Summary
Full Decision
ARBITRAL DECISION
The Arbitrators José Pedro Carvalho (Presiding Arbitrator), António Alberto Franco and Nuno Oliveira Garcia, designated by the Deontological Council of the Administrative Arbitration Centre to form an Arbitral Tribunal, hereby agree:
I – REPORT
On 6 May 2016, A… S.A., with tax identification number …, and registered office at Rua …, no. …, …-… Lisbon, filed a request for the 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 Framework for Arbitration in Tax Matters, as amended by Article 228 of Law no. 66-B/2012, of 31 December (hereinafter, abbreviated as RJAT), seeking the declaration of illegality of the following acts:
i. Stamp Duty assessment act no. 2013…, issued under the transitional regime provided for by Law no. 55-A/2012, of 29 October and relating to the urban property registered in the property register under the matrix article … (former article … of the union of the parishes of … and …, municipality of ... and district of ...;
ii. Stamp Duty assessment acts no. 2013…, no. 2013 … and no. 2013…, issued with reference to the year 2012 and all relating to the urban property registered in the property register under the matrix article … (former article…), of the union of the parishes of … and …, municipality of ... and district of ...;
iii. Stamp Duty assessment act no. 2013…, issued under the transitional regime provided for by Law no. 55-A/2012, of 29 October and relating to the urban property registered in the property register under the matrix article …, of the parish of …, municipality of and district of Porto;
iv. Stamp Duty assessment acts no. 2013…, no. 2013 … and no. 2013…, issued with reference to the year 2012 and all relating to the urban property registered in the property register under the matrix article…, of the parish of…, municipality of and district of Porto;
v. Stamp Duty assessment act no. 2012…, issued under the transitional regime provided for by Law no. 55-A/2012, of 29 October and relating to the urban property registered in the property register under the matrix article…, of the parish of …, municipality of and district of Porto;
vi. Stamp Duty assessment acts no. 2013…, no. 2013 … and no. 2013…, issued with reference to the year 2012 and all relating to the urban property registered in the property register under the matrix article …, of the parish of …, municipality of and district of Porto.
To support its request, the Claimant alleges, in summary, that the properties to which the assessment acts in question relate are construction land, and therefore do not meet the definition of item 28.1 of the Schedule annexed to the Stamp Duty Code, in the applicable wording, which refers to properties with residential use.
On 09-05-2016, the request for constitution of the arbitral tribunal was accepted and automatically notified to the Tax Authority.
The Claimant failed to appoint an arbitrator, and therefore, pursuant to the provisions of subsection a) of paragraph 2 of Article 6 and subsection a) of paragraph 1 of Article 11 of the RJAT, the President of the Deontological Council of CAAD appointed the undersigned as arbitrators of the collective arbitral tribunal, who communicated acceptance of their appointment within the applicable timeframe.
On 29-06-2016, the parties were notified of these appointments and neither party expressed any objection to any of them.
In accordance with the provisions of subsection c) of paragraph 1 of Article 11 of the RJAT, the collective Arbitral Tribunal was constituted on 14-07-2016.
On 28-09-2016, the Respondent, duly notified for this purpose, filed its defence raising exceptions and contesting the substance.
Notified to exercise the right to reply regarding the matter of exception, the Claimant made no statement.
Given that none of the purposes legally assigned to it were present, pursuant to the provisions of Articles 16(c) and 29(2) of the RJAT, as well as the principles of procedural economy and prohibition of futile acts, the holding of the meeting referred to in Article 18 of the RJAT was waived, as well as the submission of arguments by the parties.
A deadline of 30 days was set for the pronouncement of the final decision.
The Arbitral Tribunal is materially competent and regularly constituted, in accordance with Articles 2, paragraph 1, subsection a), 5 and 6, paragraph 1, of the RJAT.
The parties have legal personality and capacity, are legitimate parties and are legally represented, in accordance with Articles 4 and 10 of the RJAT and Article 1 of Administrative Order no. 112-A/2011, of 22 March.
The case contains no nullities.
