Summary
Full Decision
Arbitral Decision
The Arbitrator, Dr. Sílvia Oliveira, appointed by the Ethics Council of the Administrative Arbitration Center (CAAD) to form the Arbitral Tribunal, constituted on 15 September 2017, with respect to the case identified above, decided as follows:
1. REPORT
1.1
A…, Unipersonal, Ltd., Legal Entity…, with registered office at…, Building…, no…, in…, registered at the Commercial Registry Office of… (hereinafter referred to as the "Claimant") filed a request for arbitral decision and for the constitution of a Single Arbitral Tribunal, on 27 June 2017, pursuant to the provisions of Article 4 and Section 2 of Article 10 of Decree-Law No. 10/2011, of 20 January [Legal Regime of Tax Arbitration (LRTA)], in which the Tax and Customs Authority is the respondent (hereinafter referred to as the "Respondent").
1.2
The Claimant requests that the Arbitral Tribunal rule "regarding (i) the act of dismissal of the request for review of the tax act and (ii) the act of assessment of Stamp Duty (item 28.1 of the General Stamp Tax Table) for the year 2012 assessed and paid in 2013, with reference to the urban property located at Street…, no…, in…, registered in the urban property register of the civil parish union of… and… under entry…, corresponding to the former entry… of the parish of… (…)" and, consequently, that "(…) be annulled (i) the decision dismissing the request for review of the tax act and (ii) the Stamp Duty assessment for the year 2012, made in 2013, in the total amount of EUR 13,026.30, referring to the property of which the Claimant is the owner (…)", and "the Tax Authority be ordered to refund to the Claimant the tax improperly paid", with the Respondent being "(…) ordered to pay compensatory interest (…) calculated from the date of the improper payments until full reimbursement (…) of the improperly paid tax".
1.3
The request for constitution of the Arbitral Tribunal was accepted by His Excellency the President of CAAD and was automatically notified to the Respondent on 28 June 2017.
1.4
Given that the Claimant did not proceed with the appointment of an arbitrator, pursuant to the provisions of Article 6, Section 2, subparagraph a) of the LRTA, the undersigned was appointed as arbitrator on 14 August 2017 by the President of the Ethics Council of CAAD, and the appointment was accepted within the legally established timeframe and terms.
1.5
On the same date, the parties were duly notified of this appointment and did not manifest any intention to refuse the appointment of the arbitrator, in accordance with the provisions of Article 11, Section 1, subparagraphs a) and b) of the LRTA, combined with Articles 6 and 7 of the Ethics Code.
1.6
Thus, in compliance with the provision of subparagraph c), Section 1, Article 11 of the LRTA, the Arbitral Tribunal was constituted on 15 September 2017, and an arbitral order was issued on the same date, directing the Respondent to "(…) within 30 days, submit its response, attach a copy of the administrative file and request, if so desired, the production of additional evidence".
1.7
On 19 October 2017, the Respondent submitted its Response, defending itself by contestation and concluding that "(…) the present request for arbitral decision should be ruled wholly unfounded, absolving the Respondent Entity of the request, with all other legal consequences".
1.8
Additionally, "(…) given that there are no exceptions and the position of the parties is fully defined in the case file and supported by the evidence presented (…)", the Respondent requested "(…) a waiver of the meeting provided for in Article 18 of the LRTA".
1.9
Lastly, in its Response, the Respondent undertook to attach the Administrative File, which it subsequently attached on 24 October 2017.
1.10
In these terms, it was decided by the Arbitral Tribunal, in an arbitral order dated 19 October 2017, that "following the Response submitted (…) by the Respondent (…)" and "(…) given the absence of substantive exceptions and since (…) the production of witness evidence was not requested (…), no utility is seen in holding the meeting provided for in Article 18 of the (…) LRTA, whereby, pursuant to the principles of autonomy of the Arbitral Tribunal in the conduct of the proceedings, celerity, simplification and procedural informality (Articles 19, Section 2, and 29, Section 2, of the LRTA), the holding of said meeting is waived (…)", "(…) it is determined that the proceedings shall continue with optional written submissions, within a successive period of 10 days, with the period for submissions by the Claimant commencing upon notification of this order and the period for submissions by the Respondent commencing upon notification of the submission by the Claimant, and (…) 29 November 2017 is set for purposes of the delivery of the arbitral decision".
