Summary
Full Decision
ARBITRAL DECISION
I. Report
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A..., Lda., with registered office at Rua..., n.º..., ..., n.º..., ...-... Guimarães, with taxpayer identification number..., filed a request, "under article 2.º, subsection a), n.º 1, article 5.º, n.º 2, article 6.º, n.º 1, and articles 10.º et seq., all of Decree-Law n.º 10/2011, of 20 January, and also articles 1.º and 2.º of Order n.º 112-A/2011, of 22 March", for the constitution of an Arbitral Court with a Single Arbitrator, reviewing the legality of the ex officio assessment of Municipal Tax on Onerous Transfers of Real Property in the amount of € 5,062.20 and the assessment of compensatory interest in the amount of €5.55, requesting the condemnation of the Tax and Customs Authority (AT) to reimburse the amounts unduly paid, plus indemnificatory interest.
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From examination of the proceedings using the CAAD Case Management System, the following procedural course of action is relevant to understanding the case being decided:
2.1. The request for constitution of the Arbitral Court was accepted on 16 January 2018, and on the same date an informative email was sent to the AT regarding receipt of the request and the assigned case number;
2.2. The AT was notified of submission of the request on 22 January 2018, and subsequently appointed Dr. B... and Dr. C..., legal advisors from the Legal Advisory and Litigation Department of the Respondent, to intervene in these proceedings;
2.3. Subsequently, the Deontological Council of CAAD proceeded, in accordance with the provisions of article 6.º, n.º 1 and article 11.º, n.º 1, subsection a), both of the RJAT, to appoint the undersigned as arbitrator, who communicated acceptance of the appointment within the prescribed time limit;
2.4. The parties were notified of the arbitrator's appointment in accordance with article 11.º, n.º 1, subsection b) of the RJAT, and did not manifest any intention to refuse such appointment;
2.5. Subsequently, in compliance with article 11.º, n.º 1, subsection c) of the RJAT, the parties were notified of the constitution of the Court, which took place on 26 March 2018;
2.6. On the same day, an arbitral order was issued notifying the Director-General of the Tax and Customs Authority, in her capacity as head of the service, to submit a response within 30 days, attach a complete copy of the administrative file and, if so wished, request the production of additional evidence;
2.7. The AT, in its response, raised a challenge to the jurisdiction of the tribunal, also submitted a substantive defence and requested that the meeting provided for in article 18.º of the RJAT be dispensed with, as well as the dispensation of oral pleadings. It also attached two documents and the administrative file;
2.8. Upon examination of the content of the Response, the Court issued an arbitral order determining notification of the Claimant to respond to the matter of the challenge and to pronounce on the possibility of dispensing with both the meeting provided for in article 18.º of the RJAT and the production of oral pleadings;
2.9. The Claimant pronounced the challenge to be unmeritorious and in the same submission presented "substantive defence" – articles 26.º to 35.º –, agreeing to the dispensation of the meeting provided for in article 18.º of the RJAT and the production of oral pleadings;
2.10. Upon notification of this procedural document, the Respondent argued for the nullity of that request insofar as the Claimant submitted a substantive defence;
2.11. Finally, the Court issued an order considering articles 26.º to 35.º of the "Response to the AT's Pronouncement" not written, dispensed with the holding of the meeting referred to in article 18.º of the RJAT and the production of oral pleadings, and set the date for pronouncement of the arbitral decision.
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The parties have legal personality and capacity, are legitimately constituted (articles 4.º and 10.º, n.º 2, of the same statute and article 1.º of Order n.º 112-A/2011, of 22 March) and are properly represented, with the proceedings being free from any nullities.
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Since the Respondent raised a preliminary question that constitutes an obstacle to consideration of the merits of the case, such question must be assessed as a priority.
II. Reasoning
- Matters of Fact
5.1. Proven Facts
The following facts are deemed proven as being relevant to the decision:
5.1.1. By deed of sale and purchase celebrated at the Notarial Office of ..., on 26 June 2014, before Notary D..., the Claimant acquired, for the price of € 77,880.00, an urban property comprised of Plot n.º... – Building land with an area of 1019 m², located at the place of ..., parish of .., municipality of Guimarães, described at the Registry of Real Property, Commercial and Motor Vehicles of Guimarães under number .../..." (cf. Document n.º 3, attached to the request for arbitral pronouncement, whose content is considered here to be fully reproduced).
5.1.2. This property was acquired in the context of liquidation of the real estate assets of the insolvency estate of company E..., S.A., taxpayer number..., in proceedings which were conducted under number .../12...TBBRG-L, of the ... Civil Court of the Judicial Court of Braga (cf. Documents n.os 3 and 4, attached to the request for arbitral pronouncement, considered here to be fully reproduced).
5.1.3. On 19 June 2014, a declaration was issued by Administrator F..., with information that it "is intended for the payment of Stamp Duty and the assessment of IMT", wherein it was stated that the aforementioned property (cf. 5.1.1.) had been "awarded to A..., for the value of € 77,880.00, "in the context of liquidation of the real estate assets of the Insolvency Estate of E..., S.A., NIF:..., proceedings conducted under number .../12... TBBRG, ... Civil Court of the Judicial Court of Braga" (cf. Document n.º 4, attached to the request for arbitral pronouncement, whose content is considered here to be fully reproduced).
5.1.4. With a view to executing the notarial deed, the Claimant submitted, on 25 June 2014, at the Finance Service of Guimarães–..., the declaration "IMT Model 1" relating to the property referred to in 5.1.1., where it identified as the alienating party E..., NIPC..., that the property was intended for resale, and that the total value of the act or contract amounted to €77,880.00 (cf. Document n.º 5, attached to the request for arbitral pronouncement, whose content is considered here to be fully reproduced);
5.1.5. On the same day, 25 June 2014, and following submission of that declaration, the AT issued document n.º..., which states, among other things, "Patrimonial Value for IMT: € 611,452.58 Declared Value: € 77,880.00 Benefits: 15 – Properties for resale (Article 7.º of the CIMT), 100% on the taxable matter Taxable Matter: € 611,452.58 Rate: 6.50% Tax: € 0.00 Total Value of the act or Contract: € 77,880.00" (cf. Document n.º 6, attached to the request for arbitral pronouncement, whose content is considered here to be fully reproduced).
5.1.6. In the deed it is stated that the following were exhibited: "Document n.º... and ..., proving respectively the exemption from payment of Municipal Tax on Onerous Transfers of Real Property; and payment of the stamp duty provided for in item 1.1. of the Table, issued on the 25th of the current month, by the AT – Tax and Customs Authority" (cf. Document n.º 3, attached to the request for arbitral pronouncement, whose content is considered here to be fully reproduced).
