Summary
Full Decision
Arbitration Decision
The arbitrator, Dr. Henrique Nogueira Nunes, appointed by the Ethics Council of the Center for Administrative Arbitration ("CAAD") to form the Arbitration Court, constituted on 3 July 2017, hereby agrees as follows:
1. REPORT
1.1. A… and B…, respectively, with tax identification numbers … and …, hereinafter referred to as "Claimants", requested the constitution of the Arbitration Court pursuant to Articles 2, No. 1, paragraph a) and 10 of Decree-Law No. 10/2011, of 20 January (hereinafter "RJAT").
1.2. The request for arbitration concerns the declaration of illegality of the assessment act for Stamp Tax better identified under the payment collection documents issued with the numbers 2016…, in the amount of € 6,050.05, 2016…, in the amount of € 2,016.69, 2016…, in the amount of € 6,050.05, 2016…, in the amount of € 2,016.68, 2016…, in the amount of € 6,050.05 and 2016…, in the amount of € 2,016.68, made pursuant to the provisions of entry 28.1 of the General Stamp Tax Table (TGIS), relating to the year 2015, as well as the decision rejecting the Administrative Complaint filed against said act.
1.3. To substantiate their request, the Claimants allege, in summary, the following defects:
(i) They contend that there is a violation of law, due to error in the factual and legal assumptions for application of Entry No. 28.1 of the General Stamp Tax Table, arguing that the Tax Authority (AT) is subjecting to Stamp Tax something that is not construction land, since it is land for which no license or any kind of favorable prior information was granted for a subdivision or construction operation.
(ii) Wherefore, the Stamp Tax assessment in question in these proceedings, they argue, cannot prevail because the objective incidence norm is not fulfilled (Entry No. 28.1 of the General Stamp Tax Table) of the tax in question.
(iii) And that because the cadastral records for the land in question are completely silent regarding the type of building planned for said land, the objective incidence type provided for in Entry 28.1 of the General Stamp Tax Table is not fulfilled.
(iv) Concluding, they state that there could only be subjection to Stamp Tax if the license for the subdivision operation had been approved for the land, which they contend did not occur in the present case.
(v) They contend that Entry No. 28.1 of the General Stamp Tax Table, interpreted to mean that it applies to construction land with tax patrimonial value equal to or greater than € 1,000,000.00, when no building unit capable of independent use with value equal to or greater than that is planned, suffers from material unconstitutionality, by violation of Articles 13 and 104, No. 3, of the Constitution.
(vi) And that Entry No. 28.1 of the General Stamp Tax Table applied to construction land with tax patrimonial value equal to or greater than € 1,000,000.00 for which the authorized or planned construction does not include any building unit capable of independent use with value equal to or greater than that is materially unconstitutional by violation of the principle of equality.
(vii) They thus seek the refund of the amounts already paid, plus indemnity interest at the legal rate, accrued from the date of payment of each of the mentioned three installments until full reimbursement of these amounts.
1.4. The Tax and Customs Authority, hereinafter referred to as "Respondent" or "AT", replied, in summary, as follows:
(i) It invokes an exception based on material incompetence of the arbitration court to scrutinize acts of valuation and registration in the cadastral record.
(ii) And that this is an administrative act in tax matters which, as it does not assess or discuss the legality of the assessment act, cannot be subject to judicial challenge, pursuant to the provisions of paragraph a) of No. 1 of Article 97 of the Code of Tax Procedure (CPPT).
(iii) And that it is outside the material competence of the Arbitration Court to scrutinize and/or analyze acts of valuation and cadastral registration, because in doing so, it would improperly pronounce itself, disregarding the AT's valuations, never previously questioned by the Claimants, removing them from the legal order.
(iv) Verifying, in its understanding, a dilatory exception that translates into material incompetence of the arbitration court, which prejudices knowledge of the merits of the case, determining that it should be absolved of the instance, in accordance with Articles 576/1 and 577, paragraph a) of the Code of Civil Procedure (CPC), applicable by virtue of Article 29/1, paragraph e) of the RJAT.
