CAAD Arbitration on Stamp Tax (Imposto do Selo) Under Verba 28.1 TGIS for Real Estate Investment Fund – Process 296/2018-T

Arbitral Award

I – Report

A... – REAL ESTATE INVESTMENT FUND MANAGEMENT COMPANY S.A. (hereinafter, "Claimant"), with the NIPC..., with registered office at ..., ..., n.º .../..., ..., ...-... Porto, presented, in its capacity as fund manager and in representation of B... – CLOSED REAL ESTATE INVESTMENT FUND, with the NIF..., on 22-06-2018, a request for constitution of a Collective Arbitral Tribunal, pursuant to the combined provisions of articles 2nd and 10th of Decree-Law no. 10/2011, of 20 January (Legal Regime of Arbitration in Tax Matters, hereinafter "LRAT"), in which the Tax and Customs Authority (hereinafter "TCA" or "Respondent") is the respondent party.

The Claimant hereby requests, in cumulation of claims, arbitral pronouncement on the illegality of the implicit dismissal of the request for ex officio review within the framework of the administrative procedure of ex officio review no. ...2018..., and consequent annulment, of the tax assessments under the Stamp Duty (hereinafter "SD") pursuant to article 1st, no. 1 of the Stamp Duty Code (hereinafter, "SDC") and Item 28.1 of the General Table of Stamp Duty (hereinafter "GTSD"), relating to the property with article ..., located in the parish of ..., municipality and district of Lisbon of which the Claimant was then the owner, and formalized in the assessments nos. 2015..., no. 2015..., no. 2015..., no. 2016..., no. 2016 ... and no. 2016..., in the total amount of €183,117.12.

Pursuant to the provisions of article 6th, no. 2, subparagraph a) and article 11th, no. 1, subparagraph b) of the LRAT, as amended by article 228th of Law no. 66-B/2012, of 31 December, the Deontological Council designated the arbitrators of the Collective Arbitral Tribunal, who communicated acceptance of their appointment within the applicable period, and notified the parties of such designation on 09-08-2018.

The Collective Arbitral Tribunal was constituted on 30-08-2018; it was duly constituted and is materially competent, in accordance with the provisions of articles 2nd, no. 1, subparagraph a), 5th, 6th, no. 1, and 11th, no. 1, of the LRAT (as amended by article 228th of Law no. 66-B/2012, of 31 December).

Pursuant to article 17th, nos. 1 and 2 of the LRAT, the TCA was notified on 31-08-2018 to submit its reply.

The TCA submitted its Reply on 03-10-2018.

In that reply, the TCA contends, in summary, for the complete dismissal of the Claimant's claim.

The Arbitral Order of 06-10-2018 dispensed with the holding of the meeting alluded to in article 18th of the LRAT, and gave the parties the opportunity to submit written submissions, which they did, pronouncing themselves on the evidence produced and reiterating and developing their respective legal positions.

The proceedings are not affected by nullities and no further preliminary or subsequent questions prejudicial or of exception remain that would prevent the examination of the merits of the case, with all conditions being met for final judgment to be rendered.

The TCA proceeded with the designation of its representatives in the proceedings and the Claimant filed a power of attorney, thus ensuring that the Parties are duly represented.

The Parties have legal personality and capacity and have legitimacy, pursuant to articles 4th and 10th, no. 2, of the LRAT and article 1st of Order no. 112-A/2011, of 22 March.

II – Justification: the Facts

II.A. Facts considered proven and with relevance to the decision

B... – CLOSED REAL ESTATE INVESTMENT FUND (hereinafter, "Fund") is a closed real estate investment fund managed by the Claimant.

The Claimant, in the exercise of its activity, acquires real estate on behalf of real estate investment funds managed by it, which are incorporated into the assets of the latter.

The "Fund" is, and was in 2014 and 2015, the owner of the urban property ("land for construction") with article ..., of the parish of ..., municipality and district of Lisbon.

The property with article ... is registered in the cadastre as "land for construction."

The aforementioned property had, in 2014 and 2015, a taxable property value of €9,155,855.98.

The "Fund" was notified of the following assessments relating to the years 2014 and 2015 (and corresponding to the division of SD into three installments):

In the Property Register of the property in question, there was recorded in 2014 and 2015 the item "Type of Location Coefficient: Residential."

