Process: 241/2018-T

Date: December 12, 2018

Tax Type: IMT

Source: Original CAAD Decision

Summary

CAAD arbitration case 241/2018-T examined whether a Portuguese branch of a French Société Civile de Placement Immobilier (SCPI) qualified for IMT (Municipal Property Transfer Tax) exemption under Decreto-Lei 1/87 on two property acquisitions totaling €594,821.41. The claimant, a French real estate investment fund operating in Portugal, argued the acquisitions were exempt operations under Article 1 of DL 1/87, which historically exempted real estate investment funds from sisa (IMT's predecessor). The central legal question was whether this exemption remained in force after the 2007 State Budget Law introduced a new IMT exemption specifically in Article 46 of the Estatuto dos Benefícios Fiscais (EBF), and whether this implicitly or expressly revoked the broader DL 1/87 exemption. The claimant challenged IMT assessment acts under Article 24 of RJAT and Articles 43 and 100 of LGT, claiming voidability. The Tax Authority defended the assessments, arguing the specific EBF exemption superseded the general DL 1/87 provision. The arbitral tribunal referenced prior CAAD decisions (544/2016-T, 677/2016-T, 440/2017-T) addressing similar issues. The decision required analyzing whether collective real estate investment vehicles, regardless of legal form or foreign establishment, qualify under the original exemption framework, and determining the relationship between overlapping exemption regimes. This case has significant implications for foreign real estate funds operating in Portugal and the interpretation of grandfathered tax benefits versus newer specific exemptions in Portuguese tax law.

Full Decision

ARBITRAL DECISION

The Arbitrators José Pedro Carvalho (President Arbitrator), Henrique Nogueira Nunes and Paulo Jorge Nogueira da Costa, designated by the Ethics Council of the Centre for Administrative Arbitration to form an Arbitral Tribunal, hereby decide as follows:

I – REPORT

On 9 May 2018, A..., Portuguese branch of a Société Civile de Placement Immobilier, with tax identification number..., with registered office at Rua..., no...., ..., Lisbon, filed a request for constitution of an arbitral tribunal, pursuant to the combined provisions of articles 2 and 10 of Decree-Law no. 10/2011, of 20 January, which approved the Legal Regime of Arbitration in Tax Matters, as amended by article 228 of Law no. 66-B/2012, of 31 December (hereinafter, briefly referred to as RJAT), seeking the declaration of illegality of the Municipal Tax on Onerous Transfers of Real Property (IMT) assessment acts no. ... and no...., in the total amount of €594,821.41.

To support its request, the Claimant alleges, in summary, the voidability of the aforesaid assessments under article 24 of RJAT and articles 43 and 100 of LGT, on the grounds that the acquisitions in question are, under article 1 of Decree-Law no. 1/87, of 3 January, operations exempt from IMT.

On 10-05-2018, the request for constitution of the arbitral tribunal was accepted and automatically notified to the Tax Authority (AT).

The Claimant did not proceed to appoint an arbitrator, whereby, pursuant to article 6(2)(a) and article 11(1)(a) of RJAT, the President of the Ethics Council of CAAD appointed the undersigned as arbitrators of the collective arbitral tribunal, who communicated acceptance of the assignment within the applicable period.

On 28-06-2018, the parties were notified of such appointments and expressed no intention to challenge any of them.

In accordance with the provisions of article 11(1)(c) of RJAT, the collective Arbitral Tribunal was constituted on 18-07-2018.

On 28-09-2018, the Respondent, having been duly notified for this purpose, submitted its response defending itself solely by way of objection.

Pursuant to articles 16(c) and (e) and article 29(2), both of RJAT, the holding of the meeting referred to in article 18 of RJAT was dispensed with.

Having been granted a period for submission of written submissions, these were presented by the Claimant, commenting on the evidence produced and reiterating and developing its legal positions.

It was indicated that the final decision would be notified by the end of the period fixed in article 21(1) of RJAT.

The Arbitral Tribunal is materially competent and is regularly constituted, pursuant to articles 2(1)(a), 5 and 6(2)(a) of RJAT.

The parties have legal personality and capacity, are legitimate and are legally represented, pursuant to articles 4 and 10 of RJAT and article 1 of Portaria no. 112-A/2011, of 22 March.

The proceedings are not affected by any nullities.

Thus, there is no obstacle to the consideration of the case.