(v) As to the alleged error in factual and legal assumptions, it contends that the classification of the land in question as construction land arose as a result of information provided by the Municipal Chamber of …, which concludes that the property is land with construction viability, located in a zone covered by the Urbanization Plan of Operating Unit No.… of … .
(vi) And that it was based on this information that, in accordance with the law, namely Article 13, paragraph b) of the IMI Code, the Claimants should have arranged for the submission of Form 1 of the IMI, having 60 days to do so.
(vii) Not having proceeded accordingly, the Finance Service of … submitted the corresponding declaration ex officio, whereby, it contends, the assessment in question in these proceedings represents a correct interpretation and application of law to the facts, not suffering from the defect of violation of law imputed to it by the Claimants.
(viii) As to the alleged violation of the constitutional principle of Equality, it argues for the constitutionality of Entry 28.1 of the TGIS, because the legislator in establishing a value (€1,000,000.00) as the delimiting criterion for the incidence of the tax, below which the provision of the tax norm is not fulfilled, defined a legitimate choice regarding the scope of material "luxury residential properties" intended to be taxed more heavily, especially since any other value of similar magnitude would likewise assume an artificial character that is inherent to any quantitative fixing of a level or limit.
(ix) And that entry 28.1 of the TGIS applies to ownership, usufruct or right of surface of urban properties with residential use, whose tax patrimonial value listed in the cadastral record, in accordance with the IMI Code, is equal to or greater than € 1,000,000.00, that is, it applies to the value of the property, being a general and abstract norm, applicable indistinctly to all cases where the factual and legal assumptions are verified.
(x) With regard, finally, to the request for indemnity interest, it states that since the tax administration is bound by the principle of legality, it cannot fail to give full compliance to the regulations that the ordinary legislator created and that are in force in the legal order and also by force of Article 55 of the General Tax Law (LGT), and that at the time of the facts in question, it applied the law as the executive body is constitutionally bound to do, and one cannot speak of error of the services within the meaning of Article 43 of the LGT.
(xi) It thus seeks recognition of the dilatory exception invoked, and it contends should be absolved of the instance; or, if this is not accepted, the proceedings should be judged as unproven and consequently absolved as petitioned, all with the appropriate legal consequences.
1.5. The Court determined, considering that this is a case in which essentially questions of law are discussed, to dispense with the holding of the first meeting of the Arbitration Court, in accordance with Article 18 of the RJAT, which met with no opposition from the parties. An exception was invoked in the Reply which will be assessed and decided in the present decision.
The Claimants presented a response brief to the exception raised by the Respondent in its Reply.
The parties were notified to present arguments, if they wished, and both decided not to do so.
A deadline was set for the issuance of the arbitration decision until 20 December 2017.
* * *
1.6. The Court was regularly constituted and is competent ratione materiae, in accordance with Article 2 of the RJAT.
The parties have legal personality and capacity, show themselves to be legitimate and are regularly represented (cf. Articles 4 and 10, No. 2 of the RJAT and Article 1 of Ordinance No. 112-A/2011, of 22 March).
No procedural defects were identified.
2. MATTERS TO BE DECIDED
In the arbitration petition, the Claimants formulate the following essential question:
(i) The assessment act in question in these proceedings should be annulled, due to defect of violation of law, due to error in the factual and legal assumptions for application of Entry No. 28.1 of the General Stamp Tax Table.
Additionally, they raise the material unconstitutionality of Entry No. 28.1 of the TGIS, as amended by Law No. 83-C/2013, of 13 December.
In its Reply, in addition to defending itself by way of objection, the Respondent invokes an exception, invoking material incompetence of the arbitration court, seeking its absolution from the instance.
3. FACTUAL MATTERS
With relevance to the assessment and decision on the merits, the following facts are established as proven:
A) The Claimants are co-owners (in 3/4 and 1/4, respectively) of the property subject to the Stamp Tax assessed and in question in the present proceedings, pursuant to the provisions of Entry No. 28.1 of the General Stamp Tax Table, and which is registered in the urban cadastral record of the parish and municipality of … under the current article … (cfr. Document No. 4 attached by the Claimants).
