Summary
Full Decision
ARBITRAL DECISION
I – REPORT
A. – PARTIES
A…, married under the regime of separation of property with B…, resident at Av. … no. … –…Esq, …-…, in the capacity of head of the indivisible estate opened by the death of C…, NIF…, by the death of her sister D…, formerly resident at Rua … no. … –…, …-… Lisbon, hereinafter referred to as the Claimant, came to request on 4 April 2016 the constitution of the singular arbitral tribunal in tax matters, under the terms prescribed in art. 2.º, no. 1, paragraph a) of Decree-Law no. 10/2011, of 20 January (Legal Framework of Tax Arbitration - RJAT) and in arts. 1.º, paragraph a) and 2.º of Ordinance no. 112-A/2011, of 22 March, with the purpose of resolving the dispute opposing her to the Tax and Customs Authority, hereinafter referred to as the Respondent.
B. – CONSTITUTION OF THE TRIBUNAL
1. The request for constitution of the Arbitral Tribunal was accepted by the President of CAAD on 05/04/2016 and automatically notified to the Claimant and to the Tax and Customs Authority on 05/04/2016, with the President of the respective Deontological Council designating the undersigned as arbitrator of the Singular Arbitral Tribunal, under the terms of art. 6.º, no. 1, of the RJAT, a task which was accepted in accordance with the legally established terms.
2. On 18/04/2016, the Parties were notified of this designation, in accordance with the combined provisions of art. 11.º, no. 1, paragraph b), of the RJAT, in articles 6.º and 7.º of the Deontological Code, and did not manifest any intention to refuse the arbitrator's designation.
3. In these circumstances, the Tribunal was constituted on 20/06/2016, in accordance with the terms prescribed in paragraph c), of no. 1, of art. 11.º of Decree-Law no. 10/2011, which was notified to the Parties on that date.
C. – CLAIM
The Claimant requests that:
a) the Claimant be recognized, in accordance with no. 3 of art. 24.º of the Legal Framework of Arbitration in Tax Matters, with the right to seek a new arbitral pronouncement from this CAAD;
b) in consequence, the nullity of the tax acts that constitute its subject matter be declared, relating to the collection of Stamp Tax on Item 28.1 of the General Table, for the year 2014;
Or, should this not be the case, subsidiarily,
c) the tax acts that constitute its subject matter, relating to the collection of Stamp Tax on Item 28.1 of the General Table, for the year 2014, be annulled, with the other legal consequences;
In any case,
d) The sums paid relating to the collections made regarding each one of the floors or part of independent use be refunded to the Claimant in the total amount paid;
e) The Tax Administration be condemned to compensate the Claimant for the interest on such sums paid by her, at the legal rate and until effective refund and all costs that she had to bear in this proceeding.
D. – PROCEDURAL COURSE
After the communication of the date of constitution of the Arbitral Tribunal, on 20/06/2016, the subsequent procedural steps followed in the following manner:
- On 21/06/2016 – The Respondent was notified to, in accordance with nos. 1 and 2 of art. 17.º of the RJAT, present a response within 30 days and, if desired, request production of additional evidence and send to the Arbitral Tribunal a copy of the administrative file, via electronic means.
- On 02/08/2016 – The Respondent presented a response to the Request for Arbitral Pronouncement, sent a dispatch designating the legal representatives of the Respondent and inserted in the "Platform" online of CAAD the administrative file, with the Claimant being notified of everything.
- On 05/08/2016 – The Tribunal notified the Claimant to respond in writing to the exception raised by the Respondent in the Response.
- On 12/09/2016 - The Claimant presented a response to the exception invoked by the Respondent, which was admitted on 13/09/2016, and notified to the Respondent.
- On 13/09/2016 – The Tribunal designated 26/09/2016 as the date for the meeting provided for in art. 18.º of the RJAT, in order to hear the witness brought by the Claimant, B….
- On 26/10/2016 – The meeting provided for in art. 18.º of the RJAT was held, from which resulted the following:
- The hearing of the witness B…, presented by the Claimant, was dispensed with, since the facts to which she was brought were recognized as proven by the Parties and by the Tribunal.
- The Tribunal, having heard and with the agreement of the Parties, dispensed with the presentation of final arguments.
- The Tribunal set the date of 06/10/2016 for the pronouncement of the arbitral decision.
- On 06/10/2016 – Pronouncement of the arbitral decision.
E. – CLAIM OF THE CLAIMANT AND ITS GROUNDS
The Claimant requests that:
a) The Claimant be recognized, in accordance with no. 3 of art. 24.º of the Legal Framework of Arbitration in Tax Matters, with the right to seek a new arbitral pronouncement from this CAAD;
b) in consequence, the nullity of the tax acts that constitute its subject matter be declared, relating to the collection of Stamp Tax on Item 28.1 of the General Table, for the year 2014;
Or, should this not be the case, subsidiarily,
c) The tax acts that constitute its subject matter, relating to the collection of Stamp Tax on Item 28.1 of the General Table, for the year 2014, be annulled, with the other legal consequences;
In any case,
d) The sums paid relating to the collections made regarding each one of the floors or part of independent use be refunded to the Claimant in the total amount paid;
e) The Tax Administration be condemned to compensate the Claimant for the interest on such sums paid by her, at the legal rate and until effective refund and all costs that she had to bear in this proceeding.
