Summary
Full Decision
ARBITRAL DECISION
The arbiter, Dr. Henrique Nogueira Nunes, appointed by the Ethics Council of the Administrative Arbitration Centre ("CAAD") to form the Arbitral Tribunal, constituted on 22 June 2016, decides as follows:
1. STATEMENT OF FACTS
1.1. A…–, LDA, with tax identification number …, hereinafter designated as "Claimant", requested the constitution of the Arbitral Tribunal pursuant to articles 2, paragraph 1, subparagraph a) and 10 of Decree-Law No. 10/2011, of 20 January (hereinafter "RJAT").
1.2. The request for arbitral determination concerns the declaration of illegality of the stamp tax assessment acts more specifically identified under the collection documents issued with numbers 2012…, in the amount of € 11,905.80, and 2012…, in the amount of € 11,905.80, carried out pursuant to item 28.1 of the General Table of Stamp Tax (TGIS), amended by article 4 of Law No. 55-A/2012, of 29/12, relating to the year 2012, and likewise the declaration of illegality of the act of partial deferment of Hierarchical Review filed aimed at the annulment of the assessments aforesaid.
1.3. To support its request, the Claimant alleges, in summary, the following defects:
(i) The properties in question, notwithstanding having a patrimonial value exceeding € 1,000,000.00, are land for construction and item 28.1 of the General Table of Stamp Tax refers only to properties with residential use.
(ii) And that the equivalence aforesaid is illegal, as it alleges, since this has been consistently understood by the Courts and by Arbitral Tribunals.
(iii) And that the intended destination for the building to be constructed on the land was equated by the Tax Authority for purposes of incidence of item 28.1, to the type of use of urban properties, according to the criteria of the Municipal Real Estate Tax Code (CIMI), an analogy which it says is manifestly violative of the principles of legality and specificity provided in article 106 of the Constitution of the Portuguese Republic (CRP).
(iv) Concluding to the illegality of the assessments subject to the claim, due to error in the legal classification of facts and erroneous interpretation of law, arguing for their annulment, as well as for the decision rendered on the Hierarchical Review filed, a second-degree tax act, which assessed and decided on the request for declaration of illegality of the assessments in dispute in the present proceedings, following the rejection of the Administrative Complaint filed.
1.4. The Tax and Customs Authority, hereinafter designated as "Respondent" or "TA", replied, briefly, in the sense that the concept of properties with "residential use", with the wording in force at the date of the tax facts, for purposes of item 28 of the TGIS, encompasses land for construction, as urban properties with residential vocation, inasmuch as they were acquired in that capacity and are thus classified in the property registry, concluding to the maintenance of the assessment acts and, consequently, to the lack of merit of the Claimant's request.
1.5. The Tribunal, pursuant to what was petitioned by the Respondent, decided to dispense with holding the first meeting of the Arbitral Tribunal, in accordance with article 18 of the RJAT, which was not opposed by any party. A preliminary issue was identified raised by the Respondent in its Reply aimed at reducing the amount of the claim which will be assessed in the present Decision. No exceptions were identified.
Both parties were notified to submit Pleadings, if they so wished, and both decided not to do so. A deadline was set for issuance of the arbitral decision until 16 December 2016.
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1.6. The Tribunal was duly constituted and is competent ratione materiae, in accordance with article 2 of the RJAT.
The parties have legal personality and legal capacity, show themselves to be legitimate and are duly represented (cf. articles 4 and 10, paragraph 2 of the RJAT and article 1 of Ordinance No. 112-A/2011, of 22 March).
No procedural nullities were identified.
2. QUESTION TO BE DECIDED
The present proceedings concern a (strictly) legal question of whether land for construction may be qualified as a "property with residential use" and, if affirmatively, whether it falls within the scope of application of item 28.1 of the TGIS, amended by article 4 of Law No. 55-A/2012, of 29 October.
Additionally, the Respondent raises a preliminary issue aimed at reducing the amount of the Claimant's claim.
