Summary
Full Decision
ARBITRAL DECISION
I – Report
1.1. A..., taxpayer no...., resident at... Street, no...., ... (hereinafter referred to as the "claimant"), disagreeing with the assessment of Property Tax (Item 28) for the year 2014 (assessed in 2015), relating to a plot of land for construction – entered in the urban property registry of the parish of ..., ..., ... and ..., municipality of..., district of Portalegre, under article ... –, to which correspond the collection notices nos. 2015..., 2015... and 2015..., submitted on 7/6/2016 a request for constitution of an arbitral tribunal and for arbitral ruling, pursuant to Decree-Law no. 10/2011, of 20/1 (Legal Framework for Arbitration in Tax Matters, hereinafter referred to as "LFATM"), in which the Tax Authority and Customs Authority (TA) is required, with a view to the "annul[ment] [of] [the aforementioned] assessment [...], ordering the restitution to the Claimant of all amounts already paid from said assessment, plus legal interest".
1.2. On 29/8/2016, the present Sole Arbitral Tribunal was constituted.
1.3. On 31/8/2016, the TA was notified, as the respondent party, to submit a response, pursuant to art. 17, no. 1, of the LFATM. The TA submitted its response on 28/9/2016, having argued, in summary, towards the total dismissal of the Claimant's request.
1.4. By order of 26/10/2016, the Tribunal considered, under art. 16, subparagraph c), of the LFATM, that the meeting provided for in article 18 of the LFATM was dispensable, and that the process was ready for decision. Thus, the Tribunal fixed the pronouncement of the arbitral decision for 2/11/2016.
1.5. The Arbitral Tribunal was duly constituted, is materially competent, the process is not affected by defects that would invalidate it, and the Parties have legal personality and capacity, proving themselves legitimate.
II – Allegations of the Parties
2.1. The Claimant alleges, in its initial petition, that: a) "the Property Transfer Tax Code (PTTC) does not define what is understood by 'residential property' or 'land for construction whose building, authorized or envisaged, is for residential purposes', instead referring to the Municipal Property Tax Code (MPTC) as to this aspect (end of item no. 28.1 and no. 2 of article 67 of the PTTC)"; b) "in the present case, only the first part of no. 3 of article 6 of the MPTC is at issue, since upon acquisition of the property, although it was declared that the acquired property was land for construction [...], not only did there exist no legal provision equal to no. 3 of article 6 of the MPTC, which, for tax purposes, would consider as land for construction those so declared in their acquisition, but it is not stated that the land in question would have as its purpose the construction of a building intended for residential purposes"; c) "thus, from the acquisition title nothing can be concluded as to the nature of the property in question, whereby the same will or will not be qualified as land for construction intended for residential purposes for tax purposes only in accordance with the criteria of the 1st part of no. 3 of article 6 of the MPTC"; d) "now, citing the judgment of the STA of 22-5-2013, case no. 01146/12, '[...] the right to urbanize or build is only consolidated and incorporated in the patrimony of the land owner when authorization or license to urbanize or build is issued. It is not, therefore, by mere effect of the approval of the plan or the request for licensing that such faculties become patrimonial in terms of revealing different tax capacity. Until authorization or license to build the owner has mere legal expectations of coming to incorporate the right into his patrimony. Only with authorization or license is the right to build constituted and transformed into a patrimonial right that brings different value to the immovable. Modern administrative doctrine integrates construction licenses in 'authorizations constitutive of rights', arguing that the right is born only with the authorization-license granted by the municipal Administration and refusing that the owner has an original right to construction (cfr. Rogério Soares, Administrative Law, p. 116). Therefore, if it is the construction license that constitutes in the owner's legal sphere the right to build, then only from its issuance can the property be classified as land for construction, since only with such act can different purpose and different value be materialized'"; e) "to the licensing cases mentioned in the cited judgment, add the situations of admission of prior communication or issuance of favorable prior information that, with the alterations to the Legal Framework for Urbanization and Building, currently have a similar effect"; f) "in the present case, license or authorization was not granted, prior communication admitted or favorable prior information issued for subdivision or construction operation