Summary
Full Decision
ARBITRAL DECISION
REPORT
A..., Tax Number (NIF) …, further identified in the case file, filed a request for arbitral decision, pursuant to section 1 of Article 2 of Decree-Law No. 10/2011, of 20 January (Tax Arbitration Procedural Regulations - RJAT) and of Ministerial Order No. 112-A/2011, of 22 March, for a declaration of illegality and consequent annulment of the additional assessment of Stamp Duty (relating to item 28.1 of the corresponding General Tax Table), for the year 2012, in the amount of € 4,455.42 (four thousand, four hundred and fifty-five euros and forty-two cents).
The Tax and Customs Authority (AT) is the respondent.
The Claimant did not appoint an arbitrator. For this purpose, the President of the Ethics Council of the Administrative Arbitration Centre designated the undersigned, who expressly accepted that appointment. The parties were duly notified thereof and did not manifest a desire to refuse it.
The arbitral tribunal was thus constituted on 20 May of this year.
The AT timely filed its response, arguing for the total dismissal of the claim, with consequent acquittal of the Respondent.
The parties waived the holding of the meeting provided for in Article 18 of the RJAT.
The Tribunal was regularly constituted and is materially competent.
The parties have legal personality and judicial capacity and are legitimate.
The proceedings do not suffer from any nullities, nor were any issues raised that could prevent the appraisal of the merits of the case.
OBJECT OF THE DISPUTE AND FACTUAL MATTERS
In 2012, the Claimant was a co-owner, with a share of 28/81, of the property registered in the urban property register of the parish of… under article U-..., to which corresponded a total taxable patrimonial value (TPV) of € 1,288,890. Given the aforementioned share of 28/81, the corresponding proportion of the TPV amounted to € 334,156.66.
The said property corresponds to a residential building, in full ownership, without parts capable of independent use.
The assessment in question results from the application of the aforementioned Stamp Duty (SD) item to the said property, amounting to the previously referred amount of € 4,455.42, is dated 21 March 2013 and was duly notified to the Claimant.
The Claimant proceeded, in successive installments and in accordance with the law, to timely payment of the corresponding SD, in the aforementioned amount of € 4,455.42, and now petitions for its full reimbursement, increased by compensatory interest, at the legal rate, calculated on that amount, from the date of payment until the date of actual reimbursement.
There are no facts of relevance to the appraisal of the merits of the case that are not proven.
The proven facts are based on the documents provided by the parties, whose correspondence to reality is not contested.
LEGAL MATTERS
Position of the Parties
The issue in the case corresponds to the application, in situations of co-ownership, of the new Stamp Duty taxation on urban properties with residential use and TPV equal to or exceeding one million euros, introduced in 2012 to strengthen budget control measures on the revenue side, in a context of financial emergency (or economic-financial, cf. Sustainability and Solidarity in Times of Crisis, Suzana Tavares da Silva, in Fiscal Sustainability in Times of Crisis, Coord. José Casalta Nabais and Suzana Tavares da Silva, pages 61 et seq).
As is well known, that new Stamp Duty taxation has raised strong doubts and considerable contestation. This is not only for specific cases of its application (e.g., vertical ownership, construction land, or its application to the year 2012), but also generally, due to its possible unconstitutionality (see Luís Menezes Leitão, On the Stamp Duty Taxation of Luxury Properties (item 28.1 TGIS), in Tax Arbitration No. 1, pages 44 et seq).
Now, the Claimant precisely comes to contest the application of the said taxation resulting from the application of the new item 28.1 of the TGIS to urban properties under a co-ownership regime, whenever the share of the TPV corresponding to the co-owner is less than the stated value of one million euros. If this is not understood thus, the Claimant further argues for the unconstitutionality of the norm, in general and, in particular, in its application to the year 2012.
In fact, the Claimant contends that she is not the owner of a property with TPV equal to or exceeding the stated amount, but merely a co-owner of a property with TPV exceeding that value, but in which she holds only a share (28/81) to which corresponds a TPV of € 334,156.66, lower therefore than that minimum limit, for which reason the assessment in question suffers from a defect of violation of law, which renders it voidable.