All having been reviewed, the following decision is hereby rendered:

II. DECISION

A. FACTUAL MATTER

A.1. Facts found to be proven

The Claimant is, and was at the date of the facts, the Portuguese branch of A..., established on 28-02-2012 for the purpose of acquiring and managing real property assets intended for leasing in France and in the Euro Zone.

A... is, and was at the date of the facts, an open collective real property investment vehicle, established in the form of a Société Civile de Placement Immobilier, and subject to the regime provided for in articles 1832 et seq. of the French Civil Code and articles L.214-50 to L.214.84 and R.214-116 and R.214-143 of the French Monetary and Financial Code.

The Claimant engaged in collective investment through the contribution of various investors, in accordance with the investment policy defined by its management company and in compliance with a principle of risk distribution.

The Claimant's activity was subject to authorization, pursuant to the provisions of articles 214-50 et seq. of the French Monetary Code, and was authorized by the competent regulator (Authorité des Marchés Financiers), through visa no. S.P.C.I. no...., of 24 July 2012.

The management of the Claimant is ensured by B..., an investment fund management company regulated by French law, registered in the Commerce and Companies Register of Paris under no...., authorized and subject to the supervision of ... under no. GP-..., of 14 April 2011.

On 08-02-2018, the Claimant submitted an IMT Model 1 declaration, expressing to the Tax Authority its intention to acquire from company C..., Lda., the urban property located at Rua..., no...., registered in the urban property register of the parish of .... under article...., for the price of €4,391,500.00.

On the same date, AT issued IMT assessment no...., in which it determined a payment amount of €285,519.91.

On 08-02-2018, the Claimant submitted a second IMT Model 1 declaration, expressing to AT its intention to acquire from company D..., S.A., the urban property located at Rua..., nos.... and .... and at ... nos.... and ...., registered in the urban property register of ...., ...., ...., ...., .... and .... under article...., for the price of €4,758,500.00.

AT issued IMT assessment no...., in which it determined a payment amount of €309,302.50.

The voluntary payment period for said assessments ended on 09-02-2018.

Prior to execution of the two purchase and sale contracts, on 09-02-2018, the Claimant proceeded to pay the aforesaid IMT assessments.

A.2. Facts found not to be proven

With relevance to the decision, there are no facts that should be considered as unproven.

A.3. Reasoning of the proven and unproven factual matter

With respect to the factual matter, the Tribunal does not need to address everything alleged by the parties; rather, it has the duty to select the facts that matter for the decision and distinguish the proven from the unproven facts (see article 123(2) of CPPT and article 607(3) of CPC, applicable pursuant to article 29(1)(a) and (e) of RJAT).

Thus, the facts pertinent to the judgment of the case are selected and delimited based on their legal relevance, which is established in consideration of the various plausible solutions to the legal question(s) (see former article 511(1) of CPC, corresponding to current article 596, applicable pursuant to article 29(1)(e) of RJAT).

Accordingly, taking into account the positions assumed by the parties in light of article 110(7) of CPPT, and the documentary evidence attached to the record, the facts listed above were considered proven with relevance to the decision.

Allegations made by the parties and presented as facts consisting of purely conclusive statements, incapable of proof and whose truthfulness must be assessed in relation to the specific factual matter consolidated above, were neither found to be proven nor unproven.

B. LAW

As the Respondent itself succinctly summarizes, the present arbitral action concerns the question of whether article 1 of Decree-Law 1/87, of 3 January, is in force or not, which will determine whether Real Property Investment Funds, regardless of their typology, will be exempt from IMT in the acquisition of real property.

It is also necessary to determine whether the IMT exemption introduced in article 46 of EBF by the State Budget Law for 2007 revoked – and if so, expressly or implicitly – the sisa (IMT) exemption contained in article 1 of Decree-Law no. 1/87.

On this matter, the CAAD decisions issued in proceedings no. 544/2016-T, no. 677/2016-T and no. 440/2017-T have already ruled[1].

It is necessary to first set out the legal norms relevant at the date of occurrence of the facts.

In accordance with article 5(1) of the IMT Code, the incidence of IMT is regulated by the legislation in force at the time the tax obligation arises, with article 5(2) establishing that this arises at the moment the transfer occurs.

Now, as established in the agreed facts, the Claimant is the Portuguese branch of A..., which is, in turn, an open collective real property investment vehicle, established and operating in the form of a Société Civile de Placement, in accordance with the regime established in the French Civil Code and in the French Monetary and Financial Code.

