IRC Tax Assessment Expiry and Compensation for Undue Bank Guarantee – CAAD 239/2016-T

ARBITRATION DECISION

Case No. 239/2016-T

The arbitrators Dr. Jorge Manuel Lopes de Sousa (presiding arbitrator, appointed by the other Arbitrators), Dr. Ricardo da Palma Borges and Prof. Doctor Manuel Pires, appointed respectively by the Claimant and the Respondent, to constitute the Arbitral Tribunal, constituted on 08-06-2016, agree as follows:

1. Report

A…, with headquarters in …, city of …, …, …, …, United States of America, with the collective person number …, which has as its appointed tax representative the company B…, with headquarters in …, no. …, …, …-… Lisbon ("Claimant"), came, pursuant to Article 10 of Decree-Law No. 10/2011, of 20 January, hereinafter "RJAT" – Legal Regime of Tax Arbitration), to request the constitution of a collective arbitral tribunal, in order to:

(i) to declare the illegality and consequent annulment of the assessments of Corporate Income Tax ("IRC") and compensatory interest Nos. 2015 … and 2015…, relating to the years 2008 and 2009, respectively, from which resulted a total amount of IRC and compensatory interest to be paid of € 693,480.53;

(ii) to condemn the Tax Authority ("AT") to indemnify the Claimant for the expenses incurred with the provision and maintenance of bank guarantees for the suspension of the tax enforcement proceedings Nos. …2015… and …2015… instituted by the AT following the alleged failure to voluntarily pay such assessments.

The Respondent is the TAX AND CUSTOMS AUTHORITY.

The Claimant appointed Dr. Ricardo da Palma Borges as Arbitrator, pursuant to the provisions of Article 6, No. 2, paragraph b), of the RJAT.

The request for constitution of the Arbitral Tribunal was accepted by the President of CAAD and automatically notified to the Tax and Customs Authority on 28-04-2016.

Pursuant to the provisions of paragraph b) of No. 2 of Article 6 and No. 3 of the RJAT, and within the deadline provided in No. 1 of Article 13 of the RJAT, the highest official of the Tax Authority service appointed as Arbitrator Prof. Doctor Manuel Pires.

The Arbitrators appointed by the Parties agreed to appoint Counselor Jorge Lopes de Sousa as presiding arbitrator, who accepted the appointment.

Pursuant to the provisions of No. 7 of Article 11 of the RJAT, the President of CAAD informed the Parties of this appointment on 23-06-2016.

Thus, in compliance with the provisions of No. 7 of Article 11 of the RJAT, after the deadline provided in No. 1 of Article 13 of the RJAT without the Parties submitting anything further, the Collective Arbitral Tribunal was constituted on 11-07-2016.

The Tax and Customs Authority submitted a response in which it raised exceptions of procedural error or lack of material jurisdiction of the Arbitral Tribunal, of futility/prejudicialness of the question of the legality of the assessments and of limitation of the right of action.

The Tax and Customs Authority further requested suspension of the proceedings due to the pendency of a tax enforcement proceeding.

Furthermore, the Tax and Customs Authority defended that the request for arbitral pronouncement should be judged to be without merit.

By decision of 17-11-2016, the exceptions of procedural error or lack of jurisdiction of the Arbitral Tribunal and of futility or prejudicialness of the question of the legality of the assessments were judged, by majority, to be without merit and it was decided not to suspend the proceedings.

By order of 22-12-2016, it was decided that the proceedings continue with submissions on the issues of limitation of the right of action and limitation of the right to assess, without prejudice to further evidence and continuation of the proceedings for consideration of other issues, if appropriate.

The Claimant submitted submissions, to which it attached subsequent documents issued by the Tax and Customs Authority in which, in summary, it acknowledged that the disputed assessments were not made to the Claimant.

The Tax and Customs Authority commented on these subsequent documents, saying, in summary, that the documents would have been notified to the Claimant by the Lisbon Finance Service … and that, by order of the General Director of 03-01-2017, it was determined, to the Lisbon Finance Service…, the termination of the tax enforcement proceeding, on the grounds of the failure to notify the assessments.