5.1.7. The Claimant declared in the deed that the acquired property was intended for resale (cf. Document n.º 3, attached to the request for arbitral pronouncement, whose content is considered here to be fully reproduced).
5.1.8. On 4 August 2017, a request was filed at the Finance Service of Guimarães–..., in which the Claimant, considering that "the aforementioned property was not resold within the three-year period", requested the assessment of IMT, considering, for calculation of the taxable matter, rule 16.ª of n.º 4 of article 12.º of the IMT Code (cf. Document n.º 7, attached to the request for arbitral pronouncement, whose content is considered here to be fully reproduced).
5.1.9. In that same request, the Claimant urged the "annulment of the IMT assessment necessarily requested, where the conditional exemption of article 7.º of the IMT Code was applied, for breach of law, in particular for the non-application of an automatic exemption, such as that provided for in n.º 2 of article 270.º of the CIRE, with all legal consequences, in particular the issuance of a new assessment in which the IMT exemption provided for in article 270.º, n.º 2, of the CIRE is applied" or alternatively, that "the conversion be ordered of the conditional exemption of article 7.º of the EBF into the automatic exemption established in article 270.º, n.º 2, of the CIRE" (cf. Document n.º 7, attached to the request for arbitral pronouncement, whose content is considered here to be fully reproduced).
5.1.10. The AT, by letter n.º..., of 6 October 2017, notified the Claimant to request the payment slips to effect payment of € 5,067.75, consisting of € 5,062.20 of IMT and € 5.55 of compensatory interest, making the following statement: "[T]his assessment results from the benefit obtained from the IMT exemption under article 7.º of the CIMT, given that the Claimant declared that the acquired property was intended for resale. [§] It happens that one of the prerequisites to be able to benefit from the exemption was the sale of that property within a three-year period, not again for resale (...) therefore the assessment provided for in n.º 5 of art. 11.º of the said statute is applicable" (cf. Document n.º 8, attached to the request for arbitral pronouncement, whose content is considered here to be fully reproduced).
5.1.11. The tax and respective compensatory interest were assessed in accordance with the terms set out in the AT document n.º ... (cf. Document n.º 1, attached to the request for arbitral pronouncement, whose content is considered here to be fully reproduced).
5.1.12. The Claimant made payment on 24 October 2017 (cf. Document n.º 2, attached to the request for arbitral pronouncement, whose content is considered here to be fully reproduced).
5.1.13. On 15 January 2018, the Claimant filed a request directed to the President of the Centre for Administrative Arbitration, requesting the constitution of the Arbitral Court, wherein it petitioned for the "declaration of illegality of the IMT acts and compensatory interest in question, with all other legal consequences, including the reimbursement of the amounts paid with the due legal interest, including indemnificatory interest".
5.2. Unproven Facts
5.2.1. It was not proven that on 25 June 2014, the declaration issued by the judicial administrator and the notarial deed of sale and purchase of the aforementioned property were presented at the Finance Service of Guimarães–..., together with "IMT Model 1".
5.3. Reasoning for the Matters of Fact
It is incumbent upon the Court to select the matters of fact relevant to the judicial decision, taking into account the cause of action sustaining the Claimant's claim. In the case sub judice, the decision on proven and unproven facts was based, according to the principle of free assessment of evidence, on the documentary evidence in the proceedings, both with the request for arbitral pronouncement and subsequently with the Administrative File, organized in accordance with article 111.º of the CPPT, and attached with the Respondent's Response.
It should be noted, as regards the unproven fact, that since the deed is subsequent to the submission of the IMT Model 1 declaration, we are faced with a historical-material impossibility, determining, et pour cause, that it could not have been submitted at a moment when it did not yet exist. As for the submission of the declaration by the judicial administrator, in addition to there being no references to any annexes, requests or declarations accompanying the Model 1, the administration determined the taxable matter at € 611,452.58, without taking into account the provisions of article 12.º, n.º 4, rule 16.ª of the CIMT, something to which it would have been bound by force of that declaration, without the taxpayer reacting to or manifesting against such.
- On the Challenge to the Jurisdiction of CAAD to Know the Request Filed by the Claimant
6.1. In its Response, the Respondent presented both a challenge to jurisdiction and a substantive defence. With respect to the matter of the challenge, the arguments presented to the Court were as follows:
"(...)
4.º
Subsection a) of n.º 1 of article 2.º of the RJAT provides that the jurisdiction of arbitral courts comprises the assessment of declarations of illegality of acts of assessment of taxes, self-assessment, withholding at source and payment on account.
5.º
And article 4.º of the RJAT provides that "The binding of the tax administration to the jurisdiction of courts constituted under the terms of the present law depends on an order of the members of Government responsible for the areas of finance and justice, which shall establish, in particular, the type and maximum value of disputes covered."
6.º
In other words, matters relating to the recognition of tax exemptions and benefits are not covered within the material jurisdiction of the Arbitral Court.
7.º
Indeed, it follows from the request and the cause of action raised that the Claimant's claim consists in the recognition that it met the prerequisites to enjoy the exemption provided for in article 270.º, n.º 2 of the CIRE.
8.º
Thus, it results from the legal provisions mentioned above, in particular the provisions of articles 2.º and 4.º of the RJAT, that the arbitral court is materially incompetent to assess and decide the Claimant's request or to know matters relating to it.
9.º
In fact, tax acts relating to the recognition of tax exemptions constitute separable acts of the tax procedure, susceptible to challenge by taxpayers through appropriate means, and the tax assessment resulting from it cannot be put in issue through judicial challenge or, in this case, through a request for arbitral pronouncement, as is stated, for example, in the case law set forth in the decision of the STA no. 0188/09, of 09/09/2009.
10.º
It is worth invoking what was decided in Arbitral Process no. 17/2012-T, of 14 May 2012:
"In fact, the absence of binding of the Tax and Customs Authority to the arbitral court results in the immediate impossibility of the effectiveness erga omnes of a judgment which, if pronounced by this court in matters excluded, would produce no effects on the party that would have to enforce it, constituting, therefore, lack of jurisdiction, which is defined on the basis of subject matter and thus constitutes material incompetence of this court. It is, therefore, unambiguous for us that the lack of jurisdiction of the court to settle the dispute effectively constitutes the dilatory challenge of incompetence and not any other, making, given the arbitral nature of the court, an integrated reading of n.º 1 of article 2.º of the RJAT, with n.º 1 of its article 4.º and also with the aforementioned article 2.º of the Binding Order above transcribed." (Underlined emphasis).
