Process: 412/2017-T

Date: April 12, 2018

Tax Type: Selo

Source: Original CAAD Decision

Summary

This CAAD arbitration case (Process 412/2017-T) addresses critical procedural issues arising when the Tax Authority revokes a Stamp Tax assessment during ongoing arbitration proceedings. The taxpayer challenged a Stamp Tax liquidation of €92,442.98 for 2012 and requested compensatory interest totaling €106,870.48 under Article 43 of the General Tax Law (LGT). After the arbitration began, the Tax Authority fully revoked the contested assessment under Article 13 of RJAT, leading to a fundamental dispute: whether the arbitral tribunal retained jurisdiction to award compensatory interest despite the revocation. The taxpayer argued that compensatory interest constitutes a consequential claim inherently linked to the main illegality declaration, analogous to judicial tax appeal procedures. The taxpayer emphasized that economic interest persisted since material effects of the illegal assessment remained unaddressed. Conversely, the Tax Authority contended that CAAD's jurisdiction is strictly limited to declaring illegality of specific tax acts enumerated in Article 2 of RJAT. Once the contested act disappeared from the legal order through revocation, the Authority argued the proceedings became objectively useless (inutilidade superveniente da lide), warranting dismissal. This case exemplifies the tension between taxpayer protection and jurisdictional limits in Portuguese tax arbitration, particularly regarding whether CAAD tribunals possess condemnatory powers beyond mere illegality declarations. The outcome significantly impacts taxpayers' ability to obtain complete relief, including interest compensation for unlawful tax collection, when authorities strategically revoke assessments mid-arbitration.

Full Decision

Arbitral Award

I – Report

The taxpayer A…, with the Tax Identification Number … (hereinafter "Claimant"), filed, on 5 July 2017, a request for constitution of a Collective Arbitral Tribunal, in accordance with the combined provisions of Articles 2nd, 5th, 6th and 10th of Decree-Law no. 10/2011, of 20 January (Legal Regime of Arbitration in Tax Matters, hereinafter "LRAT"), in which the Tax and Customs Authority (hereinafter "TA" or "Respondent") is the Respondent.

The Claimant hereby requests the arbitral pronouncement on the illegality of the Stamp Tax (hereinafter, "ST") assessment no. …, of 30 November 2016, in the amount of €92,442.98, relating to the year 2012. The Claimant requests the annulment of such tax act, and the reimbursement of the tax unduly paid, plus compensatory interest calculated in accordance with Article 43rd of the General Tax Law, in a total amount of €106,870.48.

The request for constitution of the Arbitral Tribunal was accepted by the Honourable President of CAAD and automatically notified to the TA on 17 July 2017.

Within the deadline set out in Article 13th of the LRAT, the Respondent communicated, through a submission filed on 24 August 2017, the full revocation of the ST assessment act which is the subject of the arbitral pronouncement request in the present case.

In a submission of 30 August 2017, the Claimant communicated its acceptance of such revocation, but requested the Respondent to take a position regarding the request for compensatory interest, for purposes of continuation, or not, of the arbitral procedure.

In a submission of 4 September 2017, the Respondent clarified that the request for compensatory interest cannot be assessed in the present action, and that if the action were to proceed it should terminate in a dismissal of the case for lack of subject matter of the dispute.

In a submission of 13 September 2017, the Claimant insisted that the request did not cease to have economic utility after the revocation of the tax act, thus requesting express pronouncement on the request for compensatory interest initially formulated in the arbitral pronouncement request.

Pursuant to the provisions of subparagraph a) of paragraph 2 of Article 6th and subparagraph b) of paragraph 1 of Article 11th of the LRAT, as amended by Article 228th of Law no. 66-B/2012, of 31 December, the Deontological Council appointed the arbitrators of the Collective Arbitral Tribunal, who communicated their acceptance of the assignment within the applicable deadline, and notified the parties of such appointment on 30 August 2017.

The Collective Arbitral Tribunal was constituted on 20 September 2017; it was properly constituted and is materially competent, in accordance with the provisions of Articles 2nd, paragraph 1, subparagraph a), 5th, 6th, paragraph 1, and 11th, paragraph 1, of the LRAT (as amended by Article 228th of Law no. 66-B/2012, of 31 December).