The Tax and Customs Authority argues that, in view of the acknowledged failure to notify the assessments at issue in the present arbitral proceedings, it appears, pursuant to paragraph e) of Article 277 of the Code of Civil Procedure, applicable by virtue of Article 29 of the RJAT, the existence of a subsequent mootness of the action, a fact which it understands to determine, by virtue of the same article, the termination of the proceedings and which, if this is not understood, "maintains in their entirety all the arguments presented with respect to the legality of the assessment".

The Arbitral Tribunal was regularly constituted.

The parties have legal personality and capacity and are parties to the proceedings (Articles 4 and 10, No. 2, of the same statute and Article 1 of Regulatory Decree No. 112-A/2011, of 22 March).

As follows from what was decided in the order of 22-12-2016, the proceedings continued with submissions on the issues of limitation of the right of action and limitation of the right to assess, without prejudice to further evidence and continuation of the proceedings for consideration of other issues, if appropriate.

In addition to these issues, it is necessary to assess in advance the question of subsequent mootness of the action raised by the Tax and Customs Authority when commenting on the documents attached to the Claimant's submission.

Since the Claimant has already commented, in its submission, on the procedural interest it maintains after the termination of the tax enforcement proceedings, it is deemed unnecessary to provide it with a new opportunity to comment.

2. Statement of Facts

The facts relevant to the decision of the issues requiring assessment are as follows:

2.1 Proven Facts

The following facts are considered proven:

a) The Claimant A… is a non-resident company and has never voluntarily assumed the existence of any permanent establishment in Portugal, which is engaged, among other activities, in the purchase and sale and management and recovery of non-performing loans (loans in default or delinquent);

b) In the course of this activity, the Claimant acquired from Bank C…, S.A. ("C…") three portfolios of loans of this nature ("NPLs – Non Performing Loans") whose debtors were resident in Portugal;

c) The Claimant contracted in the years 2008 and 2009, the company D…, S.A. ("D…" or "D…"), a company that provides non-performing loan management and recovery services, to assist it in the management and recovery of the acquired NPLs ("Loan Servicing" or "Servicing");

d) Following various opinions, the Tax and Customs Authority issued assessments and IRC Nos. 2015 … and 2015 …, relating to the activity of the Claimant in the years 2008 and 2009, respectively, from which resulted a total amount of IRC and compensatory interest to be paid of € 693,480.53;

e) As the Claimant did not pay the assessed amounts, the Tax and Customs Authority instituted tax enforcement proceedings for their compulsory collection, which have the Nos. …2015… (year 2008) and …2015… (year 2009);

f) The Claimant submitted oppositions to the tax enforcement proceedings which were not sent to the Tax Tribunal;

g) By orders of the General Director of the Tax and Customs Authority of 03-01-2017, the termination of both tax enforcement proceedings was decided "due to failure to notify the assessment", as the letters sent to an address in …, no. …, …, …-…, Lisbon, were returned and no further notification attempts were made (documents Nos. 51 and 52 attached to the Claimant's submission, whose contents are deemed reproduced);

h) Following the said Orders, on 10-01-2017, the Head of the Finance Service, in the capacity of tax enforcement body, determined the termination of the tax enforcement proceedings and the removal of the bank guarantees provided by the Claimant to suspend the said tax enforcement proceedings (document Nos. 53 attached to the Claimant's submission, whose contents are deemed reproduced);

i) By virtue of the cancellation of the bank guarantees presented to suspend the tax enforcement proceedings, E… proceeded with the cancellation of said bank guarantees (documents Nos. 54 and 55 attached to the Claimant's submission, whose contents are deemed reproduced);

j) The Orders of the General Director referred to are silent with respect to compensation for expenses incurred by the Claimant related to the bank guarantees it presented to obtain suspension of the mentioned tax enforcement proceedings;

k) With the constitution, presentation, maintenance and cancellation of the bank guarantees in question, the Claimant incurred expenses in the total amount of € 11,140.01 (documents Nos. 56 and 57 attached to the Claimant's submission, whose contents are deemed reproduced);

l) A criminal investigation was instituted related to the facts underlying the disputed assessments, which was dismissed by order of 25-02-2015 (document No. 4 attached by the Tax and Customs Authority with the response);

m) The Claimant became aware of the disputed assessments when its tax representative B… was cited for the mentioned tax enforcement proceedings, by way of registered letters with acknowledgment of receipt sent by the Tax and Customs Authority on 14-03-2016 (documents Nos. 38 and 39 attached to the request for arbitral pronouncement, whose contents are deemed reproduced);

n) In 2012, a criminal investigation was instituted against the Claimant, which was assigned No. …, based on "indications of tax fraud" related to the facts underlying the disputed assessments (documents Nos. 3 and 4 attached by the Tax and Customs Authority with its Response, whose contents are deemed reproduced);

o) On 25-04-2016, the Claimant submitted the request for constitution of the arbitral tribunal which gave rise to the present proceedings.