Even if this were not the case, the Claimant contends that the norm in question is unconstitutional due to violation of the principle of equality (Article 13 of the Constitution of the Portuguese Republic - CRP).
And it further contends that, even if the constitutionality of the new taxation is accepted, its transitional regime for the year 2012 would nonetheless suffer from unconstitutionality, due to violation of the principle of proportionality (which the Claimant contends has constitutional recognition and is provided for in various provisions of the CRP, citing as examples Articles 18, 19 and 266 thereof).
The Respondent contests that understanding, arguing for the maintenance of the assessment. In support of its thesis, it emphasizes, in summary, that co-ownership corresponds to a co-titularity in real rights, pursuant to which the co-owners exercise, collectively, all the rights that belong to a sole owner (Article 1405, section 1 of the Civil Code). This collective exercise of rights, for the Respondent, is incompatible with the Claimant's contention, since the TPV to be considered for purposes of the application of the aforementioned item 28.1 of the TGIS is the TPV of the property and not the share of its TPV that corresponds to the specific right of the co-owner. In other words, the AT contends that the verification of the (minimum) limit of one million euros should be assessed based on the total TPV of the property subject to the co-ownership right and not based on the value of the share of each co-owner.
In defense of this understanding, the Respondent further states that the shares of the co-owner cannot be equated to parts of properties capable of independent use, that each co-owner can exercise, together with the others, the right of ownership over the entire property, and that the collective of co-owners is responsible for the payment of the tax pursuant to Article 21, section 1, of the General Tax Law (LGT).
Summary of Disputed Issues
In summary, in the present case, there are thus three disputed legal issues:
-
to determine whether the subjection to SD, pursuant to item 28.1 of the TGIS, is determined by the share of the TPV of the property that proportionally corresponds to each of the property shares in co-ownership, or whether, on the contrary and without more, it is determined by the total TPV of that same property;
-
to determine whether, if so provided, that item of the TGIS is unconstitutional due to violation of the principle of equality;
-
to determine, finally, if the two preceding tests are overcome, whether the transitional regime is unconstitutional, now due to violation of the principle of proportionality.
Legislative Framework
For greater expository clarity, it is deemed useful to now proceed with the transcription of the essential legal provisions of Law No. 55-A/2012, of 29 October, which, among others, amended the Stamp Duty Code, doing so in the following terms:
Article 3
Amendment to the Stamp Duty Code
Articles 1, 2, 3, 4, 5, 7, 22, 23, 44, 46, 49 and 67 of the Stamp Duty Code, approved by Law No. 150/99, of 11 September, shall have the following wording:
(…)
Article 2
[...]
1 - ...
2 - ...
3 - ...
4 - In the situations provided for in item 28 of the General Tax Table, the passive subjects of the tax are those referred to in Article 8 of the Municipal Property Tax Code.
Article 23
[...]
1 - ...
2 - ...
3 - ...
4 - ...
5 - ...
6 - ...
7 - In the case of tax due for the situations provided in item 28 of the General Tax Table, the tax is assessed annually, for each urban property, by the central services of the Tax and Customs Authority, applying, with the necessary adaptations, the rules contained in the Municipal Property Tax Code.
Article 67
[...]
1 - (Former body of the article.)
2 - To matters not regulated in this Code relating to item 28 of the General Tax Table, the provisions of the Municipal Property Tax Code shall apply, subsidiarily.»
Article 4
Addition to the General Stamp Duty Tax Table
Item 28 is added to the General Stamp Duty Tax Table, annexed to the Stamp Duty Code, approved by Law No. 150/99, of 11 September, with the following wording:
«28 - Ownership, usufruct or right of surface of urban properties whose taxable patrimonial value shown in the register, pursuant to the Municipal Property Tax Code (CIMI), is equal to or exceeding (euro) 1,000,000 - on the taxable patrimonial value used for purposes of municipal property tax:
28.1 - For property with residential use - 1%;
28.2 - For property, when passive subjects that are not natural persons are residents in a country, territory or region subject to a clearly more favorable tax regime.