In the "Property Valuation Data" in the cadastre of the property there was recorded in 2014 and 2015 the item "Use: Residential."

The urban property in question corresponds to a plot of land included in the Municipal Subdivision .../.../07, which authorized the construction of a building intended for residential and commercial use, with 12 floors, 10 above ground and 2 below ground, and with an implantation area of 2,700m2.

The assessments resulted from the application of article 1st, 1 of the SDC, combined with item 28.1 of the GTSD and article 6th of Law no. 55-A/2012, of 29 October.

The "Fund" proceeded with payment of the SD assessments.

The Claimant filed a request for ex officio review no. ...2018..., pursuant to article 78th of the General Tax Law, on 15-12-2017, on the grounds of violation of law, due to errors in the factual and legal assumptions.

The Claimant was not, until the date of presentation of the arbitral petition, notified of any decision within the framework of the ex officio review procedure.

II.B. Facts considered not proven

None.

II.C – Justification of proven and unproven facts

With regard to the factual matter, the Tribunal does not need to rule on everything that was alleged by the parties; rather, it has the duty to select the facts that are important for the decision and distinguish the proven facts from the unproven ones (see article 123rd, no. 2, of the Code of Tax Procedure and article 607th, no. 3 of the Code of Civil Procedure, applicable pursuant to article 29th, no. 1, subparagraphs a) and e), of the LRAT).

In this manner, the relevant facts for the judgment of the case are chosen and delineated in accordance with their legal relevance, which is established in light of the various plausible solutions to the question(s) of law (see former article 511th, no. 1, of the Code of Civil Procedure, corresponding to current article 596th, applicable pursuant to article 29th, no. 1, subparagraph e), of the LRAT).

Thus, taking into account the positions assumed by the parties, in light of article 110th/7 of the Code of Tax Procedure, the documentary evidence and the administrative procedure file attached to the proceedings, the facts listed above were considered proven, with relevance to the decision.

In particular, the facts stated in points 7) to 9) of the factual matter result from the documentation submitted by the Respondent.

III – Justification: the Law

III.A. Position of the Claimant

The Claimant begins by arguing that the objective scope of item 28.1 of the GTSD cannot encompass properties that, while registered in the cadastre as "land for construction," cannot be subsumed within the concept of "properties with residential use," the concept that comprises the legal provision.

Analyzing the context of the introduction of item 28 of the GTSD, the Claimant emphasizes that, even after the amendments introduced by Law no. 83-C/2013, of 31 December, which entered into force on 1 January 2014, taxation continues to be limited to situations in which an actual building has been authorized or contemplated on the land, and such building is intended for "residential use."

Thus, the Claimant contends, it will not be sufficient that the mere cadastral registration of a property identifies it as "land for construction," being additionally necessary that, case by case and concretely, it be determined whether its use for "residential purposes" is contemplated or authorized, which will require that the entire administrative process associated with the construction has been successfully promoted and that there exists a valid building license/authorization and an approved project.

Since the right to build is not inherent in the right of ownership, it is necessary that the aforementioned license or authorization documentation exist and be valid in order to conclude that there is in fact "land for construction" susceptible of being subsumed within the provision of item 28.1 of the GTSD; that is, that on the land there has been concretely contemplated or authorized a building intended or planned for residential use – it not being sufficient that such building remains at the level of possibilities, and merely one of the possibilities, of use of the land.

The Claimant contends that the property in question did not have, in 2014 and 2015, a building authorized or contemplated for residential use, with the assessment being based solely on the mere content of the registration of such lands in the respective cadastre, and therefore concludes that the SD assessment was illegal due to errors in the factual and legal assumptions.

The Claimant further notes, with regard to the "ratio legis" of item 28.1 of the GTSD (to introduce a "solidarity tax" borne by "taxpaying capacities" above average), that subsidiary to its main argument, the ownership of that property does not represent an increased taxpaying capacity, since such properties are used by the Claimant in the context of its habitual activity.

Also subsidiary, and for purposes of application of article 204th of the Constitution, the Claimant contends the unconstitutionality of item 28.1 of the GTSD when applied to "land for construction," on the grounds that it violates both the principle of equality and the principle of fiscal equality and taxpaying capacity, respectively provided in articles 13th and 104th, 3 of the Constitution, with direct corollaries in norms such as articles 5th and 55th of the General Tax Law, constituting further a double taxation of the same tax fact.

