IMT Exemption Under Article 270 CIRE for Insolvency Property Sales – CAAD Ruling 15/2017-T

ARBITRAL DECISION

I – Report

1. On 4 January 2017, the Claimant, A…, S.A., Tax ID Number…, with registered office at …, no.…, parish of …, Porto, filed a request with CAAD for the constitution of an arbitral tribunal, pursuant to Article 10 of Decree-Law No. 10/2011, of 20 January (Legal Framework for Arbitration in Tax Matters, hereinafter referred to as "RJAT"), in which the Tax and Customs Authority is the Respondent, seeking the declaration of nullity or annulment of the tax assessment for Municipal Tax on Onerous Transfers of Real Property (hereinafter "IMT"), dated 21.07.2016, in the amount of €1,858.84, relating to the purchase of urban real property located at … street, …, parish of …, Municipality of …, described in the Real Property Registry Office under number … and registered in the matrix of the aforementioned parish under article….

The Claimant, alleging to have paid the tax in question, further petitions for the reimbursement of such amount, plus compensatory interest.

2. The request for constitution of the arbitral tribunal was accepted by the Honourable President of CAAD and notified to the Tax and Customs Authority.

Pursuant to Article 6, paragraph 1, of RJAT, by decision of the President of the Deontological Council, duly communicated to the parties within the legally applicable timeframes, the undersigned was appointed as arbitrator, and communicated acceptance of the assignment to the Deontological Council and the Centre for Administrative Arbitration within the regularly applicable timeframe.

The Arbitral Tribunal was constituted on 14 March 2017.

3. The grounds presented by the Claimant in support of its claim were, summarily, as follows:

The additional tax assessment in question results from the allegedly improper application to the Claimant of the IMT exemption benefit provided for in Article 270, paragraph 2, of the Insolvency and Corporate Recovery Code (hereinafter "ICCR").

However, the various interpretative elements of the provision in question converge towards the conclusion that, in the context of an insolvency plan or payment plan or liquidation of the insolvent estate, the IMT exemption enshrined in Article 270, paragraph 2, of the ICCR extends to real property transferred by sale or exchange, even when such transfer is not integrated in the transfer of the enterprise or establishment.

It was in order to attempt to optimize, in value and in timeframe (in the context of an insolvency plan or payment plan or liquidation of the insolvent estate) the obtaining of revenues intended for the creditors (including the State) of the insolvent estate, that the legislator provided already in the CPEREF (in subparagraph c) of Article 121, paragraph 2) the exemption from Sisa for situations equivalent to those now claimed.

A solution which, for the same substantive reasons, the legislator intended to maintain in the ICCR through Article 270, paragraph 2, reflecting these provisions, in the systemic analysis of these legal instruments, the principles of equity and social solidarity that guided both instruments in this matter.

In relation to the State, the principles of social solidarity, underlying the ICCR, find their legal recognition i) as regards the chapter on credit claims, in the loss (albeit partial) of the privileges of State credits and, ii) as regards the chapter on revenues or rather, in the promotion of maximization of revenues intended for creditors, in the exemptions from stamp duty and IMT enshrined.

Being evident beyond doubt that the act of additional IMT tax assessment now in question results, as we have demonstrated, from an erroneous interpretation of Article 270, paragraph 2, of the ICCR, suffering therefore from the defect of error regarding the legal assumptions.

On the other hand, the act in question does not indicate and there exists no applicable legal provision that grounds and legitimizes the quantification of the amounts determined and the assessment of the tax in question, nor were any reasons given justifying the assessment now challenged.

The challenged act thus suffers from manifest lack of factual and legal grounds, or at least, these are insufficient, obscure and incongruous, whereby the following were flagrantly violated: Article 268, paragraph 3 of the CRP, Articles 124 and 125 of the CPA and Article 77 of the TGL.

Furthermore, the Tax Administration violated the legitimate expectations and guarantees previously constituted in the sphere of the Claimant, and the principle of confidence and legal certainty inherent to the rule of law principle, in addition to having violated the principles of tax legality, prohibition of retroactivity of tax law and legal certainty and security provided for, among others, in Articles 12 of the TGL, 12 of the CC and 103, paragraph 3, of the CRP.

Indeed, the interpretation of the Tax Administration applied to a past tax event, entirely conducted under the protection of old law, constitutes a violation of the principle of protection of confidence, in the aspect of legal certainty.