B) Through the official communication No.…, of 3 October 2014, from the Finance Service of …, the Claimant B…, was notified, in her capacity as head of the estate of C…, that "[f]ollowing the information provided by the Municipal Chamber of … it is determined that the property in question is construction land with construction viability, located in a zone covered by the Urbanization Plan of Operating Unit No. … of …" (cfr. Document No. 6 attached by the Claimants).
C) The Claimants became co-owners, for tax purposes, of construction land with tax patrimonial value of € 2,420,020.00. (cfr. Document No. 4 attached by the Claimants).
D) The cadastral record for the construction land in question in these proceedings is silent regarding the type of building planned (cfr. Document No. 4 attached by the Claimants).
E) The prior owner of the property filed a request with the Municipal Chamber of … for licensing of a subdivision operation for the property in question in these proceedings, never having managed to obtain the license for the subdivision operation, because there was a withdrawal of the request during the procedure, substantiated in the registered letter with proof of receipt dated 17 July 2013, sent by Mr. C… to inform the Mayor of … of his decision to withdraw the application for licensing of the subdivision operation (cfr. Document No. 7 attached by the Claimants).
F) The Municipal Chamber of … sent on 22 August 2013 a letter informing that it was necessary to pay a fee in the amount of € 15.99 in the context of the withdrawal presented (cfr. Document No. 8 attached by the Claimants).
G) Said fee was paid (cfr. Document No. 9 attached by the Claimants).
H) The Chamber of …, on 25 October 2013, informed that "[r]egarding the request for withdrawal of the subdivision licensing procedure, located on … Street, zone between Road and Railway Bridges, …, proc. No. …/10 and attachments No.…/13, as per the order of 2013/10/24, of Mr. Vice-President D…, I inform that there is no objection to it" (cfr. Document No. 10 attached by the Claimants).
I) The Claimants were notified of the Stamp Tax assessment, based on Entry No. 28.1 of the General Stamp Tax Table, made on 5 April 2016, for the year 2015, totaling € 24,200.20, with the tax being paid within the deadlines set by the Tax Administration (cfr. stamps evidencing payment of the 1st installment affixed to Documents Nos. 2 and 3 attached by the Claimants and, regarding the second and third installments, Documents Nos. 12 and 13 also attached).
J) The Claimants filed an Administrative Complaint, which was processed under No. …2016…, intended to obtain the annulment of the tax assessment now in question, which was rejected by the AT and notified to its legal representative on 11/01/2017 – (cfr. Document No. 1 attached by the Claimants and Information contained in the administrative file attached by the Respondent).
K) The AT, considering the tax patrimonial value assigned to the construction land above identified, understood that the objective assumptions for the assessment of Stamp Tax were met, arising from the addition to the TGIS of entry No. 28, as amended by Law No. 83-C/2013, of 31 December.
L) On 10-04-2017, the Claimants filed an application for constitution of the Arbitration Court with the CAAD – cf. electronic application in the CAAD system.
4. UNPROVEN FACTS
There are no facts with relevance to the decision of the case that have not been proven.
5. REASONING OF THE DECISION ON FACTUAL MATTERS
As regards the essential facts, the established facts are confirmed in an identical manner by both parties and the Court's conviction was formed based on the documentary (official) evidence attached to the proceedings and discriminated above, whose authenticity and veracity were not questioned by any of the parties.
It is to be noted that the Court does not have the duty to pronounce on all the matters alleged, but rather has the duty to select only those that are relevant to the decision, taking into account the claim (or claims) that substantiate the request formulated by the Claimants as plaintiffs (cfr. Articles 596, No. 1 and 607, Nos. 2 to 4, of the Code of Civil Procedure, as amended by Law 41/2013, of 26/6) and to state whether it considers it proven or unproven (cfr. Article 123, No. 2, of the CPPT).
