Process: 369/2016-T

Date: February 13, 2017

Tax Type: Selo

Source: Original CAAD Decision

Summary

This CAAD arbitration decision (Process 369/2016-T) addresses the Stamp Duty (Imposto do Selo) exemption under Article 269(e) of the Portuguese Insolvency and Company Recovery Code (CIRE) for property acquisitions from insolvency estates. A credit institution acquired real estate from an insolvent individual who had previously operated as a sole merchant. The Tax Authority assessed €496 in Stamp Duty, rejecting the automatic exemption, arguing that Article 269(e) CIRE only applies to acquisitions from entities carrying on industrial, commercial, or agricultural activities at the time of transfer. The insolvent had ceased category B professional income activities years before the property sale. The bank argued that the CIRE exemption applies broadly to liquidation sales from insolvency estates, including sole merchants whose entire patrimony (personal and business assets) forms the insolvency estate. The core legal question concerns whether the SD exemption extends to property transfers from individuals who previously operated as sole traders but had ceased commercial activity prior to insolvency. The bank contended that CIRE's exemption regime, inherited from the prior CSPRB code, aims to facilitate asset liquidation and creditor satisfaction by reducing transaction costs. The Tax Authority maintained a restrictive interpretation requiring active commercial activity at the acquisition date. This case illustrates the tension between fiscal policy favoring insolvency proceedings and strict interpretation of tax exemptions, with significant implications for credit institutions acquiring distressed assets and the scope of CIRE's tax benefits in individual insolvencies.

Full Decision

ARBITRAL DECISION

1. Report

A - General

1.1. A…, S.A., with the single registration number and collective person number …, with registered address at Rua…, n.º…, …-… Lisbon (hereinafter referred to as "Claimant"), filed, on 05.07.2016, a request for the constitution of an arbitral tribunal in tax matters, which was accepted, seeking, on one hand, the declaration of illegality of the rejection of the administrative appeal which gave rise to process n.º …2016…, filed by the Claimant as a reaction to the assessment act of Stamp Duty (hereinafter "SD"), n.º…, relating to item 1.1 of the General Table of Stamp Duty (hereinafter "GTSD"), in the amount of € 496.00 (four hundred and ninety-six euros) which was communicated to it by the Tax Services of Sinta … (…), relating to a property acquired by it, as shall be better seen below, and, on the other hand, the recognition of the right to compensatory interest for the payment of an undue tax payment.

1.2. Pursuant to the provisions of subparagraph a) of paragraph 2 of article 6.º and subparagraph b) of paragraph 1 of article 11.º of Decree-Law n.º 10/2011, of 20 January, as amended by article 228.º of Law n.º 66-B/2012, of 31 December, the Deontological Council of the Center for Administrative Arbitration (CAAD) appointed the undersigned as arbitrator, and the Parties, after being duly notified, did not raise any objection to such appointment.

1.3. By order of 25.07.2016, the Tax and Customs Administration (hereinafter referred to as "Respondent") proceeded to appoint Ms. Dr. B… and Dr. C… to intervene in this arbitral proceeding, in the name and representation of the Respondent.

1.4. In accordance with the provisions of subparagraph c) of paragraph 1 of article 11.º of Decree-Law n.º 10/2011, of 20 January, as amended by article 228.º of Law n.º 66-B/2012, of 31 December, the arbitral tribunal was constituted on 21.09.2016.

1.5. On 22.09.2016, the top official of the Respondent's service was notified to, if willing, within a period of 30 days, present a response and request the production of additional evidence and also to attach to the record a copy of the respective administrative proceeding.

1.6. On 24.10.2016, the Respondent filed its Response and respective Administrative Proceeding.

B – Position of the Claimant

1.7. The Claimant is a credit institution whose corporate purpose consists of the performance of financial operations, under the provisions of article 4.º of the General Regime of Credit Institutions and Financial Companies, approved by Decree-Law n.º 298/92, of 31 December.

1.8. The Claimant acquired, within the scope of its activity, in the insolvency proceeding of E… (the "Insolvent"), the urban property registered in the property register of the Union of Parishes of … and … under the article …-… (hereinafter referred to as "Property").

1.9. The sale of the Property to the Claimant benefited from the exemption from Stamp Duty (hereinafter referred to as "SD") provided for in article 269.º of the Insolvency and Company Recovery Code (hereinafter referred to as "ICRC").

