Summary
Full Decision
ARBITRAL DECISION
I. REPORT
1. A…, tax identification number … and B…, tax identification number …, resident at Rua …, no. …, ..., …-… Lisbon, hereinafter referred to as "Applicants", hereby, under the provisions of articles 2nd and 10th of the Legal Framework for Arbitration in Tax Matters, approved by Decree-Law 10/2011, of January 20th (RJAT), submit a Request for Arbitral Pronouncement in tax matters in which the Tax and Customs Authority is Required (hereinafter "Respondent" or "AT"), with a view to the declaration of illegality of the act of additional assessment of Personal Income Tax (IRS) for the year 2013, with no. 2017…, in the amount of € 3,661.80 and statement showing adjustment of accounts with number 2017… in the amount of € 9,953.16, and the respective assessment of compensatory interest.
2. The request for constitution of an arbitral tribunal, corresponding to registration no. 4163, was validated and accepted by the Honorable President of CAAD on April 21, 2017, having been notified to the Tax and Customs Authority (hereinafter "AT" or "Respondent") on April 28, 2017.
3. The Applicant chose not to appoint an arbitrator, and the Ethics Council, pursuant to no. 1 of article 6th and no. 1 of article 11th of the RJAT, appointed the undersigned as arbitrator of the sole arbitrator tribunal, who accepted the office within the legally stipulated period.
4. The parties were duly notified of the appointment of the arbitrator on June 14, 2017, having manifested no intention to refuse it.
5. The sole arbitrator tribunal was thus constituted on June 30, 2017, in accordance with the provisions of sub-paragraph c) of no. 1 of article 11th of the RJAT.
6. On July 4, 2017, the Respondent was notified of the order issued by the arbitral tribunal, under the provisions of no. 1 of article 17th of the RJAT, to submit a response, request the production of additional evidence, and submit the administrative file.
7. On September 19, 2017, the illustrious representatives of the Respondent submitted the administrative file to the record and on September 20, 2017, in which they argued for the complete rejection of the request for arbitral pronouncement.
8. Following the Respondent's response, on September 22, 2017, the Arbitral Tribunal issued an order, dispensing with the holding of the first meeting referred to in article 18th of the RJAT, considering the autonomy of the arbitral tribunal in conducting the proceeding, provided specifically in sub-paragraph c) of article 16th of the RJAT, for reasons of procedural economy, taking into account the simplicity of the issues at hand. Additionally, it granted a period of 10 consecutive days for the parties, if they so wish, to submit final written submissions.
9. On November 21, 2017, the arbitral tribunal notified the Applicants to submit to the record a legible copy of document no. 8 attached to the request for arbitral pronouncement.
II. CLAIMS OF THE PARTIES
A. Claim of the Applicants
10. The Applicants claim that the illegality of the act of additional assessment of Personal Income Tax (IRS) for the year 2013 be declared, relating to compensation for termination of the employment contract with a banking entity received by the Applicant. Indeed, the Applicant provided services at more than one banking entity, whereby his seniority in the banking sector should be counted by reference to all the time of service provided in the banking sector and not only before the employer entity that bore the burden of the compensation. Accordingly, of the compensation of € 204,692.50, only the amount of € 85,142.65 should be considered subject to IRS and not € 100,196.94. Consequently, he requests the partial annulment of the assessment acts and the reimbursement of the tax overpaid in the amount of € 9,953.16, plus compensatory interest.
B. Claim of the Respondent
11. The Respondent, in turn, argues that the additional assessment of IRS would constitute a correct interpretation and application of law to the facts, insofar as the Applicant would not have proven his affiliation with one of the unions subscribing to the Collective Labor Agreement (ACT) in force in the banking sector, which would be an excluding reason for invoking clause 17th of the ACT for purposes of calculating the compensation excluded from taxation under IRS, the said assessment not suffering from a defect of violation of law, and therefore the Applicant's claim should be ruled unfounded and the Respondent absolved accordingly from the claims.
III. DISMISSAL OF PLEAS
12. The Arbitral Tribunal is regularly constituted.
13. The parties have legal personality and legal capacity, are legitimate and are legally represented (articles 3rd, 6th and 15th of the Code of Procedure and Tax Process, by reference to sub-paragraph a) of no. 1 of article 29th of the RJAT).