All matters considered, it is appropriate to render judgment:
II. DECISION
A. FACTUAL MATTERS
A.1. Facts established as proven
1. The Claimant, in the course of its activities, is the owner of various properties, including residential properties, commercial properties and construction land.
2. The Claimant was notified, in 2012, of the assessment acts for stamp duty identified above, issued under item 28.1 of the TGIS - in its original wording - and relating to the properties described above.
3. The Stamp Duty assessments in question, all relating to the year 2012, result from the application of Article 19, paragraph 1 of the Stamp Duty Code, in conjunction with item 28 of the General Schedule and with Article 6 of Law no. 55-A/2012, of 29 October.
4. The immovable properties, subject of the Stamp Duty assessments referred to in the present arbitration, were then registered in the property register as "construction land".
5. The Claimant submitted requests for ex officio review of those Stamp Duty assessment acts.
6. The Claimant was notified of the decisions rejecting those review requests, by virtue of which the Tax Authority decided that the tax acts in question were in conformity with applicable law and that they did not suffer from any defect.
7. The Claimant appealed hierarchically against said decisions, and was notified of the decisions rendered on those hierarchical appeals by the DSMT.
8. Said decisions stated, among other things, that: "the scope of item 28.1 of the TGIS, as amended by Law 55-A/2012, of 29 October, includes construction plots, and there is no reason to proceed with the annulment of the assessment in question".
9. The Claimant made full and timely payment of the assessments subject of the present arbitration, in the total amount of €60,732.58
A.2. Facts established as not proven
With relevance to the decision, there are no facts that should be considered as not proven.
A.3. Substantiation of the factual matters proven and not proven
Regarding the factual matters, the Tribunal does not need to pronounce on everything that was alleged by the parties; rather, it is its duty to select the facts that are relevant for the decision and to distinguish the proven matters from the unproven matters (cf. Article 123, paragraph 2, of the Tax Procedure Code and Article 607, paragraph 3 of the Civil Procedure Code, applicable pursuant to Article 29, paragraph 1, subsections a) and e), of the RJAT).
Thus, the relevant facts for the judgment of the case are chosen and determined in light of their legal relevance, which is established in consideration of the various plausible solutions of the issue(s) of law (cf. former Article 511, paragraph 1, of the Civil Procedure Code, corresponding to the current Article 596, applicable pursuant to Article 29, paragraph 1, subsection e), of the RJAT).
Thus, having regard to the positions taken by the parties, in the light of Article 110(7) of the Tax Procedure Code, the documentary evidence and the procedural file attached to the record, the facts enumerated above were considered proven, with relevance to the decision.
B. ON THE LAW
i. On the matter of exception
As a preliminary issue to the adjudication of the merits, the Tax Authority raises the question of the material incompetence of the Arbitral Tribunal to consider the request for a declaration of the material unconstitutionality of item no. 28 of the General Schedule of Stamp Duty.
According to the Respondent, "It is manifest that the jurisdiction of the arbitral tribunal does not include consideration of the constitutional conformity of legislative acts or their provisions, pursuant to Article 2, paragraph 1 of the RJAT", and therefore "the Arbitral Tribunal is materially incompetent to consider the request for a declaration of material unconstitutionality, 'of item 28 of the General Schedule of Stamp Duty, for violation of the principle of contributory capacity, as a facet of the principle of equality, provided for in Articles 13 and 104, paragraph 3 of the Constitution of the Portuguese Republic.'", verifying, in the view of that party, absolute incompetence ratione materiae, an exception to hearing which prevents the continuation of the proceedings, leading to dismissal of the instance as to that claim, in accordance with the provisions of Articles 576, paragraph 2, 577, subsection a) and 278, paragraph 1, subsection a) of the Civil Procedure Code, applicable pursuant to Article 29, subsection e) of the RJAT.
With due respect, it is understood that the Respondent has no basis whatsoever in this matter.
In effect, Article 25(1) of the RJAT provides (emphasis ours):
"An arbitral decision on the merits of the claim submitted that concludes the arbitration is subject to appeal to the Constitutional Court to the extent that it refuses to apply any provision on the ground of its unconstitutionality or that it applies a provision whose unconstitutionality has been raised."