for the land in question, as to which the Property Transfer Tax was assessed"; g) "since in the case of the property transfer tax of item 28.1 only properties or land for construction affected to residential purposes are taxed, but no longer those affected to commerce or services, then, by all the more reason, only with the respective licensing, authorization or prior communication (as required by law), is it possible to apply such tax to those intended for residential purposes"; h) "it must necessarily be concluded that the property transfer tax provided for in item 28.1 can only apply to land for which license or authorization has been granted, prior communication admitted or favorable prior information issued for subdivision or construction operation for residential purposes, not being sufficient the mere envisaging of its constructive potential, namely for residential purposes, under the municipal master plan or in other spatial planning instruments"; i) "item 28.1 of the General Schedule of the Property Transfer Tax is unconstitutional by violation of the principle of equality [...]. [...] the claimant cannot fail to be proven correct when concluding that '(...) the assessment of Property Transfer Tax now under consideration manifestly violates the principle of fiscal equality provided in article 13 of the Constitution because: (i) it is based on a rule that treats taxpayers in identical situations in very different ways, the measure of difference not being gauged by their real tax capacity; (ii) it is based on an arbitrary legal solution devoid of any rational foundation.'"; j) "the assessment of Property Transfer Tax, item 28.1, for the year 2014 (assessed in 2015), regarding the land of the now Objector is illegal, and the respective assessment must be annulled and, consequently, the amount already paid must be returned to the Objector, in the amount of €12,656.60 [...], since, as stated in the decision itself of the gracious complaint [...] all tax relative to the illegal assessment has already been paid".
2.2. The Claimant concludes, in light of the above, that "the assessment of Property Transfer Tax (item 28.1) relating to 2014 (assessed in 2015), regarding land for construction entered in the urban property registry under article ... of the parish of ..., ..., ... and ..., municipality of..., district of Portalegre [...], must be annulled, with the restitution to the Objector ordered of all amounts already paid under said assessment, plus legal interest, condemning the TA in the costs of the process and in the restitution to the Objector of the initial fee."
2.3. For its part, the TA alleges, in its defense, that: a) "what is at issue here is an assessment that results from the direct application of the legal norm, and that translates into objective elements, without any subjective or discretionary assessment"; b) "there being no definition in Property Transfer Tax of what is understood by 'urban property', 'land for construction' and 'residential designation' it is necessary to resort subsidiarily to the MPTC to obtain a definition that allows ascertainment of possible subjection to Property Transfer Tax, in accordance with what is provided in article 67, no. 2, of the Property Transfer Tax Code, in the wording given to it by Law no. 55-A/2012, of 29/10"; c) "the legislator chose to determine the application of the methodology of evaluation of properties in general to the evaluation of 'land for construction', as results from the expression 'value of authorized buildings' referred to in article 45, no. 2, of the MPTC and applying the coefficient of designation thereto as provided in article 41 of the MPTC"; d) "in conclusion, in the evaluation of land for construction the legislator intended the methodology of evaluation of urban properties in general to be applied, and therefore all coefficients above identified must be taken into consideration, namely the coefficient of designation provided in art. 41 of the MPTC, further resulting such legal imposition from no. 2 of art. 45 of the MPTC, in referring to the value of buildings authorized or envisaged on the same land for construction. Whence, for purposes of determining the taxable patrimonial value of land for construction, the application of the designation coefficient in the evaluation is clear"; e) "in the property record of the immovable, the type of property is 'plot of land for construction'. We cannot doubt that we are faced with 'land for construction', more specifically, before a plot of urban land for construction, with building implantation areas and construction perfectly defined and identified in urban property records, as moreover above described. Fiscally the immovables are land for construction, in that capacity they were acquired and thus are predially classified and, therefore, are, without doubt, plots of land for construction, more precisely urban