Specifically, the Claimant alleges that item 28.1 of the GTSD unjustifiably discriminates against residential use, within the possible uses of high-value real estate assets, and against the concentration of real estate assets in favor of their dispersal – and unjustifiably discriminates because it introduces inequalities not based on the exclusive consideration of taxpaying capacity.

The Claimant considers that item 28.1 of the GTSD is further unconstitutional inasmuch as it determines the double taxation of ownership of real property rights of some – and only some – taxpayers, inasmuch as it makes SD fall upon realities already taxed under IMI (Real Estate Tax).

Furthermore, the Claimant considers that the principle of equality is breached by item 28.1 of the GTSD inasmuch as it directs attention to the taxable property value of the lands, disregarding the taxable property value of the dwellings that may actually be built on such lands.

On the other hand, the Claimant draws attention to the fact that the jurisprudence of the Constitutional Court, which ruled on the non-unconstitutionality of the norm contained in item 28.1 of the GTSD, relates exclusively to "residential properties," and is therefore not applicable to the case "sub iudice," in which mere "land for construction" is at issue – a situation which the Claimant considers to be entirely distinct, again because, prior to a procedural specification via administrative means, land for construction cannot correspond to "residential use" thereon authorized or contemplated.

The Claimant alleges to have fully paid the amounts assessed and therefore requests reimbursement and the award of compensatory interest, due to the fact that such payment was undue and an error attributable to the services is identifiable, pursuant to article 24th, 1, b), and 5, of the LRAT, articles 43rd and 100th of the General Tax Law and article 61st of the Code of Tax Procedure.

III.B. Position of the Respondent

In its Reply, the Respondent alleges that the contested assessments are legal and that there has been no error by the services in subjecting the property in question to the norm of Item 28.1 of the GTSD.

The Respondent contends that the evidence it submitted for the arbitral proceedings, specifically the property register, the valuation form, and the IMI Model 1 Declaration, relating to the property in question, prove that this is a property with residential use.

The Respondent recalls that the Claimant, as a taxpayer, never challenged those certificates and/or evaluations through the procedural and/or legal means available to it, which established that those properties were land for construction with residential use with a taxable property value equal to or greater than €1,000,000.00.

Regarding the questions of unconstitutionality of item 28.1 of the GTSD, the Respondent states that the Constitutional Court Award no. 250/2017, cited by the Claimant as jurisprudence favorable to its thesis, was subject to appeal to the Plenary of the Constitutional Court, with the Plenary Award no. 378/2018 being issued, which decided not to declare unconstitutional the norm contained in Item 28.1 of the GTSD, in the part that imposes annual taxation on the ownership of land for construction whose authorized or contemplated building is for residential use, whose taxable property value is equal to or greater than €1,000,000.00.

The Respondent thus understands that item 28.1 of the GTSD does not incur any arbitrariness or in any way violates the principle of equality in tax matters in the aspect of taxpaying capacity.

III.C. Issues to be decided

III.C.1 – On the merits of the case

The only issue to be decided in the present arbitral proceedings concerns the application of item 28.1 of the table attached to the SDC (General Table of Stamp Duty) to the urban property ("land for construction") with article ..., of the parish of ..., municipality and district of Lisbon.

Thus, what is at issue is the definition of the scope of item no. 28.1 of the GTSD, as amended by Law no. 83-C/2013, of 31 December, more specifically to determine whether the land for construction at issue in the present proceedings can be subsumed within the concept of "land for construction whose authorized or contemplated building is for residential use, in accordance with the provisions of the Real Estate Tax Code" to which the aforementioned item refers, taking into account that the taxable property value is greater than €1,000,000.00.

The issue arises due to the taxation under stamp duty of the ownership, usufruct, or right of superficies of urban properties whose taxable property value, contained in the cadastre, is equal to or greater than €1,000,000, in which case tax is due at the rate of 1%, on the taxable property value used for IMI purposes, per property with residential use.

This is not a new issue, having been the subject of review both in arbitral jurisdiction and in the jurisprudence of the Supreme Administrative Court; and that, within the scope of the SDC as amended by Law no. 55-A/2012, of 29 October, decisions were always rendered contrary to what was sought by the Tax Authority[1].