It is thus evident that it falls within the powers of arbitral tribunals in tax matters to refuse to apply any provision on the ground of its unconstitutionality, and therefore the exception raised necessarily fails.
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ii. On the merits of the case
The issue raised in the present case, relating to whether construction land is or is not subsumed under the original wording of item 28.1 of the General Schedule of Stamp Duty, has already been the subject of extensive jurisprudential treatment in the tax courts and, especially, in arbitral jurisdiction, and the present decision will closely follow what has been written elsewhere[1].
The present case thus concerns the definition of the scope of item no. 28.1 of the General Schedule of Stamp Duty, as amended by Law no. 55-A/2012, of 29 October, more specifically to determine whether construction land can be subsumed under the concept of urban properties "with residential use" referred to in that item, when the respective tax patrimonial value is equal to or greater than €1,000,000.
The issue arises because of the taxation, under stamp duty, of ownership, usufruct or surface rights of urban properties whose tax patrimonial value registered in the property register is equal to or greater than €1,000,000, in which case duty is owed at the rate of 1% on the tax patrimonial value used for purposes of Municipal Real Property Tax, for a property with residential use.
This issue is not new, having been the subject of consideration both in arbitral jurisdiction and in the jurisprudence of the Supreme Administrative Court, always contrary to what the Tax Administration contends.
The present decision will closely follow the understanding endorsed in Decisions 49/2013-T of 18 September 2013, 53/2013-T of 2 October, 231/2013-T of 3/2/2014, Case no. 7/2014-T, of 3 July, 56/2014-T of 31 July, 210/2014-T of 30 July, Case no. 125/2015-T, of 12 October, all of CAAD and the Decision of the STA of 9 April 2014, P1870/2013, followed by several others of similar content, available at http://www.dgsi.pt/jsta.
As stated in the Decision rendered in Case no. 125/2015-T, subsections i) and ii) of subsection f) of Article 6 of Law 55/2012 of 29 October and item 28.1 of the General Schedule of Stamp Duty, by using a term that is not used in any other tax legislation – "property with residential use" – gave rise to abundant litigation, which culminated in decisions by both the STA and the Arbitral Tribunal, always to the effect that, since the legislator has not defined the concept of "urban properties with residential use" and Article 6 of the Municipal Real Property Tax Code – subsidiarily applicable to Stamp Duty provided in the new item no. 28 of the General Schedule of Stamp Duty – results in a clear distinction between "residential urban properties" and "construction land", the latter cannot be considered, for purposes of the incidence of Stamp Duty, item 28.1 of the General Schedule of Stamp Duty, as amended by Law 55-A/2012, of 29 October, as urban properties with residential use, with the consequent annulment of the assessment on the ground of an error as to the legal presuppositions on which it is based.
Since neither the Stamp Duty Code, nor Law no. 55-A/2012, of 29 October (which approved the item of the General Schedule of Stamp Duty under consideration), nor indeed any other tax legislation provides a legal definition of "property with residential use", it is necessary to seek the correct interpretation of this expression in the letter of the law, presuming that the legislator expressed himself in the most appropriate manner (see Article 9, paragraph 3, final part, of the Civil Code), in its systematic integration with the provisions contained in the Municipal Real Property Tax Code and also in the spirit of the law.
The starting point of the expression "properties with residential use" is naturally the text of Law 55/2012, of 29 October, and it is on the basis of it that the legislative intent must be reconstructed.
The said Law no. 55-A/2012 added Item 28 of the General Schedule with the following wording:
"28 - Ownership, usufruct or surface rights of urban properties whose tax patrimonial value registered in the property register, in accordance with the Municipal Real Property Tax Code, is equal to or greater than €1,000,000 — on the tax patrimonial value used for purposes of Municipal Real Property Tax:
28.1 — For a property with residential use — 1%;
28.2 — For a property, when the taxpayers who are not natural persons are resident in a country, territory or region subject to a clearly more favourable tax regime, listed in a schedule approved by order of the Minister of Finance — 7.5%."