properties with residential vocation"; f) "it is, therefore, patent the residential designation of the immovable. Note that the legislator does not refer to 'properties intended for residential purposes', having chosen the notion 'residential designation', an expression different and broader, whose meaning is found in the need to integrate other realities beyond those identified in article 6, no. 1, subparagraph a), of the MPTC"; g) "well before actual building of the property, it is possible to ascertain and determine the designation of the land for construction. Indeed, such was not the legislator's intention, if we consider that in the application of the law to concrete cases it is important to determine the exact meaning and scope of the rule, so that the rule contained therein is revealed, an indispensable condition so that it can be applied, unless that of considering, in respect of the principle of 'social equity in austerity', that in the concept 'urban properties' is integrated the 'land for construction' with residential designation. Prima facie, in a very literal interpretation of the law, one could extract from the text the meaning that the claimant seeks to give it, but as our jurisprudence has stated, that is not the best interpretation of the law, and in the hermeneutic task, the literal element, constituting the starting point and limit for extracting the meaning of the rule, does not constitute the decisive element, nor even the most important, a role reserved for 'the unity of the system', pursuant to no. 2 of article 9 of the Civil Code"; h) "in the case sub judice the Claimant raises the violation of the principle of equality before tax law in the dimension of prohibition of differentiation in equal situations. [...] in the present dispute the Arbitral Tribunal should not ascertain or discuss the propriety of the legislative measure and its scope, being bound to confine itself to its assessment in the dimension of its conformity (manifest, it must be said) with the constitutional text"; i) "reserving from the outset that it is not incumbent on the TA, in the exercise of its functions, competence, attributions in the exercise of its administrative activity, to make considerations about the alleged unconstitutionality (but non-existent) of the norm contained in Item 28.1 GSPTT, given its full binding to the law, we do not see that there results from it the violation of the principles of proportionality, legality, confidence of citizens and tax capacity"; j) "the right to compensatory interest provided in no. 1 of article 43 of the General Tax Law, derived from judicial annulment of an assessment act, depends on having been demonstrated in the process that such act is affected by error as to the premises of fact or law attributable to the Tax Administration. The error that supports the right to compensatory interest is not any defect or illegality but that which is concretized in defective assessment of relevant factuality or in erroneous application of legal norms. Since, at the time of the facts, the Tax Administration made the application of the law as the executive body is constitutionally bound, one cannot speak of error of the services within the terms of article 43 of the General Tax Law."
2.4. The TA concludes, by the above, that "the present request for arbitral ruling should be judged unfounded, given the legality of the assessment here under examination, absolvating the Tax Authority from the request, with the legal consequences thereof."
III – Proven Facts, Unproven Facts and Their Justification
3.1. The following facts are considered proven:
i) The property transfer tax assessment (Property Transfer Tax) now at issue (vd. collection notices nos. 2015..., 2015... and 2015..., all paid by the Claimant), referring to 2014, was made under item 28.1 of the General Schedule of Property Transfer Tax (GSPPT), having applied to a "plot of land for construction" – entered as such in the urban property registry of the parish of..., ..., ... and..., municipality of..., district of Portalegre, under article ... .
ii) The plot in question was subjected to evaluation, pursuant to the MPTC, having been evaluated at the taxable patrimonial value of €1,265,660.00, with the respective evaluation record showing designation for residential purposes, having been thus entered in the respective property registry.
iii) Disagreeing with the Property Transfer Tax assessment above referred to, the Claimant filed a gracious complaint thereof. On 10/3/2016, it was notified of the total dismissal of said complaint, maintaining the Property Transfer Tax assessment now at issue, in the amount of €12,656.60.
iv) Unconvinced by said decision, the Claimant submitted the present request for arbitral ruling on 7/6/2016.
3.2. It is not considered proven that there was actual potential for building the "land for construction" described above.