According to the principle of free appraisal of evidence, the Court bases its decision, regarding the evidence produced, on its intimate conviction, formed from the examination and evaluation it makes of the means of proof brought to the proceedings and in accordance with its experience of life and knowledge of people (cfr. Article 607, No. 5, of the Code of Civil Procedure, as amended by Law No. 41/2013, of 26/6). Only when the probative force of certain means is pre-established in Law (e.g. full probative force of authentic documents - cfr. Article 371, of the Civil Code) does the principle of free appraisal not govern the appraisal of the evidence produced.
6. ON THE LAW
In accordance with the matters enunciated, which appear in point 2 of the present Decision, and taking into account the factual matters established in point 3, it is now necessary to determine the applicable law.
Firstly, it is necessary to assess the exception invoked by the Respondent in its reply, because, in case of success, such would imply its absolution from the instance and the non-knowledge of the claim by the Court.
6.1. On the Exception Invoked of Material Incompetence
The AT invokes that, in this case, the Arbitration Court does not have competence to decide the case, because this is an administrative act in tax matters which, as it does not assess or discuss the legality of the assessment act, cannot be subject to judicial challenge, pursuant to the provisions of paragraph a) of No. 1 of Article 97 of the CPPT.
And that it is outside the material competence of the Arbitration Court to scrutinize and/or analyze acts of valuation and cadastral registration, because in doing so, it would improperly pronounce itself, disregarding the AT's valuations, never previously questioned by the Claimants, removing them from the legal order.
Verifying, in its understanding, a dilatory exception that translates into material incompetence of the arbitration court, which prejudices knowledge of the merits of the case, determining that it should be absolved from the instance, in accordance with Articles 576/1 and 577, paragraph a) of the CPC, applicable by virtue of Article 29/1, paragraph e) of the RJAT.
Already the Claimants defend themselves saying that what they intend and expressly results from the request formulated in the arbitration petition is that the arbitration court has knowledge of the illegalities of the Stamp Tax assessment being impugned and of the illegality of the decision rejecting the administrative complaint that maintained those assessments.
Let us see.
It follows from Article 99 of the CPPT applicable by virtue of Article 29, No. 1, paragraph a), of the RJAT, that in contesting the legality of the assessment of a tax, it is possible to resort to a very wide range of defects.
It is quite clear that the Claimants do not intend to discuss in the present proceedings the valuation of the property that resulted from the official declaration "Form 1" delivered by the AT, nor do they even intend to discuss its cadastral record, but solely that it be determined whether the assessment issued, in question in the present proceedings, is in conformity with one of the nuclear elements of a tax, its incidence, in this case objective.
Wherefore, the Claimants are correct, and the invoked exception of material incompetence of the Arbitration Court is entirely without merit.
Entering now into the matter of challenge, and taking into account the positions assumed by the parties in the briefs presented, the central question to be determined by the arbitration court consists of assessing the legality of the Stamp Tax assessment act relating to the year 2015.
Having the Claimants imputed various defects to the tax act being challenged, it is necessary to determine the order of assessment of the same, and the order of Article 124 of the CPPT should be observed, applicable by virtue of Article 29, No. 1, paragraph a) of the RJAT[1].
The defect of violation of law due to error in assumptions will be analyzed first, as this is the one that will lead to the "most stable or effective protection of the injured interests" insofar as its possible success will prevent, outright, the renewal of the challenged act.
6.2. On the Invoked Defect of Violation of Law Due to Error in Assumptions.
It is necessary to assess whether the assessment act in question in these proceedings should be annulled, as requested, due to error in assumptions, pursuant to the provisions of paragraph a) of Article 99 of the CPPT, and, consequently, as the basis of the request for arbitration, by virtue of paragraph c) of No. 2 of Article 10 of Decree-Law No. 10/2011, of 20 January.
Let us see.
