Process: 416/2018-T

Date: April 24, 2019

Tax Type: IMT

Source: Original CAAD Decision

Summary

This CAAD arbitration decision (Process 416/2018-T) addresses the temporal limits for challenging IMT (Municipal Tax on Onerous Transfers of Real Property) assessments in Portugal. The case involved a taxpayer who acquired property in a personal insolvency proceeding in June 2016, initially receiving an IMT exemption under article 270 of the Insolvency Code (CIRE). The Tax Authority revoked this exemption in June 2018, issuing an additional assessment of €24,040.68. The taxpayer challenged this revocation, arguing it violated her legitimate expectations, the principle of legal certainty, and exceeded the one-year deadline for revoking rights-conferring administrative acts under article 168(2) of the Administrative Procedure Code. The taxpayer was notified of the assessment in January 2018 but only filed the arbitration request in August 2018. The Tax Authority raised a procedural exception of caducidade (lapse of the right of action), claiming the request was untimely. Under Portuguese tax arbitration law, taxpayers must file within 90 days of notification. The tribunal ordered the taxpayer to respond to this exception under the contradictory principle, but the taxpayer failed to present arguments. This procedural silence potentially weakened the taxpayer's position. The decision illustrates the strict procedural requirements in Portuguese tax arbitration, particularly regarding filing deadlines, and demonstrates how substantive arguments about tax benefit revocation and legitimate expectations can be undermined by procedural defects. The case highlights the critical importance of respecting statutory deadlines in tax disputes and responding to all procedural exceptions raised by the Tax Authority.

Full Decision

ARBITRATION DECISION

REPORT

  1. On 31 August 2018, A..., taxpayer no. ..., resident in Lisbon, hereinafter referred to as the Claimant, requested the constitution of an Arbitral Tribunal and submitted a request for arbitration ruling, pursuant to article 2(1)(a) and article 10(1)(a) of Decree-Law no. 10/2011 of 20 January (Legal Regime of Arbitration in Tax Matters, hereinafter referred to as RJAT), against which the Tax and Customs Authority (hereinafter referred to as AT) is the Respondent.

  2. The Claimant is represented, in these proceedings, by her legal representative, Dr. B..., and the Respondent is represented by the legal counsels, Dr. C... and Dr. D....

  3. Through the request for the constitution of the arbitral tribunal and for arbitration ruling, the Claimant seeks the annulment of the act of additional assessment of Municipal Tax on Onerous Transfers of Real Property (IMT), in the amount of € 24,040.68 (twenty-four thousand, forty euros and sixty-eight cents) for the acquisition of a real property located in the parish of ..., municipality and district of Lisbon, within the scope of an insolvency proceeding of a natural person, and requested, ultimately, the recognition of the right to compensatory interest.

  4. Once the formal regularity of the submitted request was verified, pursuant to article 6(2)(a) of the RJAT and given that the Claimant did not proceed to appoint an arbitrator, the undersigned was appointed by the President of the Deontological Council of CAAD.

  5. The Arbitrator accepted the appointment made, and the arbitral tribunal was constituted on 8 November 2018, at the headquarters of CAAD, located at Avenida Duque de Loulé, no. 72-A, in Lisbon, as confirmed by the communication of the constitution of the arbitral tribunal attached to these proceedings.

  6. On 12 November 2018, duly notified, the Respondent filed its defence, raising an exception – invoking lapse of the right of action/untimeliness of the request for the constitution of the Arbitral Tribunal – and contesting the claim.

  7. The Tribunal, on 14 December 2018, in order to ensure compliance with the principle of contradictory proceedings, notified the Claimant to pronounce itself, within a period of 10 days, on the invoked exception, with nothing being stated.

  8. Finding no need for the production of additional evidence beyond that already documentarily incorporated in the proceedings, and not perceiving the necessity for the parties to amend their procedural filings, with the proceedings containing all necessary elements for issuing a decision, and by order of 14 February 2019, for reasons of procedural economy and expedition and the prohibition of performing useless acts, the Tribunal deemed it appropriate to waive the holding of the meeting provided for in article 18 of the RJAT, as requested by the Respondent in its Response, as well as to grant a successive period of 10 days for the Claimant and the Respondent, in that order, to present their respective written submissions.

