Stamp Tax on Vertical Property: CAAD Ruling on Verba 28.1 TGIS for High-Value Urban Buildings

ARBITRAL DECISION

I - REPORT

1. A... S.A., legal entity no...., with registered office at ... no...., ...-... Lisbon, requested, on 8 July 2015, pursuant to the provisions of article 95 of the General Tax Law (GTL), article 99/al. a) of the Tax Procedure and Process Code (TPPC), articles 2/1, al. a) and 10 of Decree-Law no. 10/2001, of 20 January, which regulates the Legal Regime of Tax Arbitration (LRTA), the constitution of the Arbitral Tribunal, for assessment of the legality and unconstitutionality, and consequent annulment of the assessment acts of Stamp Duty (SD), by application of Item no. 28.1 of the General Stamp Duty Table (GSDT) annexed to the Stamp Duty Code (SDC), relating to the year 2014, from which resulted a collection in the amount of € 47,834.40, relating to urban properties described in the registry of the parish of..., under the registry entries..., ..., ..., which gave rise to the following documents:

(i) Article...º: 2015..., 2015..., 2015..., 2015..., 2015..., 2015..., 2015..., 2015..., 2015..., 2015..., 2015..., 2015..., 2015..., 2015...

(ii) Article...: 2015..., 2015..., 2015..., 2015..., 2015..., 2015..., 2015..., 2015..., 2015..., 2015..., 2015..., 2015...

(iii) Article...: 2015..., 2015..., 2015..., 2015..., 2015..., 2015..., 2015..., 2015..., 2015..., 2015..., 2015..., 2015..., 2015..., 2015..., 2015..., 2015..., 2015..., 2015..., 2015..., 2015..., 2015..., 2015..., 2015..., 2015...

1. In the request for arbitral pronouncement, the Claimant chose not to appoint an arbitrator.

2. Pursuant to article 6/2, al. a) and article 11/1, al. b) of the LRTA, the Deontological Council appointed as sole arbitrator the undersigned, who accepted the appointment within the legally established time period.

3. The Arbitral Tribunal was constituted on 14 September 2015.

4. The Respondent presented its response on 21 October 2015.

5. The Claimant responded in writing to the exception of lack of jurisdiction raised by the Respondent.

6. There having been no objection from the parties, the Tribunal decided to dispense with the meeting referred to in article 18/1 of the LRTA, as well as written submissions.

1. The Claimant alleged, in summary, that:

8.1 It is the owner of three urban properties located (i) at Av. ... no. ... to ..., in Lisbon, registered in the urban property registry of the parish of ... under entry U-..., (ii) Rua ... no. ... to ..., in Lisbon, registered in the urban property registry of the parish of ... under entry U-... and (iii) Rua ... no. ... to ..., registered in the urban property registry of the parish of ... under entry U- ...

8.2 Each of these three properties is composed of floors/apartments capable of independent use, with tax patrimonial values less than € 1,000,000.00, but whose total value of each of the properties is greater than 1,000,000.00.

8.3 With respect to each of the properties, the Tax Administration levied Stamp Duty on the tax patrimonial value of the floors/apartments, with reference to the year 2014, pursuant to article 6/1, al. f), subitem i), of the SDC, Item no. 28.1 of the GSDT, in the wording given by article 4 of Law no. 55-A/2012, of 29 October.

8.4 The assessments in question are based on the understanding that there will be Stamp Duty liability whenever the sum of the TPV of the floors/apartments, individually considered, is greater than € 1,000,000.00.

8.5 It concludes that the illegality of the assessments in question is manifest, by illegal interpretation by the Tax Administration of item 28 of the GSDT.

8.6 It further argues that the unconstitutionality of the rules contained in item no. 28, with the interpretative dimension conferred by the Tax Administration, is unconstitutional, for violation of the principle of equality (article 13 of the Constitution) and article 104/3 of the Constitution.

8.7 The Claimant finally requests that the Respondent be ordered to proceed with the reimbursement of the amount of tax paid, increased by compensatory interest and court costs.