To this extent, there is clearly an error of law on the part of the Tax Authority, in that it misled the Claimant when it recognized the IMT exemption to be assessed prior to the execution of the public deed.

Furthermore, the principle of good faith enshrined in Article 59, paragraph 2, of the General Tax Law presupposes on the part of the Tax Administration a duty to act in accordance with good faith.

In truth, the presumption of good faith action is a corollary of that duty to act in accordance with the principle of good faith, which is constitutionally imposed on the entire Administration, pursuant to Article 266, paragraph 2, of the C.R.P.

Moreover, the revocation of the exemption could only be carried out within one year after it was granted, being an act constitutive of rights, through the combined application of Articles 141, paragraph 1, of the CPA and 58 of the CPPT.

Thus, the revocation of such administrative act was carried out beyond the one-year period in which it was legally possible, pursuant to Articles 136 and 141 of the CPA applicable ex vi Article 2, subparagraph c), of the TGL and Article 2, subparagraph d), of the TCPT.

To this extent, the illegality of the revocation is verified, given that the revoking act, with retroactive effect, occurred more than one year after the act granting the exemption, in clear violation of Article 141 of the CPA.

The Claimant has the right to restitution of the amount improperly paid, plus legal interest from the date of payment until its actual return, by virtue of the assessment whose annulment is now requested.

4. The ATA – Tax and Customs Authority, called upon to make a statement, contested the Claimant's claim, defending itself through a counterclaim, summarily, with the following grounds:

At issue in the present case is the existence of the requirements for the IMT exemption provided for in Article 270, paragraph 2, of the ICCR.

The Claimant alleges that, given that the acquisition of the real property was effected within the framework of the liquidation of a certain insolvent estate, the same is covered by the IMT exemption provided for in Article 270, paragraph 2, of the ICCR, but such interpretation has no legal support, as shall be demonstrated below.

Article 270, paragraph 2, of the Insolvency and Corporate Recovery Code currently provides that "Sales, exchanges or assignments of the enterprise or of establishments thereof are equally exempt from municipal tax on onerous transfers of real property, when integrated within the scope of insolvency plans, payment plans or recovery plans or carried out within the framework of liquidation of the insolvent estate. (Amended by Article 234 of Law No. 66-B/2012, of 31 December).

This exemption, previously provided for, extends to all acts integrated within the scope of insolvency plans, or payment plans, or liquidation of the insolvent estate, with the reservation that the insolvent be an enterprise or establishment.

The prior wording of Article 270, paragraph 2, of the Insolvency and Corporate Recovery Code was as follows: "2 - Sales, exchanges or assignments of the enterprise or of establishments thereof integrated within the scope of an insolvency plan or payment plan or carried out within the framework of liquidation of the insolvent estate are equally exempt from municipal tax on onerous transfers of real property."

Within the framework of interpretation of the prior wording, the jurisprudential understanding has been uniform in the sense that these must be real property that forms part of the patrimony of an enterprise and not real property of natural persons, with the sole justification of being part of an insolvency process.

From the comparison of the two wordings of Article 270, paragraph 2, of the aforementioned article, it is verified that the legislator merely added the exemption relating to transfers of the enterprise or of establishments thereof, integrated within the scope of enterprise recovery plans.

The assessed tax is legal and in accordance with the Constitution, with multiple constitutional principles invoked by the Claimant not being violated.

In the case at hand, we are faced with the acquisition of real property, albeit in an insolvency process, but which does not belong to an enterprise nor was intended for the exercise of any business activity, but was the property of a natural person intended for dwelling.

Whereby the legal requirements for IMT exemption are not met by reason of its transfer having been effected in an insolvency process of a natural person.

Regarding the alleged lack of factual and legal grounds, it should be noted that pursuant to Article 77 of the General Tax Law (TGL), the decision of the tax procedure must be grounded through a succinct exposition of the facts and legal reasons that motivated it, the grounds being able to consist of mere declaration of agreement with the grounds of previous opinions, reports or proposals, including those forming part of the tax audit report.

In accordance with Article 77, paragraph 2, of the TGL, the grounds for tax acts may be provided summarily, but must always contain the applicable legal provisions, the qualification and quantification of the tax facts and the operations for determining the taxable matter and the tax, which occurred clearly in the case at hand, whereby it is considered that the burden of grounds has been met and the Claimant's request necessarily fails.