Article 6
Transitional Provisions
1 - In 2012, the following rules must be observed with regard to the assessment of stamp duty provided for in item 28 of the respective General Tax Table:
a) The taxable event occurs on 31 October 2012;
b) The passive subject of the tax is the one mentioned in section 4 of Article 2 of the Stamp Duty Code on the date referred to in the previous subparagraph;
c) The taxable patrimonial value to be used in the assessment of the tax corresponds to that resulting from the rules provided in the Municipal Property Tax Code with reference to the year 2011;
d) The assessment of the tax by the Tax and Customs Authority must be carried out by the end of November 2012;
e) The tax shall be paid, in a single installment, by the passive subjects by 20 December 2012;
f) The applicable rates are as follows:
i) Properties with residential use assessed pursuant to the Municipal Property Tax Code: 0.5%;
ii) Properties with residential use not yet assessed pursuant to the Municipal Property Tax Code: 0.8%;
iii) Urban properties when passive subjects that are not natural persons are residents in a country, territory or region subject to a clearly more favorable tax regime, listed in an order approved by the Minister of Finance: 7.5%.
2 - In 2013, the assessment of stamp duty provided for in item 28 of the respective General Tax Table shall be based on the same taxable patrimonial value used for purposes of assessment of municipal property tax to be effected in that year.
3 - The failure to pay, in whole or in part, within the indicated period, of the amounts assessed as stamp duty constitutes a tax offense, punished pursuant to law.
Article 7
Entry into Force and Effectiveness
1 - This law enters into force on the day following its publication.
2 - The amendments to Article 72 of the Personal Income Tax Code and to Article 89-A of the General Tax Law take effect from 1 January 2012.
Co-ownership - Literal Interpretation
A simple reading of the item added to the TGIS allows one to conclude that the passive subject of the new taxation may consist of either the owner or the co-owner of an urban property with certain characteristics (respectively, subjective and material elements, in the sense explained by Manuel Pires and Rita Calçada Pires, regarding the municipal property tax, in Tax Law, pages 735 et seq, 5th ed., 2012, Almedina), with the value of the TPV of the property subject to the property right being one of these relevant characteristics, precisely erected as one of the elements of taxation. The central question thus resides in determining what minimum TPV value is required to trigger the incidence of SD on co-owned properties.
Pursuant to the Municipal Property Tax Code, the TPV of the property is not affected by situations of co-ownership. In these cases, the TPV of the property remains single, corresponding to the total value of the property, being subsequently divided among the co-owners, in proportion to their respective rights (or shares of the property right).
Now, this fact seems to point in the direction argued by the Respondent, unmistakably more consistent with the wording of the norm in question ("... urban properties whose taxable patrimonial value shown in the register, pursuant to the Municipal Property Tax Code (CIMI), is equal to or exceeding (euro) 1,000,000 ...").
In fact, an interpretation based exclusively on the literal element of the norm would lead to the conclusion that the TPV of the property is the reference value for application of the new SD item, such that the respective rate would be applied to the share of the TPV of the property resulting from the right of each co-owner, similarly to what occurs within the Municipal Property Tax Code. In other words, the criterion legally established for subjection to SD would correspond to the TPV of the property and not to its share, corresponding to the right of each co-owner.
In these terms, item 28.1 of the TGIS would apply to urban properties with TPV equal to or exceeding €1,000,000.00, which would be verified in the case in question, regardless of whether, in cases of co-ownership, the share corresponding to the specific co-owner could be less than the stated minimum limit (as also occurs in the present case), since the requirement provided by law (TPV of the property) would already be verified. The share corresponding to the right of the co-owner would thus be relevant only for determining the concrete amount of taxation due by the passive subject, since the application or non-application of item 28.1 would already be determined or excluded by the total TPV of the property.