For this purpose, it alleged that:
— The Claimant presented, on 24/7/15, in this Arbitration Center a request for constitution of an Arbitral Tribunal, which was assigned the case number 470/2015 T, concluding with the following request:
"Therefore, in view of the grounds exposed, it is requested of Your Excellency that the subsequent legal steps follow so that finally:
a) the nullity of the tax acts that constitute its subject matter be declared, relating to the collection of Stamp Tax on Item 28.1 of the General Table, for the year 2014, of the 1st and 2nd payments already collected;
b) as well as of all collections that the ATA may collect reported to the present year for the property in question and also within the same assumptions and application of the same law for subsequent years;
Or, should this not be the case, subsidiarily,
c) the tax acts that constitute its subject matter be annulled, relating to the collection of Stamp Tax on Item 28.1 of the General Table, for the year 2014, with the other legal consequences;
In any case,
d) The sums paid relating to the collections made regarding each one of the floors or part of independent use be refunded to the Claimant in the total amount paid to date of € 11.554,68;
e) The Tax Administration be condemned to compensate the Claimant for the interest on such sums paid by the claimant relating to the 1st and 2nd payment, at the legal rate and until effective refund and all costs that she had to bear in this proceeding.";
— The Respondent — AT — responded by raising the exception of absolute incompetence of the Arbitral Tribunal, to which the Claimant responded in the terms that appear in her response which is attached as doc. 1;
— The Honorable Arbitrating Judge understood that he already had all the elements to decide and rendered a decision upholding the exception raised by the AT as well-founded, and absolving the Respondent from the instance, as a consequence of which he deemed the knowledge of the merits of the case prejudiced;
— The Claimant requested that the said decision be clarified, as she understood that from the final request formulated there was no doubt about her claim;
— Especially since, in a request for constitution of an Arbitral Tribunal drawn up in the year 2014 in the case of this Arbitration Center no. 518/14-T, with exactly the same grounds but relating to the collection notes drawn up by the ATA in 2014 for the various units that make up the referred property, the decision was to the effect of upholding the request and consequently annulling the collections made;
— However, if after the Claimant's response was presented, it was not clear to the Honorable Arbitrating Judge that the Claimant's claim was to challenge the collections, she could always have resorted to the faculty granted to her by law, notifying the Claimant to perfect her initial request;
— The Claimant thus understands that the arbitral decision which absolved the Respondent from the instance, putting an end to the proceeding without knowing the merits, was not due to a fact attributable to her;
— Reason why she is in time in view of the provisions of art. 24.º, no. 3, of the Legal Framework of Arbitration in Tax Matters (Decree-Law no. 10/2011, of 20 January, in the version introduced by arts. 228.º and 229.º of Law no. 66-B/2012, of 31 December) which states "When the arbitral decision puts an end to the proceeding without knowing the merits of the claim due to a fact not attributable to the taxpayer, the periods for filing a claim, challenging, revision, promotion of official revision, revision of the taxable matter or to seek a new arbitral pronouncement of the acts subject to the arbitral claim previously made are counted from the date of notification of the arbitral decision".
It further alleged that:
— The Claimant is, by the death of her only sister D…, which occurred on 25/02/15, the current head of the indivisible estate opened by the death of the mother of both, C…, as appears both from the deed of heirship habitation whose copy is attached and is given as reproduced as doc. 3, and from the death certificate of the said D… (doc. 4);
— According to the aforementioned Stamp Tax collections, the tax contained therein refers to the urban property located at Av. … no. … in Lisbon, registered in the urban land registry of the parish of …, under the matriculation article … and relates to the tax period of the year 2014;
— The collections above identified were issued on 20 March 2015;
— In accordance with no. 2 of art. 6.º of Law 55-A/2012, of 29 October, "In 2013, the collection of stamp tax provided for in item no. 28 of the respective General Table shall be based on the same taxable property value used for the purpose of collecting municipal property tax to be made that year.";
— In accordance with the provisions of no. 3 of art. 103.º of the Constitution of the Portuguese Republic: "No one may be obliged to pay taxes that have not been created in accordance with the Constitution, that have a retroactive nature or whose collection and recovery are not carried out in accordance with the law.";
— It is thus verified that there is a manifest absence of one of the legal prerequisites of the tax fact in the collections in question, resulting in their nullity;
— Nullity which is expressly invoked for the due purposes.
Should this not be the case, subsidiarily,
— The collection of Stamp Tax on which the present request is based is affected by error, both as to the factual assumptions and as to the rate applicable to the tax in question;
— In fact, it is expressly stated in the aforementioned collections that each one of these refers to floors or divisions described as "storage/ind.", basement, g/f right, g/f left, 1st right, 1st left, 2nd right, 2nd left, 3rd right, 3rd left, 4th right and 4th left of the above-mentioned urban property;
— The property in question is not established in horizontal property ownership, as shown by the copy of the access key to the certificate of land registry which is attached as doc. 5;
— Not being subject to that regime, therefore composed of autonomous units, the collection cannot be made on each of these, under penalty of error in the factual assumptions;
— Because not only does the tax in question intend to fall on a reality that does not exist, without invoking any basis for this;
— As, if so, the legal requirement relating to the taxable property value contained in art. 4.º and Law 55-A/2012 and Item 28 of the General Table of Stamp Tax would not be met, since none of the units subject to collection reaches the taxable property value of € 1.000.000,00, as provided for in the aforementioned legal provisions.
— To which is added the fact that the law itself expressly establishes, in the final part of item 28 of the GIST, that the IS will be incurred on urban properties of value equal to or greater than € 1.000.000,00 - "on the taxable property value used for the purpose of IMI";
— In this way the adoption of the criterion defended by the AT manifestly violates the principles of legality and tax equality, as well as the prevalence of material truth over legal-formal reality.
— In the case of the files, the property composed of basement, g/f and 4 floors, is in vertical ownership and contains 12 parts, floors or divisions with independent use of which a large part (but not all) is intended for housing, and none of the floors intended for housing has a taxable property value equal to or greater than € 1.000.000,00, which is why it must be concluded that the legal prerequisite for the incidence of IS provided for in Item 28 of the GIST is not met.
— When this legislative amendment was introduced, perfectly innovative, the legislator chose as the determining element of contributory capacity of urban properties with residential allocation of high value (luxury) that is value equal to or greater than € 1.000.000,00 (one million euros) with the manifest intention to tax the wealth evidenced in the ownership, usufruct or right of surface of luxury urban properties with residential allocation, and all properties in the conditions referred to above and with taxable property value equal to or greater than that value would be subject to it.