As amended by Law No. 83-C/2013, of 31 December, Entry No. 28.1 of the TGIS has the following wording, insofar as relevant here:
"28 - Ownership, usufruct or right of surface of urban properties whose tax patrimonial value listed in the cadastral record, in accordance with the Municipal Property Tax Code (IMI Code), is equal to or greater than € 1,000,000 - on the tax patrimonial value used for purposes of IMI:
28.1 – For residential property or construction land whose authorized or planned building is for residential purposes, in accordance with the provisions of the IMI Code - 1 %."
The justification for the addition of entry 28 to the TGIS (original wording) was indicated in the Statement of Reasons of Bill No. 96/XII/2nd, in which it states, for what is relevant here, the following:
"The pursuit of the public interest, in light of the Country's economic and financial situation, requires an effort of consolidation that will require, in addition to permanent activism in reducing public expenditure, the introduction of fiscal measures inserted in a larger set of measures to combat budget deficit.
These measures are fundamental to reinforce the principle of social equity in austerity, ensuring an effective distribution of the sacrifices necessary to comply with the adjustment program. The Government is strongly committed to ensuring that the distribution of these sacrifices will be made by all and not just by those who live on the income of their work. In accordance with that purpose, this bill expands the taxation of capital and property income, equitably encompassing a broad set of sectors of Portuguese society.
(…)
On the other hand, a tax rate is created under the Stamp Tax applying to urban properties with residential use whose tax patrimonial value is equal to or greater than one million euros."
In fact, the concept of "urban property with residential use" was not defined by the legislator. Neither in Law No. 55-A/2012, which introduced it, nor in the IMI Code, to which No. 2 of Article 67 of the Stamp Tax Code (likewise introduced by that Law) makes reference on a subsidiary basis.
When Law No. 83-C/2013, of 31 December, the State Budget Law for 2014, came into force, which gave new wording to entry No. 28 of the General Table, and which now defines its scope of objective incidence through the use of concepts that are legally defined in Article 6 of the IMI Code. This amendment merely made unequivocal and with effects for the future that construction land whose authorized or planned building is for residential purposes is encompassed within the scope of entry 28.1 of the General Stamp Tax Table (provided that the respective tax patrimonial value is equal to or greater than 1 million euros).
The fact that it can be considered that in determining the tax patrimonial value of urban properties classified as construction land account should be taken of the use that the building authorized or planned for it will have for determining the respective value of the area of implantation (cfr. Nos. 1 and 2 of Article 45 of the IMI Code) does not determine that construction land can be classified as "properties with residential use", because "residential use" always arises from what is provided in the IMI Code when it refers to "buildings" or "constructions", existing, authorized or planned, because only these can be inhabited, which is not the case with construction land, which does not have, in itself, conditions for such, and cannot be used for residential purposes unless and until the construction authorized and planned for it is built thereon.
In fact, referring to urban properties, No. 1 of Article 6 of the IMI Code distinguishes various categories, dividing them into residential, commercial, industrial or for services, construction land and others, according to the following criteria: "residential, commercial, industrial or for services" – buildings or constructions licensed for such or, in the absence of a license, that have as their normal destination each of those purposes (cfr. Article 6, No. 2 of the IMI Code); "construction land", land situated within or outside an urban agglomeration, for which a license or authorization has been granted, prior notification admitted or favorable prior information issued for a subdivision or construction operation, and also those that have been thus declared in the acquisition title, excepting land where the competent entities prohibit any of those operations, namely those located in green zones, protected areas or which, in accordance with municipal land-use plans, are devoted to spaces, infrastructure or public facilities (cfr. Article 6, No. 3 of the IMI Code, as amended by Law No. 64-A/2008, of 31/12); "Others" are thus considered land situated within an urban agglomeration that are neither construction land nor are classified as rural property, according to their legal concept, and also buildings and constructions licensed, or in the absence of a license, that have as their normal destination other purposes than those referred to above (cfr. Article 6, No. 4 of the IMI Code).