3. FACTUAL MATTER
The following facts are established as relevant to the assessment and decision on the merits:
A) The Claimant is the owner of two plots of land for construction, recorded in the urban property registry of the union of parishes of … and …, municipality and district of Aveiro, under numbers … (current …) and … (current …), with a tax patrimonial value which, in 2012, was € 2,381,160.00 (cf. Urban Property Notebooks attached by the Claimant and contained in the administrative file attached by the Respondent).
B) The Claimant was notified of the stamp tax assessment acts more specifically identified under the collection documents issued with numbers 2012…, in the amount of € 11,905.80, and 2012…, in the amount of € 11,905.80, all relating to the year 2012, totalling thus € 23,811.60 (twenty-three thousand, eight hundred and eleven euros and sixty cents) - (cf. Documents attached with the request for arbitral determination by the Claimant).
C) The Claimant filed an Administrative Complaint, which was processed under number …2014…, intended to obtain the annulment of the stamp tax assessments now in dispute, which was rejected by the TA – (cf. Information contained in the administrative file attached by the Respondent).
D) From that rejection, and not being satisfied with it, the Claimant filed a Hierarchical Review, which was processed under number …2014…, and which was partially granted by the TA, as it found that the total Tax Patrimonial Value ("TPV") of the properties was incorrectly considered, in the amount of € 2,381,160.00, when only the TPV relating to the part assigned to residential use, in the amount of € 1,836,065.65, should have been taken into account, setting the TPV at this latter value – (cf. Decision attached by the Claimant and contained in the administrative file attached by the Respondent).
E) The TA, considering the TPV attributed to the land for construction aforesaid, understood that the objective conditions for Stamp Tax assessment were met, resulting from the addition to the TGIS of item 28 provided in Law No. 55-A/2012, of 29 October.
F) On 28 April 2016, the Claimant filed a request for constitution of the Arbitral Tribunal with the CAAD – cf. electronic request in the CAAD system.
4. UNPROVEN FACTS
There are no facts relevant to the decision on the merits that have not been proven.
5. GROUNDS FOR DECISION ON THE FACTUAL MATTER
As to the essential facts, the agreed factual matter is conformed identically by both parties and the Tribunal's conviction was formed on the basis of the documentary (official) evidence attached to the proceedings and detailed above, whose authenticity and veracity was not contested by any party.
6. ON THE LAW
6.1. On the preliminary issue raised by the TA aimed at reducing the amount of the claim.
The Respondent invokes that the TPV on which the assessments in dispute are based was reduced from € 2,831,160.00 to € 1,836,065.65, as a result of the partial deferment of the Hierarchical Review filed, and thus argues for correction of the amount of the claim, however without quantifying it.
The Tribunal understood, in observance of the principle of adversarial procedure, to notify the Claimant to pronounce itself on the preliminary issue invoked by the TA, and the Claimant replied in the sense of maintaining the amount of the claim, arguing that it was never notified of any correction to the amount of the stamp tax assessments now impugned. Subsequently, the Respondent pronounced itself saying that the Claimant was notified of the correction of the assessments, and that such documents are contained in the administrative file attached to the case.
Upon assessment, it is immediately concluded that the Respondent has no basis for requesting such reduction, as the administrative file attached does not contain any notification to the Claimant of the correction of any amount regarding the assessments impugned in the present proceedings. What is contained, rather, are various printouts, apparently extracted from the TA's computer system, with reference to various values.
It happens, however, that one or more printouts extracted from the TA's computer system cannot, under any circumstances, it must be said, serve as valid notification of correction of the amount of a tax assessment, this itself being a new assessment (albeit corrective in nature), and it is not apparent from the administrative file attached by the Respondent that this ever occurred.
Therefore, the amount of the claim is maintained.
6.2. On error in the conditions: scope of objective incidence of item 28.1 of the TGIS
Entering into the substantive issue, the assessments which constitute the immediate subject matter of this arbitral action have their origin in item 28.1 of the TGIS, amended by article 4 of Law No. 55-A/2012, of 29 October, having as an essential condition the presence of real property that may be classified under the concept of "property with residential use".