Furthermore, this conclusion was reached in process 4/2014 of the CAAD, in which it was concluded that "The law expressly establishes, in the final part of item 28 of the TGIS, that Stamp Duty is levied 'on the taxable patrimonial value used for purposes of municipal property tax' (emphasis ours). For purposes of municipal property tax, the TPV to be taken into account is the global TPV of the property, and not the part of the TPV that corresponds to each of the co-owners. The same conclusion must be drawn for purposes of item 28.1 of the TGIS. Thus it is concluded that the taxable matter serving as the basis for the rule of incidence of item 28.1 of the TGIS is the taxable patrimonial value determined pursuant to the Municipal Property Tax Code for each property, with each co-owner being responsible for payment in proportion to the share they hold on the property. On the other hand, since there is no independent use of any part or fractions, it is irrelevant that the property is held in co-ownership for purposes of meeting the rule of incidence of item 28 of the TGIS. What determines subjection to the tax is the existence of a property that falls within the definition of the Municipal Property Tax Code, assessed pursuant to this Code with TPV exceeding one million euros. A different understanding would result in properties that manifestly could be considered luxurious and evidencing exceptional capacity to pay held in co-ownership remaining outside stamp duty taxation, in manifest inequality with identical properties held by only one owner."
Delving a bit deeper, one cannot say that the literal element is dissonant with the legislator's intention. In fact, from the intervention of the State Secretary for Fiscal Affairs in the National Assembly, on the occasion of the presentation and discussion of the proposal relating to the budget law, emerges the desire to make the new taxation apply to (all) properties with residential use and with TPV exceeding a certain value. It was stated therein that within a framework of 'measures that effectively strengthen just and equitable distribution of the adjustment effort across a broad and comprehensive set of sectors of Portuguese society', a 'special rate on urban residential properties of higher value' is created, emphasizing that it is 'the first time in Portugal that special taxation on high-value properties intended for housing' is created, which 'will be 0.5% to 0.8% in 2012, and 1% in 2013, and will apply to houses with a value equal to or exceeding 1 million euros', whereby 'the fiscal effort required from these owners will be significantly increased in 2012 and 2013.'
Now, from that statement emerges precisely the intention to negatively discriminate against owners of properties intended for housing with TPV exceeding a certain amount, because that property right translates to an increased capacity to pay, justifying an additional contribution to the effort of budget equilibrium. And as is read in the Decision delivered in process No. 50/2013-T of the CAAD, 'In introducing this legislative innovation, the legislator considered as the determining element of capacity to pay urban properties, with residential use, of high value (luxury), more precisely, of value equal to or exceeding €1,000,000.00, on which a special stamp duty rate began to apply, intending to introduce a principle of taxation on the wealth externalized in the ownership, usufruct or right of surface of luxury urban properties with residential use. For this reason, the criterion was the application of the new rate to urban properties with residential use, whose TPV is equal to or exceeding €1,000,000.00', invoking for this purpose 'the principles of social equity and fiscal justice, calling to contribute more intensely the holders of high-value properties intended for housing, applying the new special rate to 'houses with a value equal to or exceeding 1 million euros''. Or, as stated in the decision made in process 4/2014-T also of the CAAD, 'the legislator understood that the value of one million euros, when attributed to a dwelling, reflects a capacity to pay above average and, as such, capable of determining a special contribution to ensure just distribution of the fiscal effort.'"
But it is precisely this intention to, at a moment of special financial emergency, identify manifestations of particularly increased capacity to pay, thus leading to strong negative discrimination, that should make us doubt the soundness of a merely literal interpretation of the norm and of the constitutional risks that it would inevitably entail.