2.2 Unproven Facts

There are no facts relevant to the decision of the issues requiring assessment that have not been proven.

2.3 Reasoning for the Statement of Facts

The facts were proven on the basis of documents attached to the request for arbitral pronouncement and to the Claimant's submission, with no controversy over them.

3. Statement of Law

3.1 Question of Subsequent Mootness of the Action

When commenting on the documents attached by the Claimant with its submission, the Tax and Customs Authority argues that the proceedings should be terminated due to subsequent mootness of the action, following the termination of the tax enforcement proceedings instituted for the compulsory collection of the assessed amounts.

The Claimant, already aware of the termination of the tax enforcement proceedings, submitted its submission in which it refers to its interest in the continuation of the present proceedings, which it understands persists due to the fact that it has not been indemnified for the guarantees provided.

As already mentioned in the decision handed down on 17-11-2016, Article 278, paragraph e), of the Code of Civil Procedure, subsidiarily applicable by virtue of the provisions of Article 29, No. 1, paragraph e), of the RJAT, establishes that the proceedings are terminated due to subsequent mootness of the action.

This cause of termination of proceedings is related to the interest in bringing or maintaining an action or procedural interest, which constitutes a procedural requirement ( [1] ) or condition of the action ( [2] ) which "consists in the necessity of using the proceedings, of instituting or continuing the action". ( [3] )

That is, this interest must exist at the moment when the proceedings begin, but must be maintained throughout them, justifying its absence the termination of proceedings by mootness. ( [4] )

Procedural interest reflects the objective situation of lack of need for judicial protection on the part of the plaintiff. This requirement implies a situation of real, justified and reasonable necessity ( [5] ), authorizing the plaintiff to resort to the courts "when the right alleged by him does not grant him in itself the faculty of requesting such judicial protection." ( [6] )

In the case at hand, despite the termination of the tax enforcement proceedings, the Claimant maintains the interest it referred to, which is to be indemnified for the expenses it incurred with the provision of guarantees, as it formulated this claim in the request for arbitral pronouncement and it has not been satisfied nor assessed.

On the other hand, the right to indemnity for improper guarantee, in cases where it is not provided for a period exceeding three years, depends on the existence of error attributable to the services, which is verified in a process of amicable complaint or judicial challenge, as follows from No. 2 of Article 53 of the General Tax Law.

Therefore, the continuation of the proceedings (administrative or contentious) in which the assessments are challenged is indispensable to determine whether the taxpayer has the right to indemnity for expenses incurred with the guarantees provided.

Along the same lines, Article 171, No. 1, of the Tax Code of Procedure and Process establishes that "indemnity in the case of bank guarantee or equivalent improperly provided shall be requested in the proceedings in which the legality of the enforceable debt is contested".

In the case at hand, the present arbitral proceeding is that in which the legality of the enforceable debt is contested and, therefore, it is in this proceeding that the legality of the assessments must be assessed and the verification of whether or not errors attributable to the services affect them.

Thus, being the proceeding in which the legality is expressly provided by law for assessing this question of the right to indemnity for improper guarantee, it must be concluded that the Claimant maintains an interest worthy of protection in seeing the questions of the illegality of the assessments assessed, with the inherent determination of whether or not errors attributable to the services affect them.

Based on the foregoing, subsequent mootness of the action does not occur, so the exception raised by the Tax and Customs Authority lacks merit.

3.2 Question of Limitation of the Right of Action

The Tax and Customs Authority raised the question of limitation of the right of action.

As follows from the evidence produced, the assessments in question were not notified to the Claimant, but tax enforcement proceedings were instituted for the compulsory collection of the assessed amounts, in which the respective citations of the Claimant were made, in the person of its designated tax representative.

Pursuant to Article 10, No. 1, of the RJAT, in the part relevant here, "the request for constitution of an arbitral tribunal is presented (...) within 90 days, counted from the facts provided for in Nos. 1 and 2 of Article 102 of the Code of Procedure and Process of Taxation, as to acts susceptible of autonomous challenge".