3.3. The facts considered pertinent and proven (v. 3.1) are substantiated in the analysis of the positions exposed by the parties and the documentary evidence joined to the present record. The unproven fact (v. 3.2) is based on the absence of documentary evidence supporting it.
IV – On the Law
From the foregoing follows the invocation: 1) of the unconstitutionality of item 28.1 of the GSPPT, in its current wording and, namely, of the violation of the constitutional principle of equality; 2) of the illegality of the assessment when, lacking effective materialization of expectation/envisaging of building for residential purposes, the Property Transfer Tax is, nonetheless, applied; and 3) of compensatory interest payable to the Claimant.
Let us then see.
1 and 2) Whereas it is true that the Arbitral Tribunal does not have competence to ascertain or declare the unconstitutionality of norms, it is equally true that the Claimant herein raises, in the present record, the "illegality" of the Property Transfer Tax assessment in question. In that measure, it is imperative, before all else, to ascertain whether said assessment is in conformity with the immediate parameter to which the TA is bound: in the case of this record, item 28.1 of the GSPPT, according to the wording determined by art. 194 of Law no. 83-C/2013, of 31/12.
Thus, and in light of the foregoing, we shall echo, without further developments (but with the necessary adaptations), the legal analysis contained in the Arbitral Decision no. 467/2015-T, of 4/2/2016, in the making of which I participated as member of the respective collective panel (and further considering that there are no reasons, in the case of this record, to alter the direction of that analysis):
"The Administration is bound to the Constitution, as any power or body of the State, but what characterizes it is immediate subordination to the law, and there cannot be Administration without legal mediation. The principle of legality understood in a broad sense (of the lawfulness of administration) constitutes the presupposition and foundation of all administrative activity, and only exceptionally can there be administrative activity directly bound to the Constitution[1].
In this conformity, it is imperative, before all else, to ascertain whether the tax assessment acts subject to the present arbitral request are or are not in conformity with the immediate parameter to which the Tax Administration is bound, in the case of this record: item 28.1 of the GSPPT, according to the wording given by Law no. 83-C/2013, of 31 December.
As we have seen, the Claimant now alleges, in summary, that the Property Transfer Tax assessments now at issue are illegal due to error as to the premises of fact and law [...].
It is necessary to appreciate.
For the resolution of the questions above listed, it is important to bear in mind, before all else, the evolution and framework of the aforementioned item 28 of the GSPPT, both before and after the alteration determined by art. 194 of Law no. 83-C/2013, of 31/12 [...].
In that sense, a reference to the Judgment of the STA of 9/4/2014 (proc. no. 1870/13) proves useful, which, like other STA decisions – e.g.: Judgment of 9/4/2014 (proc. no. 48/14); Judgments of 23/4/2014 (proc. nos. 270/14, 271/14 and 272/14); Judgment of 25/11/2015 (proc. 1338/15) – makes a detailed historical and chronological analysis of the evolution and framework of item 28 now under examination:
'The concept of 'property (urban) with residential designation' was not defined by the legislator. Neither in Law no. 55-A/2012, which introduced it, nor in the Municipal Property Tax Code, to which no. 2 of article 67 of the Property Transfer Tax Code (equally introduced by that Law), refers on a subsidiary basis. And it is a concept that, probably due to its imprecision – a fact all the more serious since it is a function of it that the objective scope of the new taxation is determined –, had a short life, as it was abandoned upon the entry into force of the State Budget Law for 2014 (Law no. 83-C/2013, of 31 December), which gave new wording to that item no. 28 of the General Schedule, and which now determines its objective scope through the use of concepts that are legally defined in article 6 of the Municipal Property Tax Code.
This alteration – to which the legislator did not attribute interpretive character, nor does it appear to us that it did –, merely makes unequivocal for the future that land for construction for which building, authorized or envisaged, is for residential purposes is comprised within the scope of item 28.1 of the General Schedule of Property Transfer Tax (provided that its taxable patrimonial value is equal to or greater than 1 million euros)'. [...].