1. Notified to respond, the Respondent alleges, in summary, the following:

9.1 By exception, it maintains the lack of material jurisdiction of the Arbitral Tribunal to assess the legality of an act of assessment, in view of the provisions of article 2 of the LRTA, since, in its view, the Claimant challenges exclusively the collection notices which constitute the 1st instalments of the tax relating to the three properties.

9.2 By way of substantive reply, it argues that, with reference to the year 2014, in compliance with the provisions of article 6/2 of Law no. 55-A/2012, of 29 October, it proceeded in accordance with item no. 28.1 to notify the collection documents for payment of the 1st instalment of the assessments in question, which relates to urban properties evaluated in accordance with the Municipal Property Tax Code (MPTC), with TPV equal to or greater than € 1,000,000.00.

9.3 With regard to the violation of the principles of tax equality and taxpayer capacity, it argues that there is no violation of the principle of equality, there being no discrimination between properties in horizontal property (condominium) form and properties in full ownership with floors or divisions capable of independent use, or between properties with residential use and properties with other uses.

9.4 It maintains the full validity and legality of the Stamp Duty collection notices, 1st instalments, by application of item 28.1 of the GSDT.

9.5 It concludes that the tax acts in question do not suffer from vices, do not violate any legal or constitutional principle, and should therefore be maintained.

C – Established Facts

1. Based on the facts alleged by the parties, and not contested by the Respondent, as well as the documentation submitted to the case file, the following factual situation relevant to a proper decision of the case is established:

A) The Claimant was in 2014 the owner of an urban property, in the regime of full ownership with floors or divisions capable of independent use, located at Av. ... no. ... to ..., registered in the urban property registry of the parish of..., municipality of Lisbon, under the registry entry... .

B) The registry certificate contains the following description "Urban Property intended for residential and commercial use, composed of basement, ground floor, 7 floors (...)".

C) It appears from the registry certificate that each of the seven floors, designated for residential use, capable of independent use, has an individual tax patrimonial value less than € 1,000,000.00.

D) The tax patrimonial values of each of the divisions capable of independent use determined in accordance with the Municipal Property Tax (IMI) are as follows:

E) The total tax patrimonial value is € 2,193,040.00.

F) On 20/03/2015, Stamp Duty assessment notices were issued, year 2014, based on the application of item no. 28.1 of the GSDT, relating to the property identified in A) – registry entry..., of the parish of ...– individually for each of the floors capable of independent use, from which resulted the determination of the following collections for each floor:

G) The documents sent to the Claimant contain, among other things, the following statement "Tax Patrimonial Value of the property – total subject to tax: € 1,554,520.00".

H) The Claimant was notified to proceed with payment, by April 2015, of the 1st instalment of the assessments made.

I) The Claimant was in 2014 the owner of an urban property, in the regime of full ownership with floors or divisions capable of independent use, located at Rua ... no. ....-..., registered in the urban property registry of the parish of..., municipality of Lisbon, under the registry entry... .

J) The registry certificate contains the following description "Urban Property, composed of basement, ground floor, five floors and attic. (...). Number of storeys: 8; Number of floors or divisions with independent use: 14. Total tax patrimonial value: € 2,108,830".

K) It appears from the registry certificate that the basement is intended for covered and enclosed parking and the ground floor for commerce.

L) Each of the six floors, right and left sides, capable of independent use, are designated for residential use, has an individual tax patrimonial value less than € 1,000,000.00.

M) The tax patrimonial values of each of those floors capable of independent use determined in accordance with the Municipal Property Tax (IMI) are as follows:

N) The total tax patrimonial value is € 2,108,830.00.

O) On 20/03/2015, Stamp Duty assessment notices were issued, year 2014, based on the application of item no. 28.1 of the GSDT, relating to the property identified in I) – registry entry..., of the parish of ...– individually for each of the floors capable of independent use, from which resulted the determination of the following collections:

P) The Claimant was notified to proceed with payment, by April 2015, of the first instalment of the assessments made.