Law no. 55-A/2012, of 29 October, came into force on 30 October 2012, in accordance with its Article 7, paragraph 1, which provided that it would come into force "on the day following its publication".
The following transitional rules were also established by Law no. 55-A/2012, of 29 October, with reference to the assessment of stamp duty provided for in Item no. 28 of the General Schedule, relevant to the present decision:
"1 — In 2012, the following rules shall be observed with reference to the assessment of stamp duty provided for in item no. 28 of the respective General Schedule:
a) The taxable event occurs on 31 October 2012;
b) The taxpayer of the duty is the one referred to in paragraph 4 of Article 2 of the Stamp Duty Code on 31 October 2012;
c) The tax patrimonial value to be used in the assessment of the duty corresponds to that which results from the rules provided for in the Municipal Real Property Tax Code with reference to the year 2011;
d) The assessment of the duty by the Tax Authority and Customs Service must be carried out by the end of November 2012;
e) The duty shall be paid, in a single instalment, by the taxpayers by 20 December 2012;
f) The applicable rates are as follows:
i. Properties with residential use assessed in accordance with the Municipal Real Property Tax Code: 0.5%;
ii. Properties with residential use not yet assessed in accordance with the Municipal Real Property Tax Code: 0.8%;
iii. Urban properties when the taxpayers who are not natural persons are resident in a country, territory or region subject to a clearly more favourable tax regime, listed in a schedule approved by order of the Minister of Finance: 7.5%.
2 — In 2013, the assessment of stamp duty provided for in item no. 28 of the respective General Schedule shall be based on the same tax patrimonial value used for the purposes of assessment of municipal real property tax to be carried out in that year."
As already advanced, neither the Stamp Duty Code nor Law no. 55-A/2012, of 29 October, specify the concept of "urban property with residential use", and therefore in accordance with Article 67 of the Stamp Duty Code, the interpretation of this concept should be sought in the Municipal Real Property Tax Code.
Indeed, it results from Article 67 of the Stamp Duty Code that "Matters not regulated in this Code relating to item no. 28 of the General Schedule shall be governed, on a subsidiary basis, by the provisions of the Municipal Real Property Tax Code" (As amended by Article 3 of Law no. 55-A/2012 of 29 October.).
In accordance with the Municipal Real Property Tax Code, more specifically with its Article 6, paragraph 1, urban properties are divided into: a) Residential; b) Commercial, industrial or for services; c) Construction land; and d) Others.
Residential, commercial, industrial or service properties are buildings or structures licensed for such purposes or, in the absence of a license, that have as their normal destination each of these purposes (cf. Article 6, paragraph 2 of the Municipal Real Property Tax Code). Construction land, on the other hand, are plots of land situated within or outside an urban area, for which a construction or subdivision license or authorization has been granted, prior communication has been admitted or favorable prior information on a subdivision or construction operation has been issued, and also those that have been so declared in the acquisition title (cf. Article 6, paragraph 2 of the Municipal Real Property Tax Code).
Thus, "a property is classified as construction land whenever a set of circumstances is present, generally corresponding to the application of pertinent provisions of the legal regime governing urban construction or the subdivision of rural properties, which in any case indicate the intention to construct thereon, unless, by force of applicable legislation, such intention is not capable of effective realization" (Arbitral Decision rendered in Case 49/2013-T, on 18 September 2013, in www.caad.pt).
The Municipal Real Property Tax Code thus provides a definition of residential properties and construction land as two different categories of urban properties, but does not clarify what the true meaning of the concept "urban property with residential use" is.
However, the expression "residential use" presupposes that the property has an actual use for residential purposes, which is not the case with construction land, which, as such, does not yet have any actual use, either for housing or otherwise.
As sustained in the Arbitral Decision rendered in Case no. 42/2013-T on 18 October 2013, which is followed here: "we cannot confuse a 'residential use' that implies an actual dedication of an urban property to that purpose, with the expectation, or potentiality, of an urban property being able to have a 'residential use'. Construction land, not being built on, does not, by itself, satisfy any condition to be considered as properties with residential use, since, on the one hand, they do not possess a license for residential use, and, on the other hand, they are not habitable (because they simply are not built). For which reason it does not appear to us sufficient for subsumption under the norm of objective incidence in question that there is the expectation of an urban property coming to have a residential use, or having the potentiality of coming to have a residential use."