Before the legislative alteration that innovatively passed to include the said land for construction, was it necessary to ascertain, making use of diverse interpretive elements, whether, in the absence of literal reference, such land could, nonetheless, be included within the objective scope of said item 28. And, for that reason, said decision proceeded, stating:
'[Providing] no clarification [by the legislator] with respect to prior situations [i.e., assessments prior to 2014], such as the one at issue in the present record, it does not appear possible to follow [as to these] the interpretation of the appellant, since it does not result unequivocally either from the letter or from the spirit of the law that the intention thereof has been, ab initio, to comprise within its objective scope land for construction for which building has been authorized or envisaged for residential buildings, as results today unequivocally from item 28.1 of the General Schedule of Property Transfer Tax.
From the letter of the law nothing unequivocal results, indeed, as it itself, in using a concept which it did not define and which also was not defined in the statute to which it referred on a subsidiary basis, lent itself, unnecessarily, to equivocations, in a matter – of tax incidence – in which certainty and legal security should also be foremost concerns of the legislator.
And from its 'spirit', apprehensible in the explanatory memorandum of the bill that is at the origin of Law no. 55-A/2012 (Bill no. 96/XII – 2nd, Diary of the Parliament, series A, no. 3, 21/09/2012, p. 44 [...]) nothing more results but the concern of securing new tax revenues, on sources of wealth 'more spared' in the past from the voracity of the Fisc than labor income, in particular income from capital, capital gains and property, reasons which bring no relevant contribution to the clarification of the concept of 'properties (urban) with residential designation', as they give it as established, without any concern to clarify it. Such clarification was, however, to emerge – as informed in the Arbitral Decision delivered on 12 December 2013, in case no. 144/2013-T, available in the CAAD database –, at the time of the presentation and discussion in Parliament of that bill, in the words of the Secretary of State for Fiscal Affairs, who is said to have stated expressly, as gathered from the Diary of the Parliament (DAR I Series no. 9/XII – 2, of 11 October, p. 32) that: 'The Government proposes the creation of a special rate on high-value urban residential properties. It is the first time in Portugal that a special taxation has been created on high-value properties intended for residential purposes. This rate will be 0.5% to 0.8% in 2012 and 1% in 2013, and will apply to houses with value equal to or greater than 1 million euros' (underlined), whence it is gathered that the reality to be taxed had in mind is, after all, and despite the terminological imprecision of the law, 'the (urban) residential properties', in current language 'houses', and not other realities. [...].
It is concluded, therefore, in conformity with what was decided in the sentence under appeal, that, resulting from article 6 of the Municipal Property Tax Code a clear distinction between urban properties 'residential' and 'land for construction', these cannot be considered as 'properties with residential designation' for purposes of what is provided in item no. 28.1 of the General Schedule of Property Transfer Tax, in its original wording, given to it by Law no. 55-A/2012, of 29 October.' [...].
In summary, from this it is gathered that, with the new wording of item 28.1 of the GSPPT, given by article 194 of Law no. 83-C/2013, of 31/12 (applicable to the present record, as it is Property Transfer Tax for the year 2014), the objective scope of the norm was enlarged, innovatively, to include, explicitly, land for construction for which building has been authorized or envisaged for residential buildings." [End of quotation.]
The excerpt now cited is sufficiently clarifying as to the exclusion from the objective scope of item 28.1 of the GSPPT, in its original wording, of land for construction. These cannot, in light of said wording, be considered "properties with residential designation" for the purposes of what is provided in said norm. Only with the new wording given by art. 194 of Law no. 83-C/2013, of 31/12, did the inclusion within the objective incidence of item 28.1 of the GSPPT of land for construction for which building has been authorized or envisaged for residential buildings come to pass.