  9. The Tribunal, in compliance with the provisions of article 18(2) of the RJAT, set 8 May 2019 as the date for issuing the arbitration ruling, having warned the Claimant that she should proceed to pay the subsequent arbitration fee, pursuant to article 4(3) of the Regulation of Costs in Tax Arbitration Proceedings, and communicate such payment to CAAD.

  10. The Claimant presented her submissions on 22 February 2019 and the Respondent on 4 March 2019.

II. The Claimant's Position

  1. The Claimant supports her request for annulment of the act of additional assessment of Municipal Tax on Onerous Transfers of Real Property (IMT), in the total amount of € 24,040.68 (twenty-four thousand, forty euros and sixty-eight cents), for the acquisition of a real property located in the parish of ..., municipality and district of Lisbon, within the scope of an insolvency proceeding of a natural person, on the grounds that it is illegal, on account of the following defects:

a) The Claimant clarifies that "[o]n 15/06/2016, (...) [she] acquired the autonomous unit designated by the letter 'M', corresponding to the sixth floor, intended for residential use, of the urban property constituted under a horizontal property regime located at ..., on Rua ..., numbers ... to ..., parish of ..., Municipality of Lisbon, registered in the property registry under article... . This acquisition took place within the scope of an insolvency proceeding of E... (taxpayer no. ...) which was conducted in the Civil Courts of Lisbon, ... Civil Court, under no. .../13...."

b) In fact, following that acquisition, "[a]n exemption from IMT was granted to the Claimant for said acquisition, as per the assessment document of 31/05/2016 with no. ...", and subsequently, "[o]n 25/06/2018 the collection notice no. 2018... was issued to the Claimant relating to the assessment of IMT on the transaction carried out on 15/06/2016, in the amount of €24,040.68 (twenty-four thousand, forty euros and sixty-eight cents)".

c) The Claimant argues that "(...) by proceeding to the additional assessment of IMT, the Tax and Customs Authority (AT) violated her legitimate expectations and guarantees previously established and, as well, the principle of trust and legal certainty, in addition to having violated the principles of tax legality, prohibition of retroactive application of tax law and good faith.", considering that, in the Claimant's understanding "(...) the revocation of the exemption granted could only be carried out within a period of one year after its grant."

d) The Claimant considers that "(...) the exemption from IMT provided for in article 270 of the CIRE constitutes a tax benefit and its grant constitutes an act creating rights for the beneficiary", and therefore, pursuant to article 14(4) of the Statute of Tax Benefits "[t]he administrative act granting a tax benefit is not revocable, nor may the respective agreement granting it be rescinded, or the rights acquired be diminished, by unilateral act of the tax administration, except if there is a breach attributable to the beneficiary of the obligations imposed, or if the benefit was granted improperly, in which case that act may be revoked".

e) The Claimant further states that "[e]ven if it were granted that the AT has grounds to revoke the exemption granted, which is merely equated out of a duty of sponsorship, in addition to representing a limitation of the Claimant's acquired rights, such revocation would always be subject to the time limit legally provided for that purpose. (...) As provided for in article 168(2) of the Code of Administrative Procedure, an act creating rights may only be subject to administrative annulment within a period of one year."

f) Accordingly, "[g]iven that the exemption from IMT granted to the Claimant is an act creating rights, it could only be annulled by the AT within a period of one year after its practice." That is, "(...) having the exemption from IMT been granted on 31/05/2016, its annulment could only occur until 31/05/2017, by which time the one-year period for annulling the act granting the IMT exemption had long since expired."

g) Concluding to the effect that "(...) having the AT revoked the grant of the benefit after the expiration of the one-year period, this act of revocation and the corresponding additional assessment of IMT are illegal, by reason of violation of the provision of article 168(2) of the CPA, which determines its annulment."

h) Finally, the Claimant requests the payment of compensatory interest, pursuant to article 43 of the General Tax Law.