11.º
Also the decision pronounced in Arbitral Process no. 310/2014-T, of 26 November 2014, concluded for the merits of the challenge of absolute material incompetence of the Arbitral Court: "Now, as has been constant case law of this Court, the Respondent is not bound to the Jurisdiction of CAAD regarding the matters petitioned by the Claimant (...)."
12.º
Considering that the AT is not bound to arbitral jurisdiction with respect to acts of recognition of exemptions in tax matters, it is to be concluded that this arbitral court is incompetent to decide the present dispute.
13.º
The incompetence of the court constitutes a dilatory challenge to jurisdiction to be known ex officio which determines dismissal of the instance in accordance with article 576.º and subsection a) of article 577.º of the Code of Civil Procedure (CPC) applicable ex vi article 29.º, n.º 1, subsection e) of the RJAT, which is hereby requested.
14.º
Consequently, the court should refrain from knowing or pronouncing on any questions relating to the recognition of the exemption provided for in article 270.º, n.º 2 of the CIRE, or, specifically in the present proceedings, the conversion of exemption requested by the Claimant.
(...)".
6.2. Since the meeting referred to in article 18.º of the RJAT was dispensed with, by agreement of the parties, the claimant was notified to exercise the right to be heard on the referred challenge, which it did as follows:
"(...)
3.º
With respect to the challenge of incompetence of the Tax Arbitral Court on the grounds of subject matter, the AT contends that "matters relating to the recognition of exemptions and tax benefits are not covered within the material jurisdiction of the Arbitral Court."
4.º
First, it should be noted that it is not understood how the AT reaches such a conclusion, since the Claimant expressly requests (contrary to what the AT asserts) the annulment "of the acts of additional IMT assessment titled by the single collection document n.º ... (in the amount of € 5,062.20) and of assessment of compensatory interest titled by the same single collection document n.º ... (in the amount of € 5.55) from which resulted a total amount payable of € 5,067.75." (our emphasis).
5.º
As the Court will have the opportunity to verify, the request of the Claimant, within the scope of the present proceedings, was to annul the aforementioned IMT assessments, whereas the reference to the IMT exemption in insolvency, such as that provided for in n.º 2 of article 270.º of the CIRE, constitutes the legal basis on which the annulment of the said assessment is requested.
6.º
Therefore, it is not understood the reason why the AT insists throughout its response that what the Claimant really intends is the recognition that it met the prerequisites to enjoy the exemption provided for in article 270.º, n.º 2 of the CIRE.
7.º
It would certainly be very desirable that the AT, on its own initiative and in compliance with the principle of legality to which it is bound by force of article 55.º of the LGT, had understood, as was its duty, that because this was an acquisition of an asset of the insolvency estate, and in the context of the liquidation proceedings of the insolvency estate of the seller, the legal transaction of sale and purchase described in the initial petition benefited from the exemption provided for in n.º 2 of article 270.º of the CIRE.
8.º
But since it has not done so to date (the Claimant finding no justification for such inertia), nothing remains for the Claimant but to request annulment of the IMT assessment titled by single collection document n.º..., on the grounds of its illegality, since that act did not take into account the automatic exemption, such as that provided for in n.º 2 of article 270.º of the CIRE, in light of, among others, the principle of legality, cooperation, justice and collaboration (cfr. articles 48.º of the CPPT, 8.º, 55.º and 59.º, all of the LGT, 266.º of the CRP and 3.º of the CPA).
9.º
As certainly this Court will have the opportunity to verify (and which, regrettably, for inexplicable reasons in the context of a rule of law state, the AT refuses to do).
10.º
It should also be noted that in the response presented by the AT case law of the CAAD is cited, which we propose to briefly analyze here, always with a view to ascertaining the reason for its invocation and whether it can effectively be used in its favor.
11.º
Beginning with process no. 17/2012-T (Arbitrator-President Alexandra Coelho Martins, Adjunct Arbitrator Conceição Gamito and Adjunct Arbitrator Júlio Tormenta).
12.º
This is a request for arbitral pronouncement on the legality of tax acts of additional VAT assessment, based on the application of indirect valuation methods.
13.º
The Court held that it cannot assess the declaration of illegality of the acts of additional VAT assessment because "the assessment of claims relating to the decision of the revision procedure, whose object is the determination of taxable matter by indirect methods, is barred, and if the cause of action of the present action is precisely the excess quantification of that matter (core of the revision procedure itself), then there is no doubt that the assessment of the act of assessment, based on that excess quantification, is excluded from the jurisdiction of this court."
14.º
Therefore, it is not understood the reason for the invocation, by the AT, of this decision as being in its favor, given that the matter of the challenge that concerns us in the present proceedings is not addressed in that decision.
15.º
With respect to process no. 310/2014-T (Court: Arbitrator Filipa Barros) this is a
"request for annulment of the tax acts grounded in the non-fulfillment of the legal prerequisites for the application of indirect methods and in the excess quantification of the taxable matter, also via the application of indirect valuation criteria."
16.º
Having the Court decided that "as has been constant case law of this Court, the Respondent is not bound to the Jurisdiction of CAAD regarding the matters petitioned by the Claimant, which are the subject of additional VAT assessments, effected exclusively through recourse to indirect methods, and not by reason of violation of the transfer pricing regime, as clearly results from the administrative file."
17.º
Therefore, once again, we do not understand the reason why the AT invoked this decision in its response, using it, allegedly, in support of its thesis.
18.º
In fact, in a very crystalline and well-reasoned manner, the Tax Arbitral Court, in process no. 252/2016-T, considering that it is a case entirely similar to that of the Claimant, states that "Now, the Claimant filed the request for constitution of the arbitral court for not being satisfied with the act of additional IMT assessment to which the present proceedings relate."
19.º
Therefore, the Arbitral Court understood that "It is clear that the analysis which the arbitral court will have to undertake may include a judgment on the susceptibility of the Claimant to benefit from the aforementioned exemptions, but that assessment will always be made in light of the necessary discernment on the illegality, or not, of the act of additional IMT assessment that prompted the present request for arbitral pronouncement." (our emphasis).
20.º
Thus, the Claimant cannot fail to assert that the Arbitral Court is materially competent to assess the request filed, in accordance with the provisions of article 2.º, n.º 1, subsection a) of the RJAT.
21.º
It is also important to invoke the decision relating to process no. 742/2015-T, of the Arbitral Court, which deserves the Claimant's absolute agreement, "(...) In the case at issue, the act reviewed by the Claimant is not, tout court, the revocation of the tax benefit initially recognized for it by the AT, which it admits does not apply to it, but rather the assessment act subsequent to that revocation (...)."
22.º
It should even be said that the Arbitral Court itself has competence to verify the legal prerequisites on which the exemption in question depends.