In making taxation apply to residential properties or construction land "with residential use", the legislator did not in fact establish in the Stamp Tax Code any specific concept that should be considered for this purpose, rather referring the application of the tax treatment regime for properties referred to in that Entry 28 to the norms of the IMI Code, which establish clear distinction between residential properties and construction land, the former being classified as such based on their municipal license, or, in the absence of one, as a result of normal use, and the latter are defined based on their legal potential.
In this light, construction land - whatever the type and purpose of the building that will be, or may be, erected on it, including that intended for residential use - does not meet in itself the requirement provided for in points 28 and 28.1 of the TGIS, that is, that "(...) the authorized or planned building be for residential purposes (...)".
The expression "whose authorized or planned building is for residential purposes" conveys, on a simple reading, an idea of real and present functionality.
In the circumstances referred to, the fact that, for a given construction land, the building of property intended for residential use is authorized, or for any other purpose, even though it should be taken into account in its valuation, does not determine any change in the classification of the land which, for tax purposes, continues to be so classified.
As such, as it follows from Article 6 of the IMI Code a clear distinction between, on the one hand, residential urban properties and, on the other hand, construction land, the latter cannot be considered, for purposes of incidence of stamp tax, as "properties with residential use".
Moreover, in this sense the arbitration jurisprudence prior to the new wording of entry 28 of the TGIS introduced by Article 194 of Law No. 83-C/2013, of 31/12, has pronounced itself systematically and consistently, and from this (wording) the provision that the taxation in question now applies, at the rate of 1%, to residential property or construction land whose authorized or planned building is for residential purposes.
This amendment to the General Stamp Tax Table, introduced by Article 194 of Law No. 83-C/2013, of 31 December, in the part that adds to entry 28.1 of the same Table the reference to "construction land whose authorized or planned building is for residential purposes, in accordance with the provisions of the IMI Code" and, consequently, determines the incidence of stamp tax, in accordance with the provisions of entries 28 and 28.1, on the ownership of construction land whose authorized or planned building is for residential purposes and whose tax patrimonial value is equal to or greater than €1,000,000.00, does not represent a normative amendment that justifies substantial alteration to the understanding that prior to the new wording of that norm was being followed by the jurisprudence of the Judicial and Arbitration Courts.
Analyzing the facts of the case sub judice, it is established that in light of the evidence produced it is determined that on the land in question there never came to be authorized construction of a building for residential purposes at any moment.
The question of whether a property falls within the concept of construction land depends on the verification of a set of conditions, most notably, only is land construction land if the property is furnished with an administrative title that permits building.
The circumstance of there existing a land-use plan that classifies soil as urban (or urbanizable) is not apt to determine the inclusion of the property in the "construction land" category or the classification of the property as urban.
Municipal land-use plans do not confer the right to urbanize and build, rights which are only constituted upon obtaining one of the cited titles. The acquisition of urban development capabilities is successive and gradual and depends on compliance with urban development obligations (see Article 15 of the General Law on the Basis of Public Land Policy, Land-Use Planning and Urbanism, Law No. 31/2014, of 30 May).
The application for issuance of a subdivision license, which meanwhile was not issued, due to express withdrawal, does not constitute grounds for the change of the category of the property as Construction Land, given that only with the issuance of the title is there a situation that justifies said change.
Entry 28.1 of the TGIS appears to us - in that part, at least - perfectly clear: are subject to tax, in addition to residential properties (those of paragraph a) of No. 1 and No. 2 of Article 6 of the IMI Code), construction land (i.e., the category of property provided for in paragraph c) of No. 1 of the same article of the IMI Code), provided that construction intended for residential use has been authorized or is planned.
Now, not having been proven that the construction land in question in these proceedings had authorization, plan or prediction of building intended for residential use, it does not meet the objective incidence norm provided for in Entry No. 28.1 of the TGIS.
The defect of violation of law is entirely successful, thereby ensuring more effective protection of the rights of the Claimants, which renders moot the assessment of the remaining defects invoked, specifically the alleged unconstitutionality.