Q) It appears from the documents issued, among other things, the following statement "Tax Patrimonial Value of the property – total subject to tax: € 1,388,740.00".

R) The Claimant was in 2014 the owner of an urban property, in the regime of full ownership with floors or divisions capable of independent use, located at Rua ... no..., ..., ...and..., registered in the urban property registry of the parish of..., municipality of Lisbon, under the registry entry... .

S) The registry certificate contains the following description "Urban Property composed of sub-basement, basement, 1st, 2nd, 3rd, 4th, and 5th floors, intended for residential and commercial use. The sub-basement and basement are intended for collective parking for tenants. Number of storeys: 8; Number of floors: 25; Total tax patrimonial value: € 2,403,503.00".

T) Each of the five floors, capable of independent use, are designated for residential use, has an individual tax patrimonial value less than € 1,000,000.00.

U) The tax patrimonial values of each of the floors capable of independent use, determined in accordance with the Municipal Property Tax (IMI) are as follows:

V) The total tax patrimonial value is € 2,403,530.00.

W) On 20/03/2015, Stamp Duty assessment notices were issued, year 2014, based on the application of item 28.1 of the GSDT, relating to the property identified in R) – registry entry..., of the parish of ...– individually for each of the divisions capable of independent use, from which resulted the determination of the following collections:

X) The Claimant was notified to proceed with payment, by April 2015, of the first instalment of the assessments made.

Y) It appears from the documents issued, among other things, the following statement "Tax Patrimonial Value of the property – total subject to tax: € 1,839,180.00".

Z) From all documents issued for payment of the first instalment of the assessments made it further appears that: "You may lodge a complaint or challenge the assessment in accordance with the terms and deadlines established in articles 70 and 102 of the TPPC".

II – PROCEDURAL CLEANNESS

1. The Tribunal is properly constituted, pursuant to articles 2, no. 1, al. a), 5, no. 2, and 6, no. 1, all of the LRTA.

The parties have legal personality and capacity, are legitimate and are legally represented, pursuant to articles 4 and 10, no. 2, of the LRTA and article 1 of Ordinance no. 112-A/2011, of 22 March.

The proceedings do not suffer from vices that would invalidate it, so the conditions for rendering the final decision are met.

III. GROUNDS

The two issues to be decided within the scope of the present proceedings are as follows:

1. The jurisdiction of the Arbitral Tribunal to hear the claim filed by the Claimant in the present proceedings;

2. The application of item no. 28.1 of the table annexed to the SDC, in the wording given by Law no. 55-A/2012, of 29 October, to the properties of which the Claimant is the owner, more specifically, it consists in determining whether in the case of properties in full or vertical ownership, with floors or divisions capable of independent use, the tax patrimonial value to be considered for purposes of application of item 28.1 of the GSDT is the tax patrimonial value of each floor or division capable of independent use, with residential designation, as the Claimant maintains; or if it is the total value of the property resulting from the sum of the tax patrimonial values corresponding to the floors or divisions capable of independent use with residential designation, as the Respondent maintains.

a) The jurisdiction of the Arbitral Tribunal

In the petition presented before the Arbitral Tribunal, the Claimant requests that the illegality and unconstitutionality and consequent annulment of the assessment acts of Stamp Duty, item no. 28.1 of the GSDT, relating to the year 2014, from which resulted a collection in the total amount of € 47,834.40, relating to the urban properties described in the respective registry under the registry entries ...-U, ...-U and ...-U, all of the parish of..., municipality of Lisbon, be declared. In the final prayer, the Claimant requests the declaration of illegality of the identified Stamp Duty assessment acts and their consequent annulment.

The Claimant supported the request for annulment with the payment documents of the first of three instalments of the assessments made, from which resulted a collection in the total amount of € 47,834.40.

From the Respondent's perspective, the Arbitral Tribunal is materially without jurisdiction, in view of the provisions of article 2 of the LRTA to assess the legality of an instalment of the assessment act which is not, in itself, a tax act, arguing that the Claimant challenges the collection notices which constitute the 1st instalments of the tax relating to the three properties.