— It happens that the AT in terms of CIMI, either in real estate in vertical ownership, constituted by different parts, floors or divisions, or in real estate constituted in horizontal property ownership applies the same exemption rules, with the Municipal Property Tax as well as the current IS collected individually on each of the parts, so the criterion for applying this new tax must necessarily be the same, as it really is;
— And if the law obliges the issuance of individual collections for the autonomous parts of properties either in vertical ownership or in h.p., the criterion for the incidence of the new tax must be the same, and the present norm would only apply if any of the parts, divisions or floors with independent use (terminology of the AT itself) had a TPA equal to or greater than a million euros, which in the case of the files does not happen;
— It is further added that being this the criterion established by the IMI (part, division or floor with independent use) and being this Code applicable to matters not regulated regarding item no. 28 of the TAGIS, the AT cannot manifestly consider in the concrete case the total value of the property for the incidence of this new tax;
— The raison d'être of the new tax considered as a "special rate on urban residential properties of highest value" has its origin in the invocation of the principles of social equity and fiscal justice requesting a more intense contribution from owners, usufructuaries or superficiaries of property of high value intended for housing, placing this special rate on "houses of value equal to or greater than a million euros", with the manifest intention to consider this value, when referring to a dwelling (house, autonomous fraction or floor with independent use) as an indication of contributory capacity above the average, capable of generating a special tax to ensure greater and fairer distribution of the tax burden;
— It thus constitutes flagrant illegality and unconstitutionality to consider in the calculation of the value the sum of the TPVs assigned to each floor or independent division;
— This would also constitute a flagrant violation of the principle of equality and proportionality in tax matters;
— If the property were in h.p. it would certainly be the case that none of the residential fractions would be subject to the new tax, and in accordance with no. 3 of art. 12.º of the CIMI "Each floor or part of property susceptible to independent use is considered separately in the matriculation registration, which also discriminates its respective taxable property value.";
— Such legal provision does not harmonize with the interpretation that the AT has of taxing the parts of property in vertical ownership by reason of the global TPV of the property;
— The majority of buildings in vertical ownership are old (1942), where tenants are maintained with equally old contracts with rents quite out of line despite recent legislation on rents and the updates resulting from them, as many of them with low pensions or age over 65 do not allow updating to market values;
— Despite this, these landlords go on to pay a tax as if it were a luxury property (single-family home or autonomous fraction);
— It is thus concluded that the AT cannot distinguish between two situations (h.p. or v.p.) where the legislator himself did not do so, under penalty of violating the coherence of the tax system, as well as the principle of tax legality provided for in art. 103.º, no. 2 of the C.R.P. and also the principles of justice, equality and tax proportionality;
— No. 2 of art. 67.º of the CIS provides that "to matters not regulated in the present Code relating to item no. 28 of the General Table, the provisions of the CIMI shall apply subsidiarily."
— As Law 55-A/12 did not proceed to define the concept contained in item no. 28, namely the concept of "property with residential allocation", it must necessarily comply with what the CIMI says.
— And this naturally refers to the concept of "urban property" defined in art. 2.º and 4.º, and the determination of the TPV takes into account the provisions of art. 38.º and ff. of the same statute.
— And although each autonomous fraction in the h.p. regime is considered a property, it is nonetheless true that nothing in the law makes a discrimination between properties in h.p. and properties in v.p.;
— Tax-wise, the autonomous parts of properties in vertical ownership with residential allocation should therefore be considered as urban residential properties since they are so considered by the AT;
— From which it follows that only when the value of one of those autonomous parts was greater than a million euros should it be taxed under IS (see in this regard arbitral decisions DA no. 48/2013 T and DA 50/2013 T);
— The mere transformation into h.p., for a certain and determined property, cannot distinguish the subjection of its owner, usufructuary or superficiary to the application of this tax;
— In the case of the files, any of the TPVS of the floors (autonomous units) of the property with residential allocation is less than a million euros, so the stamp tax referred to in item 28 of the TGIS cannot be incurred on the same, and consequently the impugned collection acts are illegal.
F. – RESPONSE OF THE RESPONDENT AND ITS GROUNDS
The Respondent, duly notified for this purpose, presented timely its Response, in which, in summary, alleged the following:
BY EXCEPTION
In the response presented, the Respondent raised the exception of untimeliness of the request for constitution of the arbitral tribunal, because only when the knowledge of the merits is not attributable to the taxpayer, the periods for filing a claim, challenging, promotion of official revision, revision of the taxable matter or new request for constitution of an arbitral tribunal of the same acts subject to the arbitral claim previously made, are counted from the date of notification of the arbitral decision (art. 24.º, no. 3, of the RJAT);
— In this case, arbitration operates as a cause of interruption of those periods;
— If the non-knowledge of the merits is attributable to the taxpayer, the provisions of article 13.º, no. 4, of the RJAT apply;
— Regarding the meaning of "attributable to the taxpayer", the Court of Appeal of Porto judgment, of 9/12/2014, Case 1010/06.0TBLMG.P, states in its summary, that: "II-The definition of the concept 'procedural reason not attributable to the holder of the right' should be based on the idea of fault. III-The concept of fault at the origin of the decision of absolution from the instance must, however, be interpreted in a reasonable way, so as to exclude cases in which no fault can be attributed to the party, particularly because the lack of the procedural prerequisite that led to that absolution from the instance stems from reasoned and reasonable doubt about the interpretation of the law and not from inexcusable error of the party that unjustifiably initiated an action that it well knew – or should have known – was unfeasible, in terms of possibility of obtaining a decision on the merits."
— And, to support its claim, the Respondent highlights some passages from the arbitral decision that determined its absolution from the instance:
— "The Claimant pronounced herself on this exception, arguing for its dismissal, in the following terms that it is important to excerpt:
'Comparing the Claimant's request, it appears that she requests the declaration of nullity of the tax acts relating to the collection of S.T. on item 28.1 of the General Table.
Obviously, the collection of that stamp tax is subsequently embodied in the notification to the taxpayer for the payment of the tax which in this case is divided into 3 payments all this reported to each one of the floors of the building, because as many collections are made as there are floors for housing in the property.
Even in point d) of her petition, the Claimant requests that "the sums paid relating to the collections (in the amount of 17 331,83€ - corresponding to the 3 payments already paid) made relating to each one of the floors or part of independent use be refunded to her…'"
— "In light of these excerpts from the request for arbitral pronouncement, it appears meridianly evident that the Claimant expressly limited the subject matter of this proceeding to the consideration of the claim for declaration of illegality of the 1st and 2nd payments of the Stamp Tax (Item 28.1 of the TGIS), in the total amount of € 11 554,68, relating to the year 2014 and the referenced urban property.
In truth, in stating the subject matter of the proceeding and then developing the respective cause of action, the Claimant never alludes to the collection (total) of the Stamp Tax, made under item 28.1 of the TGIS, relating to the year 2014 and the referenced urban property (only mentions the 1st and 2nd payments), nor does it make any mention of the total value of the respective tax collection (only mentions the value of the 1st and 2nd payments)"
— "Thus, there are not as many collections as there are payments in which the tax collection should be paid (contrary to the understanding shown by the Claimant in calling "collection documents" each one of the indicated payment notices of Stamp Tax that were notified to her), since the division of a collection into payments is merely a technique for collecting revenue. As is referred to in the arbitral decision rendered in case no. 205/2013-T (available at www.caad.org.pt/tributario/decisoes), "from the circumstance that the value of the collection [of Stamp Tax] can be paid in various payments, it does not follow that there are three collections (…) being a collection that can be paid in various payments".
— The Respondent concludes that the procedural reason by which the absolution from the instance was determined in the arbitral action, is attributable to the Claimant by way of fault, so that the regime provided for in article 24.º, no. 3 of the RJAT cannot be applied to her, and the consequent untimeliness of the request for constitution of the Arbitral Tribunal.