The Claimant acquired, by public deed, on 09-02-2018, a real property located at Rua ... no...., parish of ... (...and ...), municipality of ....

On the same date, it acquired a real property located at Rua..., nos...., .... and at ..., nos.... and ...., parish of...., ...., ...., ...., .... and...., municipality of ....

As it is relevant, we shall begin by outlining the legal regime applicable to investment funds, created by Decree-Law no. 246/85, of 12-07, and subsequently complemented by Decree-Law no. 1/87 of 03-01, which created tax incentives for the establishment of real property investment funds.

In the preamble to this Decree-Law no. 1/87, it is expressly recognized the important contribution that this new type of financial institution could bring to the formation of savings and their mobilization for investments in the real property sector, in addition to the positive effects that would thereby be induced in the construction industries and in the market for leasing of real property for housing and for offices.

Article 1 of the said Decree-Law no. 1/87 of 03-01 provided that "acquisitions of real property made for a real property investment fund by its respective management company are exempt from Sisa."

Thus, in accordance with this legal norm, acquisitions of real property made with the objective of integrating a real property investment fund would be exempt from Sisa.

Later, Decree-Law no. 287/2003, of 12 November, carried out a reform of property taxation, approving the CIMI and the CIMT, published, respectively, in its annexes I and II.

With respect to cross-references, article 28 of Decree-Law no. 287/2003, of 12-11, provided that:

"1 - All legal texts that mention the Code of Municipal Contribution or municipal contribution shall be deemed to refer to the Code of Municipal Tax on Real Property (CIMI) or to the municipal tax on real property (IMI).

2 - All legal texts that mention the Code of Municipal Tax on Sisa and the Tax on Successions and Donations, municipal tax on sisa or tax on successions and donations shall be deemed to refer to the Code of Municipal Tax on Onerous Transfers of Real Property (CIMT), to the Stamp Duty Code, to the municipal tax on onerous transfers of real property (IMT) and to stamp duty, respectively."

The said Decree-Law no. 287/2003 also included a repeal clause in its article 31, of which article 31(6) provided:

"Tax benefits relating to municipal contribution, now relating to IMI, as well as those relating to municipal sisa tax established in legislation outside the Code approved by Decree-Law no. 41969, of 24 November 1958, and in the Tax Benefits Statute, which now relate to IMT, remain in force."

Indeed, in accordance with articles 28 and 31(6) of Decree-Law no. 287/2003, and as referred to in the CAAD decision in proceedings no. 544/2016-T, "sisa tax exemptions should be deemed to relate to IMT, whereby acquisitions of real property carried out by a management company of a real property investment fund with the intention of the same to become part of that fund would continue to be exempt from IMT (that sisa exemption provided for in article 1 of Decree-Law no. 1/87, of 3 January). The exemption would exist whenever the fund was in the position of purchaser of the real property."

It should be noted, as was written in the aforementioned CAAD decision in proceedings no. 544/2016-T, "that this exemption had a clear purpose and was fully assumed by the tax legislator. At stake was the objective, of a social and economic nature, of defining a tax framework capable of encouraging the creation of investment funds with the capacity to mobilize savings for the realization of investments in the real property sector, thereby stimulating construction industries and the market for leasing real property for housing and for offices."

The State Budget Law for 2007, in its article 82, amended the wording of article 46 of EBF, which began to provide, in addition to the exemption from Municipal Contribution (IMI) for real properties integrated in open real property funds, an IMT exemption for said real properties. Thus, real properties integrated in mixed or closed funds, when certain conditions were met, would be entitled to a 50% reduction in the IMT rate.

This article 82 made no reference to the sisa (IMT) exemption that was enshrined in article 1 of Decree-Law no. 1/87, of 03-01.

As alluded to in the above-cited CAAD decision in proceedings no. 544/2016-T, the question that arises concerns the issue of whether the IMT exemption introduced in article 46 of EBF by the State Budget Law of 2007 revoked – and if so, expressly or implicitly – the Sisa (IMT) exemption contained in article 1 of Decree-Law no. 1/87 of 03-01 – which, until then, no one questioned continuing to exist. This question is pertinent insofar as, under article 7(1) of the Civil Code, the general rule concerning the cessation of the validity of law is that "when not intended to have temporary validity, law ceases to be valid only if repealed by another law."

Decree-Law no. 1/87 contains no indication that article 1 would have temporary validity, whereby, admitting its non-repeal by another law, the exemption contained therein will – still today – remain in force, as concluded in the CAAD decision in proceedings no. 544/2016-T.