But more importantly, "the confrontation of item no. 28.1 of the General Schedule of Stamp Duty with paragraph 2 of Article 6 of the Municipal Real Property Tax Code, which defines the concept of residential properties, clearly points in the direction that an actual dedication is necessary. In fact, a building or structure licensed for residential purposes or, even without a license, but having residential use as its normal destination, is, in light of that paragraph 2 of Article 6, a residential property. For this reason, on the assumption that the legislator of Law no. 55-A/2012 knew how to express his intent in adequate terms (as required by Article 9, paragraph 3, of the Civil Code which presumes this), if he intended to refer to those properties already licensed for residential use or that have residential use as their normal destination, he would certainly have used the concept of 'residential properties', which would express his intent perfectly and clearly, in light of the definition given in that paragraph 2 of Article 6 of the Municipal Real Property Tax Code. Consequently, it must be presumed that the use of a different expression is intended to convey a distinct reality, and therefore, in sound hermeneutics, 'property with residential use', cannot be a property merely licensed for residential use or intended for that purpose (that is, it will not be sufficient that it be a 'residential property'), and must be a property that already has actual use for that purpose. That this is the meaning of the expression 'residential use', in the same context of property classification that the Municipal Real Property Tax Code employs, is confirmed by Article 3, in which, regarding rural properties, reference is made to those that 'are dedicated to or, in the absence of concrete dedication, have as their normal destination a use generating agricultural income', which shows that dedication is concrete, actual. In fact, as seen from the end of this text, a property may have a given use as its destination and be or not be dedicated to it, which shows that dedication is, at the level of the connection of a property to a given use, something more intense than mere destination and that may or may not occur, downstream of this and not upstream. Moreover, the text of the law by adopting the formula 'property with residential use', instead of 'urban properties of residential use', which appears in the referenced 'Statement of Reasons', points strongly in the direction that it is required that the residential dedication already be concrete, for only then would the property be with that dedication" (Arbitral Decision rendered in Case 53/2013-T, on 2 October 2013, in www.caad.pt).
In sum, with construction land there exists only an expectation, or potentiality, of being able, after construction, to have a "residential use", but only when that dedication is realized, and never before its construction, can we consider that it falls within the scope of the norm of objective tax incidence in question.
This understanding, according to which "construction land" cannot be considered, for purposes of the incidence of Stamp Duty provided in Item 28.1 (as amended by Law no. 55-A/2012), as urban properties with residential use, has also been endorsed by tax courts, which have generally understood that "given that construction land – whatever the type and purpose of the construction that will be, or could be, erected thereon – does not, by itself, satisfy any condition to be licensed as such or to define as its normal destination residential use, and referring the provision on Stamp Duty tax incidence to urban properties with 'residential use', without any specific concept being established for that purpose, it cannot from it be inferred that it contains a future potentiality, inherent to a distinct property that might possibly be built on the land. It is concluded, therefore, in conformity with what was decided in the appealed judgment, that, given that Article 6 of the Municipal Real Property Tax Code results in a clear distinction between urban properties 'residential' and 'construction land', the latter cannot be considered as 'properties with residential use' for purposes of the provision in item no. 28.1 of the General Schedule of Stamp Duty, in its original wording, as given to it by Law no. 55-A/2012, of 29 October." (cf. Decisions rendered by the Supreme Administrative Court in cases nos. 1870/13 and 48/14, on 9 April 2014, in cases nos. 270/14, 271/14 and 272/14 on 23 April 2014 and in case no. 046/14, on 14 May 2014, in www.dgsi.pt).
Against the foregoing, the understanding of the Respondent cannot therefore proceed that the expression used by the legislator "residential use" is broader than the expression "properties intended for residential use".
"Residential use" presupposes that residential use is the normal utilization given to the property given its current and real characteristics, that is, it implies that the property is effectively intended for residential use (which naturally presupposes that it is a property already built), whereas with construction land there exists mere expectation, the potentiality, of that dedication.
