Process: 13/2016-T

Date: June 22, 2016

Tax Type: Selo

Source: Original CAAD Decision

Summary

This Portuguese tax arbitration case (Process 13/2016-T) examines whether Stamp Tax applies to real property acquisitions in insolvency proceedings involving non-business individuals. The petitioner, A... SA, challenged €3,159.20 in Stamp Tax levied on properties acquired through adjudication in five separate insolvency proceedings. The insolvent debtors were natural persons who were neither business operators nor business establishment holders.

The petitioner argued that Article 269 of the Insolvency and Business Recovery Code (CIRE) should apply equally to insolvencies of both business and non-business persons, based on constitutional principles of equality. They contended that Article 269(d) exempts transfers of debtor assets to creditors without distinguishing between business and personal patrimony, making the tax levy illegal.

The Tax Authority raised two defenses: First, a procedural exception claiming the petition was untimely, arguing that the right of action had expired (caducidade do direito de ação) since the challenge targeted the original levy acts rather than the gracious appeal dismissal decisions. Second, on merit, the Authority argued that the CIRE exemptions apply only to transfers of business establishments or assets forming part of a business universality under insolvency or recovery plans, not to individual asset sales during estate liquidation. According to the Tax Authority, since the insolvents were not business persons and the properties were not business assets, the exemption under Article 269(e) did not apply.

The case illustrates the critical distinction in Portuguese insolvency tax law between business and non-business insolvencies, and raises important questions about the scope of tax exemptions, procedural time limits in tax arbitration, and constitutional equality principles in tax treatment of different categories of insolvent debtors.

Full Decision

ARBITRAL DECISION

I. REPORT

A…, SA, a legal entity…, with registered office at Avenue…, no.…, … -…, in Lisbon, filed a petition for the constitution of a singular Arbitral Tribunal, in accordance with the provisions of articles 2 and 10 of Decree-Law no. 10/2011, of 20 January (Legal Regime for Arbitration in Tax Matters, hereinafter referred to only as RJAT), against the Tax and Customs Authority (hereinafter AT), with the objective of obtaining a declaration of illegality of the dismissal of the gracious appeals filed relating to the acts of levy of Stamp Tax identified in the case file, in the amount of €3,159.20.

The petition for constitution of the Arbitral Tribunal was accepted by His Excellency the President of CAAD on 28 January 2016 and automatically notified to the AT.

In accordance with the provisions of article 11(c) of the RJAT, the singular Arbitral Tribunal was constituted on 20 April 2016.

The AT responded, arguing for the extinction of the arbitral proceedings, in view of the verification of the untimeliness of the petition or, if that is not accepted, the lack of merit of the petition.

The meeting referred to in article 18 of the RJAT was dispensed with, in view of the subject matter contained in the case file, and the parties were notified to present optional written arguments.

The Arbitral Tribunal is regularly constituted and is materially competent, in accordance with article 2(1)(a) of the RJAT.

The parties have legal personality and capacity, are legitimately party and are represented (article 4, and article 10(2) of the RJAT and article 1 of Ordinance no. 112/2011, of 22 March).

The proceedings do not suffer from any nullities, and the exception invoked by the Respondent shall be examined with priority.

II. FACTUAL MATTERS

On the basis of the elements contained in the case file, the following facts are considered proven:

A) The… tax office of the municipality of Vila Nova de Gaia issued the following acts of levy of Stamp Tax from item 1.1 of the General Table in the total amount of €3,159.20 (three thousand one hundred and fifty-nine euros and twenty cents):

· Levy no. …
· Levy no. …
· Levy no. …
· Levy no. …
· Levy no. …

B) Such levy acts relate to acquisitions, by adjudication by the Petitioner, in insolvency proceedings nos. …/12… TBMTS, conducted in the 1st Court of the Judicial Court of Matosinhos; …/11… TBMAI conducted in the 3rd Civil Court of the Judicial Court of Maia; …/13… TBGDM, conducted in the 1st Civil Court of the Judicial Court of Gondomar; …/12… TJPRT, conducted in the 2nd Civil Court of the Judicial Court of Porto; …/13… TJPRT, also conducted in the 2nd Civil Court of the Judicial Court of Porto relating respectively to B…, C…, D…, E… and F…, who are not business persons, nor holders of businesses, owners of the real property in question;