Notified to respond to the exception raised by the Respondent, the Claimant reiterates that it challenges the Stamp Duty assessments and not any payment instalment.

In fact, having regard to the tenor of the request for constitution of the arbitral tribunal, the final prayer, and the value assigned to the present action, it appears beyond doubt that the Claimant intended to challenge the Stamp Duty assessment acts which are at the origin of the collection documents issued by the Respondent for payment of the first instalment. Indeed, it does not result from the petition, as the Respondent maintains in articles 3 to 5 of its Response, that the claim filed in the present proceedings concerns the challenge of the collection act. And so much is this the case that, in administrative proceedings no. 21/2015, submitted to the case file by the Respondent itself, it assumes that the subject matter of the request for arbitral pronouncement are the Stamp Duty assessments, Item no. 28.1 of the General Stamp Duty Table (GSDT), year 2014 – urban properties located in the parish of..., Lisbon, registered in the respective registries under the entries..., ...and... .

Article 2 of the LRTA defines the material scope of jurisdiction of the tax arbitral tribunal, whose scope is listed in al. a) and b) of no. 1. Paragraph a), of no. 1, of article 2 provides that the jurisdiction of arbitral tribunals comprises, among others, the assessment of claims "The declaration of illegality of acts of assessment of taxes (...)". It results, thus, crystal clear, that pursuant to al. a), of no. 1, of article 2, arbitral tribunals have jurisdiction to assess issues, such as those in the present case, concerning the declaration of illegality of tax assessment acts.

It is concluded, thus, that the Claimant intends, within the scope of the present proceedings, the declaration of illegality of the Stamp Duty assessment acts, year 2014, of the urban properties located in the parish of..., municipality of Lisbon, registered in the respective urban property registry under the entries..., ...and... . In such a way that the subject matter of the claim concerns annulment claims of tax assessment acts, which fall within the material scope of jurisdiction of the tax arbitral tribunal, pursuant to al. a), of no. 1, of article 2 of the LRTA.

The exception of lack of jurisdiction raised by the Respondent is therefore rejected.

b) The application of item no. 28.1 of the GSDT to properties in vertical ownership

As we have already referred, the issue to be decided in the present proceedings consists in knowing whether the TPV relevant for purposes of application of SD (Item 28 of the GSDT, in the wording given by Law no. 55-A/2012, of 29 October) is the corresponding to the sum of the tax patrimonial value attributed to the different divisions or floors (total TPV) or, rather, the tax patrimonial value attributed to each of the residential floors.

The issue has already been assessed in various proceedings, within the scope of Tax Arbitration, in which it was decided that when it is found that each of the floors composing a property in vertical ownership have a tax patrimonial value less than one million euros, the legal prerequisite for application of Stamp Duty provided for in item no. 28.1 of the GSDT is not met and, consequently, it ruled on the illegality of the respective assessment acts (cf. decisions rendered within the scope of proceedings numbers 51/2015-T, 391/2014-T, 451/2014-T, 153/2015-T, in which among others[1]). Also, the Supreme Administrative Court, by judgment of 9/09/2015, proceedings no. 47/15, with Francisco Rothes as reporter, decided that in the case of a property in vertical ownership, the application of SD (Item 28.1 of the GSDT, in the wording given by Law no. 55-A/2012, of 29 October) should be determined, not by the TPV resulting from the sum of the TPV of all divisions or floors capable of independent use (individualized in the registry entry), but by the TPV attributed to each of those floors or divisions intended for residential use[2].

No arguments have been identified, so far, that would allow breaking the unanimity that has been achieved by the decisions already rendered, making it thus important to reiterate the jurisprudence already established[3].