Interpretation in Accordance with the Constitution - The Principle of Equality
The incidence of the new special rate on 'houses with a value equal to or exceeding 1 million euros', as a way of implementing the 'principles of social equity and fiscal justice, calling to contribute more intensely the holders of high-value properties intended for housing', effectively leads to the need to test the preceding interpretation in light of the legislator's real intention and constitutional principles. For it is manifestly very different to be the owner of a luxury property or of a share in it. The capacities to pay externalized in the two situations are necessarily different, to the detriment of the second hypothesis, as is obvious. Although the diversity one intends to refer to is manifest, it is important to resort to an example to well illustrate such diversity: the owner of a property with a certain market value (understanding, thus, TPV as an approximation to market value - cf. José Maria Fernandes Pires, Lessons on Taxes on Property and Stamp Duty, page 15, 2nd ed. 2012, Almedina), externalizes a capacity to pay ten times higher than that of a co-owner of an equivalent property, with the same market value and in which he holds an ideal share of ten percent.
And this co-owner, in turn, possesses a capacity to pay identical to, if not less than, that of the owner of a property with a market value of ten percent of the property initially referred to. This is because luxury properties do not necessarily evidence exceptional capacity to pay if they are held only in co-ownership. As is evident, this externalization of increased capacity to pay will depend on the combined effect of the value of the property and the concrete proportion of the right of its co-owner. Otherwise, we would have a manifest inequality of co-owners vis-à-vis owners of properties with value equivalent to the value of the share of those co-owners, if that value is less than one million euros.
Thus become evident the doubts and limitations that a literal reading places on the compatibility of the norm, if read in that sense, with the principle of equality, or equity in the terminology of Glória Teixeira, whether in the sense of horizontal equity or in the sense of vertical equity (Glória Teixeira, Manual of Tax Law, page 56, 2nd ed., Almedina). And as is well stated in Decision 117/2013 T of the CAAD, 'an interpretation based exclusively on the literal wording ... cannot be accepted, for in the interpretation of tax rules, the general rules and principles of interpretation and application of laws are observed (Article 11, section 1, of the LGT) and Article 9, section 1, expressly prohibits interpretations based exclusively on the literal wording of the rules in establishing that «interpretation should not be limited to the letter of the law», but rather «reconstruct from the texts the legislative thought, taking especially into account the unity of the legal system, the circumstances in which the law was elaborated and the specific conditions of the time in which it is applied». Since to verify a correspondence between the interpretation and the letter of the law it shall suffice to have «a minimum of verbal correspondence, even if imperfectly expressed» (Article 9, section 3, of the Civil Code), which will only prevent the adoption of interpretations that cannot by any means be reconciled with the letter of the law, even acknowledging therein imperfection in the expression of the legislative intention. For this reason, the letter of the law is not an obstacle to a declarative interpretation, which makes explicit the scope of the literal wording, nor even an extensive interpretation, when it can be concluded that the legislator said less than what, in coherence, it would have intended to say, that is, when it said imperfectly what it intended to say.''
Now, in the present case, a declarative interpretation, or possibly a restrictive one, is required, which reconciles it with the principle of equality, since the norm aims to call to contribute only those who have greater capacity to do so, externalized in a certain way. Such negative discrimination needs, therefore, to be anchored in a solid externalization of an exceptional capacity to pay, and one cannot admit a tax claim against those who do not externalize it, especially if it is possible for taxation not to exist in cases of equivalent capacity to pay.
Now, the useful meaning of the norm, for situations such as those in the present case, must be sought keeping this difficulty well in mind and also the fact that the tax within which the new taxation is inserted cannot help with the interpretation, since SD is a tax that 'applies to a heterogeneous multiplicity of facts or acts ... without a common trait that gives them identity', a fact aggravated by the 2003/2014 Tax on Property Reform, making its classification even more complex (cf. José Maria Fernandes Pires, Op. Cit., page 422).