1.11
On 31 October 2017, the Claimant submitted its written submissions concluding in the same terms as the arbitration request.
1.12
By arbitral order of 2 November 2017, in complement to the arbitral order referred to in point 1.10, above, the Arbitral Tribunal further warned the Claimant that, until the date of delivery of the arbitral decision, it should proceed with the payment of the subsequent arbitration fee, in accordance with the provisions of Section 3 of Article 4 of the Regulations for Costs in Tax Arbitration Proceedings and communicate this payment to CAAD.
1.13
On 13 November 2017, the Respondent submitted a request stating that "(…) it does not intend to submit final written submissions, given that the position of the tax administration is fully and adequately set forth, in fact and in law, in the Response submitted".
2. CAUSE OF ACTION
The Claimant supports its request, in summary, as follows:
2.1
"The Claimant is the owner of the urban property located at Street…, no…, in…, registered in the urban property register of the civil parish union of… and…, under entry no…, corresponding to the former entry… of the parish of… (…)" and "in April, July and November 2013, (…) it was notified of collection notices nos. 2013…, 2013… and 2013…, respectively, relating to Stamp Duty item 28.1 of the GSTT for the year 2012, in a total amount of EUR 13,026.30 (…)".
2.2
The Claimant clarifies that "(…) it made timely payment of said collection notices (…)" but "considering that the assessment made was illegal, (…) it submitted on 3 July 2015 a request for review of the tax act alleging double collection (…)", which "(…) was dismissed by order of the Head of Department of the Direct Income Tax Services issued on 13 March 2017, notified to the Claimant on 30 March 2017 (…)".
2.3
Now, "(…) the Claimant does not accept this decision of dismissal, nor the contested assessment act, which it considers illegal due to double collection since, with reference to the year 2012, the tax had been assessed and paid in 2012 (…) in accordance with the transitional regime expressly approved by Law No. 55-A/2012, of 29 October, which introduced such tax".
2.4
In this context, the Claimant understands that, in accordance with the transitional regime approved, "(…) there is no doubt that, with reference to the year 2012, the taxable event occurred on 31 October - and not on 31 December, as would occur under normal circumstances (…)".
2.5
Thus, "(…) the tax relating to 2012 should be assessed by the end of November and paid by 20 December of that same year, which (…) did occur in the present case".
2.6
The Claimant understands that "in 2012, for reasons of compliance with the budget deficit, the legislator expressly advanced the taxable event to 31 October, and therefore on 31 December, no new taxable event occurred".
2.7
Thus, the Claimant understands that "in 2012 (…) there was only one taxable event that occurred on 31 October and which, in the present case, gave rise to collection notice no. 2012… (…), payable by 20 December 2012" and therefore "(…) the Claimant concludes that the tax paid in 2013, with reference to the year 2012, was abusively and illegally assessed, with the Tax Authority requiring payment in duplicate of the tax due for the same taxable event".[2] [3]
2.8
In these terms, "it is (…) evident that the Tax Authority erred in assessing - again - in 2013 tax that had been assessed and paid in 2012, pursuant to the transitional regime provided for in Law No. 55-A/2012, of 29 October, which expressly provided for the advancement of the taxable event and respective tax revenue", therefore "in light of the (…) foregoing, it is concluded that there is manifest illegality in the Stamp Duty assessment made in 2013, with reference to the year 2012, due to double collection, in accordance with Article 205 of the TCPC (…)" requesting that it should "(…) be annulled, with consequent refund to the Claimant of the improperly paid tax".
2.9
With regard to the dismissal of the request for review, the Claimant understands that "the position of the Tax Authority that sustains the decision dismissing the request for review of the tax act filed by the Claimant is (…) entirely without merit, with nothing remaining for this Tribunal, in addition to what has already been requested, other than to annul the decision rendered".