The situation sub iudice, however, occurs within a differentiated legal framework, in that the facts should be assessed in light of the amended SDC introduced by the State Budget for 2014, Law no. 83-C/2013, of 31 December (article 194th, under the heading - Amendment to the General Table of Stamp Duty), pursuant to which item 28.1 of the General Table of Stamp Duty, annexed to the Code of Stamp Duty, approved by Law no. 150/99, of 11 September, was amended to have the following wording:

"28.1 — Per residential property or per land for construction whose authorized or contemplated building is for residential use, in accordance with the provisions of the Real Estate Tax Code — 1%."

Within this new legal framework, decisions have already been rendered in arbitral proceedings, equally contrary to what was contended by the TCA[2].

The aforementioned jurisprudence is based on the understanding that the following should be considered as fulfilling the presuppositions of the new item 28.1 of the GTSD:

"with regard to land for construction, whether or not located within an urban agglomeration, as defined in article 3rd/4 of this statute [Real Estate Tax Code], the following should be considered as such: lands to which has been granted: - license for subdivision operation; - building license; - authorization for subdivision operation; - building authorization; - admitted favorable prior communication of subdivision or building operation; issued favorable prior information of subdivision or building operation, as well as; - those that have been declared as such in the acquisition deed, it being necessary to note that, also for that purpose, only the acquisition deed with the form prescribed by civil law should be relevant, namely the public deed or the authenticated private document referred to in article 875th of the Civil Code."[3]

Also in the award rendered in the arbitral proceedings 142/2016T, already cited, which equally concluded in favor of the claim presented there, the following can be read:

"There is no indication in these provisions of the GTSD and the Real Estate Tax Code of what should be understood by 'contemplated building,' but, taking into account the documents required to be presented for the valuation of land for construction, indicated in article 37th, no. 3, of the Real Estate Tax Code, it is concluded that one can only speak of authorized or contemplated construction when the 'building to be constructed,' to which article 45th, no. 1 refers, is defined in a subdivision permit or building license permit, or approved project, or prior communication, or favorable prior information or document proving constructive viability."

There is full agreement here with the understanding of the aforementioned awards, as to what, in light of the new wording of the SDC, should be understood by "land for construction whose authorized or contemplated building is for residential use, in accordance with the provisions of the Real Estate Tax Code."

In fact, in accordance with the Real Estate Tax Code, land for construction, which, in accordance with article 6th/1/c) of such Code, constitutes a type of urban property, may have residential use, as results from article 41st, also of the Real Estate Tax Code, use that, as results, furthermore expressly from article 45th/5 of the Real Estate Tax Code, will be determined on the basis of the elements referred to in article 37th of the same Code, which in no. 3 of this article states:

"With regard to land for construction, a photocopy of the subdivision permit must be presented, which must be replaced, if no subdivision exists, by a photocopy of the building license permit, approved project, prior communication, favorable prior information or document proving constructive viability."

The reference in item 28.1 of the GTSD under analysis should thus be read as referring to the substantive content of what, in light of the Real Estate Tax Code, is "land for construction whose authorized or contemplated building is for residential use," not being sufficient merely the formality of the TCA – rightly or wrongly – having, in application of the norms of that Code, qualified for cadastral purposes a particular property as having that use, since if that were the intention of the legislator, within the presumption of reasonableness underlying it, it would certainly have used the expression "land whose location coefficient type used for determining the taxable property value is residential," or another, analogous one.

It is thus concluded here, as in the jurisprudence cited above, that the following should be considered as "land for construction whose authorized or contemplated building is for residential use, in accordance with the provisions of the Real Estate Tax Code": lands in which the 'building to be constructed' is defined as intended for residential use in a subdivision permit or building license permit, or approved project, or prior communication, or favorable prior information or document proving constructive viability.

This same understanding was recently ratified by the Supreme Administrative Court in its Award of 28-11-2018, rendered in proceedings 0829/15.5BELLE 01065/16, where the following can be read, among other things:

"Thus, with regard to land for construction, whether or not located within an urban agglomeration, in accordance with article 6th, no. 3 of the Real Estate Tax Code, lands to which the following has been granted should be considered as such: - license for subdivision operation; - building license; - authorization for subdivision operation; - building authorization; - admitted favorable prior communication of subdivision or building operation; issued favorable prior information of subdivision or building operation, as well as those that have been declared as such in the acquisition deed."