There is not found, in the letter of the law, any indication that the legislator sought to embrace in the expression "property with residential use" construction land.
Finally, it is necessary to analyze the purpose intended by the legislator and whether that purpose puts into question the conclusions reached herein.
As is apparent from the discussion, generally, of Bill no. 96/XII (Parliamentary Record, First Series, no. 9/XII/2, of 11 October 2012) the creation of special taxation on high-value properties intended for residential use, which is at the basis of the approval of the Stamp Duty Item under consideration, integrates a set of measures whose declared objective was linked to the creation of a more just and equitable tax system, in which taxpayers were called upon to contribute in accordance with their real contributory capacity.
With this objective, therefore, special taxation was proposed, and the Secretary of State for Tax Affairs, in defending this Bill 96.XII, stated: "First, the Government proposes the creation of this special additional tax to levy high-value residential urban properties. It is the first time in Portugal that special taxation has been created on high-value properties intended for residential use. This tax, which will be 0.5 to 0.8 in 2012, and 1% in 2013, will apply to houses valued at equal to or greater than 1 million euros. With the creation of this additional tax, the tax burden required of these owners will be significantly increased in 2012 and in 2013."
Thus, what was proposed to the deputies and what they approved was the creation of a tax on luxury real estate assets. In sum, the aim was to expand the taxable base through the creation of a special tax on high-value properties intended for residential use, understood as "houses valued at equal to or greater than 1 million euros", that is, it is concluded that the reality intended to be taxed is "houses", and not other realities, such as construction land.
The concept closest to the literal content of this expression, property with residential use, is manifestly that of residential properties, defined in paragraph 2 of Article 6 of the Municipal Real Property Tax Code, as encompassing buildings and structures licensed for residential purposes or, in the absence of a license, that have as their normal destination residential purposes.
In this sense the Arbitral Decision 231/2013-T of 3/2/2014, according to which "the recognized lack of coherence of Stamp Duty is particularly exuberant in the case of item no. 28.1, hastily included aside from the General State Budget, by a tax legislator without perceptible global tax guidance, that is implementing successively norms of tax increase in measure of the reversals of budget execution, of the impositions of international creditors (represented by the 'troika') and of the oversight of the Constitutional Court <….> In this context, not existing safe interpretive elements that permit detection of legislative coherence in the solution adopted in said item 28.1 or the soundness or unsoundness of the solution adopted (relevant for interpretive purposes vis-à-vis paragraph 3 of Article 9 of the Civil Code, the content of the legal text 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 his intent in adequate terms."
Moreover, the concept introduced by Law 55-A/2012, probably due to its imprecision – "a fact all the more serious given that it is in terms of it that the scope of objective incidence of the new tax is defined –, had a short life, as it was abandoned when Law no. 83-C/2013, of 31 December (Law for the General State Budget for 2014) came into force, which gave new wording to that item no. 28.1 of the General Schedule, and which now defines its objective scope of incidence through the use of concepts that are legally defined in Article 6 of the Municipal Real Property Tax Code". No longer the concept of residential use but, residential property or construction land whose construction, authorized or planned, is for residential purposes, in accordance with the Municipal Real Property Tax Code. And here the legal controversy as presently examined is considered terminated.
In conclusion, given that all elements of interpretation of the law point in the direction that property with residential use meant residential property, it is manifest that the assessments now being challenged are vitiated by an error as to the legal presuppositions, for all properties as to which Stamp Duty was assessed under item no. 28.1 are construction land, without any building or structure, required to meet that concept of residential properties.
In light of the foregoing, it is concluded that the assessment acts subject of the present arbitration should be annulled.
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The Claimant combines with the request to annul the tax acts subject of the present case, a request that the Tax Authority be condemned to pay indemnificatory interest.
Given the success of the request to annul, the amounts paid by the Claimant with respect to the tax acts annulled should be refunded, if necessary in execution of judgment. In the case at hand, it is manifest that the illegality of the assessment acts, whose amount the Claimant paid, is attributable to the Respondent, which, on its own initiative, committed them without legal support.