2.10
Finally, the Claimant understands that "(…) it shall be entitled to compensatory interest, calculated from the day of payment of the improperly paid tax (…) until the date of full reimbursement of the wrongfully paid amount".
3. RESPONSE OF THE RESPONDENT
The Respondent responded sustaining the unfoundedness of the request for arbitral decision, invoking, in summary, the following arguments:
3.1
It begins by disagreeing with the interpretation that the Claimant makes of the transitional provision of Law No. 55-A/2012, of 29/10, stating that "the order dismissing the impugned request for review (…) corresponds to a correct interpretation of said Law (…), namely, the amendments to the SCT that it introduced with respect to Item 28.1 (…) in concluding that there were two distinct taxable events, a first one that occurred on 2012-10-31, corresponding to the exceptional regime instituted pursuant to the transitional provisions (…); and a second one, which occurred on 2012-12-31, in accordance with the provisions of subparagraph u) of Article 5 of the SCT, amended by the same law", "whereby we consider there to be no double collection in the contested assessment, the Claimant's claim being therefore unfounded".
3.2
Additionally, the Respondent states that "(…) Article 3 of Law 55-A/2012 would introduce, with relevance to the present case (…) provisions to the SCT (…)" and that Article 6 of Law 55-A/2012, in establishing the transitional provisions contained therein, "(…) thus establishes the legal regime applicable in 2012 for purposes of Stamp Duty provided for in Item 28", which is "(…) an exceptional regime (…)" for the reasons it sets forth.
3.3
In these terms, the Respondent concludes that "the transitional regime described above was intended to attenuate the effects of the advancement of the taxable event and the assessment and collection of the new tax in the year 2012", whereby "the assessment of item 28 of the GSTT, of 21.03.2013, in the total amount of EUR 13,026.30, to be paid in three installments, at issue in the request for review impugned in the present case, was made in accordance with Section 2 of Article 6 of said Law, the taxable event of which occurred on 31.12.2012 (…) and was based on the TAV determined in the general assessment made in December 2012 (…)".
3.4
In the Respondent's view, "it follows (…) that the assessment of item 28 of the GSTT of 21.03.2013 does not suffer from the alleged defect of double collection which (…) presupposes that a tax is paid and a different one of equal nature is demanded from the same or a different person, relating to the same taxable event and the same period of time", whereby "the two assessments do not relate to the same taxable event, nor do they have the same temporal reference (…)".
3.5
Thus, the Respondent concluded that "there do not exist (…) the prerequisites for the verification of double collection regarding the assessment of Item 28 of the GSTT relating to the year 2012 at the rate of 1%, which should be maintained as it is legal, as well as the order dismissing the request for review of the assessment of 13.03.2017, which is the subject of impugnation in the present case".
4. CURIAL ANALYSIS
4.1
The request for arbitral decision is timely as it was filed within the deadline provided for in subparagraph a) of Section 1 of Article 10 of the LRTA.[4]
4.2
The parties have legal personality and procedural capacity, are legitimated as to the request for arbitral decision and are duly represented, in accordance with the provisions of Articles 4 and 10 of the LRTA and Article 1 of Administrative Rule No. 112-A/2011, of 22 March.
4.3
The joinder of claims made here by the Claimant is legal and valid, in accordance with the provisions of Article 3, Section 1 of the LRTA, given that the merit of the claims depends, essentially, on the evaluation of the same factual circumstances and on the interpretation and application of the same principles or rules of law.
4.4
The Tribunal has jurisdiction to decide the request for arbitral decision filed by the Claimant.
4.5
No exceptions have been raised that require resolution.
4.6
No nullities are found, and therefore it is necessary to address the merits of the claim.
5. FACTUAL MATTER
Established Facts
5.1
The following facts are considered established:
5.1.1
The Claimant is the legitimate owner of the urban property located at Street…, no…, in…, registered in the urban property register of the Civil Parish Union of… and…, under entry no…, corresponding to the former entry… of the parish of….
5.1.2
The Claimant was notified of the Stamp Duty assessment made pursuant to Law 55/2012, of 29 October (year 2012), dated 7 November 2012, through collection notice no. 2012…, in the amount of EUR 8,602.33, payment of which it made on 17 December 2012.