BY IMPUGNATION
The Respondent further alleged:
— Art. 44.º, no. 5, of the CIS, in the wording given to it by Law no. 55-A/2012, provides that, when collection is warranted, the tax referred to in item 28 of the TGIS is paid, within the periods, terms and conditions defined in art. 120.º, of the CIMI, in three payments;
— What is at issue here are collections that result from the direct application of the legal rule, and which translate into objective elements, without any subjective or discretionary consideration;
— The concept of property is defined in art. 2.º, no. 1, of the CIMI, and it is established in its no. 4 that in the horizontal property ownership regime, each autonomous fraction is deemed to constitute a property;
— It follows from the analysis of the normative precept that a "property in total ownership with floors or divisions susceptible to independent use" is, unequivocally, different from an immovable in horizontal property ownership regime, constituted by autonomous fractions, that is, several properties;
— Article 12.º of the CIMI establishes the concept of land registry, and its no. 3 concerns exclusively the form of registering cadastral data;
— As for the collection of IMI, being a property in total ownership, the TPV that serves as the basis for its calculation will be indisputably the global value of the property;
— In compliance with the provisions of art. 119.º, no. 1, of the CIMI, the payment document is sent to the taxpayer with discrimination of the parts susceptible to independent use, their respective taxable property value and the tax;
— And the collection being correct and the tax assessed being due, no compensatory interest is owed, not least because there is no error attributable to the Services, which merely acted, as they should, in strict compliance with the legal norms;
— First of all, the Claimant puts in question the taxable property value of the property, on the grounds that it is characterized as a property in total ownership with floors or divisions susceptible to independent use and as such do not possess a taxable property value greater than € 1.000.000,00;
— The Claimant understands that there is no rule stipulating that the TPV of a property composed of several floors or divisions susceptible to independent use, corresponds to the sum of the respective parts, arguing that the collections of Stamp Tax are affected by error in the factual and legal assumptions;
— Although the collection of IS, in the situations provided for in item 28.1 of the TGIS, is made according to the rules of the CIMI, the truth is that the legislator safeguards the aspects that need the proper adaptations, namely those in which, as is the case of properties in total ownership, even though with floors or divisions susceptible to independent use (although IMI is collected in relation to each part susceptible to independent use) for the purpose of IS the property as a whole is relevant since the divisions susceptible to independent use are not deemed to be property, but only the autonomous fractions in the horizontal property ownership regime, in accordance with no. 4 of art. 2.º of the CIMI;
— What, expressly, results from the letter of the law is that the legislator wished to tax with item 28.1, properties as a single legal-tax reality;
— The subjection to the Stamp Tax of item 28.1 of the General Table annexed to the CIS, results from the combination of two factors: the residential allocation and the value of the taxable property of the urban property registered in the registry being equal to or greater than € 1.000.000,00;
— From the property register it appears that the property is in total ownership, composed of various parts susceptible to independent use;
— Being this the cadastral information, in accordance with art. 23.º, no. 7, of the CIS, the collections of Stamp Tax relating to the year 2014, were made, by the tax administration, taking into account the nature of the urban property, as of the tax fact (31/12/2014), applying, with the necessary adaptations, the rules contained in the CIMI;
— In accordance with the rules of the CIMI, specifically article 113.º, no. 1, the collection is made on the basis of the taxable property values of the properties and in relation to the taxpayers who appear in the registries on 31 December of the year to which they relate (in the case of the 2014 tax);
— The property being in total ownership regime, does not have autonomous fractions, to which the tax law attributes the qualification of property, because from the notion of property in art. 2.º of the CIMI, only the autonomous fractions of property in horizontal property ownership regime are deemed to be properties – no. 4 of the cited article 39.º;
— Thus, the defect of violation of law by error in the legal assumptions must be judged unfounded, maintaining in the legal order the impugned collections as they constitute a correct application of the law to the facts;
— It is further added that the Claimant understands that we are faced with a violation of the constitutional principle of tax equality;
— It is also important to note that the taxation under IS follows the criterion of adequacy, to the extent that it aims at the taxation of wealth embodied in the ownership of real estate of high value, emerging in a context of economic crisis that cannot be ignored at all;
— In truth, the measure implemented seeks to achieve maximum effectiveness, regarding the objective to be achieved, with the minimum of harm to other interests considered relevant;
— Thus, the choice of this mechanism for obtaining revenue is justified, which would only be censurable, in view of the principle of proportionality, if it resulted manifestly indefensible;
— This is not the case, since such measure is applicable indistinctly to all holders of real estate with residential allocation of value greater than € 1.000.000,00;
— All that is now defended in arbitral proceedings was already the subject of binding information from the AT, with a deed of agreement of 11/02/2013 from the legal substitute of the Director General of the Tax Authority, which is attached, and from which appears as a conclusion: "Thus, if the building is constituted in total ownership with parts or divisions susceptible to independent use (so-called total ownership), it integrates the legal tax concept of 'property', that is, a single unit, and the taxable property value of the same is determined by the sum of the parts with residential allocation, and being this equal to or greater than € 1 000 000,00, there is subjection to the Stamp Tax of item 28 of the General Table annexed to the CIS.";
— From which it is necessarily concluded that the tax acts in question did not violate any legal or constitutional principle, and therefore must be maintained.