Note that, even with the new wording, in the absence of materialization of an expectation or envisaging of building for residential purposes (which is consensually admitted did not occur in the case of this record), the Property Transfer Tax should not apply automatically. In effect, as was also referred to in the arbitral decision above cited:
"The essential question that, [in the context of the new wording of item 28.1 of the GSPPT, given by art. 194 of Law no. 83-C/2013, of 31/12,] arises, is whether, making use of the words of the Claimant now, 'without [...] that envisaging or expectation of 'building for residential purposes' [...] materialized', the application of the Property Transfer Tax here under examination can be accepted [...]. To respond to said question, it appears as particularly useful the consideration of the following:
'With respect to land for construction, whether or not located within an urban agglomeration, as defined in art. 3/4 of this statute [MPTC], should, as such, be considered lands to which has been granted: - license for subdivision operation; - construction license; - authorization for subdivision operation; - construction authorization; - admitted favorable prior communication of subdivision or construction operation; issued favorable prior information of subdivision or construction operation, as well as; - those which have thus been declared in the acquisition title, it being necessary to note that, also for such purpose, only the acquisition title with the form prescribed by civil law should be relevant, that is, the public deed or the authenticated private document referred to in art. 875 CC.' [vd. ANTÓNIO SANTOS ROCHA / EDUARDO JOSÉ MARTINS BRÁS – Taxation of Assets. IMI-IMT and Property Transfer Tax (Annotated and Commented). Coimbra, Almedina, 2015, p. 44].
[The] requirements cited above [spell out] what the legal and administrative requirements are necessary to the consideration of any land for construction as land comprised by item 28.1 of the GSPPT [...].
[Thus, it is necessary,] in terms of evidence, [to join to] the record [...] documentary support that attests that the acts at issue were practiced having as object properties with approved projects for construction (still without or already with the said construction licenses and authorizations), or properties located in an area where building is envisaged for residential purposes (with the said prior communications or favorable prior information for the realization of subdivision or construction operations). Not having been made that demonstration, it cannot be considered that the lands have building, authorized or envisaged, for residential purposes, pursuant to the MPTC.
It is important, further, to note that, [although the properties in question] are entered in the registry as being 'land for construction', such does not justify the automatic application of item 28.1 of the GSPPT, since, as appears obvious, the mere registry entry does not by itself constitute demonstration that the property has an envisaged building.
Proof of what has just been said is the fact that, as ANTÓNIO SANTOS ROCHA and EDUARDO JOSÉ MARTINS BRÁS also state (ob. cit., p. 46), 'immovables located in urbanized zones or included in areas covered by already approved urbanization plans [...] should only [be] considered as land for construction when, by action undertaken by the respective owner, is verified, alternatively, the issuance of any of those documents ['granting of licenses, construction or subdivision authorizations, favorable prior communications or information for the same purpose']'.
The same authors add (vd. ibidem) – reinforcing the understanding, already expressed here, that, without construction licenses or authorizations, the mere entry of immovables as land for construction does not justify, by itself, the application of item 28.1 of the GSPPT –, in support of their position, the following: 'Immovables already described in the registry as land for construction, with respect to which the expiration of the subdivision, license or construction authorization occurs and in which no building operation has even been initiated, should, by way of the institute of expiration, recover their prior nature'.
Similarly, see also, JOSÉ MANUEL FERNANDES PIRES, (in Lessons of Taxes on Assets and Property Transfer Tax. Coimbra, Almedina, 3rd ed., 2015, pages 110 to 112): 'The right to build is not inherent in the right of ownership, but arises ex novo in the owner's patrimony only when an administrative act of the competent public entity recognizes and authorizes the owner to build or subdivide. [...] only when that right is constituted in the owner's legal sphere does the Municipal Property Tax Code establish that we are before land for construction. Being that constitutive act practiced by the public entity at the request of the owner, then the classification of a property as land for construction always depends on the will of the owner.'