Thus, the answer to this question will indicate the answer to the question of whether the IMT assessment acts in question in these proceedings are illegal or not.

Article 7(2) of the Civil Code provides that "repeal may result from express declaration, from incompatibility between the new provisions and the preceding rules or from the circumstance that the new law regulates all the subject matter of the preceding law."

As explained in the CAAD decision in proceedings no. 544/2016-T, "the existence of recognition rules, aimed at the clear and precise identification of the norms that are in force in the legal order and those that have already been expressly or implicitly repealed, is of the utmost significance, particularly from the standpoint of the principle of legality, particularly in its dimension of tax legality, affirming the requirement of legal certainty and protection of confidence inherent in the principle constitutionally structuring the rule of law. Citizens, economic agents and legal operators must be able to know with certainty which norms are and which are not in force in the legal order. Article 7 of the Civil Code thus establishes three alternative criteria for repeal, the fulfillment or non-fulfillment of which has significant implications in the specific case."

Let us see whether any of the three alternatives that, according to article 7(2) of the Civil Code, would lead to the repeal of article 1 of Decree-Law no. 1/87 of 03-01 have occurred.

The three alternatives of article 7(2) of the Civil Code are:

  • express declaration of repeal;

  • incompatibility between the new provisions and the preceding rules; or

  • the circumstance that the new law regulates all the subject matter of the preceding law.

As to the first, there is no express repeal provision in article 46 of EBF, in the wording given to it by article 82 of the State Budget Law for 2007, of the said article 1 of Decree-Law no. 1/87.

As to the second alternative, the IMT exemption contained in the new wording of article 46 would apply whenever the fund was the purchaser of the real property, whereas the IMT exemption contained in article 1 of Decree-Law no. 1/87 would apply when the fund was in the position of seller of the real property. Indeed, there is no incompatibility between the new provisions (new article 46 of EBF) and the preceding rules (article 1 of Decree-Law no. 1/87). It should be noted that the new provisions and the preceding rules are not only compatible but create a tax regime that is specially attractive for management companies of real property investment funds.

It should also be noted that the reduction by half of IMT rates, contained in the current article 49 of EBF, constitutes a significant and non-redundant supplement to the exemption established by article 1 of Decree-Law no. 1/87. It is an exemption that is structurally and teleologically distinct from the latter, whose introduction and maintenance in the legal order is based on a different assessment of tax policy.

Continuing with what was written in the aforementioned decision in proceedings no. 544/2016-T of CAAD, "the possibility of legal and normative coexistence of IMT exemptions at the moments of acquisition and sale of a real property is far from constituting an anomalous or systemically dysfunctional solution. Such coexistence can be found today in the EBF itself, in the matter of urban real properties intended for rehabilitation, when certain requirements are met. Indeed, article 45(2) provides that 'Acquisitions of urban real properties intended for urban rehabilitation are exempt from municipal tax on onerous transfers of real property, provided that, within three years from the date of acquisition, the purchaser begins the respective works.' Parallelly, article 71(8) of EBF provides that 'Acquisitions of urban real property or autonomous fraction of urban real property intended exclusively for permanent principal residence, in the first onerous transfer of the rehabilitated real property, when located in the 'urban rehabilitation area' are exempt from IMT'. Here too an exemption from IMT at the moment of acquisition of the real property to be rehabilitated coexists with the exemption at the moment of sale of the rehabilitated real property, in a framework of legal complementarity consistent with the economic and social rationality of the established regimes.

A structurally identical solution can also be found in article 8(7) of the Special Regime applicable to real property investment funds for residential leasing (FIIAH) and to real property investment companies for residential leasing (SIIAH), approved by article 102 of Law no. 64-A/2008, of 31 December - Chapter X, which provides that the following are exempt from IMT: 'a) Acquisitions of urban real properties or autonomous fractions of urban real properties intended exclusively for leasing for permanent housing, by the investment funds referred to in article 1; b) Acquisitions of urban real properties or autonomous fractions of urban real properties intended for permanent principal residence, as a result of the exercise of the purchase option referred to in article 5(3) by lessees of real properties that form part of the assets of the investment funds referred to in article 1.'"

With regard to the third alternative of article 7(2) of the Civil Code, the introduction of the exemption of article 46 of EBF cannot be interpreted as a repeal by substitution of the exemption contained in article 1 of Decree-Law no. 1/87, particularly because tax benefits are not only provided for in the EBF but may be contained in separate legislation.