III. The Respondent's Position

  1. For its part, the AT defends itself in the following manner:

a) On the one hand, the Respondent invokes the exception of lapse of the right of action, stating that "[t]he Claimant was notified of the issuance of the IMT assessment, as per Office no. ..., of 09/01/2018 (...). In that notification it is expressly stated that she should request payment vouchers within a period of 30 days, that is, that is the voluntary payment period."

b) In fact, the Respondent mentions that "(...) the Claimant did not pay the amount assessed during the voluntary payment period, that is, 30 days after notification of the assessment (11/01/2018), for which reason a tax enforcement proceeding was instituted (...)".

c) In effect, the Respondent understands that, in light of the provisions of article 10(1) of the Legal Regime of Arbitration in Tax Matters (RJAT) and article 102(1)(a) of the Code of Tax Procedure and Process (CPPT), "(...) the starting point for counting the time limit for submitting this action cannot be the date of payment made on 23/08/2018, since the voluntary payment period ended on 12/02/2018",

d) Accordingly, and given that "the time limit for submitting the request for the constitution of an arbitral tribunal is three months and is counted from the 'expiry of the period for voluntary payment of the tax liability legally notified to the taxpayer' (...) that is, 30 days after 11/01/2018", the Respondent understands that "(...) the three-month period for submitting the request for the constitution of an arbitral tribunal is counted from 12/02/2018, and expired on 14/05/2018, whereby this action was presented after the right of action had lapsed", since the arbitration request "(...) was presented on 31/08/2018".

e) Concluding to the effect that "(...) having the request been presented on 31/08/2018, the referred time limit is deemed to be largely exceeded and this impugnation is manifestly untimely."

f) By way of contesting the claim, the Respondent argues that article 270(2) of the Code of Insolvency and Business Recovery (CIRE) provides for the exemption from IMT, which "(...) covers (...) all acts integrated within the scope of insolvency plans or payment plans, or liquidation of the insolvent estate, with the reservation that the insolvent be a company or establishment. (...) Now, in the case in question there is no doubt that the assessment of IMT is legal because the conditions set out in article 270 of the CIRE are not met."

g) With respect to the question of the alleged illegal revocation of the tax benefit by exceeding the one-year period provided for in articles 140 and 141 of the Code of Administrative Procedure (CPA), the Respondent states that, contrary to what the Claimant argues "(...) there was no act creating rights, because the benefit set out in article 270 of the CIRE is an automatic benefit pursuant to article 5 of the EBF."

h) Continuing, the Respondent argues that "(...) Automatic tax benefits are those that result directly and immediately from law, as opposed to benefits dependent on recognition, which presuppose one or more subsequent acts of recognition.". In fact, according to the Respondent "(...) it is concluded that the exemption of article 270 of the CIRE is automatic, arising directly from law and there is no prior analysis nor prior verification of the conditions for exemption, nor a true act creating a right to exemption. What happens is that the taxpayer files a declaration provided for in article 19(1) of the CIMT, and only subsequently does the AT conduct an audit, analyzing the verification of the conditions for exemption, as provided in article 7 of the EBF."

i) In this way, the Respondent explains "(...) [t]he document issued in order to carry out the public deed of purchase and sale is not a true assessment nor a document of exemption, and therefore there is, at that moment, no constitution of a right to the tax benefit.(...) that is, only after the audit was conducted was it determined that the conditions were not met, for which reason the tax was assessed."

j) Concluding to the effect that "(...) this tax assessment cannot be considered a revocation of exemption (...). For all the foregoing, in this case, given that the legal conditions for the claimant to be able to benefit from the IMT exemption under article 270(2) of the CIRE are not met, the tax administration could not fail to assess the tax owed, provided that the period of limitation was respected, which, in the case of single-obligation taxes, as is IMT, is counted from the date on which the taxable event occurred."

IV. Case Management

  1. The Tribunal is competent and has been properly constituted, pursuant to article 2(1)(a) and articles 5 and 6 of the RJAT.