23.º
The matter has already been assessed by the arbitral courts operating at CAAD, so it is worth considering what was stated in the decision relating to process no. 599/2015-T:
"In truth, there is no special rule of insolvency procedure that confers jurisdiction on civil courts to recognize tax exemptions and the general regime of tax benefits inequivocally contradicts this possibility.
In fact, the Tax Benefits Statute (EBF) applies to all tax benefits (its article 1.º). From article 5.º of the EBF it results that tax benefits, when automatic, are not the subject of any autonomous act of recognition, so it is at the appropriate moment to decide whether an act of assessment should be performed that the question of verification by the Tax and Customs Authority of whether or not the prerequisites of the tax benefit are met is raised.
In the specific case of the exemption provided for in article 270.º of the CIRE, we are faced with a tax benefit for which only article 16.º, n.º 2 of the CIRE provides for the need for prior recognition by the Tax and Customs Authority when applied in the context of the business restructuring and revitalization process provided for in Decree-Law n.º 178/2012, of 3 August. In other cases covered by article 270.º of the CIRE, if prior recognition is not expressly provided for (neither in the CIRE, nor in the EBF, nor in article 10.º of the CIMT), we are faced with automatic recognition exemption, with verification and declaration of it being the responsibility of the finance service where the statement provided for in article 19.º, n.º 1, of the CIMT is presented, as results from subsection d) of n.º 8 of that article 10.º.
Moreover, since the right to tax benefits is a matter of tax law, the possibility of its direct recognition by the Courts is reserved to the Tax Courts, through an action for recognition of a right or legitimate interest in tax matters, in accordance with articles 212.º, n.º 3, of the CRP, 144.º, n.º 1, of the Law on the Organization of the Judicial System (Law n.º 62/2013, of 26 August), 49.º, n.º 1, subsection c), of the ETAF, 101.º, subsection b) of the LGT and 97.º, n.º 1, subsection h) and 145.º of the CPPT, therefore there is no legal support for asserting exclusive jurisdiction of the Civil Courts for recognition of the exemption in question."
24.º
Therefore, we hereby request that the challenge invoked by the AT be found unmeritorious, since the request and cause of action raised consist of the annulment of the additional IMT assessment and respective compensatory interest, an assessment which the Court must undertake in light of the necessary discernment on the illegality, or not, of the said acts of assessment that prompted the present request for arbitral pronouncement, in particular, because they are based on the following errors of fact and law:
a) Because this is an acquisition of an asset of the insolvency estate, and in the context of the liquidation proceedings of the insolvency estate of the seller, the legal transaction of sale and purchase in question benefits from the exemption provided for in n.º 2 of article 270.º of the CIRE;
b) Because it is an exemption provided for in the law, with no stipulation of any limit or condition, it being automatic;
c) Because it is a position of the AT that runs counter to the principle of legality enshrined in article 8.º of the LGT and within which the AT exercises its functions strictly (see article 55.º of the LGT);
d) Because it is an evident situation in which the AT, if it did not know, at least could not have been unaware that the requirements on which recognition of the exemption established in article 270.º, n.º 2 of the CIRE depends were met, and therefore should have recognized the exemption, properly framing the situation within the legal framework in force;
e) Because it is, essentially, the Claimant requesting the annulment of the additional IMT assessment and respective compensatory interest, due because of the non-application of an automatic exemption, such as that provided for in n.º 2 of article 270.º of the CIRE, in light of, among others, the principle of legality, cooperation, justice and collaboration (cfr. articles 48.º of the CPPT, 8.º, 55.º and 59.º, all of the LGT, 266.º of the CRP and 3.º of the CPA).
25.º
Therefore, at least in obedience to the principle of legality which we believe should be the sole subject of assessment by the Arbitral Court and, accordingly, the acts of additional IMT assessment and respective compensatory interest, subject of the present request for arbitral pronouncement, should be declared illegal, as we see no valid basis for preventing such assessment in this proceeding nor any argument justifying the legality of such assessments.
(...)".
6.3. Having heard the parties' positions on the matter of the challenge, the time has now come to decide.
The Respondent bases its understanding regarding the incompetence of this Court on the fact that matters relating to the recognition of tax exemptions and benefits cannot be assessed or decided therein, and that, in this case, prudential consideration of the Claimant's claim implies the "recognition that it met the prerequisites to enjoy the exemption provided for in article 270.º, n.º 2, of the CIRE".
The challenge in question, and likewise the arguments that substantively sustain it, constitute, mutatis mutandis, a matter already discussed in various single decisions and decisions of CAAD, and has even crossed the boundaries of arbitral jurisdiction and been decided by the Central Administrative Court of the South, in Decision of 29 June 2016, rendered in Process no. 09420/16 and available at www.dgsi.pt, where the competence of CAAD to know of the legality of acts of assessment of IMT which have disregarded the application of the exemption enshrined in article 270.º, n.º 2, of the CIRE was considered and upheld.
In arbitral jurisdiction, the question, weighed expressly verbis by reference to the exemption provided for in article 270.º of the CIRE, was raised, among others, in Processes nos. 123/2015-T, 599/2015-T, 693/2015-T, 252/2016-T, 283/2016-T, and no legal reasons of merit are apparent that would require a change in argument and decision from what is assumed in the aforementioned decisions.
In the last of the aforementioned decisions, the court discussed the referred question of court incompetence as follows:
"(...)
Now, article 2.º, n.º 1 of the RJAT establishes, as regards the jurisdiction of the arbitral courts operating at CAAD,
"1 - The jurisdiction of arbitral courts comprises the assessment of the following claims:
a) The declaration of illegality of acts of assessment of taxes, self-assessment, withholding at source and payment on account;
b) The declaration of illegality of acts of determination of taxable matter when not giving rise to assessment of any tax, of acts of determination of collective taxable matter and of acts of determination of patrimonial values;"
This jurisdiction is limited by the binding of the AT which came to be defined, in accordance with article 4.º, n.º 1 of the RJAT, by Order n.º 112-A/2011, of 12 March, which establishes the following:
"Article 2.º
Object of Binding
The services and bodies referred to in the previous article bind themselves to the jurisdiction of the arbitral courts operating at CAAD which have as their object the assessment of claims relating to taxes whose administration is entrusted to them referred to in n.º 1 of article 2.º of Decree-Law n.º 10/2011, of 20 January, with the exception of the following:
a) Claims relating to the declaration of illegality of acts of self-assessment, withholding at source and payment on account which have not been preceded by recourse to the administrative remedy in accordance with articles 131.º to 133.º of the Code of Tax Procedure and Process;
b) Claims relating to acts of determination of collective taxable matter and acts of determination of taxable matter, both by indirect methods, including the decision of the revision procedure;
c) Claims relating to customs duties on importation and other indirect taxes levied on goods subject to import duties; and
d) Claims relating to tariff classification, origin and customs value of goods and tariff quotas, or whose resolution depends on laboratory analysis or on steps to be taken by another Member State within the framework of administrative cooperation in customs matters."