5.1.3
The Claimant was notified, in April, July and November 2013, of collection notices nos. 2013…, 2013… and 2013… relating to the Stamp Duty assessment (item 28.1 of the GSTT) no. 2012 17927, dated 21 March 2013, and relating to the year 2012, in the total amount of EUR 13,026.30 (EUR 4,342.10 each).
5.1.4
The Claimant proceeded to pay said collection notices on 30 April 2013, 25 July 2013 and 2 December 2013, respectively.
5.1.5
The Claimant submitted, on 6 July 2015, a request for review of the tax act relating to the Stamp Duty assessment identified above in point 5.1.3., alleging double collection of this tax with reference to the year 2012 and requesting reimbursement of the improperly paid tax.
5.1.6
The Claimant was notified, on 30 March 2017, of the order dismissing the request for review of the identified tax act, with waiver of the right to a hearing, issued by the Head of Department of the Direct Income Tax Services, on 13 March 2017, based on Report No. I2017…, of 14 February 2017 (case no. 2015…), pursuant to which the Respondent considered "(…) there to be no double collection in the contested assessment (…)", concluding that "(…) there are no grounds for the admission of the request for review of the tax act due to double collection which (…) does not exist".
5.2
No other facts capable of affecting the merits of the claim were proven.
Grounds as to the Factual Matter
5.3
With regard to the factual matter proven, the conviction of the Arbitral Tribunal was based, beyond the free evaluation of the positions assumed by the Parties (on matters of fact), on the content of the documents attached to the case file by the Claimant (and not contested by the Respondent), as well as on the analysis of the administrative file attached by the Respondent.
Unproven Facts
5.4
No other facts were found to be unproven with relevance to the arbitral decision.
6. GROUNDS OF LAW
6.1
In the case under analysis, there are two questions of law that are in dispute, underlying the Request for Arbitral Decision:
6.1.1
To decide whether the Claimant is correct when it argues that there is "(…) manifest illegality of the Stamp Duty assessment made in 2013, with reference to the year 2012, due to double collection (…)" or whether, on the other hand, "(…) there do not exist (…) the prerequisites for the verification of double collection regarding the assessment (…) relating to the year 2012 (…), which should be maintained as it is legal (…)", as the Respondent argues? And, consequently,
6.1.2
To decide whether the Claimant is correct when it understands that "the position of the Tax Authority that sustains the decision dismissing the request for review of the tax act filed (…) is (…) entirely without merit" or whether the Respondent is correct when it states that it should be maintained, "(…) as it is legal, (…) the order dismissing the request for review of the assessment (…), which is the subject of impugnation in the (…) case".
6.2
Now, in this context, let us begin by analyzing the legislation underlying the positions described above.
6.3
Law No. 55-A/2012, of 29 October, made several amendments to the Stamp Tax Code, having added to the GSTT item 28 (effective from 30 October 2012), with the following wording:
"28. Ownership, usufruct or right of superficies of urban properties whose TAV recorded in the register, in accordance with the Municipal Property Tax Code, is equal to or greater than EUR 1,000,000.00 – on the TAV for purposes of Municipal Property Tax:
28.1 – Per property with residential use – 1%.
28.2 – Per property, when the taxpayers that are not natural persons are resident in a country, territory or region subject to a clearly more favorable tax regime, listed in the list approved by order of the Minister of Finance - 7.5%".
6.4
In accordance with the provisions of Article 6 (Transitional Provisions), Section 1 of the Law referenced above, in 2012, the following rules should be observed with reference to the assessment of stamp tax provided for in item no. 28 of the respective General Table:
"a) The taxable event occurs on 31 October 2012;
b) The taxpayer of the tax is the one mentioned in Section 4 of Article 2 of the Stamp Tax Code on the date referred to in the preceding subparagraph;
c) The tax assessment value to be used in the assessment of the tax corresponds to that which results from the rules provided for in the Municipal Property Tax Code with reference to the year 2011;
d) The assessment of the tax by the Tax and Customs Authority shall be made by the end of the month of November 2012;
e) The tax shall be paid, in a single installment, by taxpayers by 20 December 2012;
f) The applicable rates are as follows:
i) Properties with residential use assessed in accordance with the Municipal Property Tax Code: 0.5%;
ii) Properties with residential use not yet assessed in accordance with the Municipal Property Tax Code: 0.8%;
iii) Urban properties when the taxpayers that are not natural persons are resident in a country, territory or region subject to a clearly more favorable tax regime, as listed in the list approved by order of the Minister of Finance: 7.5%".