  2. The parties have legal personality and capacity, are legitimate, and are properly represented.

V. Statement of Facts

  1. The following facts are established as proven, being of interest for the decision:

A. The Claimant, on 15 June 2016, acquired the autonomous unit designated by the letter "M" corresponding to the sixth floor, intended for residential use, of the urban property constituted under a horizontal property regime located at ..., on Rua ..., nos. ... to ..., parish of ..., Municipality of Lisbon, registered in the respective property registry under article... . – cf. agreement of the parties - ;

B. On 31 May 2016, the document no. ... was issued relating to the Municipal Tax on Onerous Transfers of Real Property (IMT) arising from the acquisition referred to in A. above, in the amount of € 0.00 (zero euros), by virtue of the benefit having been granted "60-Code of Insolvency and Business Recovery - Transfers integrated within the scope of liquidation of the insolvent estate (Article 270(2) of Decree-Law 53/04), 100% of the taxable base" – cf. document no. 2 attached with the request for constitution of the Arbitral Tribunal - ;

C. The acquisition referred to in A. above took place within the scope of the insolvency proceeding of E... which was conducted in the Civil Courts of Lisbon, ... Civil Court, under no. .../.... – cf. agreement of the parties - ;

D. On 11 January 2018, the Claimant was notified, through Office no. ..., of 9.01.2018 from the Tax Service of ..., to "within a period of 30 days after receipt of this notification, pursuant to article 31(2) and (4) of the Code of Municipal Tax on Onerous Transfers of Real Property (CIMT) in conjunction with article 36 of the Code of Tax Procedure and Process (CPPT), request the payment vouchers for the amount of € 24,040.68 of IMT, calculated on the basis of article 17(1)(a) of the CIMT. Said additional assessment was based on the assessment of IMT with the registration 2016/.... The benefit of IMT was granted under article 270 of the CIRE (Code of Insolvency and Business Recovery), as if the acquisition had been made to a company, when in reality the transferor is a natural person.

IMT Assessment

Declared value = €450,000.00 x 8% = € 36,000.00

Amount to be deducted = € 11,959.32

Tax due = € 24,040.68

Of the IMT assessment, the taxpayer may, if so desired, lodge a claim within a period of 120 days (article 70 of the CPPT) or contest it within a period of 3 months (article 120 of the CPPT), on the grounds referred to in article 99 of the CPPT.

If payment is not made within the referred period, there will be recourse to enforcement proceedings, pursuant to article 38(3) of the CIMT." - cf. document no. 3 attached with the request for constitution of the Arbitral Tribunal - ;

E. On 3 August 2018 the Claimant was notified, by the Tax Service of Lisbon..., of the institution, against her, of tax enforcement proceeding no. ...2018..., for coercive collection of the total amount of € 24,216.40 (twenty-four thousand, two hundred and sixteen euros and forty cents), of which € 24,040.68 (twenty-four thousand, forty euros and sixty-eight cents) corresponds to IMT, € 12.80 (twelve euros and eighty cents) to default interest and € 162.92 (one hundred and sixty-two euros and ninety-two cents) to costs. – cf. document no. 1 attached with the request for constitution of the Arbitral Tribunal - ;

F. On 23 August 2018 the Claimant made a payment in the amount of € 24,216.40 (twenty-four thousand, two hundred and sixteen euros and forty cents) – cf. document no. 4 attached with the request for constitution of the Arbitral Tribunal - ;

G. On 31 August 2018, the Claimant submitted the request for the constitution of an arbitral tribunal which gave rise to the present proceedings.

VI. Reasoning on the Statement of Facts

  1. For the conviction of the Arbitral Tribunal, regarding the established facts, the documents attached to the proceedings were relevant, as well as the administrative file, all analyzed and assessed in conjunction with the parties' submissions, from which there results agreement as to the factuality presented by the Claimant in the request for arbitration ruling.

VII. Facts Established as Not Proven

  1. There are no facts established as not proven, because all facts relevant for the assessment of the claim were established as proven.

VIII. Reasoning on the Facts Established as Proven

  1. For the conviction of the Arbitral Tribunal, regarding the established facts, the documents attached to the proceedings were relevant, as well as the administrative file, all analyzed and assessed in conjunction with the parties' submissions, from which there results agreement as to the factuality presented by the parties, pursuant to article 110(7) of the CPPT.