14. No nullities are verified, nor were any exceptions or preliminary questions alleged by the parties that would prevent the tribunal from adjudicating the merits of the matter.
IV. FACTUAL MATTERS
A. Facts Established as Proven
15. With relevance for the decision of the case, the following facts are established as proven.
a) The Applicant was an employee at Bank C… during the period between 08/06/1987 and 14/04/1990, with an interruption between 8/06/1988 and 14/07/1988.
b) The Applicant entered into a fixed-term employment contract with D…– branch in Portugal, legal entity no. … (hereinafter "D…") on 28/07/1990 with a term of six months, beginning on 20/08/1990 and ending on 19/02/1991, which was converted into an indefinite-term contract on 19/02/1991, becoming part of its staff from that date.
c) In the year 2013, by virtue of a restructuring, D… reduced its workforce, having reached an agreement for termination of the employment contract with some workers, including with the Applicant.
d) On 30/06/2013, the Applicant entered into an agreement for termination of the employment contract with D…, with the following clauses being relevant for the decision of the case being detailed below.
e) As established in the second clause of the agreement, the overall financial compensation amounted to the gross amount of €204,692.50 (and not €206,692.50):
f) It further follows from no. 2 of clause fifteen that for purposes of the provision of sub-paragraph b) of no. 4 of article 2nd of the IRS Code, D… and the Applicant recognized their agreement that the determination of seniority should be made by counting the time of service in banking entities, in accordance with Clause 17th of the Collective Labor Agreement of the Banking Sector ("ACT"):
g) Further transcribed below is the content of Clause 17th of the collective agreement between various credit institutions and FEBASE – Federation of the Financial Sector, in force in 2013[1], hereinafter "ACT":
h) In the calculation of said compensation, D… PLC considered an average monthly salary of € 4,637.31, which was not disputed, as well as seniority of 27 years, disputed by the Respondent, who considered 22.88 years, as well as by the Applicant who considers seniority of 25.78 years.
i) The Applicant was a member of the Union of Bankers of the South and Islands during the period from 29/06/1987 to 30/06/2013, as evidenced by a declaration issued by said union and attached to the request for arbitral pronouncement as document no. 8. In this regard, it should be noted that the Respondent states in its response that the Applicant did not prove his affiliation with the Union of Bankers of the South and Islands. However, such proof was provided through the submission to the record of a declaration issued by the above-mentioned Union. In this measure, as the falsity of the document has not been challenged, this fact must necessarily be established as proven.
j) Following an inspection procedure conducted at D…, pursuant to Service Order no. OI2016…, issued in the Finance Department of Lisbon, covering the tax year 2013, irregularities were detected, specifically in the payment of compensation, in the context of Personal Income Tax (IRS).
k) In the course of said inspection, an inspection report was prepared by the SIT, who concluded that the Applicant received compensation as a result of termination of an employment contract, having, for purposes of calculating the part subject to IRS, considered the seniority of all time of service rendered in banking activity and not the time of service rendered with the employing entity, as was the understanding of the services.
l) In light of the above, on 29/02/2016, by letter no. …, the SIT notified the Applicant to, within 15 days, replace the 2013 income tax return, adding the portion of compensation that was not declared in the amount of €19,122.61:
m) The Applicant submitted a response to this letter on 10/03/2016, arguing summarily that seniority could not be limited to the time of service rendered at that Bank, but to banking activity provided at other credit institutions, whereby there would be no need to replace the 2013 IRS return.
n) The SIT prepared the draft corrections to the inspection report, defending a position contrary to the Applicant, this draft being notified to the Applicant on 29/08/2016, to exercise the Right of Hearing, in accordance with the provisions of article 60th of the LGT and article 60th of the RCIPTA.
o) The Applicant exercised the right of hearing on 06/09/2016, in which he maintained the same position.
p) The Respondent issued the Final Inspection Report, and the Applicant was notified of the corrections resulting from said report on 04/01/2017.
q) On 21/02/2017, the Applicant paid the amount of €9,953.16.
r) However, not conforming with the additional IRS assessment, the Applicant filed the present Request for Arbitral Pronouncement.