Furthermore, it is manifest and indisputable that the Claimant fully understood the logical and legal process that led to the decision of taxation in question, and the legal criteria and methods that led to the values inherent in the assessment now in dispute, being the grounds presented by the Claimant in the present request for arbitral pronouncement, as well as in the previous gracious complaint, proof of this very fact.

Finally, the Claimant alleges that the revocation of the tax benefit is illegal by violation of Articles 140 and 141 of the CPA.

However, the grounds invoked also fail here since the legal requirements for the Claimant to benefit from the IMT exemption are not met, pursuant to Article 270, paragraph 2, of the ICCR, the tax administration could not fail to assess the tax due, provided that the statute of limitations deadline is respected, which, pursuant to Article 35 of the CIMT, combined with Article 45, paragraph 1, final part, of the TGL, is eight years counted from the transfer or from the date on which the exemption became without effect, adding that, contrary to what the Claimant alleges, there was no constitutive act of rights, because the benefit here in question is an automatic benefit pursuant to Article 5 of the Tax Benefits Statute (TBS).

5. Verifying the non-existence of any situation provided for in Article 18, paragraph 1, of RJAT, which would make necessary the arbitral meeting provided therein, the holding thereof was dispensed with, on the basis of the prohibition of the practice of useless acts.

The holding of arguments was further dispensed with, pursuant to Article 18, paragraph 2, of RJAT, "a contrario".

6. The tribunal is materially competent and is regularly constituted pursuant to RJAT.

The parties have legal personality and capacity, are legitimate and are legally represented.

The proceeding does not suffer from defects that invalidate it.

7. It is necessary to assess and decide whether the following illegalities are verified:

a) Illegality of the Assessment by violation of the provisions of Article 270, paragraph 2, of the ICCR.

b) Illegality of the Assessment by it constituting the illegal revocation of the act of granting a tax benefit effected beyond the one-year deadline.

c) Illegality of the assessment by violation of the principles of legal certainty, protection of confidence and good faith and prohibition of retroactivity of tax law.

d) Illegality of the assessment based on the defect of lack of grounds.

II – The Relevant Factual Matters

8. The following facts are considered proven:

The Claimant acquired the urban real property located at … street, …, parish of …, Municipality of …, described in the Real Property Registry Office under number … and registered in the matrix of the aforementioned parish under article … for the price of €131,500.00 (one hundred and thirty-one thousand five hundred euros).

Prior to the aforementioned adjudication, on 26 December 2012, the Claimant submitted before the competent Finance Service the declaration for assessment of the Municipal Tax on Onerous Transfers of Real Property (IMT), the assessment document containing the following:

"Seller of the Property (…)

Tax Identification: … Name: B… Civil Status: Married Marriage Regime: community of goods Spouse Tax ID: … Share: 1/1(…)

Benefits (…) Insolvency and Corporate Recovery Code - Transfers integrated within the framework of liquidation of the insolvent estate (art. 270, paragraph 2 of DL 53/04, 100% on the taxable basis (…) Collection: €0.00"

B… and wife C…, had acquired the real property in question by deed of purchase and sale and loan with mortgage executed on 16 June 2006, in the Notary Office of …, in which the Claimant intervened as lender, it appearing from such act that they declared that the real property in question was intended for permanent personal dwelling.

The Claimant was notified by office no. …/1st Section, of 4 December 2015, sent by the Finance Service of Leiria -…, to, if it so wished, within 15 days, exercise the right to prior hearing regarding the draft additional IMT assessment of €1,858.84 and stamp duty in the amount of €1,052.00.

This notification contains the following:

[Document excerpts omitted in translation as no specific content provided]

The Claimant did not exercise the right to hearing.

On 21 July 2016, in accordance with the draft decision notified to the Claimant, the assessment that is the subject of this proceeding was made.

This assessment contains the following:

[Document excerpts omitted in translation as no specific content provided]

On 22 July 2016, the Claimant proceeded to pay the amount of the assessment.

On 16 August 2016 the Claimant filed a gracious complaint against the additional IMT assessment now challenged.

In accordance with an order rendered in the proceeding on 24 October 2016, the Claimant was notified on 27 October 2016 to exercise the right to prior hearing and to take knowledge of the draft decision and its grounds, concluding with the rejection of the gracious complaint filed.