1.10. However, the Respondent considered that the prerequisites for such acquisition to have benefited from the SD exemption that had been automatically recognized to it under the provisions of paragraph 2 of article 16.º of the ICRC were not met, and therefore proceeded to assess an additional SD in the amount of € 496.00 (four hundred and ninety-six euros).

1.11. The Claimant proceeded to pay the tax payment unduly required and, not being satisfied with it, reacted against the SD assessment act by filing an administrative appeal, which was subsequently dismissed.

1.12. Under the ICRC, the principle of the primacy of the creditors' will prevails, the insolvency proceeding having as its purpose the satisfaction of creditors.

1.13. The Claimant considers that the SD exemption is granted, on one hand, within the scope of operations of full or partial acquisition of the enterprise subject to the insolvency proceeding and, on the other hand, to mere acts of acquisition of immovable property considered in isolation, carried out in the phase of liquidation of the assets of the same, aimed at a quick and attractive sale of assets forming part of the debtor's estate, in order to satisfy the interests of their respective creditors.

1.14. The legislator's intention, with the ICRC, was to maintain the existing regimes in the Code of Special Procedures for Company Recovery and Bankruptcy (hereinafter "CSPRB") regarding the exemption from fees and tax benefits, and therefore it cannot be concluded otherwise than that the operations of disposal of elements of the enterprise's assets within the scope of the liquidation of its insolvent estate are included within the scope of the SD exemption provided for in subparagraph e) of article 269.º of the ICRC.

1.15. The Insolvent is an individual who acted in the capacity of sole merchant, with no distinction between his private estate and the enterprise's estate, since the entire estate of the debtor, including private property, is liable for business debts.

1.16. Under the ICRC, the concept of "enterprise" encompasses individuals who act in the capacity of sole merchant.

1.17. The requirement of compensatory interest, given that the Claimant paid a tax payment which it considered illegal, is based on article 43.º of the General Tax Law.

C – Position of the Respondent

1.18. By way of objection, the Respondent considers that the acquisition of the Property made by the Claimant is not exempt from SD since subparagraph e) of article 269.º of the ICRC does not cover acquisitions made from insolvent persons who are individuals and do not carry on an industrial, commercial or agricultural activity.

1.19. The Insolvent carried on an activity within category B – professional income only between 02.10.2009 and 06.10.2010, so that at the date of the acquisition of the Property by the Claimant, the Insolvent had long been a mere individual taxpayer, not carrying on any industrial, commercial or agricultural activity.

D – Conclusion of Report and Case Management

1.20. By order of 09.01.2017, the Arbitral Tribunal dispensed with the meeting provided for in article 18.º of the Legal Regime of Arbitration in Tax Matters (LRAT), as it considered that the Parties had already introduced to the proceeding the necessary and sufficient factual elements for the delivery of the decision, which was expected to take place by 13.02.2017, and the Parties did not intend to present further arguments.

1.21. The arbitral tribunal is materially competent, pursuant to the provisions of articles 2.º, paragraph 1, subparagraph a) of the LRAT.

1.22. The Parties possess legal personality and capacity and have legitimacy pursuant to article 4.º and paragraph 2 of article 10.º of the LRAT, and article 1.º of Ordinance n.º 112-A/2011, of 22 March.

1.23. The joinder of claims made in the present request for arbitral pronouncement, in fulfilment of the principle of procedural economy, is justified as article 3.º of the LRAT, by expressly admitting the possibility of "joinder of claims even if relating to different acts", accommodates, without hermeneutical abuse, the consideration of a claim that flows, in necessary terms, from the judgment that the arbitral tribunal holds regarding the validity of the assessment immediately put in question.

1.24. The proceeding does not suffer from any nullity, and the substantive issue can be considered immediately and a decision can be delivered on it.

2. Factual Matters

2.1. Proven Facts

The following facts are established as proven:

2.1.1. The Claimant is a credit institution whose corporate purpose consists of the performance of financial operations, under the provisions of article 4.º of the General Regime of Credit Institutions and Financial Companies, approved by Decree-Law n.º 298/92, of 31 December;

2.1.2. The Claimant acquired, within the scope of its activity, in the insolvency proceeding of E…, the urban property registered in the property register of the Union of Parishes of … and … under the article …-… (Deed of Transfer at pages 25 of the Administrative Proceeding);

2.1.3. The sale of the Property to the Claimant benefited from the exemption from Stamp Duty provided for in article 269.º of the Insolvency and Company Recovery Code (Deed of Transfer at pages 25 of the Administrative Proceeding and Notice of Payment at pages 27 of the same Proceeding);