Thus, we must conclude that the two exemptions are different, compatible and complement one another.

Given this, let us now examine the various amendments that were made, over time, to the said article 46 of EBF:

  • the provision, in article 88 of Law no. 53-A/2006, of 31 December (State Budget Law of 2007), of a transitional regime for mixed or closed funds in certain circumstances;

  • the renumbering of article 46 of EBF, which became article 49, carried out by article 109 of Law no. 2-B/2010, of 28 April (State Budget Law of 2010), which reserves the IMT exemption for open real property investment funds;

  • the extension of the IMT exemption to closed funds with public subscription carried out by article 119 of Law no. 55-A/2010, of 31 December (State Budget Law of 2011);

  • the replacement of the IMT exemption of real properties integrated in open or closed real property investment funds with public subscription by a reduction by half of IMT rates, carried out by article 206 of Law no. 83-C/2013, of 31 December (State Budget Law of 2014), accompanied by a transitional regime in article 209.

The aforesaid amendments were directed at the IMT exemption relating to real properties integrated in real property investment funds. Nothing follows from them that could lead to the conclusion that they related to the exemption contained in article 1 of Decree-Law no. 1/87.

In this context, we must necessarily conclude, as was concluded in the CAAD decision in proceedings no. 544/2016-T, that is, that the Sisa exemption provided for in article 1 of Decree-Law no. 1/87, of 3 January, and which came to relate to IMT under articles 28 and 31 of Decree-Law no. 287/2003, of 12-11, remains in force. Whereby, acquisitions of real property made for a real property investment fund by its respective management company are exempt from IMT.

Now, the two real properties that the Claimant acquired were allocated to the real property fund. Thus, the IMT exemption provided for in article 1 of Decree-Law no. 1/87, of 03-01, is applicable to the acquisition in question, and there should be no IMT payment as a result of said acquisition.

Thus, and in conclusion, the Claimant's position is correct, and the declaration of illegality of the contested assessments is warranted, whereby the arbitral request proceeds with the consequent annulment of said IMT assessments and other consequences.

As to the request for compensatory interest formulated by the Claimant, article 43(1) of LGT provides that compensatory interest is due when it is determined that there was an error imputable to the services that resulted in the payment of tax debt in an amount greater than legally due.

The Claimant therefore has the right to be reimbursed of the amount it paid (under the provisions of articles 100 of LGT and 24(1) of RJAT) as a result of the annulled acts and, further, to be indemnified for the overpayment through the payment of compensatory interest by AT, at the legal default rate, under articles 43(1) and (4) and 35(10) of LGT, article 559 of the Civil Code and Portaria no. 291/2003, of 8 April.

Indeed, article 43(1) of LGT provides that:

"Compensatory interest is due when it is determined, in administrative recourse or judicial challenge, that there was an error imputable to the services that resulted in the payment of tax debt in an amount greater than legally due."

In the case, it is established that the assessments were issued at the request of the Claimant, whereby only after the expiration of the period that the Respondent had to pronounce on the matter, it having failed to do so, can the error affecting said assessments be deemed imputable to it.

Thus, the starting point for the calculation of compensatory interest due to the Claimant is set on the day following the expiration of the 30-day period fixed in article 13(1) of RJAT.

Interest shall be due until reimbursement of the amount unduly paid by the Claimant as a result of the assessments now annulled.

C. DECISION

For these reasons, this Arbitral Tribunal decides to render the arbitral request entirely upheld and, in consequence,

  • Annuls the IMT assessment act no...., of 08-02-2018, in the amount of €285,518.91;

  • Annuls the IMT assessment act no...., of 08-02-2018, in the amount of €309,302.50;

  • Condemns the AT to the refund of the amount of tax unduly paid, and to the payment of compensatory interest as indicated above;

  • Condemns the Respondent in the costs of the proceedings, as fixed below.

D. Case Value

The case value is fixed at €594,821.41, pursuant to article 97-A(1)(a) of the Code of Tax Procedure and Process, applicable by virtue of articles 29(1)(a) and (b) of RJAT and article 3(2) of the Regulation of Costs in Tax Arbitration Proceedings.

E. Costs

The arbitration fee is fixed at €8,874.00, in accordance with Table I of the Regulation of Costs in Tax Arbitration Proceedings, to be paid by the Respondent, since the request was entirely upheld, pursuant to articles 12(2) and 22(4), both of RJAT, and article 4(4) of the aforementioned Regulation.