6.5
In accordance with Section 2 of Article 6 of said Law, "in 2013, the assessment of the stamp tax provided for in item no. 28 of the respective General Table shall be based on the same tax assessment value used for purposes of the assessment of municipal property tax to be made in that year".
6.6
In the preamble to the Bill that introduced the amendments, regarding item 28 of the GSTT, the following reasons were presented (emphasis added):
6.6.1
"The pursuit of the public interest, in light of the economic and financial situation of the Country, requires a reinforcement of budgetary consolidation which will require, in addition to a permanent activism in the reduction of public expenditure, the introduction of fiscal measures inserted in a broader set of measures to combat the budget deficit".
6.6.2
"These measures are fundamental to reinforce the principle of social equity in austerity, guaranteeing an effective distribution of the necessary sacrifices to comply with the adjustment program (…) with the Government strongly committed to ensuring that the distribution of these sacrifices is made by all and not just by those who live off the income of their work".
6.6.3
"In accordance with this objective, this diploma broadens the taxation of capital income and property, equitably encompassing a broad set of sectors of Portuguese society".
6.6.4
"A rate in the Stamp Tax is created applicable to urban properties with residential use whose tax assessment value is equal to or greater than one million Euros" (emphasis added).
6.7
Thus, from this motivation of the legislator, it follows that the taxation in question aims at "an effective distribution of sacrifices", making this taxation apply to property (as opposed to income from work, already affected by other measures).
6.8
Is it, therefore, legitimate, in light of the foregoing, to hold, as the Respondent does, that "(…) the order dismissing the request for review impugned (…) corresponds to a correct interpretation of said Law (…), namely, the amendments to the SCT that it introduced with respect to Item 28.1 (…) in concluding that there were two distinct taxable events, a first one that occurred on 2012-10-31, corresponding to the exceptional regime instituted pursuant to the transitional provisions (…); and a second one, which occurred on 2012-12-31, in accordance with the provisions of subparagraph u) of Article 5 of the SCT, amended by the same law", and thus to conclude as to the non-existence of "(…) double collection in the contested assessment (…)"? (emphasis added).
6.9
In this context, it will be necessary to analyze the matter of double collection, whose requirements are set forth in Article 205, Section 1 of the TCPC, in accordance with which "there shall be double collection (…) when, with an entire tax paid, another of equal nature is demanded from the same or a different person, relating to the same taxable event and the same period of time".
6.10
Indeed, as stated in the Decision of the Superior Administrative Court of 26 February 2013 (case no. 06195/12), "according to law, the legal-fiscal figure of double collection is characterized by the following vectors: 1 - Uniqueness of the taxable event; 2 - Identity of nature between the contribution or tax already fully paid and the one that is now to be collected; 3 - Temporal coincidence between the incidence of the paid tax and the one now being demanded".[5]
6.11
In fact, according to the Decision referred to in the preceding point, "double collection can be configured as the equivalent, in the field of fiscal law, to the criminal law principle of prohibition of non bis in idem, being a cause of illegality of the tax act", since "double collection results from the application of the same legal provision more than once to the same taxable event or concrete tax situation" (emphasis added).
6.12
"However, it becomes necessary that the factual reality underlying the plurality of assessments be the same (…)" and "it should further be noted that the reference to the payment of the tax in its entirety carries with it the requirement that the tax owed be completely paid, which excludes the possibility of invoking double collection when the tax is only partially paid, as a result of the first assessment, either because payment was made of only part of the installments, or because the first assessment, although fully paid, does not reach the amount to be collected in light of the second assessment" (emphasis added).[6]
6.13
Now, in the case under analysis, as we have seen, all installments of the Stamp Duty of the contested assessment were timely paid.