2.1.4. The Respondent proceeded to assess additional SD (n.º…) in the amount of € 496.00 (Doc. 2, filed with the request for Arbitral Pronouncement);

2.1.5. The Claimant filed a request for administrative appeal against the assessment act referred to in 2.1.4. (Doc. 5, filed with the request for Arbitral Pronouncement);

2.1.6. The Respondent dismissed the administrative appeal request referred to in 2.1.5. (Doc. at pages 43 of the Administrative Proceeding);

2.1.7. The Claimant proceeded to pay the SD required by the SD assessment act n.º … (Doc. 4, filed with the Request for Arbitral Pronouncement);

2.1.8. The Insolvent is an individual who carried on a professional activity whose income fell within category B between 02.10.2009 and 06.10.2010 (Doc. 1, filed with the Response);

2.1.9. At the date when the Claimant acquired the Property, the Insolvent did not carry on an industrial, commercial or agricultural activity (Doc. 1, filed with the Response);

2.2. Unproven Facts

There are no facts relevant to the consideration of the merits of the case that have been established as unproven.

2.3. Justification for the Establishment of Factual Matters

The facts were established as proven on the basis of the documents attached to the record by the Parties and the positions taken by them in the pleadings filed.

3. Legal Matters

3.1. Questions to be Decided

It follows from what has been set out above that the issues to be considered are, in essence, two:

a) To determine whether the acquisition of the Property, having been made within the scope of the insolvency proceeding of a non-entrepreneur and non-holder of an enterprise in whose assets the Property was not included, is or is not exempt from SD pursuant to the provisions of subparagraph e) of article 269.º of the ICRC; and

b) To clarify whether, should the request for declaration of illegality of the rejection of the administrative appeal filed by the Claimant be upheld, with the consequent annulment of the SD assessment immediately contested, the Claimant, within the scope of this arbitral proceeding, may obtain the condemnation of the Respondent to pay compensatory interest relating to the amount paid by it for the satisfaction of the tax payment illegally required by the latter.

3.2. The Exemption from SD and article 269.º of the ICRC

a) General

By Law n.º 39/2003, of 22 August, the Assembly of the Republic authorized the Government to approve the ICRC, repealing the CSPRB. In paragraph 2 of article 9.º of the authorization diploma, the following can be read:

2 — The Government is further authorized to exempt from stamp duty, when subject to it, the following acts, provided they are provided for in an insolvency or payment plan or carried out within the scope of the liquidation of the insolvent estate:

a) The issue of bills or promissory notes;

b) The modifications of the maturity dates or interest rates of insolvency credits;

c) The increases of capital, the conversions of credits into capital and the alienations of capital;

d) The establishment of a new company or companies;

e) The performance in satisfaction of enterprise assets and the cession of assets to creditors;

f) The performance of financing operations, the transfer or cession of the operation of enterprise establishments, the establishment of companies and the transfer of commercial establishments, the sale, exchange or cession of elements of the enterprise's assets, as well as the lease of assets.

Consequently, and without prejudicing the aforementioned legislative authorization, article 269.º of the ICRC, under the heading "Benefit relating to stamp duty", provides as follows:

The following acts are exempt from stamp duty, when subject to it, provided they are provided for in insolvency, payment or recovery plans or carried out within the scope of the liquidation of the insolvent estate:

a) The modifications of the maturity dates or interest rates of credits on the insolvency;

b) The increases of capital, the conversions of credits into capital and the alienations of capital;

c) The establishment of a new company or companies;

d) The performance in satisfaction of enterprise assets and the cession of assets to creditors;

e) The performance of financing operations, the transfer or cession of the operation of enterprise establishments, the establishment of companies and the transfer of commercial establishments, the sale, exchange or cession of elements of the enterprise's assets, as well as the lease of assets;

f) The issue of bills or promissory notes.