B. Facts Not Established as Proven
37. There are no other facts with relevance for the decision that have not been established as proven.
C. Basis for the Factual Matters Proven and Not Proven
38. The Tribunal's conviction concerning the facts established as proven resulted from the entire examination of the documents submitted to the record, as well as from the consideration of the contents of the pleadings and the administrative file.
V. MATTERS OF LAW
On the Concept of Seniority for Purposes of the Provision of No. 4 of Article 2nd of the IRS Code
Article 2nd of the IRS Code, under the heading "Income of Category A" (version in force in 2013[2]), provided as follows:
ARTICLE 2ND
(Income of Category A)
"(…) 4 - When, in any form, the contracts underlying the situations referred to in sub-paragraphs a), b) and c) of no. 1 cease, but without prejudice to the provision of sub-paragraph d) of the same number, with respect to payments that continue to be owed even if the employment contract does not subsist, (…), the amounts received, under any title, remain always subject to taxation:
a) (…);
b) In the part that exceeds the value corresponding to the average of regular compensation with the character of remuneration subject to tax, received in the last 12 months, multiplied by the number of years or fraction of seniority or performance of functions with the paying entity, in other cases, except when in the 24 months following a new professional or business relationship is created, regardless of its nature, with the same entity, in which case the amounts shall be taxed in full." (bold ours)
The limit of non-taxation is thus the value corresponding to one and a half times the average of regular compensation with the character of remuneration subject to tax, received in the last 12 months, multiplied by the number of years or fraction of seniority or performance of functions with the paying entity, with the excess being taxed according to general rules.
Regarding the ratio legis underlying this rule, "As Rui Duarte Morais emphasizes (Op. cited, page 54.), the legislator's intention reveals here a dual motivation: first, to take into account the fact that the compensation amount will be necessary for the worker to ensure his subsistence during the unemployment period that, in most cases, will follow. On the other hand, it will take into account that the receipt of such a sum, generally relatively substantial, will have a triggering effect on the tax rate: the income obtained in that year will be exceptionally high, as it will be taxed at high rates given the progressivity of the tax. And because this non-taxation of compensation was susceptible to fraud through the manipulation of legal forms by taxpayers (termination of contracts by workers in exchange for non-taxable compensation, who then became service providers of their former employing entity, or, for example, dismissal, receiving non-taxable compensation and subsequent conclusion of a new contract with another company of the same group) the legislator introduced anti-abuse clauses of which those contained in nos. 4 and 10 of art. 2 are examples, and whose application is questioned in the present recourse."[3]
Whereby, in the case at hand, of termination of the employment contract by mutual agreement between the Applicant and the employing entity, taxation under IRS can only fall on the amount of compensation received that exceeds the average remuneration subject to tax, received in the last 12 months, multiplied by the number of years or fraction of seniority.
The parties do not diverge up to this point, with the concept of seniority provided for in sub-paragraph b) of no. 4 of article 2nd of the IRS Code being the point of disagreement, given that the Applicant intends that all years of service with banking institutions be considered, under the provision of clause 17th of the ACT[4], in the total of 25.78 years, while the Respondent intends that only the years of service with the banking institution with which the agreement for termination of the employment contract was concluded be considered, that is, 22.88 years.
The controversial question is, then, what is the concept of seniority relevant for purposes of calculating the compensation for termination of the employment contract, not subject to taxation under the provision of sub-paragraph b) of no. 4 of article 2nd of the IRS Code.
In the absence of definitions in the IRS Code or in other tax rules, it will be necessary to analyze and interpret the applicable legal rules, considering the general rules and principles for interpretation of laws, specifically article 9th of the Civil Code (CC), as well as the specific rules for interpretation of tax laws provided for in nos. 2 to 4 of article 11th of the LGT.
Thus, being a term specific to another branch of law – in this case labor law – recourse shall be had to the definitions contained in the Labor Code[5].
However, it so happens that the Labor Code does not contain a definition of "seniority".
According to doctrine, there are various references to the seniority of the worker from which it is extracted as being the most current expression of "measure of the duration of the labor situation that, paradigmatically involves a worker and an employer", reduced to the expression "seniority in the company"[6], admitting that the Labor Code itself handles more dimensions of the concept, such as "seniority in the position", "seniority in the professional category", and that other statutes and collective agreements still add other meanings and counting rules.