Since the arbitral process is limited to acts of assessment of taxes, (...) including administrative acts that involve assessment of the legality of acts of assessment, it is understood that the request raised by the Claimant for declaration of illegality of the act of assessment of IMT, on the basis of violation of article 270.º, n.º 2 of the CIRE, is susceptible of assessment by the Arbitral Court.
As teaches Jorge Lopes de Sousa (cfr. Commentary on the Legal Regime of Tax Arbitration, in Guide to Tax Arbitration, Almedina Publisher, Coimbra, 2013, p. 105), regarding the scope of jurisdiction of tax arbitral courts, "the jurisdiction of these arbitral courts is restricted to activity connected with acts of assessment of taxes, falling outside their jurisdiction the assessment of the legality of administrative acts of total or partial refusal or revocation of exemptions or other tax benefits, when dependent on recognition by the Tax Administration, as well as other administrative acts relating to tax issues that do not involve assessment of the legality of the act of assessment, referred to in subsection p) of n.º 1 of article 97.º of the CPPT, as well as acts of collection enhancement, seizure and adoption of precautionary measures by the Tax Administration, to which refer the same article 97.º, n.º 1, in its subsection e) and articles 143.º and 144.º of the same Code.
In that sense, and following here the arbitral decision rendered in Process 599/2015-T, the jurisdiction of the courts of CAAD, with the exception of what refers to customs matters, "is defined only taking into account the type of acts that are the subject of the challenge, with no, in particular, prohibition on assessment of matters relating to tax exemptions or any other questions of legality relating to acts of the types referred to in article 2.º of the RJAT. (…)
In the case at issue, an act of assessment of IMT is being challenged, which falls under subsection a) of n.º 1 of article 2.º of the RJAT, and whose assessment is not excluded by any of the norms of the said Order.
Thus, in the arbitral process, any illegality may, as a rule, be imputed to acts of assessment, as results from article 99.º of the CPPT, subsidiarily applicable.
(…) Since the act of assessment is detrimental to the interests of the Claimant, because a more favorable exemption is not applied therein, and since that is the only act performed by the AT in the sequence of the IMT Model 1 Declaration submitted by the Claimant, its contentious impugnability must be ensured on the grounds of any illegality, as results from the principle of effective judicial protection, enshrined in articles 20.º, n.º 1, and 268.º, n.º 4, of the CRP.
On the other hand, the question of whether the act of assessment is legal in not recognizing an exemption relates to the legality of the assessment appreciated in the tax courts in the process of judicial challenge, as results from subsection a) of n.º 1 of article 97.º of the CPPT."
In fact, in the case sub judice, we are faced with an automatic recognition exemption, under article 10.º, n.º 8, subsection d) of the CIMT, so it is at the appropriate moment to decide whether the assessment act should be performed that the question of verification by the AT of whether or not the prerequisites of the tax benefit are met is placed.
And it is the assessment of the legality of that act of assessment that the Claimant seeks.
Also the thesis defended by the AT that only the judicial body where the insolvency proceeding was conducted would have jurisdiction to verify the legal prerequisites required in article 270.º, n.º 2 of the CIRE has no legal basis.
Citing the same decision:
"In truth, there is no special rule of insolvency procedure that confers jurisdiction on civil courts to recognize tax exemptions and the general regime of tax benefits inequivocally contradicts this possibility.
In fact, the Tax Benefits Statute (EBF) applies to all tax benefits (its article 1.º). From article 5.º of the EBF it results that tax benefits, when automatic, are not the subject of any autonomous act of recognition, so it is at the appropriate moment to decide whether an act of assessment should be performed that the question of verification by the Tax and Customs Authority of whether or not the prerequisites of the tax benefit are met is raised.
In the specific case of the exemption provided for in article 270.º of the CIRE, we are faced with a tax benefit for which only article 16.º, n.º 2 of the CIRE provides for the need for prior recognition by the Tax and Customs Authority when applied in the context of the business restructuring and revitalization process provided for in Decree-Law n.º 178/2012, of 3 August. In other cases covered by article 270.º of the CIRE, if prior recognition is not expressly provided for (neither in the CIRE, nor in the EBF, nor in article 10.º of the CIMT), we are faced with automatic recognition exemption, with verification and declaration of it being the responsibility of the finance service where the statement provided for in article 19.º, n.º 1, of the CIMT is presented, as results from subsection d) of n.º 8 of that article 10.º.
Moreover, since the right to tax benefits is a matter of tax law, the possibility of its direct recognition by the Courts is reserved to the Tax Courts, through an action for recognition of a right or legitimate interest in tax matters, in accordance with articles 212.º, n.º 3, of the CRP, 144.º, n.º 1, of the Law on the Organization of the Judicial System (Law n.º 62/2013, of 26 August), 49.º, n.º 1, subsection c), of the ETAF, 101.º, subsection b) of the LGT and 97.º, n.º 1, subsection h) and 145.º of the CPPT, therefore there is no legal support for asserting exclusive jurisdiction of the Civil Courts for recognition of the exemption in question."
Supporting this understanding, we also consider, for the reasons indicated, that no material incompetence occurs.
Furthermore, the STA has repeatedly assessed the verification of the prerequisites of the exemption provided for in article 270, n.º 2 of the CIRE, as can be seen in the decisions rendered in proceedings nos. 1350/2015, 1345/2015, 1085/2015 and 1067/2015, among many others, all of which are appeals raised in judicial challenge proceedings, which also contradicts the position of the AT in defending "administrative action or other" as a procedural means of reacting to the non-granting of the IMT exemption under article 270, n.º 2 of the CIRE.
(...)".
By its turn, in the decision of the Central Administrative Court of the South, of 29 June 2016, a similar path was followed.
In the circumstantially relevant part, the Court said:
"In accordance with the norms just mentioned [article 2.º, n.º 1, subsection a), of the RJAT and article 2.º of Order n.º 112-A/2011, of 22 March], the jurisdiction of the Arbitral Court is defined only taking into account the type of acts that are the subject of the challenge, with no, in particular, prohibition on assessment of matters relating to tax exemptions or any other questions of legality relating to tax acts identified in article 2.º, of the RJAT. A tax assessment that starts from disregard of an exemption is nonetheless a tax act of assessment. And the assessment of the legality, or illegality, of that disregard is therefore not reconditioned to the assessment of a claim relating to declaration of illegality of acts of assessment (cfr. Jorge Lopes de Sousa, commentary on the Legal Regime of Tax Arbitration, Almedina, 2013, pp. 104 et seq.).