Regarding the claim for compensatory interest;
— The Claimant further invokes the right to compensatory interest, by reason of having chosen to make the payments of the payment documents relating to the collection in question, despite considering them undue, so that, in case of success of the present request for arbitral pronouncement, she understands to be owed such interest from the date of payment until the refund, calculated at the rate legally stipulated in article 43.º of the LGT;
— Article 43.º, under the heading "undue payment of the tax obligation", has as a prerequisite the intention of compensating the taxpayer for the deprivation of the sum paid unduly;
— The same determines in its no. 1 that "…compensatory interest is owed when it is determined, in a gracious complaint or judicial challenge, that there was error attributable to the services resulting in payment of the tax debt in an amount greater than legally due";
— Such interest falls within the theory of extracontractual civil liability, with constitutional basis in article 22.º of the Constitution of the Portuguese Republic, which recognizes citizens the right to be indemnified by the State and other public entities for actions or omissions practiced in the exercise of its functions and by reason of that exercise by its bodies, officials and agents, that cause them harm;
— Being that, the right to compensatory interest provided for in no. 1 of article 43.º of the LGT, derived from judicial annulment of a collection act, depends on it being demonstrated in the proceeding that this act is affected by error attributable to the services from which resulted payment of the tax debt in an amount greater than legally due;
— Given that the collection was made on the basis of the applicable law, to which the Administration is bound, the Tax Administration aiming, in accordance with article 55.º of the LGT and following the principle set forth in article 266.º no. 1 and 2 of the CRP, "… the pursuit of the public interest, in respect for the rights and legally protected interests of citizens" and being its "… administrative bodies and agents … subordinated to the Constitution and the law …" and must "act, in the exercise of their functions, with respect for the principles of equality, proportionality, justice, impartiality and good faith";
— Being thus, the Tax Administration bound by the principle of legality, cannot fail to give full compliance to the regulations that the ordinary legislator created and that are in force in the legal system and also by virtue of the provisions of article 55.º of the LGT;
— The right to compensatory interest provided for in no. 1 of article 43.º of the LGT, derived from judicial annulment of a collection act, depends on it being demonstrated in the proceeding that this fact is affected by error in the factual or legal assumptions attributable to the Tax Administration;
— The error that supports the right to compensatory interest is not any defect or illegality but that which is concretized in defective appreciation of relevant factuality or in wrong application of legal norms;
— Since, at the time of the facts, the Tax Administration made the application of the law as the executive body is constitutionally bound to do, one cannot speak of error of the services in accordance with the provisions of article 43.º of the LGT;
RESPONSE OF THE CLAIMANT TO THE EXCEPTION
In the response to the exception invoked by the Respondent, the Claimant alleges the following:
— The situation under consideration in this case is essentially reduced to ascertaining whether the decision on the merits was or was not attributable to the taxpayer;
— As Carla Castelo Trindade rightly says in her "Legal Framework of Voluntary Arbitration", page 464 "The determination of what to understand by 'attributable to the taxpayer' proves, however, to be difficult".
And the esteemed jurist continues,
— "At the limit, it could be stated that the occurrence of any dilatory exception would be attributable to the taxpayer insofar as it was he who did not correctly configure the competence of the Tribunal, the legality of the coalition or cumulation, the non-verification of res judicata or case law, etc. However, it is thought that it is incumbent upon the Arbitral Tribunal to assess the inexcusability of that 'error' of the taxpayer. In other words, and taking as reference the cases of incompetence of the Arbitral Tribunal, there are questions of such a dubious nature that they determine contradictory positions in the Doctrine and in case law itself, that, if an exception of incompetence is upheld, the non-knowledge of the merits may not be attributable to the taxpayer".
— Note that the request was formulated in relation to the twelve collections relating to the many floors or divisions with independent use that make up the property in question;
— Hence the final request is that the nullity of the tax acts that constitute its subject matter be declared, relating to the collection of Stamp Tax on item 28.1 of the General Table for the year 2014, of the 1st and 2nd payments already collected;
— The AT invokes in its defense the Court of Appeal of Porto judgment of 9/12/14 and its summary (II and III);
— However, in point III it is expressly stated that the concept of fault at the origin of the decision of absolution from the instance must, however, be interpreted in a reasonable way, so as to exclude cases in which no fault can be attributed to the party, particularly because the lack of the procedural prerequisite that led to that absolution from the instance stems from reasoned and reasonable doubt about the interpretation of the law and not from inexcusable error of the party that unjustifiably initiated an action that it well knew – or should have known – was unfeasible, in terms of the possibility of obtaining a decision on the merits;
— Now, in the case of the files none of this occurred since, in addition to the request formulated being perfectly understandable, the fact that a previous proceeding (such case no. 518/2014-T) had the request upheld favorably to the Claimant with the same precise formulation convinced her that the manner in which the request was formulated allowed interpreting it in the sense that was intended by the Claimant.
— It follows from this precedent that nothing would have led the Claimant to the idea that in this previous proceeding the recognition by this Arbitral Tribunal of the existence of the exception of absolute incompetence of that Tribunal would occur, prejudicing the knowledge of the merits of the case;
— Being that, in any case, if it were understood that the formulation of the request was not clear, the Honorable Arbitrating Judge could always, using the faculty that the law recognizes to him, notify the Claimant to, in that regard, proceed to the perfection of her request contained in the initial request;
— It thus follows from all the above that the procedural reason by which in that case 470/2015-T the absolution from the instance was determined is not attributable to the Claimant by way of fault, so that the regime provided for in no. 3 of art. 24.º, of the RJAT must apply to her.
G. – ISSUES TO BE DECIDED
Given the positions taken by the Parties in accordance with the arguments presented, the following are the issues that fall to be considered and decided:
1 – Exception raised by the Respondent of untimeliness of the request for constitution of the Arbitral Tribunal, by inapplicability of art. 24.º, no. 3, of the RJAT;
2 – As to the merits:
2.1 – Declaration of nullity of the tax acts that constitute the subject matter of the proceeding relating to the collection of Stamp Tax on item 28.1 of the General Table for the year 2014 or, should this not be the case, annulment of these tax acts;
2.2 – Interest – Existence, or not, of the right to interest, under art. 43.º of the LGT, in case the collections are annulled and the refund of the amount claimed is determined, which would have been unduly paid at the legal rate and until actual refund;
3 – Responsibility for payment of the arbitral costs.
H. – PROCEDURAL PREREQUISITES
The Arbitral Tribunal is regularly constituted and is materially competent, in accordance with the provisions of paragraph a), of no. 1, of art. 2.º, of the RJAT (Decree-Law no. 10/2011, of 20 January).
The Parties enjoy personality and legal capacity, are legitimate and are regularly represented (in accordance with arts. 4.º and 10.º, no. 2, of the RJAT and art. 1.º of Ordinance no. 112/2011, of 22 March).
Considering the identity of the taxed fact, of the Court competent for the decision and of the grounds of fact and law invoked, the Tribunal admits the cumulation of requests for declaration of illegality of the tax acts that are the subject matter of this proceeding, since the requirements established in art. 3.º, no. 1, of the RJAT are met.
4. The proceeding is not affected by defects that affect its validity.
I. – FACTUAL MATTER
I. 1 – PROVEN FACTS
With relevance for the consideration of the issues raised, the Tribunal establishes as proven the following facts:
1. The Claimant is, by the death of her only sister D…, which occurred on 25/02/15, the current head of the indivisible estate opened by the death of the mother of both, C…, as appears both from the deed of heirship habitation whose copy is attached and is given as reproduced as doc. 3.
2. The aforementioned indivisible estate includes the urban property located at Av…, no…, in Lisbon, registered in the urban land registry of the parish of…, under the matriculation article…, as appears from the respective property register.