C) The Petitioner made payment of the levy acts identified;

D) The Petitioner filed a gracious appeal against each of the levy acts identified;

E) On 13 October 2015, the Petitioner was notified of the acts dismissing the gracious appeals filed;

Taking into account the positions taken by the parties, in light of article 110(7) of the CPPT and the documentary evidence submitted to the case file, the facts listed above are considered proven, with relevance to the decision.

III. LEGAL MATTERS

The principal question that arises in these proceedings comes down to whether the purchase of real property, in the context of insolvency proceedings relating to non-business persons, nor holders of businesses, owners of the real property in question, is or is not exempt from Stamp Tax, by virtue of the provisions of article 269 of the Insolvency and Business Recovery Code (hereinafter CIRE).

To this end, the Petitioner alleges in its petition for arbitral pronouncement the following:

  1. The CIRE regulates the insolvency of natural persons, even though they are not holders of any establishment and business left aside by the previous CEPEREF (see article 2, nos. 1, subparagraph a), and articles 35 et seq. of the CIRE), in Title XIII which contains the tax benefits of insolvency and recovery proceedings;

  2. Pursuant to article 250 of the CEPEREF, only Titles IX and X are applicable to insolvency proceedings of non-business persons or business holders;

  3. "A contrario" Title XIII is wholly applicable, which contains the emolument and tax benefits applicable in insolvency proceedings of non-business persons or business holders;

  4. Article 269 is, therefore, applicable, albeit with the necessary adaptations, to insolvency proceedings of non-business persons or business holders;

  5. This is what results from interpretation in conformity with the Constitution, pursuant to the Decision of the Supreme Administrative Court of 30 May 2012, case no. 949/11;

  6. From this interpretation in conformity with the Constitution, results necessarily the parity, under penalty of violation of the principle of equality, of the tax benefits of individual business persons and of non-business persons or business holders.

  7. Article 269, subparagraph d), of the CEPEREF exempts from Stamp Tax the transfer of the debtor's assets to creditors, not distinguishing whether the asset transferred is an asset of the business or the patrimony of the insolvent non-business person or business holder, nor does it distinguish the title by which the transfer must be effected;

  8. There is thus no apparent legal basis for the present additional levy.

For its part, the AT alleges, in summary, the following:

By exception: the subject matter of these proceedings, as results from the content of the petition formulated by the Petitioner, are the levy acts and not the act of dismissal of the gracious appeal, which constitute different acts in content, form and legal requirements, being procedurally distinct and differentiated interventions;

As can be seen from the reading of the petition, the Petitioner never refers to the legality of the decision on the gracious appeals, and instead requests that the Tribunal declare that "the levies effected are thus illegal, requesting their annulment and, insofar as the tax was paid, the payment of compensatory interest.";

Thus, the timeliness of the petition for arbitral pronouncement formulated is assessed in relation to the levy acts, with it being verified in the present case that the same is manifestly untimely;

From the foregoing it results that in the present case there is a lapse of the right of action, which constitutes a dilatory exception that determines the dismissal of the Respondent from the proceedings under subparagraph h) of article 89(1) of the CPTA and subparagraph e) of article 287(1) of the CPC, applicable ex vi article 2 of the RJAT which, forthwith, is requested.

By Defence on the Merits: at issue in these proceedings is the application of the recognition of exemption from Transfer Tax provided for in article 270(2) of the CIRE and the exemption from Stamp Tax provided for in article 269(1-e));

Now, in the present case, we are not dealing with an onerous transfer of assets that form part of the universality of a business or establishment sold, exchanged or transferred under an insolvency plan or a payments plan or the liquidation of the insolvent estate, but rather an act of sale of an asset in the course of liquidation of the insolvent estate.