  2. It should be noted that, regarding the statement of facts, the Tribunal does not have to pronounce itself on everything that was argued by the parties, it being its duty merely to select the facts that matter for the decision, to discriminate the proven facts from those not proven [(cf. article 123(2) of the CPPT and article 607(3) of the Code of Civil Procedure, applicable by virtue of article 29(1), subparagraphs a) and d) of the RJAT)].

  3. Accordingly, the facts relevant for the judgment of the case are selected based on their legal relevance which is established based on the solutions to the legal questions to be discerned. (cf. article 596 of the CPC, applicable by virtue of article 29(1), subparagraph e) of the RJAT).

IX. Preliminary Matter

  1. The Respondent, in its Response, invokes, by way of preliminary matter, the exception of "lapse of the right of action" arguing that "[t]he Claimant was notified of the issuance of the IMT assessment, as per Office no. ..., of 09/01/2018 (...). In that notification it is expressly stated that she should request payment vouchers within a period of 30 days, that is, that is the voluntary payment period."

  2. The Respondent further argues, on this matter, that, in light of the provisions of article 10(1) of the Legal Regime of Arbitration in Tax Matters (RJAT) and article 102(1)(a) of the Code of Tax Procedure and Process (CPPT) "[t]he time limit for submitting the request for the constitution of an arbitral tribunal is three months and is counted from the 'expiry of the period for voluntary payment of the tax liability legally notified to the taxpayer' (...) that is, 30 days after 11/01/2018", the Respondent understands that "(...) the three-month period for submitting the request for the constitution of an arbitral tribunal is counted from 12/02/2018, and expired on 14/05/2018, whereby this action was presented after the right of action had lapsed", since "[(...) was presented on 31/08/2018".

  3. Concluding to the effect that "(...) having the request been presented on 31/08/2018, the referred time limit is deemed to be largely exceeded and this impugnation is manifestly untimely."

  4. Notified to exercise the principle of contradictory proceedings with respect to the exception invoked by the Respondent, the Claimant made no statement.

Let us examine whether the Respondent's argument regarding the exception invoked is well-founded.

  1. First and foremost, it is relevant to recall the essential facts for resolving the preliminary matter raised in the form of the exception of "lapse of the right of action/untimeliness of the request for the constitution of the Arbitral Tribunal", namely the following:

D) On 11 January 2018, the Claimant was notified, through Office no. ..., of 9.01.2018 from the Tax Service of ..., to "within a period of 30 days after receipt of this notification, pursuant to article 31(2) and (4) of the Code of Municipal Tax on Onerous Transfers of Real Property (CIMT) in conjunction with article 36 of the Code of Tax Procedure and Process (CPPT), request the payment vouchers for the amount of € 24,040.68 of IMT, calculated on the basis of article 17(1)(a) of the CIMT. Said additional assessment was based on the assessment of IMT with the registration 2016/.... The benefit of IMT was granted under article 270 of the CIRE (Code of Insolvency and Business Recovery), as if the acquisition had been made to a company, when in reality the transferor is a natural person.

IMT Assessment

Declared value = €450,000.00 x 8% = € 36,000.00

Amount to be deducted = € 11,959.32

Tax due = € 24,040.68

Of the IMT assessment, the taxpayer may, if so desired, lodge a claim within a period of 120 days (article 70 of the CPPT) or contest it within a period of 3 months (article 120 of the CPPT), on the grounds referred to in article 99 of the CPPT.

If payment is not made within the referred period, there will be recourse to enforcement proceedings, pursuant to article 38(3) of the CIMT." - cf. document no. 3 attached with the request for constitution of the Arbitral Tribunal - ;

E) On 3 August 2018 the Claimant was notified, by the Tax Service of Lisbon..., of the institution, against her, of tax enforcement proceeding no. ...2018..., for coercive collection of the total amount of € 24,216.40 (twenty-four thousand, two hundred and sixteen euros and forty cents), of which € 24,040.68 corresponds to IMT, € 12.80 to default interest and € 162.92 to costs. – cf. document no. 1 attached with the request for constitution of the Arbitral Tribunal - ;

F) (...)