In the case at issue, the constitution of the Arbitral Court was requested for the assessment of acts of assessment of I.M.T., which fall within the provision of the said article 2.º, n.º 1, subsection a), of the RJAT.
Moreover, there is no special rule of insolvency procedure that confers specific jurisdiction on the Civil Courts to recognize tax exemptions and the general regime of tax benefits inequivocally contradicts this, rather such matter being within the jurisdiction of the Tax Courts, in particular, the exemption from IMT enshrined in article 270.º, n.º 2, of the CIRE (cfr. Decision TCA South-2.ª Section, 19/11/2015, proc. 8063/14)".
These arguments, which are hereby expressly reiterated, entail the finding that the preliminary question raised by the Respondent is without merit.
In fact, it is important to note that the request made by the claimant concerns directly and immediately a question of legality of an act of assessment on the grounds of violation of the provisions of article 270.º, n.º 2, of the CIRE, so not only are we faced with an act of assessment capable of being challenged in arbitration, but moreover, the fact that this illegality stems from violation of a rule relating to a tax benefit that is concretized in an automatic recognition exemption does not imply the removal of arbitral jurisdiction regarding knowledge of the invoked illegality, since ultimately it is the legality of the assessment that is controverted by the Claimant.
As is clarified in the Decision rendered at this CAAD in process no. 599/2015-T:
[J]urisdiction is defined only taking into account the type of acts that are the subject of the challenge, with no, in particular, prohibition on assessment of matters relating to tax exemptions or any other questions of legality relating to acts of the types referred to in article 2.º of the RJAT. A tax assessment that starts from disregard of an exemption is nonetheless a tax act of assessment. And the assessment of the legality or illegality of that disregard is therefore not reconditioned to the assessment of a claim relating to declaration of illegality of acts of assessment.
In the case at issue, acts of assessment of IMT are being challenged, which fall under subsection a) of n.º 1 of article 2.º of the RJAT, and whose assessment is not excluded by any of the norms of the said Order.
Thus, in the arbitral process, any illegality may, as a rule, be imputed to acts of assessment, as results from article 99.º of the CPPT, subsidiarily applicable.
This will not be the case only in cases where the law provides for autonomous impugnability of administrative acts that are prerequisites of acts of assessment, as may occur with acts of recognition of tax exemptions, which, in the cases of non-automatic exemptions, assume the nature of separable acts for purposes of contentious challenge. But, for there to be this limitation to the impugnability of the challenged act of assessment, some administrative act that would be a prerequisite of the act of assessment would have had to be performed previously, which is not what occurred in the case at issue.
Moreover, in this case, we are faced with an automatic recognition exemption, as results from subsection d) of n.º 8 of article 10.º of the CIMT, so there need not be any autonomous act of recognition of the exemption, being at the appropriate moment for the performance of an act of assessment the Tax and Customs Authority will have to assess whether the interested party enjoys a tax benefit.
Therefore, since the acts of assessment are detrimental to the interests of the Claimant, because a more favorable exemption is not applied therein, and since those are the only acts performed by the Tax Administration in the sequence of IMT Model 1 declarations submitted, its contentious impugnability must be ensured on the grounds of any illegality, as results from the principle of effective judicial protection, enshrined in articles 20.º, n.º 1, and 268.º, n.º 4, of the CRP.
Moreover, the question of whether the act of assessment is legal in not recognizing an exemption relates to the legality of the assessment, which should therefore be assessed in the tax courts in the process of judicial challenge, as results from subsection a) of n.º 1 of article 97.º of the CPPT.
Thus, the thesis of the Tax and Customs Authority that assessment of "any and all questions concerning the recognition of tax exemptions [is] outside the jurisdiction of tax arbitration" has no legal support, since the limits defined in article 2.º, n.º 1 of the RJAT are defined exclusively on the basis of the type of acts and not on the basis of the type of questions of illegality that are imputed to them.
As concerns the thesis defended by the Tax and Customs Authority that exclusive jurisdiction would rest with the Civil Court where the insolvency proceeding was conducted, it is clear that it has no legal basis.
In truth, there is no special rule of insolvency procedure that confers jurisdiction on the Civil Courts to recognize tax exemptions and the general regime of tax benefits inequivocally contradicts this.
In fact, the Tax Benefits Statute (EBF) applies to all tax benefits (its article 1.º). From article 5.º of the EBF it results that tax benefits, when automatic, are not the subject of any autonomous act of recognition, so it is at the appropriate moment to decide whether an act of assessment should be performed that the question of verification by the Tax and Customs Authority of whether or not the prerequisites of the tax benefit are met is raised. Where it concerns tax benefits dependent on recognition, this is done through an administrative act, as results from n.ºs 2 and 3 of the same article 5.º, in consonance with articles 54.º, n.º 1, subsection d), of the LGT and 65.º of the CPPT.
In the specific case of the exemption provided for in article 270.º of the CIRE, we are faced with a tax benefit for which only article 16.º, n.º 2 of the CIRE provides for the need for prior recognition by the Tax and Customs Authority when applied in the context of the business restructuring and revitalization process provided for in Decree-Law n.º 178/2012, of 3 August ( [1] ). In other cases covered by article 270.º of the CIRE, if prior recognition is not expressly provided for (neither in the CIRE, nor in the EBF, nor in article 10.º of the CIMT), we are faced with automatic recognition exemption, with verification and declaration of it being the responsibility of the finance service where the statement provided for in article 19.º, n.º 1, of the CIMT is presented, as results from subsection d) of n.º 8 of that article 10.º.
Moreover, since the right to tax benefits is a matter of tax law, the possibility of its direct recognition by the Courts is reserved to the Tax Courts, through an action for recognition of a right or legitimate interest in tax matters, in accordance with articles 212.º, n.º 3, of the CRP, 144.º, n.º 1, of the Law on the Organization of the Judicial System (Law n.º 62/2013, of 26 August), 49.º, n.º 1, subsection c), of the ETAF, 101.º, subsection b) of the LGT and 97.º, n.º 1, subsection h) and 145.º of the CPPT, therefore there is no legal support for asserting exclusive jurisdiction of the Civil Courts for recognition of the exemption in question.
Moreover, the Supreme Administrative Court, as the supreme judicial body in tax matters, has repeatedly and peacefully assessed whether the prerequisites of the exemption provided for in article 270.º, n.º 2, of the CIRE are met, as can be seen from the following decisions:
– of 30-05-2012, process no. 0949/11;
– of 3-7-2013, process no. 765/13;
– of 17-12-2014, process no. 01085/13;
– of 11-11-2015, process no. 968/13;
– of 18-11-2015, process no. 1067/15;
– of 18-11-2015, process no. 575/15;
– of 16-12-2015, process no. 01345/15.