The objective of the sale is the liquidation of a patrimony and not the revitalization of the business.

With regard, specifically, to the exemption from Stamp Tax, subparagraph e) of article 269 of the CIRE includes the separate transfer of the establishment of the real property forming part of the fixed or exchangeable assets of the business, not being applicable when the insolvent is not a business or, given that this concerns a business person operating as an individual, the real property sold, exchanged or transferred do not form part of the assets of the business of which he is the holder.

For the AT to incur the duty to pay compensatory interest, it is necessary that there be some illegality that shows the improper character of the tax payment in light of the substantive rules, illegality that must necessarily be attributable to error by the services;

As has been demonstrated, the levies in question do not arise from any error by the services but result directly from the application of the law.

  1. From the foregoing it results therefore evident, that the Stamp Tax levies now in dispute do not suffer from any illegality whatsoever, and should, therefore, remain in the legal order and, consequently, the Petitioner has no right to payment of any compensatory interest, and the Petitioner's claim should be considered as lacking in merit and the Respondent Entity should be absolved of all claims.

Let us see what must be understood.

a) The Exception of Untimeliness of the Petition

In the response presented, the AT defends itself by exception that, if verified, leads to the dismissal of the proceedings.

The examination of the exception of untimeliness of the petition depends on the question of whether the Petitioner challenged the acts of dismissal of the gracious appeals filed or whether, instead, it merely challenges each of the Stamp Tax levy acts per se.

Now, the Petitioner identifies clearly in its arbitral petition both the Stamp Tax levy acts and the gracious appeal proceedings filed and the respective final decisions.

It further results from the arbitral petition that the gracious appeals filed were dismissed by order of the Finance Chief of …, with a copy of those decision acts being attached.

Taking into account that the acts which decided the gracious appeals are second instance acts, in which the legality of the levy acts identified is analyzed, it is considered that the Petitioner identifies sufficiently the acts which are the subject of the arbitral petition as being the acts of decision on the gracious appeals filed by reference to the underlying levy acts.

Consequently, the exception of untimeliness of the petition raised by the Respondent does not hold.

b) The Petition on the Merits

It results from article 11 of the General Tax Law (LGT) that the interpretation of tax law must be carried out in accordance with the general principles of interpretation.

The principal general principles of interpretation are established in article 9 of the Civil Code (CC), in the following terms:

"1. The interpretation must not be confined to the letter of the law, but must reconstruct from the texts the legislative intent, taking above all into account the unity of the legal system, the circumstances in which the law was drawn up and the specific conditions of the time in which it is applied.

  1. However, the interpreter cannot consider the legislative intent that does not have in the letter of the law a minimum of verbal correspondence, even if imperfectly expressed.

  2. In fixing the meaning and scope of the law, the interpreter shall presume that the legislator adopted the most appropriate solutions and knew how to express its intent in adequate terms."

Considering the arguments set out by the parties, it is therefore important to analyze the provisions of article 269, subparagraph e) of the CIRE and to determine whether the purchase of real property, in the context of insolvency proceedings relating to non-business persons, nor holders of businesses, owners of the real property in question, is or is not exempt from Stamp Tax.

To this end, article 269 of the CIRE provides as follows:

"The following acts are exempt from Stamp Tax, when subject to it, provided that they are provided for in insolvency plans, payments plans or recovery plans or carried out in the context of the liquidation of the insolvent estate:

a) Modifications of maturity dates or interest rates on credits relating to the insolvency;

b) Increases of capital, conversions of credits into capital and alienations of capital;

c) The establishment of a new company or companies;

d) Dation in fulfillment of assets of the business and the transfer of assets to creditors;

e) The carrying out of financing operations, the transfer or assignment of the operation of business establishments, the establishment of companies and the transfer of business establishments, the sale, exchange or transfer of elements of the business assets, as well as the lease of assets;

f) The issue of bills or promissory notes."