On 23 November 2016, a decision was rendered rejecting the gracious complaint filed, with the respective notification being addressed to the Claimant the following day.

With interest for the decision of the case, within the scope of the factual matters alleged, there are no unproven facts.

9. The Tribunal's conviction regarding the decision of the factual matters was based on the documents contained in the proceeding, which were not subject to challenge, as well as the pleadings presented, it being noteworthy that no disagreement occurs between the parties regarding the factual matters, the disagreement being confined to the legal matters.

III – The Applicable Law

10. Illegality of the Assessment by violation of the provisions of Article 270, paragraph 2, of the ICCR.

The Claimant understands that the acquisition effected meets the legal requirements of the exemption provided for in Article 270, paragraph 2, of the ICCR, contrary to what is understood by the Respondent.

This Article 270 of the ICCR establishes, in its current wording, the following:

"1 - The following transfers of real property, integrated in any insolvency plan, payment plan or recovery plan are exempt from municipal tax on onerous transfers of real property:

a) Those intended for the constitution of a new company or companies and for the realization of its capital;

b) Those intended for the realization of the increase in capital of the debtor company;

c) Those that result from performance by giving property of the enterprise and from assignment of property to creditors.

2 - Sales, exchanges or assignments of the enterprise or of establishments thereof integrated within the scope of insolvency plans, payment plans or recovery plans or carried out within the framework of liquidation of the insolvent estate are equally exempt from municipal tax on onerous transfers of real property."

The Supreme Administrative Court decided in the judgment rendered in proceeding 0949/11, of 30 May 2012, that "it should be understood that exempt from IMT are not only sales of the enterprise or its establishments, as universalities of assets, but also sales of elements of its assets, provided that integrated within the scope of an insolvency plan or payment plan or carried out within the framework of liquidation of the insolvent estate".[1]

This understanding has been followed by subsequent SAC jurisprudence.[2]

In the specific case of acquisition of real property not forming part of an enterprise's assets, the judgment of the Supreme Administrative Court, of 03 July 2013, proceeding 0765/13, concretized this understanding, understanding that "these must be real property forming part of the patrimony of an enterprise and not real property of natural persons, with the sole justification of being part of an insolvency process", a position that is followed, in the terms set forth by the learned judgment and whose understanding has also been followed by arbitral jurisprudence.[3]

Thus, it is concluded that the exemption provided for in Article 270, paragraph 2, of the ICCR is not applicable to the acquisition of the real property in question in the present proceeding, as it has not been demonstrated, nor even alleged, that it formed part of the assets of an enterprise, on the contrary, it results from the evidence that it is real property that had been acquired by the insolvents for their own permanent dwelling.

The alleged illegality by violation of the provision in question thus fails.

11. Illegality of the Assessment by it constituting the illegal revocation of the act of granting a tax benefit effected beyond the one-year deadline.

The Claimant further understands that the assessment constitutes the illegal revocation of a tax benefit constituted in its legal sphere and that Article 141 of the Code of Administrative Procedure prohibits the possibility of revocation.[4]

However, it happens that the tax benefit in question is automatic, not depending on any administrative act of recognition by the administration, as there is no legal provision for an administrative act of recognition of the exemption in question.[5][6]

Thus being, as is evident, the assessment in question does not constitute revocation of a prior administrative act, with both Article 141 of the Code of Administrative Procedure and Article 14, paragraph 4, of the Tax Benefits Statute being inapplicable to the case at hand, whose application also presupposes the existence of an administrative act of recognition of the tax benefit.[7]

In our understanding, to the situation sub judice is applicable Article 31, paragraph 2, of the Code of Municipal Tax on Onerous Transfers of Real Property, which provides that:

"- When it is verified that in assessments an error of fact or law was committed, resulting in prejudice to the State, as well as in cases where there is occasion for valuation, the head of the finance service where the assessment was made or the return was filed for the purposes of Article 19, paragraph 3, promotes the competent additional assessment.", providing paragraph 3 of the same article that "The assessment can only be made until four years have elapsed counted from the assessment to be corrected(…)"

This is the specific regime that the CIMT[8] provides for the alteration of assessment in which an error of fact or law was committed with prejudice to the State in the original assessment, with safeguard, naturally, of cases of tax benefits depending on recognition in which, by prior administrative act there was recognition thereof, which, as we have already seen, is not the case at hand.