The facts provided for in No. 1 of Article 102 of the Tax Code of Procedure and Process are the following:

a) End of the deadline for voluntary payment of tax obligations legally notified to the taxpayer;

b) Notification of other tax acts, even when they do not give rise to any assessment;

c) Citation of subsidiary liable parties in a tax enforcement proceeding;

d) Formation of the presumption of tacit denial;

e) Notification of other acts that may be subject to autonomous challenge under this Code;

f) Knowledge of acts prejudicial to legally protected interests not covered in the preceding paragraphs.

In the case at hand, as notification of the assessments was not made, the possibility of applying paragraphs a), b) and e) is ruled out, as all presuppose the occurrence of notification.

On the other hand, we are not dealing with situations that fall within paragraphs c) and d), as there is no challenge by a subsidiary liable party or tacit denial of any administrative challenge.

Thus, the situation in the case must fall within paragraph f), which has a residual field of application, being applicable to cases not covered in the preceding paragraphs, which include unnotified assessment acts.

Therefore, the initial point of the deadline for submission of the request for constitution of the arbitral tribunal is the date of knowledge of the prejudicial acts.

As follows from the statement of facts established, the Claimant became aware of the disputed assessments when its tax representative, B…, was cited for the mentioned tax enforcement proceedings, by way of registered letters with acknowledgment of receipt sent by the Tax and Customs Authority on 14-03-2016, so it was with the receipt of these letters that the 90-day period provided for in Article 10, No. 1, paragraph a), of the RJAT began to run.

It is not documented in the proceedings on what date or dates the letters were received, but, even if they had been received on the date of dispatch (14-03-2016), it is manifest that, as the request for constitution of the arbitral tribunal was submitted on 25-04-2016, the 90-day period counted from knowledge of the prejudicial acts was not exceeded, which follows from the application of Article 10, No. 1, paragraph a), of the RJAT, with Article 102, No. 1, paragraph f), of the Tax Code of Procedure and Process.

Therefore, the exception of limitation of the right of action lacks merit.

3.3 Question of Limitation of the Right to Assess

At issue are IRC assessments relating to the years 2008 and 2009.

"The right to assess taxes lapses if the assessment is not validly notified to the taxpayer within four years, when the law does not set otherwise" (Article 45, No. 1, of the General Tax Law).

"The limitation period is counted, for periodic taxes, from the end of the year in which the taxable fact occurred" (Article 45, No. 2, of the General Tax Law).

As IRC is a periodic tax, the four years referred to in Article 45, No. 1, were completed on 31-12-2012 and 31-12-2013, as to the facts relating to the years 2008 and 2009, respectively.

The assessments were not notified within the four-year periods counted from those dates, but a criminal investigation was instituted related to the facts underlying the disputed assessments, which was dismissed by order of 25-02-2015.

Article 45, No. 5, of the General Tax Law establishes that "whenever the right to assess relates to facts for which a criminal investigation was instituted, the period referred to in No. 1 is extended until the dismissal or judgment becomes final, plus one year".

Therefore, applying this rule, the limitation period of the right to assess extended, at most, until 25-02-2016, the date on which one year was completed from the dismissal order.

As the assessments were not notified until that date, it is unavoidable to conclude that the limitation of the right to assess occurred.

In these terms, the request for arbitral pronouncement proceeds as to the requests for declaration of illegality of the assessments.

3.4 Question of Claims for Indemnity for Improper Guarantees

With the constitution, presentation, maintenance and cancellation of the bank guarantees to suspend the tax enforcement proceedings instituted for the compulsory collection of the assessed amounts, the Claimant incurred expenses in the total amount of € 11,140.01.

The Claimant requests that it be paid indemnity in this amount.

As already mentioned, Article 171 of the Tax Code of Procedure and Process establishes that "indemnity in the case of bank guarantee or equivalent improperly provided shall be requested in the proceedings in which the legality of the enforceable debt is contested".

Thus, it is unequivocal that the process of judicial challenge encompasses the possibility of condemnation to payment of improper guarantee and is even, in principle, the appropriate procedural means to formulate such a claim, which is justified by evident reasons of procedural economy, as the right to indemnity for improper guarantee depends on what is decided concerning the legality or illegality of the act of assessment and its attributability.