Since in the situation under scrutiny the real property in question are exclusively land for construction, devoid of any building, with reference to the year 2012, it is necessary to determine the meaning of the expression "property with residential use" so as to conclude whether it encompasses, or does not encompass, land for construction.
The matter under analysis has already been the subject of extensive arbitral tax jurisprudence. We refer in particular, without concerns for exhaustiveness, to the decisions rendered in the following cases: 42/2013-T, of 18-10-2013; 48/2013-T, of 09-10-2013; 49/2013-T, of 18-09-2013; 53/2013-T, of 02-10-2013; 75/2013-T, of 01-11-2013; 144/2013-T, of 12-12-2013 and 158/2013-T, of 10-02-2014.
The Courts have likewise pronounced on this same issue. We refer to the decisions rendered by the Supreme Administrative Court ("SAC") in the following cases: 048/14, of 09-04-2014 and 0270/14, of 23-04-2014.
Both the arbitral jurisprudence cited and the judicial jurisprudence cited, which we endorse, consider that land for construction lies outside the scope of the provision of item 28.1 of the TGIS, with the wording in force at the date of the facts, in the terms which follow to be explained, beginning by analyzing the legislative context in which the addition of item 28 to the TGIS occurred.
A. Context of approval of item 28.1 of the TGIS and its respective regime
In the Parliamentary discussion of Legislative Proposal No. 96/XII (2nd), which gave rise to Law No. 55-A/2012, which amended item 28 of the TGIS, the State Secretary for Tax Affairs stated that:
"(...) In order for the tax system to promote greater equality, it is fundamental that budgetary consolidation efforts be shared by all taxpayers and impact all types of income, encompassing with special emphasis capital income and high-value properties. This matter, it will be recalled, was extensively addressed in the Constitutional Court ruling (...).
This proposal has three essential pillars: the creation of special taxation on urban properties valued above 1 million euros; the increase in taxation of capital income on capital gains; and the strengthening of rules to combat tax fraud and evasion.
First, the Government proposes the creation of a special rate to tax high-value residential urban properties. It is the first time in Portugal that special taxation on high-value properties intended for residential use has been created. This rate will be 0.5% to 0.8% in 2012 and 1% in 2013, and will apply to houses valued at or above 1 million euros. With the creation of this additional rate, the tax burden required of these property owners will be significantly increased in 2012 and 2013" (emphasis added) – cf. Official Journal of the Parliament, I series, No. 9/XXII-2, of 11 October 2012, pp. 31-32.
Neither the houses nor the residential urban properties referred to here are reduced to land for construction. It should be noted that residential urban properties are one of the classification concepts contained in article 6 of the Municipal Real Estate Tax Code (CIMI), clearly distinct from land for construction. Indeed, the cited paragraph 1 of article 6 provides that:
"1 - Urban properties are divided into:
(i) Residential;
(ii) Commercial, industrial or for services;
(iii) Land for construction;
(iv) Others." (emphasis added)
Thus, residential urban properties and land for construction are, for purposes of Municipal Real Estate Tax (whose applicability, by reference, to Stamp Tax is, as will be seen below, to be invoked), two distinct categories, with their own legal classifications and definitions contained in the mentioned article 6 of the Municipal Real Estate Tax Code[1].
In light of the foregoing and as emphasized in the arbitral decision in case No. 75/2013-T, of 1 November 2013, it appears clear that "in the spirit of the Legislative Proposal that gave rise to Law No. 55-A/2012 there was no taxation of land for construction, and there is no evidence to the contrary coming from the Deputies who approved the law".