Considering the literal wording of subparagraph e) of article 269 of the CIRE, it results that exempted from Stamp Tax is the sale of elements of the business assets, provided that they are provided for in insolvency plans, payments plans or recovery plans or carried out in the context of the liquidation of the insolvent estate.

Consequently, the literal meaning of the provision in question confers exemption from Stamp Tax on sales of elements of business assets, and cannot here be understood to include sales of assets of natural persons, non-business persons or business holders, since this is not provided for in the provision under analysis.

Considering the rational element of legal interpretation, it must be considered that every single provision was created with a specific purpose and that, consequently, it must be understood in the sense that best responds to the result that was intended to be achieved.

In this sense, it may be said that the tax exemption created by article 269(e) of the CIRE seems to have had as its purpose to facilitate the carrying out of the acts described therein, eliminating the impact of the tax charges normally associated with those acts.

The rationale of the provision could, therefore, in principle, encompass acts of sale that had their origin in insolvency of natural persons, non-business persons or business holders, since, the objective of the provision being to facilitate the carrying out of those operations in situations of insolvency or recovery, no impediment is seen to such legal provision as regards natural persons.

Nevertheless, the provision under analysis clearly and expressly provides that the exemption from Stamp Tax applies to "the sale, exchange or transfer of elements of the business assets" and does not provide that the exemption from Stamp Tax applies to the sale, exchange or transfer of elements held by natural persons. Consequently, Ubi lex non distinguit nec nos distinguere debemus.

Whence, the exemption from Stamp Tax provided for in subparagraph e) of article 269 of the CIRE applies only in relation to real property forming part of the patrimony of a business and not to real property of natural persons (See Decision of the Supreme Administrative Court rendered in case no. 765/2013, of 3 July 2013 and in case 866/13, of 25 September 2013).

Considering that, in the present case, the Petitioner acquired, by adjudication, in the context of the insolvency proceedings already identified, real property relating to non-business persons, nor holders of businesses, owners of the real property in question, the situation is not subsumed in the provision of subparagraph e) of article 269 of the CIRE, which refers exclusively to the sale of "elements of the business assets".

IV. DECISION

For these reasons, this Arbitral Tribunal decides:

A) To judge as wholly lacking in merit the exception of lapse invoked by the Respondent;

B) To judge as wholly lacking in merit the petition for annulment of the acts dismissing the gracious appeals filed;

C) To order the Petitioner to pay the costs of these proceedings, as the unsuccessful party.

V. VALUE OF THE PROCEEDINGS

In accordance with the provisions of article 306(2) of the Code of Civil Procedure, article 97-A(1)(a) of the CPPT and article 3(2) of the Regulation of Costs in Tax Arbitration Proceedings, the value of the petition is fixed at €3,159.20.

VI. COSTS

Pursuant to the provisions of articles 12(2) and 22(4), both of the RJAT, and article 4(4) of the Regulation of Costs in Tax Arbitration Proceedings, the amount of the arbitration fee is fixed at €612, in accordance with Table I of the aforementioned Regulation, at the charge of the Petitioner.

Notification shall be given.

Lisbon, 22 June 2016

The Arbitrator

Magda Feliciano

(The text of this decision was prepared by computer, in accordance with article 131(5) of the Code of Civil Procedure, applicable by reference from article 29(1), subparagraph e) of Decree-Law no. 10/2011, of 20 January (RJAT), and its drafting is governed by the spelling prior to the Orthographic Agreement of 1990.)