The request for constitution of an arbitral tribunal and for arbitral pronouncement has as a corollary to become in the arbitral proceeding the discussion of the "legality of the enforceable debt", so that, as follows from the express tenor of that No. 1 of the said Article 171 of the Tax Code of Procedure and Process, the arbitral proceeding is also appropriate for assessing the claim for indemnity for improper guarantee.

The regime of the right to indemnity for improper guarantee consists of Article 53 of the General Tax Law, which establishes the following:

Article 53

Guarantee in Case of Improper Provision

1. The debtor who, to suspend enforcement, offers bank guarantee or equivalent shall be indemnified in whole or in part for damages resulting from its provision, if he maintained it for a period exceeding three years in proportion to the success in administrative appeal, challenge or opposition to enforcement that have as their object the guaranteed debt.

2. The period referred to in the preceding number does not apply when it is verified, in amicable complaint or judicial challenge, that there was error attributable to the services in the assessment of the tax.

3. The indemnity referred to in No. 1 has as its maximum limit the amount resulting from the application to the guaranteed value of the rate of indemnity interest provided for in this law and may be requested in the same process of complaint or judicial challenge, or autonomously.

4. Indemnity for provision of improper guarantee shall be paid by deduction from the revenue of the tax of the year in which payment is made.

The reference to "assessment" in the expression "there was error attributable to the services in the assessment of the tax" should be understood in the broad sense, as referring to the assessment procedure, constituted by the set of acts aimed at the definition of an obligation to pay the amount of a tax by a determined taxpayer, encompassing not only the assessment stricto sensu (constituted by the act in which the collection is determined, carrying out the arithmetic operations to calculate the tax to be paid), but also the phase of imposition (in which the taxpayers and the taxable or subject matter and the rate to be used are determined in the case where more than one is potentially applicable) ( [7] ). It is with this broad sense that the expression "assessment" is used, for example, in Articles 54, No. 1, paragraph b), of the General Tax Law and 10, No. 1, paragraph a), of the Tax Code of Procedure and Process, in which competences of the Tax Authority specifically referring to the imposition of taxes are not indicated.

But, the notification to the recipient is also inserted in the assessment procedure, as, before notification, the operations performed are mere internal acts, freely revocable, which do not define the position of the Tax Authority in relation to the taxpayer. ( [8] )

In fact, in most cases, errors in assessment acts do not result from the act itself that concretizes the arithmetic operations for determining the tax to be paid, but from other acts of the procedure that underlie it, so it would not be understood to use an interpretation of the term "assessment" used in No. 2 of Article 53 with the restricted sense, as there are no reasons to distinguish, for purposes of indemnity for damages suffered with the provision of guarantee, between the injuries caused by non-revocable acts in which defects relate to the assessment act itself and those that derive from defects of other acts in the respective assessment procedure.

Furthermore, the broad sense referred to is the interpretation that best aligns with the expression "assessment", which is suitable for referring to the entire assessment procedure – whereas the expression "act of assessment" is used more precisely to refer to the restricted sense.

In addition, Article 53 of the General Tax Law aims to facilitate for those injured by an illegal action of the Tax Authority the reparation to which they are constitutionally entitled (Article 22 of the Portuguese Constitution) and the principle of equality requires that this right be recognized for all taxpayers who bore expenses with provision of guarantees, for the reason that an act of assessment was practiced which suffers from an illegality that prevents its renewal, as is the case with the limitation of the right to assess.

Thus, having to presume that the legislator enshrined the most appropriate solution and knew how to express his thinking in adequate terms (Article 9, No. 3, of the Civil Code), it must be concluded that this expression "error attributable to the services in the assessment of the tax" encompasses all illegalities that affect the validity of the assessment, including those relating to its notification, which is the final act of the assessment procedure, as is underlying the regime of Article 45, No. 1, of the General Tax Law.

Being so, it must be concluded that the Claimant has the right to the indemnity it claims, as the error that affects the validity of the assessments is attributable to the Tax and Customs Authority, for not having effected the notifications within the limitation period of the right to assess, and the guarantees were provided to suspend the tax enforcement proceedings instituted based on these invalid assessments.

In these terms, the request for condemnation of the Tax and Customs Authority to pay the Claimant the amount of € 11,140.01, as indemnity for expenses it bore with the provision of bank guarantees, proceeds.

