to compensatory interest in the arbitral proceedings results from the provision of Article 24, section 5 of the RJAT, when it stipulates that "payment of interest, regardless of its nature, is due, in accordance with the terms provided in the general tax law and in the Tax Procedure and Process Code."
In the present case, it is manifest that an error attributable to the Tax Authority did indeed occur in the assessment in question which by its own initiative it carried out without legal support.
Therefore, the applicants are entitled to the requested payment of compensatory interest with regard to that tax, in accordance with the terms arising from the foregoing.
IV. DECISION
In these terms, this Arbitral Tribunal decides:
- To declare the arbitral request partially well-founded and, consequently, declare the illegality of the IRS assessment No. 2016…, relating to the year 2014, as well as the act rejecting the gracious complaint filed, and it is to be admitted as the acquisition value for purposes of determining the taxable capital gain the value of 336,725.81 €, with the remainder of the petition being dismissed.
- To condemn the Tax and Customs Administration to reimburse the applicants the amount of the corresponding tax in relation to the said assessment, increased by the respective compensatory interest.
- To condemn both parties to pay the costs of the proceedings, in the proportion of 70% by the Respondent and 30% by the applicants.
V. VALUE OF THE PROCEEDINGS
The value of the proceedings is fixed at 51,589.62 €, in accordance with Article 97-A, section 1, a), of the Tax Procedure and Process Code, applicable by virtue of paragraphs a) and b) of section 1 of Article 29 of the Legal Framework for Arbitration in Tax Matters and section 2 of Article 3 of the Regulation of Costs in Tax Arbitration Proceedings.
VI. COSTS
The arbitration fee is fixed at 2,142.00 €, in accordance with Table I of the Regulation of Costs in Tax Arbitration Proceedings, in accordance with Articles 12, section 2, and 22, section 4, both of the Legal Framework for Arbitration in Tax Matters, and Article 4, section 4, of the aforementioned Regulation.
Notify.
Lisbon, 18 October 2017
The Arbitrator
(António Alberto Franco)
[1] CC annotated – Pires de Lima and Antunes Varela, Vol. II – 3rd ed. p. 256.
[2] The exchange contract is not governed in the Civil Code, but given its nature as an onerous contract, it is regulated in accordance with the provisions relating to the sale and purchase contract, by virtue of Article 939 of the Civil Code (STA Decision 22-6-1995 – Case 086619).
[3] STA Decision of 27-01-1999 – Case 022537.
[4] As F. Pinto Fernandes and Nuno Pinto Fernandes state, op cit: "now as the determination of the taxable matter of the transfer tax came to be made by the price, as affirmed in the Code's report, it is through how much constitutes it – and therefore, in exchanges, not only the thing exchanged but also what is paid beyond it – that the basis for taxation is to be found."
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