Consequently, the Claimant is entitled to indemnificatory interest, in accordance with Articles 43, paragraph 1, of the General Tax Law and 61 of the Tax Procedure Code. Indemnificatory interest is owed, from the date of the payments shown to have been made, and calculated on the basis of their respective value, until their full refund to the Claimant, at the legal rate, in accordance with Articles 43, paragraphs 1 and 4, and 35, paragraph 10, of the General Tax Law, 61 of the Tax Procedure Code and 559 of the Civil Code and Administrative Order no. 291/2003, of 8 April (without prejudice to any subsequent changes in the legal rate).
The Respondent shall implement this decision, in accordance with Article 24, paragraph 1, of the RJAT, determining the amount to be refunded to the Claimant and calculating the respective indemnificatory interest, at the subsidiary legal rate applicable to civil debts, in accordance with Articles 35, paragraph 10, and 43, paragraphs 1 and 5, of the General Tax Law, 61 of the Tax Procedure Code, 559 of the Civil Code and Administrative Order no. 291/2003, of 8 April (or the statute or statutes that follow it).
Indemnificatory interest is owed from one year after the filing of the review request, in accordance with paragraph 3, subsection c) of Article 43 of the General Tax Law, until the processing of the credit note, in which they are included.
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C. DECISION
Whereupon this Arbitral Tribunal decides to judge the arbitration claim as successful and, in consequence,
a) Annul the following tax acts:
i. Stamp Duty assessment act no. 2013…, issued under the transitional regime provided for by Law no. 55-A/2012, of 29 October, and relating to the urban property registered in the property register under the matrix article … (former article…), of the union of the parishes of … and …, municipality of ... and district of ...;
ii. Stamp Duty assessment acts no. 2013…, no. 2013 … and no. 2013…, issued with reference to the year 2012 and all relating to the urban property registered in the property register under the matrix article … (former article…), of the union of the parishes of … and …, municipality of ... and district of ...;
iii. Stamp Duty assessment act no. 2013…, issued under the transitional regime provided for by Law no. 55-A/2012, of 29 October, and relating to the urban property registered in the property register under the matrix article …, of the parish of …, municipality of and district of Porto;
iv. Stamp Duty assessment acts no. 2013…, no. 2013 … and no. 2013…, issued with reference to the year 2012 and all relating to the urban property registered in the property register under the matrix article …, of the parish of …, municipality of and district of Porto;
v. Stamp Duty assessment act no. 2012…, issued under the transitional regime provided for by Law no. 55-A/2012, of 29 October, and relating to the urban property registered in the property register under the matrix article…, of the parish of …, municipality of and district of Porto;
vi. Stamp Duty assessment acts no. 2013…, no. 2013 … and no. 2013…, issued with reference to the year 2012 and all relating to the urban property registered in the property register under the matrix article …, of the parish of …, municipality of and district of Porto.
b) Condemn the Respondent to pay indemnificatory interest, counted from one year after the filing of the review request, until the processing of the credit note, in which they are included;
c) Condemn the Respondent in costs, in the amount of €2,448.00.
D. Value of the case
The value of the case is fixed at €60,732.58, in accordance with Article 97-A, paragraph 1, a), of the Tax Procedure Code, applicable by virtue of subsections a) and b) of paragraph 1 of Article 29 of the RJAT and paragraph 2 of Article 3 of the Regulation of Costs in Tax Arbitration Proceedings.
E. Costs
The arbitration fee is fixed at €2,448.00, in accordance with Table I of the Regulation of Costs in Tax Arbitration Proceedings, to be paid by the Respondent, since the claim was fully successful, in accordance with Articles 12, paragraph 2, and 22, paragraph 4, both of the RJAT, and Article 4, paragraph 4, of the cited Regulation.
Let notice be given.
Lisbon
28 December 2016
The Presiding Arbitrator
(José Pedro Carvalho)
The Arbitrator Member
(António Alberto Franco)
The Arbitrator Member
(Nuno Oliveira Garcia)
[1] Essentially in arbitration case 723/2015T, available at www.org.caad.pt.
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