4. Questions of Limited Knowledge

In view of the success of the request for arbitral pronouncement, based on a defect of the assessment acts that prevents their renewal, the knowledge of the other issues raised in the present proceedings is rendered moot, being unnecessary.

5. Decision

In these terms, the members of this Arbitral Tribunal agree to:

– Judge the exception of subsequent mootness of the action to be without merit;

– Judge the exception of limitation of the right of action to be without merit;

– Judge the request for declaration of illegality of the IRC assessments and compensatory interest Nos. 2015 … and 2015… to have merit;

– Annul the aforementioned assessments;

– Judge the request for condemnation of the Tax and Customs Authority to pay the Claimant indemnity for expenses incurred with the provision and maintenance of bank guarantees for the suspension of the tax enforcement proceedings Nos. …2015…and …2015… to have merit;

– Condemn the Tax and Customs Authority to pay the Claimant the amount of € 11,140.01.

6. Value of the Case

In accordance with the provisions of Article 306, No. 2, of the Code of Civil Procedure and 97-A, No. 1, paragraph a), of the Tax Code of Procedure and Process and 3, No. 2, of the Regulation of Costs in Tax Arbitration Proceedings, the case is valued at € 693,480.53.

Lisbon, 16 February 2017

The Arbitrators

(Jorge Lopes de Sousa)

(Ricardo da Palma Borges)

(Manuel Pires)
(with dissenting opinion attached)

DISSENTING OPINION

I do not concur with the decisions handed down because I understand, for the stated reasons contained in another dissenting opinion timely formulated in the present proceedings, that the Arbitral Tribunal could not have assessed the merits of the Claimant's claims.

(Manuel Pires)

( [1] ) In this sense, ANSELMO DE CASTRO, Civil Procedural Law – Declaratory Proceedings, volume II, 1982, pages 253-254.

( [2] ) In this sense, MANUEL DE ANDRADE, Elementary Notions of Civil Procedure, 1979, pages 82-83.

( [3] ) ANTUNES VARELA, J. MIGUEL BEZERRA, and SAMPAIO E NORA, Manual of Civil Procedure, 1st edition, 1981, page 55.

( [4] ) ANTUNES VARELA, J. MIGUEL BEZERRA, and SAMPAIO E NORA, Manual of Civil Procedure, 1st edition, 1981, page 179.

( [5] ) J. P. Remédio Marques, Declaratory Action, 3rd ed., Coimbra, Coimbra Editora, 2011, page 406.

( [6] ) In these terms, M. Teixeira De Sousa, The Parties, The Object and Evidence in Declaratory Action, Lisbon, Lex, 1995, page 106.

[7] On this broad sense of "assessment" see CASALTA NABAIS, Tax Law, 7th edition, page 295, in which he writes:

"Assessment in the broad sense, that is to say, as the set of all operations intended to determine the amount of the tax, comprises: 1) subjective imposition intended to determine or identify the taxpayer or subject of the tax legal relationship, 2) objective imposition through which the taxable or subject matter of the tax is determined and, likewise, the rate to be applied is determined, in the case of plurality of rates, 3) assessment (stricto sensu) reflected in the determination of the collection through the application of the rate to the taxable or subject matter".

Pointing out "the tendency, in the most recent Portuguese legislation to use the term 'assessment' so as to embrace the acts of imposition", see SOARES MARTINEZ, Tax Law, 7th edition, page 293.

Also using this broad sense, see the decision of the Supreme Administrative Court of 24-04-1991, case No. 013209, published in Appendix to the Official Gazette of 30-09-1993, page 453, in which it is stated that "the administrative procedure of tax assessment is a complex process comprising acts that are the consequence of prior acts, all aimed at the final result the tax act, the assessment".

[8] SOARES MARTINEZ, Tax Law, 7th edition, page 309:

"Of the assessment, or the final act of imposition, the taxpayer should be notified. Because the entire process of imposition and assessment, or most of it, is situated in the internal sphere of the Administration. Consequently, the external validity of this process must depend on its notification to the taxpayer, to whom it is addressed. In fact, while internal acts of the Administration, all operations of imposition and assessment will be freely modifiable, revocable. These acts only become perfect, definitive, with the respective notification, on the basis of which the taxpayer may also complain or appeal such acts".