Item no. 28 of the GSDT, annexed to the SDC, was added by article 4 of Law no. 55-A/2012, of 29 October, initially had the following wording:

"28 – Ownership, usufruct or surface right of urban properties whose tax patrimonial value appearing in the registry, in accordance with the Municipal Property Tax Code, is equal to or greater than € 1,000,000 – on the tax patrimonial value for purposes of Municipal Property Tax:

28.1 – Per property with residential designation – 1%;

28.2 – Per property, when the taxpayers who are not natural persons are resident in a country, territory or region subject to a clearly more favorable tax regime, appearing in the list approved by ordinance of the Ministry of Justice – 7.5%."

The wording of item no. 28.1 was subsequently amended by Law no. 83-C/2013, of 31 December, which approved the State Budget for 2014, such that point 28.1 now uses the concept of residential property, now providing as follows: "28.1 Per residential property or per building land whose construction, authorized or planned, is for residential purposes, in accordance with the provisions of the Municipal Property Tax Code – 1%".

The issue that arises in the present proceedings is to know what is the scope of application of item no. 28.1 of the GSDT in the wording given by Law no. 55-A/2012, of 29 October, i.e., to know whether item no. 28.1 of the GSDT applies to urban properties in full ownership, but with floors capable of independent use, with residential designation, when the tax patrimonial value attributed to each of those floors is less than 1,000,000.00, although the sum of the floors with independent use, designated for residential purposes, has a total value equal to or greater than that amount.

With respect to the norm in question – item no. 28.1 of the GSDT – the legislative thinking that lay behind it can be examined through the presentation and discussion in Parliament of bill no. 96/XII (2nd), in which the Secretary of State for Tax Affairs expressly stated[4]:

"The Government proposes the creation of a special tax on high-value urban residential properties. This is the first time in Portugal that special taxation has been created on high-value properties intended for residential use. This tax will be 0.5% to 0.8% in 2012 and 1% in 2013, and will apply to houses valued at € 1 million or more."

From the semantic variety of the discussion there stands out, immediately, the undifferentiated use of expressions such as "high-value urban residential properties," "high-value properties intended for residential use" and "houses valued at € 1 million or more," everything appearing to point to the intention to tax single-family units of greater economic value, parametrized through their respective tax patrimonial value equal to or greater than one million euros.

However, from the preparatory works it is not possible to establish, with the necessary rigor, as has already been emphasized in previous decisions, what the concept of property underlying that norm is (cf. decisions 21/2015-T and 451/2014), namely, whether an urban residential property is, in the meaning of article 28 of the GSDT, an autonomous unit (self-sufficient for the purpose to which it is intended), distinct and separate in which the life of each individual or family group resident is conducted, in single-family or multi-family buildings; or, if it encompasses multi-family properties with autonomous units, but without legal autonomization, a characteristic of the autonomous fractions that make up properties constituted in horizontal property (condominium).

In the case at hand, the three properties of the Claimant constitute urban properties in full ownership, being composed of various floors capable of independent use, designated for residential purposes. The tax patrimonial values of the various floors capable of independent use is less than € 1,000,000.00.

The wording of item no. 28.1 provides that "Ownership, usufruct or surface right of urban properties whose tax patrimonial value appearing in the registry, in accordance with the Municipal Property Tax Code, is equal to or greater than € 1,000,000 – on the tax patrimonial value for purposes of Municipal Property Tax.

It is thus important to determine what tax patrimonial value is considered for purposes of Municipal Property Tax since from item no. 28.1 it results that Stamp Duty applies to the "Ownership, usufruct or surface right of property whose tax patrimonial value appearing in the registry, in accordance with the Municipal Property Tax Code, is equal to or greater than € 1,000,000 (...)".

Reference is thus made to the Municipal Property Tax Code for all the regulatory content concerning the application to "urban properties with the tax patrimonial value appearing in the registry," in accordance with the Municipal Property Tax Code, and concerning the subject matter to be taxed "tax patrimonial value for purposes of Municipal Property Tax." A reference that, moreover, appears, on a subsidiary basis, in article 67/2 of the SDC which refers to the Municipal Property Tax Code the "matters not regulated in the present Code concerning item no. 28 of the General Table."