Let it be notified.

Lisbon, 12 December 2018

The President Arbitrator

(José Pedro Carvalho)

The Arbitrator Member

(Henrique Nogueira Nunes)

The Arbitrator Member

(Paulo Jorge Nogueira da Costa)

[1] Available for consultation at www.caad.org.pt.

Frequently Asked Questions

Automatically Created

Are real estate investment funds exempt from IMT (property transfer tax) in Portugal under Decreto-Lei 1/87?
Under Decreto-Lei 1/87 of 3 January, real estate investment funds were historically exempt from sisa, the predecessor to IMT. However, the enforceability of this exemption became disputed after the 2007 State Budget Law introduced Article 46 of the Estatuto dos Benefícios Fiscais (EBF), which established a specific IMT exemption for certain real estate investment funds. CAAD case 241/2018-T addressed whether DL 1/87 remains in force or was revoked (expressly or implicitly) by the newer EBF provision. The tribunal examined prior CAAD decisions on this matter and analyzed whether the exemption applies regardless of fund typology or legal structure, including foreign vehicles.
What was the outcome of CAAD arbitration case 241/2018-T regarding IMT exemption for a foreign real estate investment fund?
CAAD arbitration case 241/2018-T involved a Portuguese branch of a French SCPI that paid €594,821.41 in IMT on two property acquisitions and subsequently challenged these assessments. The claimant argued the acquisitions were exempt under Article 1 of Decreto-Lei 1/87. The tribunal constituted a three-arbitrator panel and followed standard CAAD procedure: the request was filed on 9 May 2018, arbitrators were appointed by 18 July 2018, the Tax Authority submitted its defense on 28 September 2018, and written submissions followed. The case centered on whether the historic DL 1/87 exemption survived the introduction of Article 46 EBF in 2007, with reference to precedents in cases 544/2016-T, 677/2016-T, and 440/2017-T.
Can a Portuguese branch of a foreign Société Civile de Placement Immobilier (SCPI) claim IMT exemption on property acquisitions?
A Portuguese branch of a foreign Société Civile de Placement Immobilier may claim IMT exemption if it qualifies as a real estate investment fund under the applicable Portuguese legal framework. In case 241/2018-T, the claimant was a French SCPI authorized by France's Autorité des Marchés Financiers and subject to French Monetary and Financial Code provisions. It engaged in collective investment with multiple investors following a defined investment policy and risk distribution principle. The central issue was whether such foreign vehicles qualify under Decreto-Lei 1/87's exemption or the subsequent Article 46 EBF regime. The determination depends on whether the exemption applies regardless of the fund's legal form, domicile, or specific regulatory structure, and whether DL 1/87 remains in force after 2007.
How does the CAAD tax arbitration process work for challenging IMT liquidation assessments in Portugal?
The CAAD tax arbitration process for challenging IMT assessments follows the Legal Regime of Arbitration in Tax Matters (RJAT, Decree-Law 10/2011). Taxpayers file a request for arbitral tribunal constitution under Articles 2 and 10 of RJAT, identifying the contested acts and legal grounds. In case 241/2018-T, the claimant invoked Article 24 RJAT and Articles 43 and 100 of the General Tax Law (LGT), alleging voidability of the assessments. The process includes: automatic notification to the Tax Authority, appointment of arbitrators by the CAAD Ethics Council (if parties don't appoint), tribunal constitution within specified timeframes, submission of the Tax Authority's response, optional hearings (dispensed with in this case per Article 29(2) RJAT), written submissions, and final decision within the Article 21(1) RJAT deadline.
What are the legal grounds under Article 24 of RJAT and Articles 43 and 100 of LGT for annulling IMT tax assessments?
Under Article 24 of RJAT, taxpayers may challenge tax acts for voidability based on substantive illegality, including incorrect application of tax law. Articles 43 and 100 of the General Tax Law (LGT) establish grounds for annulling tax assessments. Article 43 LGT defines voidable tax acts, including those based on factual or legal errors, while Article 100 LGT addresses taxpayer guarantees and the right to challenge administrative acts. In case 241/2018-T, the claimant argued the IMT assessments were voidable because the acquisitions qualified for exemption under Decreto-Lei 1/87, making the tax assessments legally unfounded. The legal challenge required demonstrating that the Tax Authority incorrectly applied tax law by failing to recognize the exemption, resulting in assessments that should not have been issued.