Terms in which it is concluded that the assessment in question does not constitute illegal revocation of a tax benefit.

12. Illegality of the assessment by violation of the principles of legal certainty, protection of confidence and good faith and prohibition of retroactivity of tax law.

On this subject Sérgio Vasques writes:

"(...) if this principle of legal certainty, rooted in Article 2 of the Constitution of the Republic, is directed to all areas of legislative and administrative practice, it is evident that in the tax domain it acquires heightened importance, first and foremost because taxes represent a coercive taking of patrimony. When planning their activity and managing their daily affairs, families and companies need to be able to rely on tax law and the guidance of the administration, founding many of the decisions whose economic effects extend over time in these" (Manual of Tax Law, Almedina, 2011, p. 290).

For his part, Casalta Nabais tells us that "A weighing that will still have to be conducted in the case in which the administration or the legislator itself, through the retroactive imposition of a correct interpretation of tax law, intends to recover taxes not collected by virtue of the prior illegal interpretation of the administration excluding them from the zone of incidence or throwing them into tax benefits. Also against such venire contra factum proprium the principle of protection of confidence imposes limits" (Tax Law, Almedina, 3rd Edition, 2005, p. 150).

It appears to us that the violation of the principle of legal certainty by the administration, in cases in which it is embodied in contradictory conduct, harmful to the confidence raised in the taxpayer, ends up resulting in the violation of the principle of good faith recognized in Articles 59, paragraph 1, and 68 of the TGL and constitutionally enshrined in Article 266, paragraph 2, of the Constitution of the Portuguese Republic.

In this regard, the SAC considered in the judgment of 28 January 2009, rendered in proceeding 0699/08[9]:

"Although it has its primary domain of application with regard to acts practiced in the exercise of discretionary powers, the truth is that the possibility has been raised, notably, of the principle of good faith being applied in the case of acts practiced in the exercise of binding powers, since the text of Article 266 of the CRP does not give any indication of any restriction to its application to any type of administrative activity –(…).

However, in the confrontation between the principles of legality and good faith, each concrete situation must be weighted in order to be able to conclude whether the prevalence of the first, in the strict sense, results in a flagrant injustice to the taxpayer, causing it an inordinate and intolerable prejudice.

Only in this latter case, the violation of the principle of good faith, in its dimension of protection of confidence of individuals and as part of the body of legality, in the broad sense, should have the effect of invalidating the tax act practiced."

In the concrete case, it must be observed that the mention in the initial assessment that the transfer in question was exempt from IMT is capable of creating in the taxpayer the conviction that such exemption existed and that it would have no obligation to bear the tax in question, but it is also true, as we have seen, that the law itself provides for the existence of errors of law practiced in assessments to the prejudice of the State, and the possibility of such error being corrected through additional assessment.

On the other hand, the law provides in Articles 59, paragraph 1, subparagraph e) and 68, of the General Tax Law, the mechanism, which the Claimant did not use, adequate to provoke a binding position by the tax administration before the occurrence of the tax event.[10]

In these circumstances, the principles in question cannot be considered violated.

It should be added that, in any case, it should be considered that the taxation in question does not result for the Claimant, in the words of the SAC judgment of 28 January 2009, rendered in proceeding 0699/08 cited above, "a flagrant injustice" nor a "disproportionate and intolerable prejudice", in that it results only from the correct application of the law to the concrete case, in respect for the principles of legality and equality.

Indeed, as was considered in this judgment:

"(...) in the case "sub judicio", it being noted that no default interest was assessed, the assessment (...), being justified by reasons of public interest and in accordance with rules of tax incidence that are uniformly applicable to all taxpayers in equal circumstances.

In this way, rather than being able to constitute a flagrant injustice for the appellants, the tax assessment act carried out had a contribution to the restoration of equality among such taxpayers."

For the reasons set forth, the Tribunal understands that the tax act challenged is not violative of the principles of legal certainty and security and good faith.

It is further manifest that no violation has occurred to the principle of prohibition of retroactivity of tax law, since from the proceeding it only results that, in the case, in the initial assessment an error of law was practiced to the detriment of the Respondent, with no retroactive application of any legal norm occurring.