That interpretative aid should be found, precisely, in the principle of tax equality, implicitly integrated in the constitutional principle of equality (Article 13 of the CRP), which, as Sérgio Vasques well states, is more than a mere negative limit and imposes something more than the mere prohibition of arbitrariness, rather postulating a distribution of taxes in accordance with the criterion of capacity to pay (cf. Article 4 of the LGT) - 'the material criterion of equality appropriate to taxes' - postulating that taxes apply 'to wealth ... in a way that reflects the real economic strength of the taxpayer', for which reason 'tax should only begin where this economic strength begins', and should 'end where that economic strength also ends, with capacity to pay operating as its limit' (cf. Manual of Tax Law, pages 249 et seq, 2011, Almedina).
Considering that limit to taxation (where 'economic strength' is not verified), the conclusion that there cannot exist taxation whenever the real estate patrimony, seen unitarily, is below the stated limit of one million euros, imposes itself inescapably on the interpreter. Moreover, it becomes clear that the legislator could not have intended any other option, even though it expressed its thought in an inappropriate manner, that any other interpretative hypothesis would not be compatible with the system as a whole, and that this reading is fundamental to maintain, at least for this reason, the conformity of the norm with fundamental constitutional principles essential to its validity in the legal order, such as are the principles of equality and capacity to pay.
And if doubts persisted, one should always make use of the economic interpretation of the concept, postulated by the questioned section 3 of Article 11 of the LGT, which is understood to point in the direction sustained here (on this matter cf. Taxes, General Theory, Américo Fernando Brás Carlos, page 196, 2014, 4th ed. Almedina), since the meaning of the norm is to require an additional contribution to the effort to control the budget deficit, on the revenue side, from holders of properties intended for housing with a value equal to or exceeding one million euros, a requirement that, economically, keeping in mind the principle of substance over form, the Respondent does not meet.
From the above it is clear that a merely literal interpretation of the norm would not be constitutionally acceptable, thus calling for an interpretation in accordance with the Constitution, so as to accommodate in the implementation of the new item 28.1 of the TGIS full compliance with the principles of equality and capacity to pay, to which the tax legislator is subordinated.
Now, the 'constitutionally conforming interpretation' corresponds to a 'method that, among the various possible results of the interpretation of a legislative text, chooses that which may be considered compatible with constitutionally enshrined principles', this being precisely what 'will occur whenever from one or another interpretation there could result a violation of the principle of equality, potentially violated by a particular application of the legal text' (cf. J. L. Saldanha Sanches, Manual of Tax Law, 3rd Edition, Coimbra Publisher, pages 147 et seq), exactly as would inevitably occur in the present case if the interpretation sustained by the Respondent were followed.
And because the tax legislator is subordinated to the principles of equality (Article 13 of the CRP) and capacity to pay (CRP and Article 5, section 2 of the LGT), which postulate that the legislator must anchor taxation in reasonable and non-arbitrary economic elements, capable of justifying the tax claim in a capacity to pay concretely externalized by the passive subject, one must seek in the text of the norm a reading that gives effect to those principles.
In this case the increased capacity to pay envisioned by the legislator corresponds to the holding of real estate patrimony, intended for housing, of particularly high value. Now, the co-owner does not hold, or does not necessarily hold, real estate patrimony intended for housing of particularly high value, whenever he is a co-owner of a property intended for housing with TPV equal to or exceeding one million euros. It suffices, as has been seen, that his share in that right be such that the taxable patrimonial value that proportionally corresponds to his right does not reach that minimum threshold of tax relevance, of minimum externalization of an increased capacity to pay, as provided by the legislator.
Thus cannot proceed the thesis sustained by the Respondent, and instead one must adhere to the interpretation argued by the Claimant, such that it is necessary to conclude that the tax act suffers from an error of law in its elements, thus suffering from a defect of violation of law, in this case the new item 28.1 of the TGIS.
Unconstitutionality of the Norm
Thus is rendered moot the analysis of the possible unconstitutionality of the norm on other grounds invoked.
Compensatory Interest
The Claimant further petitions for compensatory interest, which is due whenever there is error attributable to the services.