We highlight from the Municipal Property Tax Code, with regard to floors or divisions capable of independent use, the following rules:

a) to each property corresponds a single registry entry (– cf. article 82/2 of the Municipal Property Tax Code);

b) each floor capable of independent use is considered separately in the registry entry, which discriminates the respective tax patrimonial value (cf. article 12/3 of the Municipal Property Tax Code);

c) the determination of the tax patrimonial value is determined for each floor or division capable of independent use, in accordance with the designation of each unit, being evaluated separately in function of its use and areas (cf. article 38 of the Municipal Property Tax Code);

d) the collection document contains, necessarily, the discrimination of the properties, their parts capable of independent use, respective tax patrimonial value (cf. article 119/1 of the Municipal Property Tax Code).

e) The non-discrimination of the tax patrimonial value of urban properties by floors or divisions capable of autonomous use constitutes grounds for complaint of incorrect registry entry (cf. article 130/3 al. h) of the Municipal Property Tax Code).

In legal doctrine, Silvério Mateus and Freitas Corvelo emphasize that one of the aspects that should be evidenced in the registry concerns the need to demonstrate the autonomy that, within each property, may be attributed to each of its parts, functionally and economically independent[5].

The Municipal Property Tax Code enshrines fiscal relevance – at the level of registry entry, determination of tax patrimonial value, discrimination of tax patrimonial value, assessment, grounds for complaint – to the individualization in the registry of each part of a property, capable of independent use.

It results from the Municipal Property Tax Code that the parts of a property in full ownership endowed with autonomy, that is, self-sufficient for the purpose to which they are intended, are the object of individual and separate evaluation, are individualized in the respective registry entry, possess their own tax patrimonial value appearing in the registry and are the object of individualized assessments (all as results from articles 7/2/al. b), 13/2 and 119/1 of the Municipal Property Tax Code), this autonomy should be respected and is relevant for purposes of application of item no. 28 of the GSDT.

Item no. 28 of the GSDT makes reference to "urban properties with tax patrimonial value appearing in the registry, in accordance with the Municipal Property Tax Code" and to "tax patrimonial value used for purposes of Municipal Property Tax".

In turn, article 12/3 of the MPTC provides that "each floor or part of property capable of independent use is considered separately in the registry entry, which also discriminates the respective tax patrimonial value".

Whereby to floors capable of independent use – as is the case in the present proceedings – is attributed a specific and own tax patrimonial value which is the object of autonomous entry in the respective property registry.

There is thus an individualization for purposes of Municipal Property Tax of floors capable of independent use which are the object of specific evaluation, pursuant to article 7/2, al. b) of the MPTC, of individual registry entry and with tax patrimonial value for purposes of Municipal Property Tax that is autonomous.

In the case of properties in vertical or full ownership with floors or divisions capable of independent use, but not constituted in horizontal property (condominium), there is a clear tax autonomy that is evidenced by the different units (evaluated with distinct parameters depending on the specific designation of each unit), indication of floor/storey, including with specification of gross private area and gross dependent area, all as if these were true autonomous fractions, which occurs in the case at hand.

There is thus no reason to – within the scope of application of Stamp Duty provided for in item no. 28.1 of the GSDT – give to floors/divisions capable of independent use (integrated in properties in vertical ownership) a treatment distinct from that granted in the MPTC.

Thus, for purposes of application of Stamp Duty, namely for purposes of application of item no. 28.1 of the GSDT, "the tax patrimonial value appearing in the registry" and the "tax patrimonial value used for purposes of Municipal Property Tax" corresponds to the tax patrimonial value that appears in the registry in relation to each floor or part of property capable of independent use, as results from the provision of article 12/3 of the Municipal Property Tax Code.