Frequently Asked Questions

Automatically Created

Is Stamp Tax (Imposto do Selo) due on property acquisitions made during insolvency proceedings in Portugal?
Stamp Tax on property acquisitions during insolvency proceedings depends on the nature of the insolvency and the assets involved. Under Article 269 of the Portuguese Insolvency and Recovery Code (CIRE), exemptions from Stamp Tax are available for certain transfers in insolvency proceedings. However, the Tax Authority's position is that these exemptions apply primarily when the insolvent is a business person and the property forms part of business assets transferred as part of a business establishment or under an insolvency/recovery plan. For insolvencies involving non-business individuals where individual assets are sold during estate liquidation (rather than business revitalization), the Tax Authority typically argues that Stamp Tax remains due. The applicability depends on whether the transaction involves a business establishment transfer or merely individual asset liquidation.
What exemption does Article 269 of the Portuguese Insolvency and Recovery Code (CIRE) provide for tax obligations?
Article 269 of the Portuguese Insolvency and Recovery Code (CIRE) provides exemptions from various taxes in insolvency proceedings. Specifically regarding Stamp Tax, the provision exempts certain transfers including the separate transfer of business establishments and real property forming part of fixed or exchangeable business assets. The exemption is intended to facilitate the recovery or orderly liquidation of insolvent estates by reducing tax burdens on asset transfers. However, the scope of this exemption is disputed: while some argue it should apply broadly to all insolvency proceedings based on constitutional equality principles, the Tax Authority interprets it restrictively, limiting application to cases where the insolvent is a business person or business holder and the transferred assets form part of a business universality rather than personal patrimony being liquidated.
What are the time limits for filing a claim against Stamp Tax assessments before the CAAD arbitration tribunal?
The time limits for filing claims against Stamp Tax assessments before the CAAD (Administrative Arbitration Center) are governed by the Legal Regime for Arbitration in Tax Matters (RJAT). Taxpayers must generally file their arbitration petition within the statutory deadline following notification of the contested administrative act. A critical procedural issue in tax arbitration is identifying the correct act being challenged: the original tax levy act versus the decision dismissing a gracious appeal. These are distinct acts with different time limits. If a taxpayer files a gracious appeal first, the deadline for arbitration runs from notification of the appeal decision, not the original levy. Filing against the wrong act or outside the applicable time limit can result in the petition being dismissed for untimeliness (caducidade do direito de ação), as the Tax Authority argued in this case.
Can the expiry of the right of action (caducidade do direito de ação) bar a tax dispute in Portuguese arbitration proceedings?
Yes, the expiry of the right of action (caducidade do direito de ação) can absolutely bar a tax dispute in Portuguese arbitration proceedings. Caducidade is a dilatory exception that, when verified, requires dismissal of the respondent from proceedings under Article 89(1)(h) of the Administrative Courts Procedure Code (CPTA). In tax arbitration, this occurs when the petition is filed outside the statutory time limits established by law. The Tax Authority frequently raises this procedural defense, arguing that petitions are untimely. A critical aspect is correctly identifying which administrative act is being challenged—the original tax levy or a subsequent gracious appeal decision—as each has distinct notification dates and deadlines. Courts examine this exception with priority before addressing the merits of the case, meaning a petitioner can lose their case on procedural grounds regardless of substantive merit.
How does the CAAD arbitration process work for challenging Stamp Tax liquidation acts issued by the Portuguese Tax Authority?
The CAAD arbitration process for challenging Stamp Tax liquidation acts begins with filing a petition for constitution of an arbitral tribunal under the Legal Regime for Arbitration in Tax Matters (RJAT). The taxpayer submits a petition identifying the contested act and legal grounds. The CAAD President accepts the petition and notifies the Tax Authority, which then responds—often raising procedural exceptions like untimeliness or substantive defenses on merit. An arbitrator is appointed to constitute the tribunal, which verifies its competence and the parties' legitimacy. The tribunal may dispense with oral hearings depending on case complexity, allowing parties to submit written arguments. The tribunal examines procedural exceptions with priority before addressing substantive issues. Throughout the process, established facts are determined based on case file documentation and party positions. The arbitral decision is binding and addresses both procedural and substantive issues, providing a faster alternative to traditional court litigation for tax disputes.