The case law of the superior courts has understood that the concept of seniority may result from other sources of labor law, as follows.
In a 2004 judgment, the TCAS decided that "(…)Hence, although a worker cannot have the seniority that the company arbitrarily wishes to grant him, but only and exclusively the seniority that effectively results from the time during which he has been performing a function, nothing prevents that in counting that time the time of service and the category already achieved in another or other employing entities be taken into account, so that the worker is admitted without prejudice to his seniority in the profession, as that is not prohibited either by the rules referred to in no. 1 of art. 12 of the LCT nor by the principles of good faith, and is even sometimes attended to in the practices of the profession of work and businesses. For that reason, instruments of collective regulation not infrequently confer protection to a broader and thus more favorable seniority than seniority in the company. This is what happens, for example, with the situation contemplated in Clause 13th of the CCT applicable to the Sector of Official Customs Brokers, published in the BTE no. 44, of 29.11.78.2 where it is stipulated that "In the admission of any worker the type of service and the category already achieved in another or other employing entities shall be taken into account, the worker not being able to be admitted with prejudice to his seniority...", and that the establishment of a seniority prior to that of admission in the company may be obtained either by law (art. 37 of the LCT for example), or by individual employment contract, or by collective employment contract.(…)"[7]
In the 2010 TCAS judgment it was understood that "(…), we must then resort to the instruments of collective regulation applicable in the banking sector in question, where the term seniority of the worker is defined and established in labor law, by force of those rules of the RJCIT and the LCCT that attribute such relevance to them, first, according to this latter statute, from sources of labor law, where such seniority is shown to be defined, as being that corresponding to that which the worker holds for all the time of service provided in Portugal in credit institutions with activity in Portuguese territory, clauses 16th, sub-paragraph a) of the ACTV published in the BTE, 1st Series no. 28, of 29/7/1986 and 17th of the ACTV published in the BTE, 1st Series no. 31, of 22/8/1999, as the appellant does not challenge in this part, whereby seniority must be effectively this one reported to May 1988, not only by the time provided in this latter employing entity, as the appellant intends, since it is also not challenged that he worked in the respective sector of activity, at least since May 1988, as appears in the factual matters proven in sub-paragraph A) of the factual matters fixed in the evidentiary portion of the judgment appealed, by reference to the doc. contained in fls 30 to 32 of the record, which the Honorable DG, in his position, contained in fls 79 of the record, did not contest, since it is also not proven that this was not the concept of seniority for this purpose, which the legislator of the CIRS wished to cast in the rule of the cited art. 2nd, no.4, cited. (…)"[8]
More recently, in the 2013 TCAS judgment, it is concluded that"(…), the controversial question is based on the problem of determining which seniority should be taken into account in the event that a seniority prior to admission in the company has been established between the employing entity and the worker, and it is necessary, before all else, to clarify that, as seems unanimous in labor law, there are three sources that may establish such seniority, namely (having as backdrop the principle of freedom of contract - cfr.art. 405, of the C.Civil):
1-The law;
2-The Individual Employment Contract;
3-The Instruments of Collective Labor Regulation.
Not resulting from the rule under examination (cfr.art. 2, no. 4, of the C.I.R.S.) that the concept of seniority refers restrictively to the time of service with the entity owing the compensation for termination of the employment contract, and nothing justifying a restrictive interpretation of the incidence rule, the broader notion of seniority arising from labor law should be accepted for the calculation of the amount subject to taxation under I.R.S. (cfr.ac.T.C.A.South, 11/5/2004, proc.6002/01; ac.T.C.A.South, 21/9/2010, proc.3748/10).(…)"[9]
In light of the above, as the Labor Code does not produce a concept of seniority, recourse may be had to other sources of labor law, more precisely to instruments of collective regulation, of which the ACT of the Banking Sector is part.