Pursuant to paragraphs 1 and 2 of Article 17th of the LRAT, the TA was notified, on 20 September 2017, to submit its answer.

The TA submitted its Answer on 19 October 2017.

In such Answer the TA raises a preliminary question of lack of jurisdiction of the Arbitral Tribunal and invokes a dilatory exception capable of terminating the instance, for futility of the dispute, in addition to alleging the total lack of merit of the Claimant's request.

In a submission of 31 October 2017, the Claimant pronounced itself on the defence by exception presented by the Respondent, requesting that it be judged to lack merit.

The Arbitral Order of 2 November 2017 dispensed with the holding of the meeting provided for in Article 18th of the LRAT.

The same Arbitral Order of 2 November 2017 set 20 November 2017 as the deadline for the pronouncement and notification of the arbitral decision.

The final decision was delivered on 2 November 2017 and notified without the signature of one of the members of the collective tribunal, which prompted the Claimant to invoke its respective nullity, which was declared on 29 December 2017.

A new arbitrator was appointed, in replacement of the one whose signature was lacking, the proceedings were reopened on 18 January 2018.

The proceedings do not suffer from nullities but preliminary questions and exceptions capable of preventing the assessment of the merits of the case have been raised.

The TA proceeded to designate its representatives in the case and the Claimant submitted a power of attorney, thus the Parties are properly represented.

The Parties have legal capacity and standing, in accordance with Articles 4th and 10th, paragraph 2, of the LRAT and Article 1st of Ordinance no. 112-A/2011, of 22 March.

II – Position of the Parties

Let us briefly synthesise the position of the parties regarding the request for compensatory interest.

II.A. Position of the Claimant

In its request for arbitral pronouncement, the Claimant associates with the annulment of the tax act the request for reimbursement of the tax unduly paid, plus compensatory interest to be calculated in accordance with Article 43rd of the General Tax Law.

In its submission of 13 September 2017, the Claimant admits that "the jurisdiction of arbitral tribunals is limited to requests for declaration of illegality of tax acts," but argues that this does not prevent the subsistence of jurisdiction "to assess requests formulated by taxpayers as a consequence of the main request"; being that the request for compensatory interest would be "a consequential request to the main request for annulment of the tax assessment (…) subsumed in the same material legal relationship at issue."

The Claimant thus argues that, alongside the declaration of illegality, it would fall to arbitral tribunals to pronounce condemnatory decisions regarding the acts whose illegality has been declared, mirroring the jurisdiction exercised by tax tribunals in the process of judicial appeal.

And, admitting a joinder of requests regarding the same tax act, the Claimant argues that the full revocation of the ST assessment act which was the main object of the arbitral pronouncement request does not prevent the assessment of the remaining request, relating to compensatory interest.

In its submission of 31 October 2017, the Claimant reiterates the arguments put forward in the submission of 13 September 2017, emphasizing that its economic interest in the continuation of the proceedings remains, since its request relating to the payment of compensatory interest has not been assessed; and adds the argument that, even if the contested act can no longer be annulled because it has disappeared from the legal order, or because it has been revoked in accordance with Article 13th of the LRAT, one cannot fail to recognise, on the one hand, that the illegality of such act projected itself in material effects that subsist and must be the subject of condemnatory decisions; and, on the other, that the activity of the Arbitral Tribunal will, for this reason, be entirely owing to the conduct of the TA.

II.B. Position of the Respondent

In its submission of 4 September 2017, the TA emphasises that, in accordance with Article 2nd, paragraph 1 of the LRAT, as amended by Law no. 64-B/2011, of 30 December, the jurisdiction of arbitral tribunals operating under the aegis of CAAD is limited to the declaration of illegality of acts of the types expressly mentioned in Article 2nd of the LRAT, either directly or indirectly, through the declaration of illegality of second-tier or third-tier acts which assess the legality of assessment acts. It being unequivocal, in its view, that an act of one of the types provided for in Article 2nd of the LRAT is essential as the object of the arbitral process, as one is dealing with contentious proceedings for annulment of acts.

Accordingly, the revocation of the object of the request for arbitral pronouncement left the proceedings without an object – without a tax act that could be the object of genuine tax contentious proceedings for annulment. It therefore becoming impossible to proceed with the dispute, specifically because the request for compensatory interest cannot be assessed separately from the issue of additional ST assessment which was the object of the action.