3. The said urban property constitutes a "property in total ownership with floors or divisions susceptible to independent use", with the total taxable property value of € 1.799.126,98, being composed of 14 divisions with independent use, namely:
— storage, with allocation to services;
— C/V, with allocation to housing, with the taxable property value of € 51.301,52;
— IND, with allocation to housing, with the taxable property value of € 52.969,96;
— L 104B, with allocation to commerce;
— G/F right, with allocation to housing, with the taxable property value of € 149.728,11;
— G/F left, with allocation to housing, with the taxable property value of € 122.204,41;
— 1st right, with allocation to housing, with the taxable property value of € 175.927,84;
— 1st left, with allocation to housing, with the taxable property value of € 163.312,36;
— 2nd right, with allocation to housing, with the taxable property value of € 175.927,84;
— 2nd left, with allocation to housing, with the taxable property value of € 163.312,36;
— 3rd right, with allocation to housing, with the taxable property value of € 175.927,84;
— 3rd left, with allocation to housing, with the taxable property value of € 163.312,36;
— 4th right, with allocation to housing, with the taxable property value of € 175.927,84;
— 4th left, with allocation to housing, with the taxable property value of € 163.312,36, all as appears from the property register.
4. With reference to the tax period of 2014, collections of Stamp Tax that are the subject of the payment notices relating to the 1st payment were issued, on 20 March 2015, in the total amount of € 5.777,34, relating to the twelve divisions susceptible to independent use destined for housing above identified in 3., on the basis of the total of the taxable property value of the twelve floors with residential allocation, corresponding to € 1.733.164,80, by means of the application of the rate of 1% established by item 28.1 of the TGIS to the taxable property value of each one of the divisions susceptible to independent use.
5. Subsequently, the Claimant was notified of the payment notices relating to the 2nd payment, in the total amount of € 5.777,15.
6. And also of the payment notices relating to the 3rd payment, in the total amount of € 5.777,15.
7. In all the payment notices above indicated appears the mention: "Taxable Property Value of the property - total subject to tax: 1.733.164,80".
8. The Claimant proceeded on 28/04/2015 to the payment of the 1st payment of the tax resulting from the collections that are the subject of the payment notices identified in no. 4, in the total amount of € 5.777,34.
9. The Claimant proceeded on 14/07/2015 to the payment of the 2nd payment of the tax resulting from the collections that are the subject of the indicated payment notices identified in no. 5, in the total amount of € 5.777,15.
10. The Claimant proceeded to the payment of the 3rd payment of the tax resulting from the collections that are the subject of the indicated payment notices identified in no. 6, in the total amount of € 5.777,15.
11. It thus results that the total amount paid by the Claimant to the Respondent, for this purpose, is 17.331,64 euros.
I. 2 – SUBSTANTIATION OF PROVEN FACTS
The facts established as proven are based on the documents indicated relating to each of them, and on the factual elements brought to the proceeding by the Parties, insofar as their adherence to reality was not questioned.
I. 3 – UNPROVEN FACTS
There are no unproven facts with relevance for the consideration of the issues to be decided.
J. – MATTER OF LAW
With the facts established, the legal subsumption and the determination of the Law to be applied is proceeded to, taking into account the issues to be decided that were stated.
Regarding the exception raised by the Respondent
The reasoning of the arbitral decision which absolved the Respondent from the instance in Case no. 470/2015 T, considered that the Claimant did not challenge the tax collection act, but rather the payment of an installment of a collection act contained in a payment notice, which does not fall within the competence of Arbitral Tribunals.
The decision in question invoked the principle of indivisibility of the collection, saying there is only one annual collection (arts. 113.º, no. 2, and 120.º, no. 1, of the IMI Code), and that the division into payments corresponds to a technique for collecting revenue.
Not questioning the principle above stated, it disagrees with the consequence that was associated with it — the absolution of the Respondent from the instance.
Indeed, to pleadings, as legal acts that they are, the rules of interpretation of the legal transaction apply (cf. arts. 236.º and ff., ex vi art. 295.º, all of the Civil Code).
Analyzing the pleading presented by the Claimant in that proceeding in which the absolution of the Respondent from the instance was decreed, it appears that, not existing the figure of "declaration of illegality and annulment of collection documents", the Claimant's claim was ultimately directed to the declaration of illegality of the collection act of the Stamp Tax of item 28.1 of the General Table of Stamp Tax.
The reasoning put forward by the Claimant is typical of proceedings for declaration of illegality of the collection act of the Stamp Tax of item 28.1 of the General Table of Stamp Tax in cases of properties in vertical ownership, in which some units are intended for housing, none of them reaching the value of € 1.000.000,00.
The Claimant questioned the "collection" of the 1st and 2nd payments already paid, and of those that might be "collected", making it clear that she intended to challenge the collection of item 28.1 of the General Table of Stamp Tax that gave rise to the issuance of the "collection documents" impugned in that proceeding.
Although the request was not exemplarily formulated, it was in terms sufficiently clear to allow the consideration of merits.
Only in this way is the constitutional principle of access to justice safeguarded and the desired prevalence of merits over form is accomplished, which has been repeatedly affirmed by the legislator.
At most, if there were doubts about the scope of the request, a perfection dispatch should have been rendered, in the logic of the principle of maximum use of acts.
As stated in the summary of the Supreme Administrative Court judgment, of 16-12-2015, Case: 01508/14, Rapporteur FRANCISCO ROTHES,
II - In the interpretation of procedural documents, the criteria imposed by the principles of modern procedure must be observed, and also by the constitutional principle of effective judicial protection, so that the court must extract from the wording given to the request in the initial petition the meaning most favorable to the interests of the petitioner, establishing, even if by resorting to the figure of the implicit request, what is the true claim for legal protection.
Although relating to a question different from that versed in this proceeding, the principles there defended have application in the case at hand, obtaining our total adherence.
Thus, according to the said judgment,
"… the case law of this Supreme Administrative Court has used a criterion of great flexibility in the interpretation of the request when, in view of the concrete causes of action invoked, it may be intuited – even if by resorting to the figure of the implicit request – what is the true claim for legal protection (See, among many others and beyond those cited by the Appellant, the following judgments of the Contentious Tax Section of the Supreme Administrative Court:
- of 5 February 2014, rendered in case no. 1803/13, published in the Appendix to the Official Journal of 15 September 2014 (http://www.dre.pt/pdfgratisac/2014/32220.pdf), pages 490 to 495, also available at http://www.dgsi.pt/jsta.nsf/35fbbbf22e1bb1e680256f8e003ea931/dfd44cc00100a3f480257c7b005c72ed;
- of 28 May 2014, rendered in case no. 1086/13, published in the Appendix to the Official Journal of 20 November 2014 (http://www.dre.pt/pdfgratisac/2014/32220.pdf), pages 2061 to 2067, also available at
http://www.dgsi.pt/jsta.nsf/35fbbbf22e1bb1e680256f8e003ea931/1db08870f2199f46
80257cec005730b7;
- of 4 March 2015, rendered in case no. 1271/13, not yet published in the official journal, available at
http://www.dgsi.pt/jsta.nsf/35fbbbf22e1bb1e680256f8e003ea931/14092ff76574164c80257e0000438409.).