Having established the context, it should be stated that the regime in question came to be approved by Law No. 55-A/2012, of 29 October, and, among various amendments it made to the Stamp Tax Code, amended item 28 of the TGIS, with the following wording:
"28 – Ownership, usufruct or right of superficies of urban properties whose tax patrimonial value contained in the registry, under the terms of the Municipal Real Estate Tax Code (CIMI), is equal to or greater than € 1,000,000 – on the tax patrimonial value used for Municipal Real Estate Tax purposes:
28.1 – For property with residential use – 1%;
28.2 – For property, when the taxpayers who 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 Minister of Finance – 7.5%". (emphasis added)
B. The concept of "property with residential use"
It is necessary, thus, to interpret the provision of item 28.1 of the TGIS and to determine its meaning and scope, given the absence of a legal definition of the concept of property with residential use (a fundamental notion for the delineation of objective incidence), whether in the Stamp Tax Code itself or in any other statute, including the Municipal Real Estate Tax Code applicable by reference.
Indeed, as emphasized in the Arbitral Award relating to case No. 53/2013-T, of 2 October 2013, the concept of "property with residential use" is not employed by other tax legislation, in particular, as relevant in this case, in the Stamp Tax Code and in the Municipal Real Estate Tax Code, the latter being of subsidiary application within item 28 of the TGIS, as provided in articles 2, paragraph 4; 3, paragraph 3, subparagraph u); 5, subparagraph u); 23, paragraph 7; 46, paragraph 5 and 67, paragraph 2, all of the Stamp Tax Code.
Similarly, the Arbitral decision in case No. 144/2013-T, of 12 December 2013, refers that this concept used by item 28.1 (of property with residential use) "not only is not defined in any provision of the Stamp Tax Code, as neither is it used in the Municipal Real Estate Tax Code, statute to which the paragraph 2 of article 67 of the Stamp Tax Code expressly refers when matters not regulated in the Stamp Tax Code regarding item 28 are concerned."
Tax norms must be interpreted as any others, the conception that they would have an exceptional character which was once attributed to them being surpassed.
It should be noted in this regard that article 9 of the Civil Code marks the prevalence of the spirit over the letter of the law, although it expressly placed the letter as a limit to the search for meaning[2]. Article 9 of the Civil Code represents the emanation of a general hermeneutic principle, assisting it, for that reason, with intrinsic validity. This provision states that:
"1. Interpretation must not confine itself to the letter of the law, but must reconstruct from the texts the legislative intent, having particularly in mind the unity of the legal system, the circumstances in which the law was enacted and the specific conditions of the time in which it is applied.
2. However, the interpreter cannot consider the legislative intent that does not have in the letter of the law a minimum of verbal correspondence, even if imperfectly expressed.
3. In fixing the meaning and scope of the law, the interpreter shall presume that the legislator established the most correct solutions and knew how to express its intent in adequate terms."
The General Tax Law, in its article 11, came, in the specific field of tax laws, to establish a set of interpretation rules as follows:
"1. In determining the meaning of tax norms and in qualifying the facts to which they apply, the general rules and principles of interpretation and application of laws are observed.
2. Whenever, in tax norms, terms specific to other branches of law are used, they must be interpreted in the same sense as that which they have therein, unless another meaning directly derives from the law.
3. If doubt persists regarding the meaning of the applicable rules of incidence, the economic substance of the tax facts must be considered.
4. Gaps resulting from tax norms covered by the reservation of law of the Parliament of the Republic are not susceptible to analytic integration."
It appears that the text of the General Tax Law adds nothing, referring to the general rules and principles, beyond incorporating principles that are difficult to reconcile.
As was seen above, the Municipal Real Estate Tax Code uses (in its article 6, paragraph 1) the notion of residential urban properties, which it establishes as an autonomous and distinct category from that of land for construction, but does not provide for the concept of "property with residential use", whose interpretation is now necessary.
At this point, we again resort to arbitral jurisprudence and to the Award rendered in case No. 53/2013-T, referenced above, which is hereby endorsed and of which the following excerpt is transcribed:
"3.2.5. Concept of "property with residential use" as referring to residential properties
The concept most closely corresponding to the literal tenor of this expression used is manifestly that of "residential properties", defined in paragraph 2 of article 6 of the CIMI as encompassing "buildings or constructions" licensed for residential purposes or, in the absence of license, which have residential purposes as their normal destination.