The aforementioned ACT establishes in clause 2nd the following:
"This Collective Labor Agreement is applicable throughout the national territory, within the banking sector, and binds the Credit Institutions and Financial Companies that subscribe to it (hereinafter generically referred to as Credit Institutions or Institutions), as well as all workers in their service affiliated with the Unions of Bankers of the Center, North and South and Islands, represented by the signatory FEBASE – Federation of the Financial Sector and hereinafter referred to as Unions, covering 26 employers and with an estimated 54,300 workers covered.(…)" (bold ours).
Now, as no Extension Order (article 514th of the Labor Code)[10] was issued for said ACT to be applicable to the case at hand, it was necessary that the credit institution be a subscriber to the said Agreement and that the worker in question be affiliated with one of the said unions.
In this sense, see the arbitral decision cited by the Respondent, issued in the course of process no. 616/2015-T, according to which "(…) with respect to the application of collective agreements, the basic delimiting rule consists in the so-called "principle of dual affiliation" (cfr. Art. 496th of the Labor Code) which establishes, in short, that instruments of collective labor regulation apply only to workers affiliated with a union association that, directly or indirectly, has undertaken in collective bargaining and that provide work for an employing entity that has also been party to the same collective bargaining. Thus it is necessary, on the one hand, that the employer be a member of the employers' association signatory or have been itself a signatory and, on the other hand, that the worker be affiliated with a signatory union. For that reason, in the case at hand, the ACT applies only to workers who are affiliated with the unions that are signatories thereto, the remaining workers not being covered by its scope of application." (bold ours)
Thus, as D… is one of the signatories to the ACT and the Applicant having proven his affiliation with the Union of Bankers of the South and Islands, as evidenced by document no. 8 submitted to the record, the requirement of dual affiliation set out above is satisfied.
Continuing with the analysis, the ACT for the banking sector provides in clause 17th that "the seniority of the worker shall be determined by counting the time of service provided as follows: a) All years of service, provided in Portugal, in credit institutions with activity in Portuguese territory;(…)".
However, D… subscribed to the ACT for the banking sector and signatory to a revision thereof dated 2011, with the following caveat (see page 1876 of the Official Gazette of Labor and Employment no. 20 of 29/05/2011): "In counting the time of service for any purposes arising from the ACT, only the time of service provided to institutions signing this caveat shall be counted, plus possibly the time of service provided to other institutions or companies, but in this case, only if it results from an individual agreement between those and the worker."
In light of the above, in order for the concept of seniority established in clause 17th of the ACT to be relevant for purposes of calculating article 2nd no. 4 of the IRS Code, it would still be necessary to have the existence of an individual agreement between the Applicant and D…
The individual employment contract concluded between the Applicant and D… did not establish any rule regarding the seniority of the worker.
However, in clause fifteen of the agreement for termination of the employment contract, the Applicant and D… established the following: "both Signatories recognize their agreement in determining the seniority of the Employee by counting the time of service in banking entities indicated in the said clause [17th] of the ACT". (bold ours)
From the caveat made by D… it does not follow the form that the individual agreement should take, nor the date on which such agreement should be concluded, nor the possibility of limiting the effects of such seniority. It merely establishes the possibility of application of the rule provided for in Clause 17th of the ACT by individual agreement, that is, with each of its workers.
That is, from the caveat made to the ACT it only follows that there should be a manifestation of will by D… and the employee so that such rule provided for in Clause 17th of the ACT binds the parties.
It follows from the above that D… and the Applicant recognized in the agreement for termination of the employment contract their agreement in determining seniority by reference to Clause 17th of the ACT.
On the other hand, the validity of this agreement for termination of the employment contract was not challenged by the Respondent.
Thus, it cannot but be concluded that, as there is no express limitation by D… in the caveat appended to the ACT regarding the form, the moment, and the effects that such individual agreement should assume, this manifestation of will by the parties, occurring still within the scope of the labor relationship, should be relevant for purposes of applying Clause 17th of the ACT.
It is recalled that, had D… not appended this caveat to the application of the ACT, all conditions for applying Clause 17th to the Applicant would have been met.
In that measure, the missing condition for application of Clause 17th of the ACT is verified, for purposes of counting the Applicant's seniority, that is, the individual agreement referred to in the caveat appended by D… to the ACT.
It is considered that such individual agreement could be formalized in the agreement for termination of the employment contract, given that it is a contractual instrument concluded between the parties, whose validity was not disputed.