G) On 31 August 2018, the Claimant submitted the request for the constitution of an Arbitral Tribunal which gave rise to the present proceedings.

Now,

  1. Pursuant to article 10(1)(a) of the RJAT "[t]he request for the constitution of an arbitral tribunal is presented: within a period of 90 days, counted from the events foreseen in article 102(1) and (2) of the Code of Tax Procedure and Process, regarding acts susceptible to autonomous impugnation and, as well, from the notification of the decision or the expiry of the legal period for decision of the hierarchical appeal."

  2. Article 102 of the CPPT, under the heading "Judicial impugnation. Time limit for presentation" provides that:

"1 - Impugnation shall be presented within a period of three months counted from the following events:

a) Expiry of the period for voluntary payment of tax liabilities legally notified to the taxpayer;

b) Notification of other tax acts, even when they do not give rise to any assessment;

c) Service of process on subsidiary liable parties in tax enforcement proceedings;

d) Formation of the presumption of implicit denial;

e) Notification of other acts that may be subject to autonomous impugnation pursuant to this Code;

f) Knowledge of acts injurious to legally protected interests not covered in the preceding subparagraphs.

2 - (Revoked by subparagraph d) of article 16 of Law no. 82-E/2014 of 31 December)

3 - If the ground is nullity, impugnation may be raised at any time.

4 - The provisions of this article do not prejudice other special periods established in this Code or in other tax laws." (emphasis added).

  1. In fact, in light of the combination of the provisions of article 10 of the RJAT and article 102(1)(a) of the CPPT, the request for the constitution of an Arbitral Tribunal, with application in the present proceedings, must be presented within 3 months after the "expiry of the period for voluntary payment of the tax liabilities legally notified to the taxpayers".

  2. It should be added further that, pursuant to article 20 of the CPPT applicable by virtue of article 29 of the RJAT, the periods of the tax procedure and of judicial impugnation – of which nature the request for arbitration ruling is invested – are counted "pursuant to article 279 of the Civil Code".

  3. The period for raising judicial impugnation is a period of limitation and has substantive nature, not being suspended during judicial vacations, as can be drawn from the provisions referred to in article 20 of the CPPT, contrary to what happens with procedural time limits.

  4. However, if its expiry occurs during that period (vacations), it is transferred to the first following working day, as prescribed by article 279(e) of the Civil Code.

  5. Thus, returning to the case at hand, given that the Claimant was notified, on 11.01.2018, through Office no. ..., of 09.01.2018, from the Tax Service of ... – item A) of the facts established as proven, of the tax assessment singled out in the present proceedings,

  6. … the period of 30 days for voluntary payment of the tax commenced on 12.01.2018, in accordance with article 279(b) of the Civil Code, and expired on 10.02.2018.

  7. Once the 30 days for voluntary payment of the tax had elapsed, it is time to begin counting the 90-day period for submission of the present request for the constitution of the Arbitral Tribunal, provided for in article 10 of the RJAT.

  8. Accordingly, the period that the Claimant had to present the request for the constitution of the Arbitral Tribunal would have its commencement on 11.02.2018 and its expiry on 11.05.2018.

  9. The decision issued in proceedings no. 792/2014-T of CAAD clarifies, with interest, the matter of the counting of time limits, stating:

"It is undisputed that the counting of the period for raising impugnation must observe the rules of article 279 of the Civil Code, as expressly results from the provisions of article 20(1) of the CPPT. The counting of the period occurs in consecutive days and is not suspended during judicial vacations, being inapplicable the provision of article 144 of the CPC, whose scope is restricted to judicial (adjective) time limits. Understanding shared by the jurisprudence of the superior courts, as well as by arbitration jurisprudence, set forth, inter alia, in the arbitration rulings issued in proceedings nos. 35/2012-T; 83/2012-T; 188/2013-T, 353/2014-T, among others.

Accordingly, it is the understanding of this arbitral tribunal, in a manner similar to that set forth in the arbitration rulings mentioned above, that the arbitral nature of this tribunal and the application of the tax arbitration regime do not entail any modification relating to the nature, modalities and form of counting of time limits, as can be drawn from the reading of the RJAT, and even less with regard to substantive time limits, which form an integral part of the material status of the tax credit itself."