In summary, it appears clear that, in the case being treated, the incidence of the tax to land for construction cannot be materialized with the mere entry of the same, as such, in the registry, but rather, and in a decisive manner, by the verification of the actual building potential on said lands (which must be ascertained in the present case and revealed through the existence of the above-described documents). The same is to say, in other words, that the incidence of the tax, for purposes of what is provided in item 28.1, only materializes with the verification of the 'effective designation', to use the felicitous expression of JOSÉ MANUEL FERNANDES PIRES (ob. cit., p. 507).
Without that demonstration of the 'actual building potential' – which, as was said, did not occur in the case here under examination –, the purposes underlying the new wording of the text of item 28.1 of the GSPPT are not shown to have been fulfilled, reason for which it is concluded that the assessments at issue incur the error invoked by the Claimant [...]." [End of quotation.]
In summary: even in light of the new wording of item 28.1 of the GSPPT (which is the one applicable here), proof of the "actual building potential" was necessary – which was not presented here; and the mere entry of properties as "land for construction" is not sufficient to justify the application of item 28.1 of the GSPPT.
In light of the foregoing, it is concluded that the Property Transfer Tax assessment now at issue violates what is provided in item 28.1 of the GSPPT, in the wording given by art. 194 of Law no. 83-C/2013, of 31/12.
- In light of what no. 5 of art. 24 of the LFATM provides – "payment of interest, regardless of its nature, is due, pursuant to what is provided in the general tax law and in the Code of Tax Procedure and Process" –, it has been understood that this norm permits the recognition of the right to compensatory interest in arbitral processes. Thus is justified the analysis of the present request.
Compensatory interest is due when it is determined, in gracious complaint or judicial challenge, that there has been error attributable to the services from which results payment of the tax debt in an amount greater than legally due (vd. art. 43, no. 1, of the General Tax Law). It is, therefore, a necessary condition for the award of said interest the demonstration of the existence of error attributable to the services: "The right to compensatory interest provided in no. 1 of art. 43 of the General Tax Law [...] depends on having been demonstrated in the process that such act is affected by error as to the premises of fact or law attributable to the TA." (Judgment of the STA of 30/5/2012, proc. 410/12).
There having been, as results from what was concluded with respect to point 2), error attributable to the services, such determines the success of the request for payment of compensatory interest to the Claimant now.
V – DECISION
In light of the foregoing, it is decided:
- To judge well-founded the present request for arbitral ruling and, in consequence, to annul the Property Transfer Tax assessment here at issue, determining the restitution of the amounts wrongfully collected.
- To judge well-founded the request also in the part that concerns the recognition of the right to compensatory interest in favor of the claimant.
The value of the case is fixed at €12,656.60 (twelve thousand six hundred and fifty-six euros and sixty cents), pursuant to articles 32 of the Code of Tax Procedure and Process and 97-A of the Code of Tax Procedure and Process, applicable by force of what is provided in art. 29, no. 1, subparagraphs a) and b), of the LFATM, and in art. 3, no. 2, of the Regulation of Costs in Tax Arbitration Processes (RCTAP).
Costs charged to the respondent, in the amount of €918.00, pursuant to Table I of the RCTAP, and in compliance with what is provided in articles 12, no. 2, and 22, no. 4, both of the LFATM, as well as what is provided in art. 4, no. 4, of the cited Regulation.
Notify.
Lisbon, 2 November 2016.
The Arbitrator,
(Miguel Patrício)
Text produced on computer, pursuant to what is provided in art. 131, no. 5, of the Code of Civil Procedure, applicable by referral of art. 29, no. 1, subparagraph e), of the LFATM.
The wording of the present decision is governed by the orthography prior to the Orthographic Agreement of 1990.
[1] For further discussion on the binding of the Administration to the law and the Constitution, cfr. GOMES CANOTILHO / VITAL MOREIRA – Constitution of the Portuguese Republic, Annotated. Coimbra, Coimbra Editora, 4th ed., 2014, pp. 798 et seq..
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