If it is understood that the expression "property with residential use" coincides with [that] of "residential properties", it is manifest that the assessments will be flawed by error regarding the conditions of fact and law, as all properties against which Stamp Tax was assessed under the aforementioned item 28.1 are land for construction, without any building or construction, required to meet that concept of "residential properties".
For this reason, if the interpretation is adopted that "property with residential use" means "residential property", the assessments whose declaration of illegality is sought will be illegal, as there is in none of the land any building or construction.
However, the non-coincidence of the terms of the expression used in item 28.1 of the TGIS with that extracted from paragraph 2 of article 6 of the CIMI points to the sense that it was not intended to use the same concept.
3.2.6. Concept of "property with residential use" as distinct from "residential properties"
The word "use" (afectação), in this context of utilization of a property, has the meaning of "action of designating something for a determined use".
"When, as is the rule, the norms (legislative formulas) contain more than one meaning, then the positive function of the text translates into giving stronger support to or more strongly suggesting one of the possible meanings. For among the possible meanings, some will correspond to the more natural and direct meaning of the expressions used, whereas others will only fit into the verbal framework of the norm in a forced, artificial manner. Now, absent other elements that would lead to the election of the less immediate sense of the text, the interpreter should in principle opt for that meaning which best and most immediately corresponds to the natural meaning of the verbal expressions used, and in particular to its technical-legal meaning, on the assumption (not always accurate) that the legislator knew how to correctly express its intent"[2].
The relevance of the text of the law is especially accentuated in the matter of interpretation of norms of incidence of Stamp Tax, which reduce to an amalgam, under a common denomination, of an incongruous set of taxes of completely distinct natures (on income, on expenditure, on patrimony, on acts, etc.), which leaves little room for application of the primary interpretive criterion, which is the unity of the legal system, which demands its global coherence.
The recognized lack of coherence of Stamp Tax is particularly exuberant in the case of this item 28.1, hastily included outside of the General State Budget, by a legislator without perceptible overall fiscal orientation, who is successively implementing norms of fiscal increase as the vicissitudes of budget execution dictate, the impositions of international institutional creditors (represented by the "troika") and the oversight of the Constitutional Court. (…)
In this context, absent interpretive elements that permit detection of legislative coherence in the solution adopted in the aforementioned item 28.1 or the correctness or incorrectness of the solution adopted (relevant for interpretive purposes in light of paragraph 3 of article 9 of the Civil Code), the text of the law must be the primary element of interpretation, in conformity with the presumption, imposed by that same paragraph 3 of article 9, that the legislator knew how to express its intent in adequate terms.
In light of those meanings of the words "use" and "use", which are "give destination" or "apply", the formula used in that item 28.1 of the TGIS manifestly encompasses properties that are already applied to residential purposes, and it is necessary to inquire whether it will also encompass properties that, although not yet applied to residential purposes, are destined for these purposes and those whose destination is unknown.
In light of the literal tenor of item 28.1, it is to be excluded from the scope of incidence of Stamp Tax provided therein the land for construction of certain Claimants which do not yet have any defined type of use, as they are neither applied nor destined for residential purposes. That is, land for construction that does not have defined use cannot be considered properties with residential use, as they do not yet have any use nor any destination other than construction of unknown type. An interpretation in the sense that item 28.1 refers to properties whose use is unknown does not have the minimum of verbal correspondence in the letter of that norm, and therefore a hypothetical legislative intent of that type cannot be considered by the law interpreter, in light of the prohibition contained in paragraph 2 of article 9 of the Civil Code.
But this is not sufficient to clarify the situation of those land for construction which, although not yet applied to residential purposes, already have a determined destination, namely, in the subdivision license (…).
For this reason, it is necessary to clarify when a property can be understood to be designated for residential use, namely whether it is when such destination is fixed in a licensing act or similar, or only when the effective attribution of that destination is concretized.
First, the comparison of item 28.1 of the TGIS with paragraph 2 of article 6 of the CIMI, which defines the concept of residential properties, points manifestly toward the necessity of an effective use.