As is stated in the Decision delivered in Process 30/2014-T, 'In the legislative authorization on which the Government based itself to approve the RJAT, granted by Article 124 of Law No. 3-B/2010, it states that 'the tax arbitration proceeding should constitute an alternative procedural means to the judicial challenge process and to the action for recognition of a right or legitimate interest in tax matters'. Although subsections a) and b) of section 1 of Article 2 of the RJAT use the expression 'declaration of illegality' to define the competence of the arbitral tribunals that function in the CAAD and do not make reference to constitutive (annulling) and condemnatory decisions, it must be understood, in harmony with the aforementioned legislative authorization, that their competencies include the powers that in an impugn process are attributed to tax tribunals regarding acts whose appraisal of legality falls within their competencies.' Whereby it is concluded that in arbitral proceedings a condemnation can be delivered of the tax administration in the payment of compensatory interest, adding that Article 43 of the LGT 'merely establishes an expeditious and, so to speak, automatic means of compensating the injured party. Regardless of any allegation and proof of damages suffered, he has the right to the compensation established there, translated into compensatory interest in the cases included in the provision (...)' - Decision of the STA of 2-11-2006, process 604/06, available at www.dgsi.pt.
On the other hand, the case law has supported a very broad position regarding error attributable to the services, understanding that 'in general, it can be affirmed that the error attributable to the services, which carried out the assessment, understood in a global sense, is demonstrated when they proceed with a gracious complaint or challenge of that same assessment' (cf. Decision of the Supreme Administrative Court of 31 October 2001, Process No. 26167), whereby 'the tax administration is generically obliged to act in compliance with the law (Articles 266, section 1, of the Constitution of the Portuguese Republic and 55 of the General Tax Law), whereby, regardless of proof of fault of any of the persons or entities that comprise it, any illegality not resulting from an action of the passive subject will be attributable to the fault of the services themselves' (cf. Decision of the Supreme Administrative Court, of 12 December 2001, Process No. 26233), as is well stated in Decision 218/2013-T of the CAAD, whereby error attributable to the services will be verified whenever the assessment does not subsist.
It is further added, in the present case, that the AT should always have proceeded with an interpretation in accordance with the Constitution, as sustained by André Salgado de Matos, cited by J. L. Saldanha Sanches, in Op. Cit., page 150.
Considering, thus, the request for compensatory interest, it is manifest that the illegality of the assessment act is attributable to the AT, whereby the Claimant has the right to the petitioned compensatory interest, pursuant to Article 43, section 1, of the LGT and Article 61 of the Code of Tax Procedure (CPPT), from the date of improper payment, until the full reimbursement of the amount paid, at the legal rate.
OPERATIVE PART
In accordance with the above, this Single Tribunal decides:
a) To adjudge the claim well-founded and, in consequence, to annul the assessment act on the ground of violation of law;
b) To adjudge well-founded the request for compensation filed, condemning the Tax and Customs Authority to the reimbursement of the tax paid, increased by compensatory interest calculated at the rate and on the other terms provided for in Articles 43 of the LGT and 61 of the Code of Tax Procedure (CPPT).
VALUE OF THE CASE
In accordance with Article 306, sections 1 and 2, of the Code of Civil Procedure (CPC) and Article 97-A, section 1, subsection a), of the Code of Tax Procedure (CPPT) and Article 3, section 2, of the Regulations on Court Costs in Tax Arbitration Proceedings, the value of the case is set at € 4,455.42.
COURT COSTS
Pursuant to Article 22, section 4, of the RJAT, the amount of court costs is set at € 612.00 (six hundred and twelve euros), in accordance with Table I annexed to the Regulations on Court Costs in Tax Arbitration Proceedings, to be borne by the Tax and Customs Authority.
Lisbon, 17-11-2014
Text prepared by computer, pursuant to the Code of Civil Procedure (CPC), applicable by reference of Article 29, section 1, subsection e) of the RJAT, governed by the spelling prior to the 1990 Spelling Agreement, with blank lines and revised by the undersigned arbitrator.
The Arbitrator
(Jaime Carvalho Esteves)
Frequently Asked Questions
Automatically Created