In this regard, it is acknowledged that there are CAAD decisions that point toward the disregard of the agreement for termination of the employment contract as a manifestation of individual agreement, a prerequisite for the application of Clause 17th ACT: "(…)"It is thus necessary to determine which of the agreements is the relevant one for the examination at hand, a circumstance all the more relevant when, as also appears from the Record, the relevance attributed to seniority in the sector is different in this case depending on the agreement being analyzed. Indeed, while in the employment contract (2007) there is a definitive and exhaustive limitation of the extent of the relevance of the concept of seniority in the sector (that is, there is a clear negative limitation of such extension), already in the termination agreement (2013), and precisely regarding the value of the compensation, the seniority of the sector is effectively considered. Now, in this regard, we follow very closely the pronouncement of Carla Trindade in process 616/2015 T, a case with contours analogous to the present, to the effect that 'it should not be said that the concept of seniority that includes the provision of services in other employing entities arises […] from the Agreement for Termination as this cannot be considered as an addendum to the Individual Employment Contract in which, as has been seen, not even this seniority is recognized for purposes of calculating compensation for termination of contract. All the more so as the agreement for termination of the employment contract is precisely the extinguishing contract of the labor relationship, which does not aim to establish conditions regarding the execution of the labor relationship but rather its termination'. We continue to cite making express reference to said decision, when this endorses that 'not resulting either from the Individual Employment Contract concluded between the Applicant and Bank B..., nor from the ACT the seniority of the Applicant in the previous employing entities, the only seniority to be considered in calculating compensation for termination of contract shall be the Applicant's seniority in the B… . This is the only one to which the paying entity was obliged to pay under the terms of the labor-law rules'(…) [11] [12].
However, in light of all the above, as neither the Labor Code nor the individual employment contract concluded between the worker and D… produces a definition of seniority, being D… and the worker bound by the ACT and having there been an express and individualized manifestation of adherence to the definition of seniority contained in clause 17th of the ACT, the same should be relevant for purposes of the provision of sub-paragraph b) of no. 4 of article 2nd of the IRS Code.
Thus, it is concluded that the concept of seniority relevant for purposes of calculating the amount of compensation for agreement to terminate the employment contract not subject to IRS under the provision of sub-paragraph b) of no. 4 of article 2nd of the IRS Code should result from Clause 17th of the ACT, that is, seniority with respect to the time of service rendered by the worker to other credit institutions and not seniority before the paying entity, in as much as all conditions for application of said ACT to the Applicant are verified.
Thus being, the request for arbitral pronouncement should proceed, with the consequent partial annulment of the assessment act in question.
On the Right to Compensatory Interest
With regard to the claim formulated by the Applicant for compensatory interest, note the provision of article 43rd of the General Tax Law ("LGT"):
"1 – Compensatory interest is due when it is determined, in a gracious claim or judicial challenge, that there was an error imputable to the services resulting in payment of the tax debt in an amount greater than that legally due."
Indeed, pursuant to article 100th of the LGT: "The tax administration is obliged, in case of total or partial success of claims or administrative appeals, or of judicial proceedings in favor of the taxpayer, to immediate and full restoration of the situation that would exist if the illegality had not been committed, including the payment of compensatory interest, under the terms and conditions provided by law".
Article 61st of the CPPT further provides that:
"(…) 2 - In case of judicial annulment of the tax act, it is incumbent upon the entity executing the judicial decision from which such right results to determine the payment of the compensatory interest to which it is entitled.
3 - Compensatory interest shall be assessed and paid within 90 days counted from the decision that recognized the respective right or from the day following the term of the legal period for spontaneous reimbursement of the tax.
4 - If the decision that recognized the right to compensatory interest is judicial, the payment period is counted from the beginning of the period for its spontaneous execution.
5 - Interest is counted from the date of undue payment of the tax until the date of processing of the respective credit note, in which they are included. (…)"
In turn, pursuant to no. 5 of article 24th of the RJAT, it is stated that "Payment of interest, regardless of its nature, is due, under the terms provided in the General Tax Law and in the Code of Procedure and Tax Process", thus establishing the recognition of the right to compensatory interest in the arbitral process.