Terms in which it is decided that the assessment in question did not violate the aforementioned constitutional principles.

13. Illegality of the assessment based on the defect of lack of grounds.

The Claimant further alleges that the act in question does not indicate any applicable legal provision that grounds and legitimizes the quantification of the amounts determined and the assessment of the tax in question, nor were any reasons given justifying the assessment now challenged and that the challenged act thus suffers from manifest lack of factual and legal grounds, or at least, this is insufficient, obscure and incongruous.

However, neither is this defect verified.

Indeed, it was the Claimant himself who, aware of the objective incidence and the tax event, submitted the competent return for the purposes of the tax in question, it being considered, erroneously, in that first assessment, that the exemption provided for in Article 270, paragraph 2, of the ICCR occurred, which presupposes the occurrence of objective incidence.

Prior to the second assessment, the Claimant was notified, for the purposes of exercising the right to hearing of the intention of the Respondent to practice the tax act, such notification containing, in a succinct but sufficient, congruent and clear manner, the reasons why the Respondent considered that there is no right to the aforementioned exemption and, consequently, intended to proceed with the assessment. In the assessment that is the subject of the present proceeding, the initial assessment is identified, expressly referring to it as an additional assessment of that one.

Thus being, the alleged defect of lack of grounds of the tax assessment act is also judged to fail.

14. The request for declaration of nullity or annulment of the tax act thus fails, and, in consequence, the request for restitution of the tax paid, as well as compensatory interest.

IV – Decision

Thus, the arbitral tribunal decides to judge the arbitral claims totally without merit, the assessment being maintained in the legal order.

Value of the action: €1,858.84 (one thousand eight hundred and fifty-eight euros and eighty-four cents) pursuant to the provisions of Article 306, paragraph 2, of the CPC and 97-A, paragraph 1, subparagraph a), of the TCPT and 3, paragraph 2, of the Regulation on Costs in Arbitration Proceedings.

Costs to be borne by the Claimant, in the amount of €306.00 (three hundred and six euros) pursuant to paragraph 4 of Article 22 of RJAT.

Let notification be made.

Lisbon, CAAD, 26 June 2017

The Arbitrator

Marcolino Pisão Pedreiro

[1] available at http://www.dgsi.pt, emphasis ours.

[2] Cf. judgment of the SAC of 15 February 2017, rendered in proceeding 0793/16 and other judgments of this court referred therein. (also available at http://www.dgsi.pt)

[3] Cf., notably, the arbitral decisions rendered in proceedings 649/2015-T of 26 September 2016, 517/2016-T of 11 January 2017, 514/2015-T of 15 February 2017. (available at https://www.caad.org.pt/jurisprudencia/tributario/)

[4] In the numbering at the date of the tax event. Current Article 14, paragraph 4 of this statute.

[5] As Jorge Lopes de Sousa writes "As results from the provisions of paragraph 1 of this Article 65, in the absence of legal provision that provides for the automatic benefit, its recognition is necessary. However, as follows from the definition of automatic tax benefit contained in Article 4, paragraph 1, of the TBS, it is not necessary that such legal provision expressly refers to this automatism, it being sufficient that it results from the law directly and immediately attributing the benefit, without making its relevance dependent on prior recognition, which means that, in practice, one is faced with an automatic benefit, whenever the law does not provide for the need for recognition" (Code of Tax Procedure and Process Annotated and Commented, Áreas Publisher, 2006, pp. 508-509)

[6] Also in the sense that this is an automatic tax benefit, see the arbitral decision rendered in proceeding 517/2016-T of 11 January 2017.

[7] In this point we do not follow what was decided within the framework of arbitral proceeding 517/2016-T of 11 January 2017.

[8] Similarly to what is established for other taxes (Cf. Articles 89, paragraph 2, b) and 92, paragraph 1 of the CIRS, 99, paragraph 2, subparagraph c) and 101 of the CIRC, 115, paragraph 1, subparagraph c) and 116, paragraph 1, of the CIMI.)

[9] Which can be consulted at the website "www.dgsi.pt".

[10] In the words of Saldanha Sanches "when the passive subject obtains binding information according to which fact y applies regime x, the Administration cannot, even if subsequently convinced that the decision is wrong(…)" (Manual of Tax Law, Coimbra Publisher, 3rd Edition, 2007, p. 205).