In its answer submitted on 19 October 2017, the TA reiterates those arguments, and adds others, namely that the full revocation of the ST assessment act which was the main object of the request for arbitral pronouncement occurred still in the procedural phase, prior to the constitution of the Arbitral Tribunal, such that a divergence regarding the payment, or not, of compensatory interest should have followed the route of administrative action – the appropriate reaction to a merely procedural fact, prior to the commencement of the arbitral process proper.

Given the full revocation of the ST assessment act which was the main object of the request for arbitral pronouncement, the Respondent emphasises that one is no longer dealing with the assessment of the right to compensatory interest in connection with any of the acts listed in subparagraphs a) and b) of Article 2nd, paragraph 1 of the LRAT – because the sole act that would fall within the scope of this rule has already been revoked, and its revocation has been recognised by the Claimant.

The request for condemnation to pay compensatory interest thus encounters the dilatory exception of lack of material jurisdiction, determining the dismissal of the Respondent from the instance, in accordance with Article 278th, paragraph 1, subparagraph e) of the Code of Civil Procedure, applicable by virtue of Article 29th, subparagraph e) of the LRAT; with the consequence of the condemnation of the Claimant to pay the costs, by application of Article 536th, paragraph 3 of the Code of Civil Procedure.

III. Legal Reasoning

Not being a decision on the merits, for the reasons developed below, there is no need to list the facts relevant to the assessment of the merits of the case.

The facts set out in the report, procedural or prior, suffice to support what is decided below.

III.A. On the object of the proceedings and the impossibility of payment of compensatory interest as the main request.

When the Arbitral Tribunal was constituted, on 20 September 2017, the contested act no longer existed in the legal order, having been revoked on 24 August previously.

Consequently, the Arbitral Tribunal could not pronounce on the illegality of that act, invoked by the Claimant, and even less could it annul it, because it is not possible to make disappear from the legal world something that no longer exists therein.

It happens that the Claimant also requested, in conjunction, the condemnation of the Respondent to pay compensatory interest, as a consequence of having paid a tax which it considered to have been illegally assessed.

This request was susceptible of assessment by the Tribunal in the event of merit of the main request, for annulment of the act which was at the origin of the undue payment. But, being dependent and flowing from the annulment of the assessment which had originated the payment, if the Tribunal did not decree such annulment, the request for compensatory interest did not need to be assessed, nor could it be.

Now, at the time of the constitution of the Arbitral Tribunal, it was impossible for it to judge the illegality alleged against the assessment act, because this, as we have seen, no longer existed. Consequently, it was also no longer possible for it to consider the request for compensatory interest, which is in a relationship of dependence on the annulling request, for reasons of procedural economy.

That is, between the moment of the request for constitution of the Arbitral Tribunal and its constitution, which marks the beginning of the arbitral process (Article 15th of the LRAT), the object which the Tribunal should assess disappeared; and, as without an object there is no dispute, the dispute became impossible and was extinguished.

It could be understood that the extinction of the instance would only affect the main request, and that the subsidiary one, for payment of compensatory interest, would subsist.

But this is not possible because, in this sense, the request relating to compensatory interest would assume the role of an independent main request, and for such a request Article 2nd of the LRAT does not confer jurisdiction on arbitral tribunals.

In fact, not all acts are "susceptible of autonomous challenge" (to use the expression of Article 10th, paragraph 1, subparagraph a) of the LRAT) before the arbitral tribunals operating in CAAD, the scope of arbitral proceedings being more restricted than the scope of judicial appeal proceedings which take place before tax tribunals, as results from the comparison of Article 2nd of the LRAT with Article 97th of the Code of Tax Procedure and Process.

There is knowledge of the existence of arbitral case law which understands it possible for the tribunal to assess the legality of a revoked assessment act, so as to be able to draw from its possible illegality the consequences that may apply, in particular, in indemnification matters.

We do not agree with it, as it seems to us impossible to judicially assess an act which the Administration, after producing it, revoked. Although such revocation may have consequences, they must be drawn by the Administration itself; or, failing to do so, or doing so in non-conformity with the understanding of the tax payer, they must be drawn by a decision of the courts. But always in a different forum than the appellate process, which is directed against an act, which presupposes the contemporary existence, and not merely prior, of such act.