Paragraph 49 of the preamble of the diploma that approves the ICRC, relating to tax benefits, states that "the existing regimes in the CSPRB regarding the exemption from fees and tax benefits are essentially maintained". Now, the benefits relating to SD were previously provided for in article 120.º of the CSPRB, within the scope of company recovery measures, the wording of which was as follows:

The following company recovery measures are exempt from stamp duty, when subject to it:

a) The issue of bills or promissory notes under the terms of article 71.º;

b) The establishment of the new company, provided for in paragraph 1 of article 80.º;

c) The modifications of the maturity dates or interest rates of credits, provided for in subparagraph c) of paragraph 1 of article 88.º, as well as in paragraph 1 of article 100.º;

d) The increases of capital, the conversions of credits into capital and the alienations of capital, provided for in paragraph 2 of article 88.º, as well as in paragraphs 1 and 2 of article 100.º;

e) The performance in satisfaction of enterprise assets and the cession of assets to creditors, provided for in subparagraphs d) and e) of paragraph 1 of article 88.º and in article 93.º, as well as in paragraph 1 of article 100.º;

f) The performance of financing operations, the transfer or cession of the operation of enterprise establishments, the establishment of companies and the transfer of commercial establishments, the sale, exchange or cession of elements of the enterprise's assets, as well as the lease of assets, provided for, respectively, in subparagraphs b), c), e), f) and g) of paragraph 1 of article 101.º.

As can be seen, the acts referred to in article 269.º of the ICRC to which the benefits in question relate are precisely the same as those provided for in the various subparagraphs of article 120.º of the CSPRB.

b) Subparagraph e) of article 269.º of the ICRC

It is important to resolve the question of whether subparagraph e) of article 269.º of the ICRC is applicable to the case at hand, as the Claimant contends and seeks to demonstrate. For this, it is important that we focus on the "sale, exchange or cession of elements of the enterprise's assets", acts that would be exempt from SD, provided they are provided for in insolvency, payment or recovery plans or carried out within the scope of the liquidation of the insolvent estate.

It appears to result from the text of the norm to which we have been referring that the exemption from SD is granted only to sales of elements of the assets of enterprises, which excludes, a contrario, the sales of assets that do not form part of the assets of enterprises, namely assets that are owned by individuals, non-entrepreneurs or non-holders of enterprises. A different interpretation, even if possibly defensible from the perspective of constitutional law, does not have support in the literal wording of the current provision, and therefore, de iure constituto, it cannot be accepted.

It is worth noting the doctrine expressed on this matter in the Judgment of the Supreme Administrative Court of 25.09.2013, delivered in process n.º 866/13:

"In the case at hand, the only question is whether the sale of an immovable asset, which does not belong to an enterprise nor was intended for the exercise of any business activity, but which was owned by an individual and intended for housing, with no evidence of its use in any business activity, can benefit from an exemption from SD on the grounds that it was carried out in an insolvency proceeding. The answer, in our view, can only be negative, as the hypothesis is not subsumable under the provision of subparagraph e) of article 169.º [sic] of the ICRC, which refers exclusively to the sale of 'elements of the enterprise's assets'."

Thus, the learned judgment concludes that "I - According to the provisions of article 269.º, subparagraph e), of the ICRC, the sales of 'elements of the enterprise's assets' are exempt from stamp duty. II - Therefore, the said exemption does not cover the sale of urban property intended for housing that belongs to an individual, it not being sufficient to benefit from such exemption the fact that it is an act of sale carried out within the scope of the liquidation of the insolvent estate, before it must be demonstrated that the asset sold forms part of the assets of an enterprise".

The same understanding was supported by the decisions of the CAAD delivered in processes 649/2015-T and 13/2016-T, and this, as stated, is also the position of the arbitral tribunal.

3.3. On Compensatory Interest

The challenged act, as has been sought to be demonstrated, does not suffer from any illegality. Thus, the prerequisites for the payment of compensatory interest do not exist.

DECISION

On the basis of the terms and grounds set out above, the arbitral tribunal decides:

a) To dismiss the request for declaration of illegality of the rejection of the administrative appeal filed, therefore maintaining the SD assessment act that gave rise to it;

b) To dismiss the request for condemnation of the Respondent to pay compensatory interest.

VALUE OF THE PROCEEDING

In accordance with the provisions of paragraph 2 of article 306.º of the Code of Civil Procedure, article 97.º-A of the Code of Tax Procedure and also paragraph 2 of article 3.º of the Regulations on Costs in Tax Arbitration Proceedings, the value of the proceeding is fixed at € 496.00 (four hundred and ninety-six euros).

COSTS

For the purposes of the provisions of paragraph 2 of article 12 and paragraph 4 of article 22.º of the LRAT and paragraph 4 of article 4.º of the Regulations on Costs in Tax Arbitration Proceedings, the amount of costs is fixed at € 306.00 (three hundred and six euros), in accordance with Table I attached to the said Regulations, to be borne entirely by the Claimant.