Whereby, the Applicant will have the right to compensatory interest, in accordance with the rules cited above, calculated on the amount paid unduly, at the rate of legal interest[13] provided for in article 559th of the Civil Code (no. 10 of article 35th by reference to no. 4 of article 43rd both of the LGT)
Compensatory interest shall be due from the date of undue payment of the additional IRS assessment until the execution of this arbitral decision.
Thus being, in addition to the reimbursement of IRS assessed in excess, the Respondent must assess compensatory interest to the Applicant.
VI. DECISION
In such terms this arbitral tribunal decides:
1. Rules that the arbitral claim is well-founded, partially annulling the act of additional assessment of Personal Income Tax (IRS) for the year 2013, with no. 2017…, in the amount of € 3,661.80 and statement showing adjustment of accounts with number 2017… in the amount of € 9,953.16.
2. Rules that the claim for compensatory interest is well-founded; and,
3. Condemns the Respondent in costs.
VII. VALUE OF THE CLAIM
In accordance with the provisions of no. 1 and no. 2 of article 306th of the CPC and of sub-paragraph a) of no. 1 and no. 2 of article 97-A of the CPPT, applicable by force of sub-paragraphs a) and b) of no. 1 of article 29th of the RJAT and of no. 2 of article 3rd of the Regulation of Costs in Tax Arbitration Proceedings (RCPTA), the value of the claim is fixed at € 9,953.16 (nine thousand nine hundred and fifty-three euros and sixteen cents).
VIII. COSTS
Pursuant to no. 2 of article 12th and no. 4 of article 22nd, both of the RJAT, and to no. 4 of article 4th of the cited Regulation, the value of the arbitration fee is fixed at € 918.00 (nine hundred and eighteen euros), in accordance with Table I of the RCPTA, to be paid by the Respondent.
Let this arbitral decision be notified to the parties.
Lisbon, December 22, 2017
The Sole Arbitrator,
(Vera Figueiredo)
Text prepared by computer, in accordance with no. 5 of article 131 of the Code of Civil Procedure, applicable by reference of sub-paragraph e) of no. 1 of article 29th of the RJAT, written according to the spelling of the Portuguese Language Orthographic Agreement, approved by Resolution of the Assembly of the Republic no. 26/91 and ratified by Decree of the President of the Republic no. 43/91, both of August 23rd.
[1] Collective agreement between various credit institutions and FEBASE – Federation of the Financial Sector, published in the Official Gazette of Labor and Employment no. 20 of 29/05/2011, with the amendment published in the Official Gazette of Labor and Employment no. 8 of 29/02/2012.
[2] Wording given by Law no. 64-B/2011, of December 30th.
[3] Judgment of the STA in appeal no. 0517/16, of 23/11/2016, available at www.dgsi.pt
[4] ACT of the Banking Sector, better identified above.
[5] Approved by Law 7/2009, of February 12th and subsequent amendments, in the version in force at the date of the facts, e.g., that of Law no. 69/2013 of August 30th.
[6] See Annotation to the Judgment of the Central Administrative Court of the South on seniority of the banking worker (for purposes of calculating the amount of compensation for termination of employment contract not subject to taxation, under the terms of no. 4 of article 2nd of the IRS Code), by Cláudia Reis Duarte and Filipe Fraústo da Silva, in Review of the Bar Association, no. 1, 2012.
[7] Judgment of the TCAS in process no. 06002/01, dated 11/05/2004 available at www.dgsi.pt
[8] Judgment of the TCAS in process no. 03748/10, dated 21/09/2010, available at www.dgsi.pt
[9] Judgment of the TCAS in process no. 05974/12, of 12/03/2013, available at www.dgsi.pt
[10] Judgment of the STJ in process no. 161/15.4T8VRL.G1.S1, of 09.03.2017, available at www.dgsi.pt
[11] Arbitral decision in Process no. 126/2017 of 19/10/2017, available at www.caad.org.pt
[12] In the same sense as the cited judgment, the Arbitral Decision in Process no. 616/2015 of 2/05/2016, available at www.caad.org.pt
[13] Rate of legal interest currently provided for in Ordinance no. 291/2003, of April 8th.
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