Now, in the present case, it was proven that there existed, as of the date of the tax fact, a municipal subdivision permit relating to the property at issue, which authorized the construction of a building with 10 floors above ground and 2 floors below ground, with a gross implantation area above ground of 17,336.98m2, of which 14,596.56m2 is intended for residential use and the remaining 2,740.42m2 is intended for commercial use.

Thus, there remain no doubts that the 'building to be constructed' on the land in question is defined in a subdivision permit as having the purpose of residential and commercial use.

Recall the wording of Item 28.1 of the GTSD in force as of the date of the facts, which provided as follows: "28.1 — Per residential property or per land for construction whose authorized or contemplated building is for residential use, in accordance with the provisions of the Real Estate Tax Code — 1%." From this, it is immediately concluded that, with the land having a taxable property value of €9,224,524.90, the objective scope of the tax is satisfied.

However, it was demonstrated through the evidence submitted in the proceedings, specifically through the Valuation Form, that the use of the contested property is not exclusively residential, having been attributed to it different uses, specifically residential and commercial.

As confessed in point 19. of the Respondent's submissions, having been attributed to the property in question different uses, different formulas were applied to each of those uses. This means that, for the calculation of the total taxable property value of the property in question, different formulas were used depending on the 'use,' specifically, Commercial, Residential, Services, and "other use," leading to the determination of the taxable property value of each of the parts (Vtc, Vth, Vts, and Vto).

It should be noted that in the calculation of the taxable property value of each part, different use coefficients are considered, depending on the proportion of each of the uses. In fact, the aforementioned use coefficients used for the calculation of the taxable property value of each part reflect the coefficients provided in article 41st of the Real Estate Tax Code, depending on the type of use of the constructed properties.

Furthermore, from the aforementioned calculation demonstration it results that the sum of the taxable property values determined for the commercial, services, and "other use" parts is not greater than the taxable property value of the residential part, from which it is extracted that, in the property in question, the part dedicated to residential use is the principal or preponderant part.

In summary, within the scope of the valuation of the property at issue: (i) different uses were taken into account and not only residential use; (ii) different use coefficients provided in article 41st of the Real Estate Tax Code were used and not only the residential use coefficient; (iii) the part dedicated to residential use is preponderant and principal.

An identical situation to the present was already decided by the Supreme Administrative Court in proceedings 080/18, by award of 06-06-2018, where it was considered, among other things, that:

"I - In the present situation in which a subdivision permit was granted in accordance with which the properties are intended for 'collective residential use and commercial/services,' what is at issue is not a property whose destination is solely residential.

II - The provision item 28 under analysis does not establish any criterion or need for deliberation on the percentage to which the property is intended for residential or commercial/services use so that we can consider that the legislator took such reality into account and, having said nothing about it, we should conclude that it wishes to dissolve it in residential use.

III - Law 83-C/2013, of 31 December clarified that the urban properties previously called by it as having residential use were, in fact, urban properties or land for construction whose authorized or contemplated building is for residential use.

IV - For these properties to be included in this provision, it would have been absolutely necessary to indicate whether urban properties or land for construction whose authorized or contemplated building is for use, predominantly, for residential purposes are also taxed in this regard."

Further stated in the aforementioned judgment that:

"In the present situation we know that a subdivision permit was granted by Subdivision Permit no. 5/2006, in accordance with which the properties are intended for 'collective residential use and commercial/services,' which is different from being intended for residential use. The provision item 28 under analysis does not establish any criterion or need for deliberation on the percentage to which the property is intended for residential or commercial/services use (...)

Neither is it known what the frequency and specific weight in the built volume for the real estate market of the dedication of certain parts of buildings, namely their ground floor, to purposes other than residential use, namely commercial and services, precisely due to economic reasons, financial strategy, pertaining to profitability and enjoyment of all available spaces, concerning which the provision in question gives no indication or relevance. It exists, but we do not know if it is significant and we cannot consider that the legislator took such reality into account and, having said nothing about it, conclude that it wishes to dissolve it in residential use.