Lisbon, 13 February 2017

The Arbitrator

_______________________________
(Nuno Pombo)

Text prepared using a computer, pursuant to paragraph 5 of article 131.º of the Code of Civil Procedure, applicable by reference from subparagraph e) of paragraph 1 of Decree-Law n.º 10/2011, of 20 January and using the spelling prior to the aforementioned Orthographic Agreement of 1990.

[1] See LUÍS A. CARVALHO FERNANDES and JOÃO LABAREDA, Insolvency and Company Recovery Code Annotated, 3rd ed., Quid Iuris, Lisbon, 2015, pp. 918 et seq.

Frequently Asked Questions

Automatically Created

Is Stamp Tax (Imposto do Selo) exempt on property acquired during insolvency proceedings under Portuguese law?
Stamp Tax exemption on property acquired during insolvency proceedings depends on the specific circumstances under Article 269 of the CIRE. While Article 269(e) provides exemptions for acquisitions related to insolvency estates, the Tax Authority interprets this provision restrictively, requiring that the insolvent debtor be actively engaged in industrial, commercial, or agricultural activity at the time of acquisition. For individuals who previously operated as sole merchants but ceased commercial activities before the insolvency property sale, tax authorities may challenge the exemption. The exemption's applicability to liquidation sales from individual insolvency estates remains a contentious interpretive issue requiring case-by-case analysis.
How does Article 269 of the CIRE apply to Stamp Tax exemptions on real estate transfers?
Article 269 of the CIRE establishes several Stamp Tax exemptions for insolvency-related transactions. Subparagraph (e) specifically addresses acquisitions connected to insolvency proceedings. The Tax Authority interprets this provision as requiring the insolvent entity to actively conduct industrial, commercial, or agricultural operations at the transfer date. However, taxpayers argue for a broader interpretation encompassing all asset liquidations from insolvency estates, regardless of the debtor's active commercial status, based on CIRE's legislative intent to facilitate creditor satisfaction through efficient asset disposal. The scope of Article 269(e) remains subject to dispute, particularly concerning individual debtors who operated as sole merchants but ceased activities before property transfer.
Can a credit institution claim Stamp Tax exemption when purchasing property from an insolvency estate?
Credit institutions can claim Stamp Tax exemption when purchasing property from insolvency estates under Article 269 CIRE, but eligibility depends on meeting specific statutory conditions. The exemption is not automatic for all insolvency-related acquisitions. Tax authorities scrutinize whether the insolvent debtor qualifies as an 'enterprise' under CIRE and whether active industrial, commercial, or agricultural activity existed at the acquisition date. For properties from individual insolvency estates where the debtor previously operated as a sole merchant but ceased commercial activities, tax authorities frequently challenge exemption claims. Credit institutions should carefully assess exemption eligibility before relying on automatic recognition under Article 16(2) CIRE, as rejected exemptions result in additional assessments, payment obligations, and potential administrative or arbitral proceedings.
What is the procedure to challenge a Stamp Tax assessment through CAAD arbitration in Portugal?
To challenge a Stamp Tax assessment through CAAD (Centro de Arbitragem Administrativa) arbitration in Portugal, taxpayers must first exhaust administrative remedies by filing a hierarchical appeal (recurso hierárquico) with the Tax Authority. Following rejection of the administrative appeal, taxpayers may initiate arbitration by submitting a request to CAAD within the statutory deadline. The request must identify the challenged act, present legal grounds, and specify the relief sought. CAAD appoints an arbitrator, whom parties may object to within the prescribed period. After tribunal constitution, the Tax Authority files a response and submits the administrative file. The arbitrator may dispense with hearings if the case presents purely legal issues with sufficient documentation. Arbitral decisions are binding and subject to limited judicial review.
Are compensatory interest (juros indemnizatórios) available for undue payment of Stamp Tax in insolvency-related transactions?
Compensatory interest (juros indemnizatórios) are available for undue Stamp Tax payments in insolvency-related transactions under Article 43 of the General Tax Law (Lei Geral Tributária). When taxpayers pay contested taxes and subsequently obtain favorable rulings declaring the assessment illegal, they become entitled to compensatory interest calculated from the payment date until reimbursement. This applies to insolvency context acquisitions where banks or other purchasers pay Stamp Duty under protest, then successfully challenge the assessment through administrative appeals or CAAD arbitration. Compensatory interest compensates taxpayers for the State's temporary use of funds later determined to be unlawfully collected, ensuring full restitution beyond mere principal reimbursement. Claims for compensatory interest should be included in the initial arbitration request alongside the primary illegality declaration.