In truth, a building or construction licensed for residential use or, even without license, but which has residential purposes as its normal destination, is, in light of paragraph 2 of that article 6, a residential property.
For this reason, on the presumption that the legislator of Law No. 55-A/2012 knew how to express its intent in adequate terms (as article 9, paragraph 3, of the Civil Code presumes), if it intended to refer to these properties already licensed for residential use or which have residential purposes as their normal destination, it would certainly have used the concept of "residential properties", which would express perfectly and clearly its intent, in light of the definition given by that paragraph 2 of article 6 of the CIMI.
Consequently, it must be presumed that the use of a different expression is intended to have a distinct reality, and thus, in proper hermeneutics, "property with residential use" cannot be a property merely licensed for residential use or intended for that purpose (that is, it will not suffice that it be a "residential property"), and must be a property that already has effective use for that purpose.
That this is the meaning of the expression "use", in the same context of classification of properties as provided by the CIMI, is confirmed by article 3, in which, regarding rural properties, reference is made to those "which are used or, in the absence of concrete use, have as their normal destination a use generating agricultural income", which shows that the use is concrete, effective. Indeed, as seen by the final part of this text, a property may have as its destination a determined use and be or not be designated for it, which shows that the use is, at the level of the link of a property to a determined use, something more intense than mere destination and which may or may not occur, after this and not before it.
Moreover, the text of the law in adopting the formula "property with residential use", instead of "urban properties with residential use", which appears in the aforementioned "Statement of Reasons", points strongly in the direction that it is required that residential use is already concretized, for only thus will the property be in that use.
Regarding article 45 of the CIMI, it has no relation whatsoever to the classification of properties, merely indicating the factors to be considered in the evaluation of land for construction. What is pondered there, in making reference to the "building to be constructed", is the consideration of the destination of the land, which, as was seen, is something that, in the context of the CIMI, does not imply use and occurs before it.
The correctness of this interpretation in the sense that only properties that are effectively designated for residential use are inserted within the scope of application of item 28.1 of the TGIS is also confirmed by the ratio legis perceptible from the restriction of the field of application of the norm to properties with residential use, in the context of "the circumstances in which the law was enacted and the specific conditions of the time in which it is applied", which article 9, paragraph 1, of the Civil Code also establishes as interpretive elements.
First, the limitation of Stamp Tax to "properties with residential use" makes it clear that it was not intended to encompass within the scope of incidence of the tax properties with use for services, industry or commerce, that is, properties designated for economic activity, which makes sense in a context where, as is notorious, the economy is in a recessionary spiral, publicly proclaimed at the highest level, with unemployment rates reaching maximum historical levels, with an avalanche of business closures resulting from economic unsustainability.
Bearing in mind this situation and given that it is well known and public that the revitalization of economic activity and the increase of exports are the ways out of the crisis, it is understood that legislative measures were not taken that would hinder economic activity, namely the increase in tax burden that hinders it and affects competitiveness in international terms.
Therefore, it is to be concluded that the interpretive elements available, including the "circumstances in which the law was enacted and the specific conditions of the time in which it is applied", clearly point in the direction that it was not intended to encompass within the scope of application of item 28.1 situations of properties that are not yet designated for residential use, namely land for construction held by companies."
In this context, for the reasons just set forth, the understanding advocated by the TA cannot stand, that the notion of use (residential) of an urban property must be drawn from the regime for evaluation of real property contained in article 45 of the Municipal Real Estate Tax Code (which takes into account the use coefficient provided in article 41 of that Code).
In fact, as well stated in the decision of arbitral case No. 144/2013-T, "If the primary meaning of 'use', as we have stated, suggests an effective, direct destination given to a determined asset, we do not see how this understanding can be undermined by the finding that the legislator, within the scope of evaluation of land for construction, authorizes (to the extent it authorizes) the use of the use coefficient, having in view what may come to be constructed therein.
C. The case sub judice
In accordance with the factual matter, which is consensual, the real property underlying the Stamp Tax assessments carried out, here impugned, constitute land for construction.