6.14
Additionally, it should be noted the position of the Supreme Administrative Court which has repeatedly ruled, deciding uniformly in a sense contrary to that defended by the Respondent.[7]
6.15
In fact, as stated in the Decision of the Supreme Administrative Court of 15/02/2017 (case no. 01347/16), "we see no reason to diverge from the grounds stated there (…), we likewise embrace such jurisprudence, whereby, following what was set forth in the cited decision of 8/10/2014, case no. 0865/14, it is stated":
6.15.1
"It appears from the allegation of the Public Finance Authority that it believes it is in accordance with the law the assessment of Stamp Duty of item 28.1 of the respective General Table, made in March 2013 and with reference to the year 2012, pursuant to the provisions of Section 2 of Article 6 of Law No. 55-A/2012, of 29 October (and provisions of the SCT and the MPTC to which it refers), even though on the same property and in relation to the same period of time there had already been made an assessment of the same tax in 2012, pursuant to the provisions of Section 1 of Article 6 of Law No. 55-A/2012, of 29 October" (emphasis added).
6.15.2
"Now, this Supreme Court has already decided (…) that, where the assessment of Stamp Duty relating to 2012 is at issue, even if made in 2013, the transitional regime contained in Section 1 of Article 6 of that Law No. 55-A/2012 must be observed, and not that contained in Section 2 of Article 6, the latter being applicable to assessments relating to the year 2013 (…) appearing to intend, in the case before us, that it is lawful for the Administration, with respect to the same reference year, to assess Stamp Duty in 2012, pursuant to the transitional regime of Section 1 of Article 6, and again in 2013, pursuant to Section 2 of Article 6 of Law No. 55-A/2012" (emphasis added).
6.15.3
However, "(…) however acute the needs for tax revenue, which are at the origin of the amendment to the General Table of the Stamp Tax of Item 28.1 in October 2012, it does not appear lawful to conclude that it was the intention of the legislator that, with respect to the same reference year – 2012 – there could cumulatively be two assessments of Stamp Duty of item 28.1 of the General Table (once the respective requirements for the tax to apply were met): one to be made still in 2012, to which the provisions of Article 6 Section 1 of Law No. 55-A/2012 would apply, and another to be made in 2013, to which the general rules would apply (pursuant to Section 2 of Article 6 of the same Law)" (emphasis added).
6.15.4
Indeed, "it would be, unequivocally, an anomalous situation in all respects in light of the principles that inform the tax system, of at least dubious constitutionality and which does not appear, at all, to have been intended by the legislator. To the contrary (…) it also appears to us that, from the transitional regime contained in Section 1 of Article 6 of Law No. 55-A/2012, it follows with clarity that for the year 2012 and for purposes of Stamp Tax, the owners of urban properties with residential use and a TAV greater than EUR 1,000,000.00, the sole taxable event is located on 31/10/2012, the sole assessment by the Tax Authority must be made by the end of November 2012, the sole rate to be applied in the case of properties assessed in accordance with the MPTC is 0.5% and the tax shall be paid in a single installment by 20/12/2012" (emphasis added).
6.16
Accordingly, having regard to the foregoing, this Arbitral Tribunal understands (in conformity with the jurisprudence of Superior Courts) that the Stamp Duty assessment under review (made in 2013 with reference to the year 2012) lacks legal foundation, given that Stamp Duty relating to the year 2012 had already been assessed (and paid) with reference to the same property and taxpayer.
6.1.7
In these terms, the assessment impugned in the case is deemed illegal because it relates to the same property, with reference to the same year 2012, even though made in March 2013, and the said Stamp Duty assessment is therefore ordered annulled, given that this assessment constitutes an actual double collection regarding the year 2012 (with reference to the property identified in the case), with consequent refund of the amounts improperly paid.
6.18
As a consequence of the foregoing, and for the same reasons, the order dismissing the request for official review of the tax act referred to in the preceding point also lacks legal foundation, and the same is therefore ordered annulled.