6.3. Regarding the Request for Indemnity Interest
Regarding the right to indemnity interest, requested by the Claimants, it is necessary to point out that paragraph b), No. 1, Article 24 of the RJAT provides that the Arbitration Decision on the merits of the claim to which no appeal or challenge is available binds the Tax Administration from the end of the deadline provided for appeal or challenge, and this - in the exact terms of the success of the arbitration decision in favor of the taxpayer and until the end of the deadline provided for voluntary execution of decisions of tax judicial courts - must restore the situation that would exist if the tax act subject to the arbitration decision had not been practiced, adopting the acts and operations necessary for this purpose.
This provision is in line with the provisions of Article 100 of the General Tax Law (LGT), applicable to the case by virtue of the provisions of paragraph a), No. 1, Article 29 of the RJAT, in which it is established that "The tax administration is obligated, in case of total or partial success of complaints or administrative appeals, or of judicial proceedings in favor of the taxpayer, to the immediate and full restoration of the situation that would exist if the illegality had not been committed, including the payment of indemnity interest, in the terms and conditions provided by law."
Article 43, No. 1, of the General Tax Law provides, in turn, that "indemnity interest is due when it is determined, in an administrative complaint or judicial challenge, that there was error attributable to the services resulting in payment of the tax debt in an amount greater than legally due."
From the analysis of the evidentiary elements contained in these proceedings it is possible to conclude that the Respondent had total and complete knowledge of the factual elements relevant to proceed to the correct assessment (not maintaining it) of the tax, and did not do so, opting instead to maintain the assessment tainted with error regarding the assumptions, and therefore illegal, being thus obligated to indemnify.
Thus, given the provisions of Article 61 of the CPPT and considering that the requirements for the right to indemnity interest are fulfilled, namely the existence of error attributable to the services resulting in payment of the tax debt in an amount greater than legally due, as provided for in No. 1 of Article 43 of the General Tax Law, the Claimants have a right to indemnity interest, at the legal rate, calculated on the amounts already paid in the amount of € 24,200.20, counted from the date on which payment was made until its full reimbursement.
7. DECISION
In light of the foregoing, this Singular Arbitration Court hereby agrees as follows:
- To judge the request for arbitration as successful and to declare the annulment of the assessment act for Stamp Tax, relating to the year 2015, due to defect of violation of law due to error in assumptions, better identified under the payment collection documents issued with the numbers 2016…, in the amount of € 6,050.05, 2016…, in the amount of € 2,016.69, 2016…, in the amount of € 6,050.05, 2016…, in the amount of € 2,016.68, 2016…, in the amount of € 6,050.05 and 2016…, in the amount of € 2,016.68, made pursuant to the provisions of entry 28.1 of the TGIS, relating to the year 2015, as well as the decision rejecting the Administrative Complaint filed against said act, plus indemnity interest in accordance with legal terms, from the date on which such payments were made until the date of full reimbursement thereof.
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The amount of the case is fixed at Euro 24,200.20, in accordance with the provisions of Articles 3, No. 2 of the Regulation of Costs in Tax Arbitration Proceedings (RCPAT), 97-A, No. 1, paragraph a) of the CPPT and 306 of the CPC.
The amount of costs is fixed at Euro 1,530.00, pursuant to Article 22, No. 4 of the RJAT and Table I attached to the RCPAT, to be borne by the Respondent, in accordance with the provisions of Articles 12, No. 2 of the RJAT and 4, No. 4 of the RCPAT.
Notify the parties.
Lisbon, 12 December 2017.
The Arbitrator,
Dr. Henrique Nogueira Nunes
Text prepared by computer, in accordance with Article 131, No. 5 of the Code of Civil Procedure, applicable by reference from Article 29, No. 1, paragraph e) of the RJAT.
The wording of the present arbitration decision is governed by the orthography prior to the Orthographic Agreement of 1990.
[1] Jorge Lopes de Sousa, Commentary to the Legal Regime of Tax Arbitration, in Guide to Tax Arbitration, Coord. Nuno Villa-Lobos and Mónica Brito Vieira, 2013, Almedina, page 202
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