In view of the LRAT, and given that we are within the general ambit of contentious proceedings for annulment of acts, it is unequivocal that an act of one of the types provided for in Article 2nd is essential as the object of the arbitral process, since in it the aim is to determine its legality or illegality. Without one of such acts, the proceedings lack an object, rendering the dispute impossible.

This does not mean, however, that the Claimant loses the right to demand from the Respondent the interest it is owed. This Tribunal simply cannot assess it within the ambit of a dispute that does not subsist.

It is not, therefore, a case of lack of jurisdiction of the Tribunal, because it holds jurisdiction to annul tax assessment acts and to impose on the TA, in the respective proceeding, the payment of compensatory interest – when such acts subsist and there is occasion for such interest.

III.B. On the value of the proceedings.

The Respondent contests the value of the proceedings on the basis that the value assigned to it corresponds to the tax assessed, and that, once the assessment is annulled, the value must be another, necessarily.

Now, the value of the proceedings, by virtue of Article 2nd, paragraph 1, subparagraph a) and paragraph 2 of the Regulation of Costs in Tax Arbitration Proceedings, is calculated in accordance with Article 97th-A of the Code of Tax Procedure and Process, whose subparagraph a) of paragraph 1 makes it equivalent, in the case of challenge of the assessment, to the amount whose annulment is requested.

Such amount is, in the present proceedings, the amount indicated by the Claimant, as there was no reduction of the request, a request which, moreover, the Respondent will have satisfied in its full extent, which is equivalent to saying that neither did such reduction result from the influence of the revocatory act, contrary to what could happen if the revocation had been partial.

III.C. On the costs.

As to liability for costs, at first sight it would fall on the Respondent which voluntarily satisfied the Claimant's claim – cf. Articles 29th subparagraph e) of the LRAT and 536th, paragraph 4 of the Code of Civil Procedure.

Not so if the act was revoked only at the moment it was, only then the Claimant having provided the documents whose absence led the Respondent to conclude that there was a donation – that is, by virtue of its having been revoked, already in the phase of arbitral procedure, an assessment based on incorrect factual assumptions whose proof was the responsibility of the Claimant itself.

Now it has been proven that the revocation communicated on 24 August 2017, and accepted by the Claimant on 30 August 2017, resulted from the circumstance of the Claimant only having presented elements proving that the acquisition of real property did not result from a liberality in its favour, subject to ST (specifically the marriage registration certificate in the Portuguese legal order and the declaration relating to co-ownership of the bank account on which the cheques with which the real properties were paid were drawn), precisely at the moment of submission of the request for arbitral pronouncement on 5 July 2017, namely the marriage registration certificate dated 19 April 2017 (document no. 7 attached to the request for arbitral pronouncement) and the declaration relating to co-ownership of the bank account issued on 5 January 2017 (document no. 4 attached to the request for arbitral pronouncement).

Such circumstance, beyond being documented, was duly noted in the Answer submitted by the Respondent on 19 October 2017, in its Articles 3rd to 19th, and was not contested by the Claimant in its Submission of 31 October 2017, in which the latter had the opportunity to pronounce itself on other articles of the Answer submitted by the Respondent – limiting itself to state, without further comment, that "there was a recognition of the claim of the now Claimant at a moment subsequent to the submission of the request for constitution of an arbitral tribunal" (no. 15 of the Submission).

It is concluded that only after submission, on 5 July 2017, of the request for arbitral pronouncement, and commencement of the arbitral procedure, could the Respondent, bound as it is by strict legality, have taken the decision which it took, under Article 13th of the LRAT, and which it communicated on 24 August 2017. In terms of strict legality, it could not have taken it before.

In this case it was the Claimant who gave rise to the proceedings, Article 536th, paragraph 3 of the Code of Civil Procedure applying.

IV. Decision

It is hereby determined that the instance is terminated for subsequent futility of the dispute with reference to the request for annulment of the contested act, by virtue of its respective revocation, in accordance with and for the purposes of Article 277th, subparagraph e) of the Code of Civil Procedure.