It is to be noted, in addition to the unequivocal recognition of the jurisdiction of the tax courts to assess verification of the prerequisites of the exemption, that all the appeals assessed by the Supreme Administrative Court in this process were raised in judicial challenge proceedings, which also removes any doubt as to the uniform understanding of the Supreme Administrative Court on the viability of assessment in a judicial challenge process of verification of the prerequisites of the exemption provided for in article 270.º, n.º 2, of the CIRE, which has as corollary the jurisdiction of the arbitral courts operating at CAAD to assess the legality of assessments of this type".
By the foregoing, it is concluded, therefore, that the challenge raised by the Respondent regarding the incompetence of CAAD to assess, by review, the legality of the assessment of IMT here put in issue is without merit.
- Matters of Law
7.1. The question to be analyzed refers to the legality of the act of assessment of IMT that did not apply the exemption provided for in article 270.º, n.º 2, of the CIRE, to the acquisition of a property acquired in the context of liquidation of the insolvency estate, which requires that two essential questions be assessed: a) whether the said exemption operates only with respect to sales, exchanges or transfer of companies or establishments as universalities of goods, as the Respondent contends, with support in the original wording of Circular n.º 10/2015, or whether that exemption also operates with respect to sales, exchanges or transfer of real property as elements of its assets, so long as framed in the context of an insolvency plan or payment plan, or carried out in the context of liquidation of the insolvency estate, as the Claimant contends; b) it is also necessary to determine whether, given that a first assessment was issued on the grounds of article 7.º of the CIMT, the application of article 270.º, n.º 2, of the CIRE may be requested after the expiration of that tax benefit, with such assessment being illegal if that rule is not applied once its prerequisites are verified.
7.2. The question of the IMT exemption relating to acquisitions of real property in insolvency proceedings is nowadays a settled matter, since, following numerous disputes between taxpayers and the administration (cf., without any pretension to exhaustiveness, the following decisions of the STA: decision of 30 May 2012, rendered in process no. 949/11; decision of 17 December 2014, rendered in process no. 1085/13; decision of 11 November 2015, rendered in process no. 968/13; decision of 18 November 2015, rendered in process no. 575/15; decision of 16 December 2015, rendered in process no. 1345/15; decision of 20 January 2016, rendered in process no. 1350/15, all available at www.dgsi.pt), the tax administration, giving unprecedented compliance with article 68.º-A, n.º 4, of the LGT, issued, following the Order of the Secretary of State for Tax Affairs n.º 14/2017-XXI, of 26 January, Circular n.º 4/2017, whereby it determined, in substitution of the first two paragraphs of point III of the annex to Circular 10/2015, that:
"[§] The application of the tax benefits provided for in n.º 2 of article 270.º of the CIRE does not depend on the thing sold, exchanged or transferred encompassing the totality of the insolvent company or one of its establishments. [§] Thus, acts of sale, exchange or transfer, in isolated form, of real property of the company or of establishments thereof are exempt from IMT, provided they are integrated within the scope of insolvency plans, payment plans or recovery plans or carried out in the context of liquidation of the insolvency estate", thereby accommodating the case law of the STA, which, a few months later and following a Decision of CAAD (process no. 200/2015-T), is seen to be made uniform by the Decision of the STA, rendered in process no. 1512/15, published in the Official Gazette 1st Series, no. 103, of 29 May 2017, to the effect that the "exemption from IMT provided for in n.º 2 of article 270.º of the CIRE applies, not only to sales or exchanges of companies or establishments as a universality of goods, but also to sales and exchanges of real property, as elements of the assets of an insolvent company, provided they are framed within the scope of an insolvency plan or payment plan, or carried out in the context of liquidation of the insolvency estate".
It is, therefore, now settled, both in case law and by the administration itself, which illustrates an example of the kooperative Zusammenwirken der Gewalten (in the sense referred to by Roman Seer, Verständigungen in Steuerverfahren, p. 253), the appropriate legal-normative sense adequately concretizing the provision of article 270.º, n.º 2, of the CIRE, and that it includes sales of real property as framed within the scope of an insolvency plan or payment plan, or carried out in the context of liquidation of the insolvency estate.
Prior to the stabilization of this doctrine, many of the controversial matters related to legal-concrete problems where taxpayers, at a moment prior to assessment of the tax, requested both the exemption provided for in article 270.º, n.º 2, of the CIRE and, on a subsidiary basis, the exemption provided for in article 7.º of the CIMT, the latter generally being recognized to the detriment of the former, which brought to the courts assessment of the illegality of the assessment based on a judgment of inapplicability of the CIRE regime, for failure to verify legal prerequisites, as these were understood by the administrative doctrine set forth in Circular n.º 10/2015 and, subsequently, the replacement of that understanding by that contained in Circular 4/2017.
7.2.1. In the case sub judicio, the first question to be resolved concerns the scope of the exemption provided for in article 270.º, n.º 2, of the CIRE.
This is, as has already been noted, a settled question. Therefore, referring, for the arguments set forth in the Decision of the STA, rendered in process no. 1512/15, published in the Official Gazette 1st Series, no. 103, of 29 May 2017, it is also considered here that the "exemption from IMT provided for in n.º 2 of article 270.º of the CIRE applies, not only to sales or exchanges of companies or establishments as a universality of goods, but also to sales and exchanges of real property, as elements of the assets of an insolvent company, provided they are framed within the scope of an insolvency plan or payment plan, or carried out in the context of liquidation of the insolvency estate", in accordance, as mentioned, with the replacement effected in Circular 10/2015 through Circular 7/2017.
7.2.2. Having overcome that problematic node, the second question to be considered concerns whether the application of the tax benefit in question may be "requested" at the moment when assessment of the tax is requested in accordance with article 34.º of the CIMT, after the exemption granted under article 7.º of the CIMT has expired, under the terms of article 11.º, n.º 5, of the CIMT.
Regarding this question, the administration gave a negative response, considering that, at the date of the events, "it was the understanding of the AT, that '[t]he application of the tax benefits provided for in n.º 2 of article 270.º of the CIRE depended on the immovable property transferred being integrated into the totality of the company or establishment sold, exchanged or transferred in the context of an insolvency plan or payment plan or of liquidation of the insolvent company'", the understanding referred to in Circular 4/2017 not having been sanctioned at the date of the "events" and, on the other hand, because the exemption under article 7.º of the CIMT was requested and granted.