Instead, we believe that it is a reality that was not taken into account by the legislator, just as it had not duly considered that the law establishes a clear distinction between urban properties 'residential' and 'land for construction,' which Law 83-C/2013, of 31 December clarified that the urban properties previously called by it as having residential use were, in fact, urban properties or land for construction whose authorized or contemplated building is for residential use. For these properties to be included in this provision, it would have been absolutely necessary to indicate that they are also taxed in this regard if the authorized or contemplated building is, predominantly, for residential use, under pain of lacking an extensive interpretation of the scope-of-application norm entirely at odds with the provision of article 103rd, nos. 2 and 3 of the Constitution of the Portuguese Republic."

Now, referring the scope provision of item 28.1 of the GTSD to 'residential property or land for construction whose authorized or contemplated building is for residential use,' and having the land in question been attributed different uses, then, in light of the transcribed jurisprudence and respective grounds, which are accepted, one cannot consider that Stamp Duty will be incurred only on the part of the property with residential use, as the Respondent suggested in its submissions (points 13. et seq. of the Respondent's submissions).

Having been demonstrated that the use of the contested property is only partially residential, and that the scope provision does not provide for such a situation, the assessments at issue in the present arbitral action should be annulled, given the error of law verified, with consideration of the remaining questions raised by the Claimant being prejudiced, particularly as regards the constitutionality of item 28.1 of the GTSD, in subjecting to tax the land for construction with residential use.

Regarding the request for compensatory interest formulated by the Claimant, article 43rd, no. 1, of the General Tax Law establishes that compensatory interest is due when it is determined that there has been an error attributable to the services that results in payment of the tax debt in an amount greater than that legally due.

In this case, the error affecting the annulled assessments is attributable to the Tax and Customs Authority, which made the assessment acts on its own initiative, without the necessary factual and legal support.

The Claimant thus has the right to be reimbursed for the amount it paid (pursuant to the provisions of articles 100th of the General Tax Law and 24th, no. 1, of the LRAT) by virtue of the annulled acts and, further, to be indemnified for the undue payment through the payment of compensatory interest by the Respondent, from the date of payment of the amount until reimbursement, at the legal suppletory rate, pursuant to articles 43rd, nos. 1 and 4, and 35th, no. 10, of the General Tax Law, article 559th of the Civil Code, and Order no. 291/2003, of 8 April.

IV. Decision

In light of all the foregoing, it is decided to render judgment in favor of the arbitral claim formulated in the present proceedings and, consequently:

a) Annul the stamp duty assessments nos. 2015..., no. 2015..., no. 2015..., no. 2016..., no. 2016 ... and no. 2016...;

b) Condemn the Respondent to the restitution of the amounts unduly paid by virtue of the annulled assessments, as well as to the payment of the corresponding compensatory interest, from the date of undue payment of the amount until its reimbursement, as determined above.

c) Condemn the Respondent in the costs of the proceedings as fixed below.

V. Value of the Proceedings

The value of the proceedings is fixed at €183,117.12, in accordance with the provisions of article 97th-A of the Code of Tax Procedure, applicable pursuant to article 29th, no. 1, subparagraph a), of the LRAT and article 3rd, no. 2, of the Regulation of Costs in Tax Arbitration Proceedings (RCPAT).

VI. Costs

The arbitration fee is fixed at €3,672.00, in accordance with Table I of the Regulation of Costs of Tax Arbitration Proceedings, to be paid by the Respondent, since the claim was entirely upheld, pursuant to articles 12th, no. 2, and 22nd, no. 4, both of the LRAT, and article 4th, no. 4, of the aforementioned Regulation.

Lisbon, 11 January 2019

The Arbitrators

José Pedro Carvalho
(President)

António Alberto Franco
(Member)

A. Sérgio de Matos
(Member)

[1] See, for example, Awards 49/2013-T of 18 September 2013, 53/2013-T of 2 October, 231/2013-T of 3/2/2014, Proceedings no. 7/2014-T, of 3 July, 56/2014-T of 31 July, 210/2014-T of 30 July, Proceedings no. 125/2015-T, of 12 October, all of the CAAD (available at www.caad.org.pt) and the Supreme Administrative Court Award of 9 April 2014, P1870/2013, to which several others of similar content followed, available at http://www.dgsi.pt/jsta.

[2] See, for example, the decisions of arbitral proceedings 156/2016T, 142/2016T, 524/2015T, 578/2015T, 467/2015T, and 290/2016T, all available at www.caad.org.pt.

[3] See in this sense the award rendered in proceedings 156/2016T, already cited.