In light of the foregoing, it is reiterated, in line with the decisions already rendered, that the application in the case at hand of item no. 28.1 of the GSDT, with respect to the properties of which the Claimant is the owner, is illegal because the mentioned item should be interpreted in the sense that the relevant tax patrimonial value is the corresponding to each of the floors capable of independent use and not the tax patrimonial value that results from the arithmetic sum of all the floors that compose the property, that is, the tax patrimonial values, in parts, attributed to each of the floors intended for residential purposes, in cases in which only from the sum of the tax patrimonial values results the determination of a tax patrimonial value equal to or greater than 1,000,000.00. As none of the floors that compose the property has a tax patrimonial value greater than one million euros, item no. 28.1 of the GSDT does not apply.

The Claimant further raised the issue of unconstitutionality of item no. 28.1. Since the Arbitral Tribunal did not accept the view of applicability of item no. 28.1 of the GSDT, the assessment of the issue of unconstitutionality of the norm in question becomes moot and procedurally irrelevant.

c) Compensatory Interest

The Claimant requests that the Tax Administration be ordered to reimburse the tax paid unduly, as well as the respective compensatory interest.

Article 43, no. 1 of the General Tax Law provides that "compensatory interest is due when it is determined, in gracious complaint or judicial challenge, that there was error attributable to the services from which resulted payment of the tax debt in an amount greater than legally due."

In turn, article 24, no. 1, al. b) of the LRTA provides that the "arbitral decision on the merit of the claim to which no appeal or challenge shall lie is binding on the tax administration from the end of the deadline provided for appeal or challenge, and the latter must, in the exact terms of the success of the arbitral decision in favor of the taxpayer and until the end of the deadline provided for voluntary execution of sentences of tax judicial courts, restore the situation that would exist if the tax act object of the arbitral decision had not been performed."

Given that, in the case sub judice, the illegality of the challenged assessments is verified, due to error in the legal prerequisites, attributable to the Tax Administration that carried out the challenged assessments, due to incorrect application and interpretation of the provision in item no. 28.1 of the GSDT, the Claimant has the right to the reimbursement of the instalments paid and to compensatory interest calculated from the date of payment until full payment, at the rate of interest resulting from article 43, no. 4 of the GTL.

Decision:

For the grounds set out, the arbitral tribunal decides:

a) To dismiss the exception of lack of jurisdiction raised by the Tax and Customs Authority;

b) To grant the request for arbitral pronouncement and, in consequence, to declare illegal the assessments of Stamp Duty, by application of Item no. 28.1 of the GSDT, year 2014, relating to the urban properties located in the parish of..., municipality of Lisbon, registered in the respective registries under the entries..., ...and... .

c) To grant the claim for ordering the Tax and Customs Authority to reimburse to the Claimant the amount of tax unduly paid, increased by compensatory interest in accordance with the law, from the date on which the payments were made until the date of their full reimbursement.

d) To order the Respondent to pay the costs of the proceedings.

Case Value:

Pursuant to the provisions of no. 2 of article 315 of the Code of Civil Procedure, combined with al. a) of no. 1 of article 97-A of the TPPC and no. 2 of article 3 of the Regulations of Costs in Tax Arbitration Proceedings, the case is assigned the value of € 47,834.40, which constitutes the total amount of tax resulting from the assessments the annulment of which was requested.

Costs:

For the purposes of the provisions of no. 2 of article 12 and no. 4 of article 22 of the Regulations of the Administrative Arbitration Centre and no. 4 of article 4 of the Regulations of Costs in Tax Arbitration Proceedings, the amount of costs is fixed at € 2,142.00, in accordance with Table I annexed to the regulations, to be borne by the Respondent.

Lisbon, 21 December 2015

The Arbitrator,

(Alexandra Gonçalves Marques)

[1] All available in the CAAD database (www.caad.pt).

[2] Available at www.dgsi.pt.

[3] We will follow closely the jurisprudence already established and the text of the decision rendered within the scope of the CAAD in proceedings no. 153/2015-T, drafted by the undersigned.

[4] Cf. DAR I Series no. 9/XII-2, of 11 October, p. 32.

[5] Silvério Mateus and Freitas Corvelo (2005), Taxes on Real Property and Stamp Duty, Commented and Annotated, Engifisco, pp. 159-160.