7.2.2.1. As regards the first argument, it is submitted that it cannot be considered legally well-founded.
In fact, the fact that "on the date on which the property was acquired (on the date on which the tax event occurred), the understanding referred to in Circular n.º 4/2017 had not yet been sanctioned", does not prevent the administration, in determining the legal-normative sense of a legal provision, from taking into account the generic guidelines that are in force at the moment when the request for assessment of tax benefits is made, even though verification of the facts capable of being framed within the scope of application of the rule relates to an earlier historical moment.
Thus, when the administration alters the content of a circular considering, in particular, the case law of the higher courts that repeatedly considered unlawful a particular interpretation of the rule, the binding provided for by article 68.º-A cannot fail to refer to the normative interpretation in force at the moment when the law is applied, even though that application involves assessment of events which occurred at a time when the administration was bound by an understanding that has since been replaced.
The limit provided for in n.º 2 of article 68.º-A, of the LGT, which prevents, for the sake of the principle of legal certainty and protection of legitimate expectations and good faith, the retroactive invocation of such instruments when taxpayers have acted based on a plausible interpretation and in good faith is teleologically amorphous and foreign to cases in which taxpayers act before the administration while taking into account the binding understanding to which the administration is subject. Contrary guidance would fall into formal rigor, devoid of legal basis, which, for example, would prevent taxpayers from requesting revocation of tax acts performed by the administration under an administrative doctrine that proved to be contrary to law, which would completely subvert the ratio essendi of the rule in question.
The fact that the administrative guidance set forth in Circular 7/2017 did not exist at the moment when the tax event was performed and at the moment when the prerequisites of the tax benefits are verified does not free the administration from acting within the constraints of legality, principally when these are subsequently assumed as a criterion for judicial assessment of the scope of relevance of the rule at the level of determining its adequately legal-normative sense from a canon of rational methodological justification of the interpretive result circumstantially in question, in contrast to a possible Nichtanwendungserlasse (also here in the sense set forth by Roman Seer, Verständigungen in Steuerverfahren, p. 253, regarding the articulation between judicial precedents and administrative guidance) that opposed the "application of the law" effected by the courts.
To this reflection is further added, as a mere obiter dictum of argumentative reinforcement, the fact that, at the moment when the acquisition of the property took place, there also did not exist an administrative instrument that, under article 68.º-A, of the LGT, would bind the tax administration to a specific normative interpretation, with there even being cases in which, at a first moment, the exemption was recognized and only at a moment subsequent to the epiphany of Circular 10/2015, the administration proceeded to perform the ex officio assessment of IMT (cf. the Decision of this CAAD, rendered in process 367/2016-T, of 23 December 2016).
In sum, although "the right to tax benefits must be referred to the date of verification of the respective prerequisites", the determination of legal-normative relevance of the facts must be carried out in accordance with the methodological sense in force at the moment when legal interpretation of the rule occurs, without prejudice to the eventual right that comes to be recognized being, by force of law, referred to the date on which the respective prerequisites materially occur, even when recognition by the administration only occurs at a later moment, as provided for in article 12.º of the EBF.
7.2.2.2. As results from the evidence, when completing the IMT Model 1, the taxpayer stated in the declaration that the property in question was intended for resale, having not expressly requested the application of the exemption provided for in article 270.º, n.º 2, of the CIRE, it being certain that the assessment issued at zero, on the grounds of the exemption provided for in article 7.º of the CIMT, was not, at that time, contested gratuitously or contentiously by the Claimant.
Thus, since the property was not resold within the prescribed period, the expiration of such exemption occurred, provided for in article 11.º, n.º 5, of the CIMT, in accordance with which "the acquisition referred to in article 7.º shall cease to benefit from exemption once it is verified (...) that they were not resold within a period of three years (...)".
It is in this sequence of events that the Claimant, upon requesting assessment in accordance with article 34.º of the IMT, petitions the tax administration that the tax benefit contained in article 270.º, n.º 2, of the CIRE be declared, producing the consequent legal effects, and, faced with that same reality, the administration considers that the extinction, by expiration of the tax benefit granted by article 7.º of the CIMT, has as its consequence the automatic restoration of standard taxation, as provided for in article 14.º of the EBF.
The solution to be given to the legal dilemma exposed passes by considering, in a systematically integrated manner, the legal provisions pertinent, considering the quid specificum inherent in the concrete case.
One of the problems to be solved concerns the question of whether there exists, in the extrafiscal matter in question, some legal principle, in this case of a transnational character, that prevents the cumulation of diverse and distinct tax benefits or their recognition and/or attribution in successive moments of the life of a particular tax.
Now, without prejudice to the constitutive discretion of the legislator to establish a different legal criterion – cf. e.g. article 41.º B, n.º 3, of the EBF –, the truth is that it is not truly possible to identify in this domain of extrafiscality any axiological limitation or petition of the principles that would remove the possibility of considering, with respect to a particular subject or a certain state of facts, the applicability of diverse tax benefits "competing" among themselves, and of, moreover, being able to raise the possibility of "conversion" of exemptions (cf. Circular 16/88, attached by the Respondent).
This dimension having been clarified, it is now possible to proceed with greater propriety to analyze the legal regime, always keeping the concrete case in mind as an analytical prius.
Both the exemption for properties for resale and the exemption contained in article 270.º of the CIRE are automatic exemptions, as results from article 10.º, n.º 8, subsections a) and b), of the CIMT. From that nature results, in application of the provisions of article 5.º, n.º 1, of the EBF, that in both cases we are faced with benefits that result directly and immediately from the law, not presupposing any administrative tax act of recognition. Moreover, we are faced with tax benefits whose right is referred to the date of verification of the prerequisites, which presupposes, for the exemption provided for in article 7.º, that the property was acquired for resale, and, in the case of the exemption provided for in 270.º, n.º 2 of the CIRE, that the property was, for example, acquired in the context of an insolvency plan or in the context of liquidation of the insolvency estate.
In the case, it was declared by the acquirer that the property had been acquired for resale, so, verifying the right to that tax benefit, it was the same declared, with the assessment of the tax being effected on the basis of that presupposition, so the taxpayer benefited from such exemption during the three-year period. Once that period ended, the expiration or loss of efficacy of the exemption operates, also automatically, that is ipso iure and produces effects ex tunc, with the taxpayer bearing the responsibility to request a new assessment of the tax.
In requesting that assessment, the Claimant admits the extinction of that concrete tax benefit, requesting, however, that the exemption provided for in article 270.º, n.º 2, of the CIRE be verified and declared, having regard to verification of the respective prerequisites.
Being a benefit that emerges automatically from the law and whose right is referred to the date of verification of the respective prerequisites, the administration cannot fail to assess the subsistence of that exemption previously to the ex officio assessment that is again to be performed, because its positive verification prevents the tax event from reacquiring its obligatory force, for which reason the restoration of the standard
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