That is, in accordance with the understanding that has been adopted by this Supreme Administrative Court, in the interpretation of the request the judge should not confine himself to the wording given to it; it is necessary to go a little further, not forgetting that in this hermeneutical task the concrete causes of action invoked cannot be ignored, to the extent that they allow discovering the true claim for legal protection, even if by resorting to the figure of the implicit request (Reporting on this position and subscribing to it, JORGE LOPES DE SOUSA, op. cit., II volume, last three paragraphs of note 10 d) to art. 98.º, page 92.).
In truth, our procedural law has always sought to avoid, whenever possible, that a party lose the case on purely formal grounds – that form prevail over substance (Cf. MANUEL DE ANDRADE, Elementary Notions of Civil Procedure, 1979, page 387, regarding the flexibility that should temper the principle of the legality of procedural forms.) – and this concern with the principle of effective judicial protection of the rights and interests of the parties has increasingly found expression in the adjective law, which seeks to remove formalistic rigor in the interpretation of procedural documents (Cfr. art. 7.º of the Code of Procedure in Administrative Courts, which provides: "For the realization of the right of access to justice, procedural norms must be interpreted in the sense of promoting the emission of pronouncements on the merits of the claims formulated".).
Note that, in the interpretation of procedural documents, the principles of interpretation of business declarations (common to the interpretation of laws) are applicable, by virtue of the provisions of art. 295.º of the Civil Code ("To legal acts that are not business transactions are applicable, to the extent that the analogy of situations justifies it, the provisions of the preceding chapter".) (CC), being valid, therefore, that meaning which, according to the provisions of art. 236.º, no. 1, of the CC ("The business declaration is valid with the meaning that a normal declaratee, placed in the position of the actual declaratee, may deduce from the behavior of the declarant, provided that the latter cannot reasonably count on it".), the normal or reasonable declaratee should derive from the written declarations contained in the pleading (On the other hand, the principle applicable to formal transactions also applies here – called the minimum of verbal correspondence –, which "a declaration cannot be valid with a meaning that does not have a minimum of correspondence in the text of the respective document, even if imperfectly expressed" (art. 238.º, no. 1 of CC).), aside from that we cannot ignore that formalistic rigor in the interpretation of procedural documents are today prohibited by the principles of modern civil procedure and also by the constitutional principle of effective judicial protection (cf. arts. 20.º and 268.º, no. 4, of the Constitution of the Portuguese Republic), which is why the court must extract from the request made to it the meaning most favorable to the interests of the petitioner, inquiring into his real claim (In this sense, the following judgments of this Contentious Tax Section of the Supreme Administrative Court:
- of 15 May 2013, rendered in case no. 154/13, published in the Appendix to the Official Journal of 15 April 2014 (http://www.dre.pt/pdfgratisac/2013/32220.pdf), pages 2010 to 2012, also available at
http://www.dgsi.pt/jsta.nsf/35fbbbf22e1bb1e680256f8e003ea931/9fd626d6071eab7780257b7f0054b163;
- of 8 January 2014, rendered in case no. 32/13, published in the Appendix to the Official Journal of 15 September 2014 (http://www.dre.pt/pdfgratisac/2014/32210.pdf), pages 2 to 9, also available at
http://www.dgsi.pt/jsta.nsf/35fbbbf22e1bb1e680256f8e003ea931/05f925c2f9dbfb7e80257c62005ae50a.).
Having this doctrine of "flexible interpretation of the request" in mind, the request formulated – for termination of execution – can be interpreted as containing an implicit request in the sense of the annulment of the tax acts (IVA collections) that gave rise to the debts subject to execution, since it is on the basis of the illegality of these acts, particularly by error in the factual assumptions, particularly as to the subjective incidence of the tax, that the Respondent maintains that IVA in question should not be paid."
By all the above, it is important to conclude that the absolution of the Respondent from the instance cannot be attributed to the fault of the Claimant, benefitting from, therefore, the regime established in art. 24.º, no. 3, of the Legal Framework of Arbitration in Tax Matters, which provides:
When the arbitral decision puts an end to the proceeding without knowing the merits of the claim due to a fact not attributable to the taxpayer, the periods for filing a claim, challenging, revision, promotion of official revision, revision of the taxable matter or to seek a new arbitral pronouncement of the acts subject to the arbitral claim previously made are counted from the date of notification of the arbitral decision.
Although the date of notification of the decision of absolution from the instance is unknown, being dated 27/01/2016, when the request for constitution of the Arbitral Tribunal was formulated, on 05/04/2016, the 90 days provided for in art. 10.º, no. 1, paragraph a), of the RJAT had not yet been exhausted.
The alleged exception of untimeliness is therefore unfounded.
Regarding the question of merits
The question in consideration, which relates, in summary, to the application of item 28 of the General Table of Stamp Tax to cases of the so-called "vertical ownership", has been considered many times by this CAAD, having been rendered arbitral decisions on the same in the sense of its inapplicability, in those cases in which none of the floors, or divisions with independent use, although with residential allocation, has a taxable property value equal to, or greater than, one million euros, citing, by way of example, the decisions rendered in cases no. 206/2016-T, 272/2013-T, 30/2014-T, 26/2014-T and 518/2014-T.
In the case of the arbitral decision rendered on 20/02/2015 in the case we indicated last, no. 518/2014-T, it happens that the same considered the situation relating to the immovable that is the subject of this proceeding, relating to the year 2013.
Now, in the proceeding sub judice, the immovable is the same, with the difference that the collections now relate to the year 2014, placing, therefore, a question substantively identical to that already considered and decided by this CAAD.