  1. In view of the foregoing, considering that the expiry of the period for voluntary payment of the tax in question occurred on 10.02.2018, that the 90 days provided for the presentation and judicial impugnation (or request for the constitution of the Arbitral Tribunal) expired on 11.05.2018, and that only on 31.08.2018 did the Claimant present the present request to CAAD, it is manifest that the dilatory exception of untimeliness of the request for arbitration ruling must be judged as established (Cf. articles 102 of the CPPT applicable by virtue of article 29 of the RJAT) with the appropriate consequences.

X. Decision

Accordingly, the arbitral tribunal decides to find the dilatory exception of lapse of the right of action/untimeliness of the request for arbitration ruling to be established and, in consequence, to absolve the Respondent from the action.

Value of the Case

The value of the case is fixed at € 24,040.68 (twenty-four thousand, forty euros and sixty-eight cents) pursuant to article 97-A(1)(a) of the CPPT, applicable by virtue of article 29(1), subparagraphs a) and b) of the RJAT and article 3(2) of the Regulation of Costs in Tax Arbitration Proceedings.

Costs

Costs to be borne by the Claimant, in accordance with article 12(2) of the RJAT, article 4 of the RCPAT, and Table I attached thereto, fixed in the amount of € 1,530.00.

Let notification be made.

Lisbon, 24 April 2019

The Arbitrator

(Jorge Carita)

Frequently Asked Questions

Automatically Created

What is the IMT tax applicable to property acquisitions in personal insolvency proceedings in Portugal?
IMT applicable to property acquisitions in personal insolvency proceedings in Portugal is governed by article 270 of the Insolvency Code (CIRE), which provides an exemption from IMT for property transfers occurring within insolvency proceedings. This exemption is considered a tax benefit that creates rights for the beneficiary. However, the Tax Authority may revoke improperly granted exemptions, subject to temporal and substantive limitations under administrative law.
What is the deadline for filing an arbitration request at CAAD to challenge an IMT additional tax assessment?
The deadline for filing an arbitration request at CAAD to challenge an IMT additional assessment is 90 days from notification of the tax assessment, pursuant to article 10 of the RJAT (Legal Regime of Arbitration in Tax Matters). In this case, the taxpayer was notified in January 2018 but filed in August 2018, prompting the Tax Authority to raise the exception of caducidade (lapse of the right of action) for untimeliness.
Can the right of action expire (caducidade) if a taxpayer files a late challenge against an IMT liquidation?
Yes, the right of action can expire (caducidade) if a taxpayer files a late challenge against an IMT liquidation. Portuguese tax law establishes strict statutory deadlines for challenging tax assessments. If the arbitration request is filed beyond the 90-day period from notification, the Tax Authority may successfully invoke the exception of lapse of the right of action, potentially resulting in dismissal of the claim without examining its merits, regardless of the substantive validity of the taxpayer's arguments.
How does the CAAD arbitral tribunal handle exceptions of untimeliness (intempestividade) in tax arbitration cases?
The CAAD arbitral tribunal handles exceptions of untimeliness (intempestividade) in tax arbitration cases by applying the principle of contradictory proceedings (princípio do contraditório). When the Tax Authority raises such an exception, the tribunal notifies the claimant to respond within a specified period, typically 10 days. The tribunal examines whether the arbitration request was filed within the statutory deadline and, if the exception is sustained, may dismiss the case on procedural grounds before addressing substantive issues.
What are the legal consequences of failing to respond to an expiry of action exception raised by the Portuguese Tax Authority?
Failing to respond to an expiry of action exception raised by the Portuguese Tax Authority can have serious legal consequences. The tribunal's procedural order noted 'with nothing being stated' when the taxpayer failed to respond to the exception. This silence may be interpreted as acquiescence or inability to rebut the exception, significantly weakening the taxpayer's procedural position and potentially leading to dismissal of the entire claim on procedural grounds, preventing examination of substantive arguments regarding the IMT assessment's legality.