V. Value of the Proceedings

The value of the proceedings is fixed at €106,870.48 (one hundred and six thousand eight hundred and seventy euros and forty-eight cents), in accordance with Article 32nd of the Code of Procedure in Administrative Tribunals and Article 97th-A of the Code of Tax Procedure and Process, applicable by virtue of the provisions of Article 29th, paragraph 1, subparagraphs a) and b), of the LRAT, and Article 3rd, paragraph 2, of the Regulation of Costs in Tax Arbitration Proceedings (RCPAT).

VI. Costs

Costs are charged to the Claimant, in the amount of €3,060.00 (three thousand and sixty euros) in accordance with Table I of the RCPAT, and in compliance with the provisions of Articles 12th, paragraph 2, and 22nd, paragraph 4, both of the LRAT, and the provisions of Article 4th, paragraph 4, of the aforementioned Regulation.

Lisbon, 12 April 2018

The Arbitrators

José Baeta de Queiroz

Suzana Fernandes da Costa

Fernando Araújo

Frequently Asked Questions

Automatically Created

What happens when the Tax Authority revokes a Stamp Tax (Imposto de Selo) liquidation during arbitration proceedings at CAAD?
When the Tax Authority revokes a Stamp Tax liquidation during CAAD arbitration proceedings under Article 13 of RJAT, it raises the defense of supervening uselessness of proceedings (inutilidade superveniente da lide). The Authority argues that since the contested act has disappeared from the legal order, there is no longer a valid object for the arbitral tribunal to annul, potentially resulting in dismissal of the case. However, taxpayers may contest this position if consequential claims like compensatory interest remain unresolved.
Can a taxpayer still claim compensatory interest (juros indemnizatórios) after the Tax Authority revokes the contested tax assessment?
The ability to claim compensatory interest after Tax Authority revocation of a contested assessment is disputed. Taxpayers argue that compensatory interest under Article 43 of LGT constitutes a consequential claim inseparable from the main illegality declaration, forming part of the same material legal relationship. They contend CAAD tribunals should issue condemnatory decisions regarding compensation, similar to judicial tax courts. The Tax Authority counters that CAAD jurisdiction is strictly limited to illegality declarations under Article 2 of RJAT, excluding condemnatory powers to award interest once the contested act ceases to exist through revocation.
What is supervening uselessness of proceedings (inutilidade superveniente da lide) in Portuguese tax arbitration?
Supervening uselessness of proceedings (inutilidade superveniente da lide) in Portuguese tax arbitration occurs when the object of dispute ceases to exist during proceedings, making judicial or arbitral intervention objectively futile. In CAAD cases, this typically arises when the Tax Authority revokes the contested tax assessment under Article 13 of RJAT. The Authority argues this eliminates the necessary tax act object required under Article 2 of RJAT, transforming arbitration into contentious proceedings without an act to annul, warranting dismissal for lack of subject matter.
How does Article 43 of the Portuguese General Tax Law (LGT) apply to compensatory interest claims in CAAD arbitration?
Article 43 of the Portuguese General Tax Law (LGT) governs compensatory interest (juros indemnizatórios) payable when taxes are collected unlawfully or in excess. In CAAD arbitration, its application is controversial when tax assessments are revoked mid-proceedings. Taxpayers argue Article 43 interest claims are inherent consequences of illegality declarations within CAAD's jurisdiction, compensating for material effects of unlawful collection that persist despite revocation. However, the Tax Authority contends CAAD tribunals lack jurisdiction to award such interest as a condemnatory measure, since Article 2 of RJAT limits arbitral competence to mere illegality declarations, not broader remedial orders.
What procedural steps must the Tax Authority follow when revoking a tax liquidation under Article 13 of the RJAT?
Under Article 13 of RJAT, when the Tax Authority revokes a contested tax liquidation during arbitration, it must formally communicate the full revocation to the arbitral tribunal and parties within the deadline for submitting its answer. This communication triggers debate over proceeding continuation. The Authority typically argues revocation eliminates the dispute object, creating supervening uselessness warranting dismissal. Taxpayers may accept revocation but request clarification on consequential claims like compensatory interest. The tribunal must then determine whether jurisdiction persists for remaining claims or whether proceedings should terminate, balancing strict jurisdictional limits against complete taxpayer relief and procedural economy.