On the Right to Compensatory Interest
6.19
Having regard to the conclusion reached in point 6.1.7, above, and with respect to the request presented by the Claimant that "(…) it shall be entitled to compensatory interest, calculated from the day of payment of the improperly paid tax (…) until the date of full reimbursement of the wrongfully paid amount", attention should be given to the provisions of Article 43 of the General Tax Law (GTL), according to which the right to compensatory interest subsists whenever this results from error attributable to the services of the Tax Authority, and shall be calculated from the day following the improper payment until the date of issuance of the respective credit note, at the legal rate.
6.20
In this context, it is important to note that, in accordance with the provisions of subparagraph b), Section 1, Article 24 of the LRTA, and in conformity with what is established there, "the arbitral decision on the merits of the claim that is not subject to appeal or impugnation binds the tax administration from the expiration of the deadline set for appeal or impugnation, and the latter must restore the situation that would exist if the tax act which is the subject of the arbitral decision had not been performed, adopting the acts and operations necessary for this purpose" (emphasis added).
6.21
In fact, in accordance with the provisions of Article 100 of the GTL, applicable to the case by virtue of the provisions of subparagraph a), Section 1, Article 29 of the LRTA, "the tax administration is obliged, in the case of full or partial merit of complaints or administrative appeals, or judicial proceedings in favor of the taxpayer, to immediately and fully restore the situation that would exist if the illegality had not been committed, comprising the payment of compensatory interest, in accordance with the terms and conditions provided for in law" (emphasis added).
6.22
In the situation under analysis, and as a consequence of the conclusions presented above, there must be, by virtue of the norms previously referred to, reimbursement of the amounts paid by the Claimant relating to the Stamp Duty assessment for the year 2012, which is now being annulled, as a means of achieving the restoration of the situation that would exist if the illegality had not been committed.
6.23
Accordingly, it appears that, in light of what is established in Article 61 of the TCPC and once the requirements for the right to compensatory interest are met (that is, the existence of error attributable to the services resulting in payment of the tax debt in an amount greater than legally owed), the Claimant shall be entitled to compensatory interest at the legal rate, calculated on the amounts improperly paid, relating to the Stamp Duty assessment no. 2012…, dated 21 March 2013 (and relating to the year 2012), which shall be calculated, in accordance with the provisions of Section 3 of Article 61 already referred to, from the date of payment of the improperly paid tax until the date of issuance of the respective credit note.
On Responsibility for Arbitration Costs
6.24
In accordance with the provisions of Article 22, Section 4 of the LRTA, "the arbitral decision issued by the arbitral tribunal shall include the determination of the amount and apportionment among the parties of the costs directly resulting from the arbitration proceedings".
6.25
Thus, in accordance with the provisions of Article 527, Section 1 of the Code of Civil Procedure (CCP), by virtue of Article 29, Section 1, subparagraph e) of the LRTA, it shall be established that the party that caused the costs shall be condemned to pay them or, if there is no judgment on the merits of the action, whoever benefited from the proceedings.
6.26
In this context, Section 2 of the aforementioned article specifies the expression "caused the costs", according to the principle of unsuccessful outcome, establishing that the unsuccessful party causes the costs of the proceedings, in proportion to its failure.
6.27
In the case under analysis, having regard to the foregoing, in accordance with the provisions of Article 12, Section 2 of the LRTA and Article 4, Section 4 of the Regulations for Costs in Tax Arbitration Proceedings, it is established that the entire responsibility for costs is to be attributed to the Respondent.
7. DECISION
7.1
In these terms, having regard to the analysis conducted, this Arbitral Tribunal decided:
7.1.1
To find the request for arbitral decision filed by the Claimant to have merit, annulling both the tax act of Stamp Duty assessment identified, relating to the year 2012, and the order dismissing the request for review of that tax act, on the ground of double collection;
7.1.2
Consequently, to find the request for condemnation of the Respondent to refund the amounts improperly paid by the Claimant, together with compensatory interest, at the legal rate, calculated in accordance with applicable law, to have merit;
7.1.3
To condemn the Respondent to pay the costs of the present proceedings.