Taking as correct and valid (as we do) the understanding that item 28.1 of the TGIS, with the wording in force at the time of the tax fact in question in the case, postulates the necessity of an effective residential use of an urban property and not merely potential, land for construction cannot be considered included in that item, as it does not permit, by its own nature, to have an effective and current residential use.
Thus, in the situation at hand we are not in the presence of properties with current residential use (understood as of the date of the tax fact), and therefore Stamp Tax as provided in item 28.1 of the TGIS cannot apply thereto, the assessments in dispute suffering from error in the conditions, embodied in the violation of the aforementioned item 28.1, and should thus be annulled (cf. article 163 of the Code of Administrative Procedure, of subsidiary application ex vi articles 2, subparagraph d) of the Code of Tax Procedure and article 29, paragraph 1, subparagraphs a) and d) of the RJAT).
It should be stated that the foregoing does not undergo any alteration by virtue of the entry into force of Law No. 83-C/2013, of 31 December (2014 State Budget Law) which amended item 28.1 of the TGIS, coming to tax land for construction, as this law was not given an interpretive nature, which prevents its application to tax facts occurring on a date prior to its entry into force, as occurs in the case of the present proceedings.
7. DECISION
In light of the foregoing, this Singular Arbitral Tribunal decides:
- To adjudge the request for arbitral determination to be well-founded and to declare the annulment of the stamp tax assessments more specifically identified under the collection documents issued with numbers 2012…, in the amount of € 11,905.80, and 2012…, in the amount of € 11,905.80, in the total amount of € 23,811.60, and likewise to determine the annulment of the decision that only partially granted the Hierarchical Review filed by the Claimant, the same should, consequently, be fully granted, in accordance with the present Decision.
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The value of the case is fixed at Euro 23,811.60, in accordance with articles 3, paragraph 2 of the Regulation of Costs in Tax Arbitration Proceedings (RCPAT), 97-A, paragraph 1, subparagraph a) of the Code of Tax Procedure and 306 of the Code of Civil Procedure.
The amount of costs is fixed at Euro 1,224.00, under article 22, paragraph 4 of the RJAT and Table I attached to the RCPAT, to be borne by the Respondent, in accordance with articles 12, paragraph 2 of the RJAT and 4, paragraph 4 of the RCPAT.
Let notification be made.
Lisbon, 24 November 2016.
The Arbiter,
Dr. Henrique Nogueira Nunes
Text prepared by computer, under article 131, paragraph 5 of the Code of Civil Procedure, applicable by reference of article 29, paragraph 1, subparagraph e) of the RJAT.
The drafting of the present arbitral decision is governed by the orthography prior to the 1990 Orthographic Agreement.
[1] Paragraphs 2 to 4 of article 6 of the Municipal Real Estate Tax Code define the concepts in question:
"2 – Residential, commercial, industrial or for services are buildings or constructions licensed for such or, in the absence of license, which have as their normal destination each of these purposes.
3 – Land for construction shall be deemed the land situated within or outside an urban agglomeration, for which a license or authorization for a subdivision or construction operation has been granted, admission of prior notification or favorable prior information has been issued, and also those which have been thus declared in the acquisition title, except for land in respect of which the competent entities prohibit any of those operations, namely those located in green areas, protected areas or which, in accordance with municipal land planning plans, are assigned to spaces, public infrastructure or facilities. (wording of Law No. 64-A/2008, of 31 December)
4 – The provision of subparagraph d) of paragraph 1 encompasses land situated within an urban agglomeration which are neither land for construction nor are covered by paragraph 2 of article 3 and also buildings and constructions licensed or, in the absence of license, which have as their normal destination purposes other than those referred to in paragraph 2 and also those of the exception in paragraph 3."
[2] See Oliveira Ascensão, "Interpretation of laws. Integration of gaps. Application of the principle of analogy", in Review of the Bar Association, Year 57 – III, Lisbon, December 1997, pp. 913-941.
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