Thus being, and reviewing ourselves in the reasoning of the decision taken in case no. 518/2014-T, it is always to be said the following:
Article 4.º of Law no. 55-A/2012, of 29 October added item 28 of the General Table of Stamp Tax, which has the following content:
"28 - Ownership, usufruct or right of surface of urban properties whose taxable property value registered in the registry, in accordance with the Municipal Property Tax Code (CIMI), is equal to or greater than € 1.000.000,00 – on the taxable property value for the purpose of IMI:
28.1 – Per property with residential allocation – 1%
28.2 – Per property, when the taxpayers that are not natural persons are resident in a country, territory, or region subject to a clearly more favorable tax regime, contained in the list approved by ordinance of the Ministry of Finance – 7,5%."
It is important to note that this Law also added to the Stamp Tax Code art. 67.º, no. 2, which expressly provides that "to matters not regulated in the present code relating to item 28 of the General Table, the CIMI shall apply subsidiarily".
Regarding the question about which it falls to decide and which relates to the determination of the relevant value for the incidence of Stamp Tax on a property in vertical ownership, the interpretation used by the Respondent of considering as a whole the autonomous parts for housing, with independent use, when the summed value of these exceeds € 1.000.000,00, has no legal support and does not merit to be accepted.
Indeed, being by virtue of Law no. 55-A/22 the matters not regulated in the Stamp Tax Code, disciplined by the norms of the CIMI, in accordance with its art. 67.º, no. 2, it is necessary to conclude that the legal criterion for defining the incidence of the new tax must be the same as of the CIMI.
Now, the comparison of the norms of the CIMI leads us to consider that the registration in the property register of immovables in vertical ownership, when constituted by different parts, floors or divisions with independent use, follows the same rules as immovables constituted in horizontal property ownership, with IMI being collected in relation to each one of the parts.
Specifically, art. 12, no. 3, of the CIMI, establishes that "each floor or part of property susceptible to independent use is considered separately in the matriculation registration which also discriminates its respective taxable property value"
Thus being, this is also the legal criterion for defining the incidence of the new stamp tax, so that such incidence will only occur if in the property in vertical ownership any of the parts, floors, or divisions with independent use presents a TPV equal to or greater than € 1.000.000,00 and in relation to that.
It is further added that the final segment of item 28 of the TGIS expressly establishes that it is the taxable property value used for the purpose of IMI, which will be considered for the application of item 28; that is, for the incidence of stamp tax.
Thus being, and without further ado, it being proven that the immovable that is the subject of this proceeding is in vertical ownership and that none of the floors intended for housing has a taxable property value equal to or greater than € 1.000.000,00, as results from the documents attached to the file, it is concluded that there is an absence of the legal prerequisite for the incidence of Stamp Tax provided for in item 28 of the General Table of Stamp Tax.
In this way, because the collections under consideration have been based on the consideration that the reference value for the application of item 28 of the TGIS is the one corresponding to the sum of the TPVs assigned to each part or division, they suffer the same defect of violation of law, by error in the legal assumptions, regarding the provisions of item 28 of the TGIS, which implies the declaration of its illegality and consequent annulment, in accordance with art. 135.º of the Code of Administrative Procedure.
In these terms, and with the reasoning that is left expressed, the request for arbitral pronouncement is judged well-founded with the consequent annulment of the impugned collection acts.
Regarding compensatory interest
This matter is regulated in art. 24.º of the RJAT, which expressly determines in its no. 1, paragraph b) that the arbitral decision obliges the Tax Administration, in the cases there provided for, to "Restore the situation that would have existed if the tax act subject to the arbitral decision had not been practiced, adopting the acts and operations necessary for the effect", and further provides, in its no. 5, that "Interest is owed, regardless of its nature in accordance with the terms provided for in the general tax law and in the Code of Tax Procedure and Process".
Also art. 100.º of the LGT, whose application is authorized by the provisions of art. 29.º, no. 1, paragraph a), of the RJAT, provides in an identical manner, in the sense of the immediate restoration of legality, which includes the payment of compensatory interest, if applicable.
For its part, art. 43.º, no. 1, of the LGT conditions the right to compensatory interest to the cases in which "there was error attributable to the services resulting in payment of the tax debt in an amount greater than legally due".
In this accordance, the question arises as to whether, in view of the content of the provisions of item 28 of the LGIS, it can be considered that there was, or was not, an error attributable to the services in the case at hand.
Now, as referred to previously, the collections under consideration are illegal because they are affected by error in the legal assumptions, as a result of resulting from an incorrect interpretation and application of item 28.1 of the TGIS.
Thus, there is no doubt that the requirement established in art. 43.º, no. 1, of the LGT is met, that is, the illegality of the collections resulted from an error committed by the tax services, a condition for compensatory interest to be demanded.
The Claimant thus has the right not only to the refund of the payments made, but also to receive compensatory interest, in accordance with the combined provisions of arts. 24.º, no. 1, paragraph b), of the RJAT, 100.º and 43.º, no. 1, both of the LGT, at the rate resulting from no. 4 of art. 43.º of the LGT.
Regarding responsibility for arbitral costs
The law is explicit in the attribution of responsibility for payment of costs to the party that is condemned, in view of the provisions of nos. 1 and 2, of art. 527.º of the Code of Civil Procedure, applicable by virtue of art. 29.º, no. 1, paragraph e), of the RJAT.
Thus being, the responsibility for payment of the arbitral costs is of the Respondent.
L. – DECISION
In view of the above, this Arbitral Tribunal decides:
1) - To judge unfounded the exception raised by the Respondent;
2) - To judge well-founded, on the grounds of a defect of violation of law, the request for declaration of illegality of the collections of Stamp Tax, and, in consequence
3) - To annul the tax acts of collection corresponding;
4) - To recognize the right to refund of the amount that relates to them;
5) - To judge well-founded the request for recognition of the right to compensatory interest in favor of the Claimant, from the dates of the payments of the respective installments until the date of its complete refund, at the rate resulting from no. 4 of art. 43.º of the LGT;
6) - To condemn the Respondent to pay the costs of the present proceeding (art. 527.º, nos. 1 and 2 of the Code of Civil Procedure, ex vi art. 29.º, no. 1, paragraph e), of the RJAT).
Value of the proceeding: In accordance with the provisions of articles 306.º, no. 2, of the CPC (ex vi 315.º, no. 2) and 97.º - A, no. 1, of the CPPT, and in article 3.º, no. 2, of the Regulation of Costs in Tax Arbitration Proceedings, the proceeding is assigned the value of € 17.331,64.
Costs: In accordance with no. 4 of art. 22.º of the RJAT, the amount of costs is fixed at € 1.224,00, in accordance with Table I annexed to the Regulation of Costs in Tax Arbitration Proceedings.
Notify.
Lisbon, 6 October 2016
The Arbitrator
José Nunes Barata
(Written according to the old orthography)
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