Value of the case: Having regard to the provisions of Article 306, Section 2 of the CCP, Article 97-A, Section 1 of the TCPC and Article 3, Section 2 of the Regulations for Costs in Tax Arbitration Proceedings, the value of the case is fixed at EUR 13,026.30.
Costs of the proceedings: In accordance with the provisions of Table I of the Regulations for Costs in Tax Arbitration Proceedings, the costs of the Arbitration Proceedings are fixed at EUR 918.00, to be borne by the Respondent, in accordance with Article 22, Section 4 of the LRTA.
Notify.
Lisbon, 29 November 2017
The Arbitrator
Sílvia Oliveira
[1] The present decision is written in accordance with the orthography prior to the 1990 Orthographic Agreement, except as regards transcriptions made.
[2] Regarding double collection, the Claimant cites Decisions of the Supreme Administrative Court, of 05/02/2015 (rendered in case no. 0993/14), of 03/12/2014 (rendered in case no. 01018/14) and of 15/02/2017 (rendered in case no. 01347/16).
[3] In the same sense, the Claimant cites JORGE LOPES DE SOUSA, in "Code of Tax Procedure and Process", Annotated and Commented, Vol. II, 2007, Áreas Publishing, page 396, note 7, when stating that "in cases in which a second assessment is made after payment of the amount assessed in the first assessment has already been made, the second assessment is illegal and affected by the defect of double collection, capable of being invoked not only in a review request and in judicial impugnation but also, even after the deadlines for using these means of impugnation have elapsed, in a request for review of the tax act, within a four-year period (Article 78, Section 6 of the GTL)".
[4] In this context, it should be noted that from the analysis of the case file it follows that the request for arbitral decision has as its object the act of assessment of Stamp Duty relating to the year 2012 (identified in the case file), on the ground of illegality of said act, with respect to the property identified in the case, the Claimant requesting that the Arbitral Tribunal declare the illegality of that assessment and, consequently, order its annulment, proceeding with the refund of the amounts paid, together with compensatory interest. Additionally, the Claimant also requests that the Arbitral Tribunal annul the order dismissing the request for official review (which it submitted on 3 July 2015), notified to the Claimant on 30 March 2017, relating to that act of assessment of Stamp Duty, as a means of being able to declare, ultimately, the illegality of the Stamp Duty assessment which is the object of the request.
Given the provisions of Section 1 of Article 102 of the Code of Tax Procedure and Process (TCPC), that the deadline for bringing judicial impugnation is three months counted from the facts enumerated in that article, namely, the "notification of the remaining acts that may be subject to independent impugnation in accordance with this Code" [subparagraph e)], as well as that provided in Article 10, Section 1, subparagraph a) of the LRTA establishing that the request for constitution of an arbitral tribunal shall be filed "within 90 days, counted from the facts provided for in Sections 1 and 2 of Article 102 of the TCPC, as to acts subject to independent impugnation (…)", on the date of filing of the request for arbitral decision (27 June 2017) it is considered timely.
[5] In this sense, see Decision of the Supreme Administrative Court, 2nd Section, of 5/10/78, Annotated Decisions, no. 207, page 391, Decision of Tax Court, 2nd Instance of 12/10/93, CTF 373, pages 227 et seq., Decision of the Superior Administrative Court of 31/1/2012 (case 4966/11), A. José de Sousa and J. da Silva Paixão, in "Code of Tax Procedure", Annotated and Commented, 3rd Edition, 1997, page 604, Jorge Lopes de Sousa, in "Code of Tax Procedure and Process", Annotated and Commented, Volume II, Áreas Publishing, 5th Edition, 2007, page 394.
[6] See Jorge Lopes de Sousa, in "Code of Tax Procedure and Process", Annotated and Commented, Volume II, Áreas Publishing, 5th Edition, 2007, page 395.
[7] In this context, see, in particular, the Decisions of the Supreme Administrative Court rendered on 14/01/2015 (case no. 01084/14), on 29/10/2014 (case no. 0865/14) and on 8/10/2014 (cases no. 805/14 and 806/14).
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