Summary
Full Decision
ARBITRAL DECISION
1. REPORT
A..., S.A., taxpayer no. ..., with registered office at Rua ..., ..., hereinafter referred to as the Claimant, filed on 31/08/2018 a request for establishment of tribunal and arbitral ruling concerning the assessment of Stamp Tax for the year 2016 (no. 2018...), in the amount of 33,028.45 euros and demonstration of the assessment of compensatory interest (no. 2018...) in the amount of 2,700.18 euros, on the grounds that, in its view, such assessment is vitiated by breach of law.
The Honourable President of the Ethics Council of the Administrative Arbitration Centre (CAAD) appointed on 23/10/2018 Francisco Nicolau Domingos as arbitrator.
On 13/11/2018 the arbitral tribunal was constituted.
In compliance with the provision of article 17, nos. 1 and 2 of Decree-Law no. 10/2011, of 20 January (RJAT), the Respondent was notified on 13/11/2018 to, if so desired, submit a reply, request the production of additional evidence and to remit the administrative file (PA).
On 10/12/2018 the Respondent submitted its reply, in which it contests the admissibility of the request for arbitral ruling, in light of the legality of the assessment of Stamp Tax and compensatory interest.
On 27/12/2018 the tribunal decided to dispense with the holding of the meeting to which article 18, no. 1 of RJAT refers, based on the absence of exceptions to be addressed and the unnecessary need to invite the parties to correct the procedural documents, granted eight days for them, if so desired, to submit final written submissions and appointed 13/05/2019 as the deadline for issuing the arbitral decision.
Final written submissions, in which the parties maintained their initial positions, were submitted by the Claimant on 09/01/2019 and by the Respondent on 10/01/2019.
2. POSITION OF THE PARTIES
The Claimant argues that the assessment of Stamp Tax and demonstration of compensatory interest is vitiated by error concerning the legal assumptions, since there is no element in the wording of article 7, no. 1, letter e) of the Stamp Tax Code (CIS) that permits affirming that only guarantees intended "directly for the granting of credit" are covered by the aforementioned exemption rule. The wording of the said normative provision sets out a set of realities contained in item 10 of the General Table of Stamp Tax (TGIS), whose exemption from tax depends only on the fact that such realities are carried out between the institutions and entities indicated therein.
In a second line it argues that the application of the norm contained in Law no. 7-A/2016, of 30 March, which entered into force on 31/03/2016, in the part where it confers an interpretative character to the wording given to the current article 7, no. 7 of the CIS is unconstitutional, by violation of the principle of prohibition of fiscal retroactivity, enshrined in article 103, no. 3 of the Constitution of the Portuguese Republic (CRP), as well as the principles of protection of confidence and legal certainty arising from article 2 of the CRP.
By conferring this interpretative character, the legislator intends to apply the new wording to facts prior to the entry into force of Law no. 7-A/2016, of 30 March, and it is certain that article 13, no. 1 of the Civil Code (CC) provides that the interpreted law must be applied with the meaning conferred upon it by the interpretative law from the beginning of its validity in the legal order.
However, in its view, despite the declared interpretative character of the legislative amendment, we are dealing with an innovative and not interpretative norm, that is, the qualification attributed by the legislator to the nature of the norm is ineffectual, since it is an innovative norm. Thus, it considers that this qualification constitutes a disguise of retroactivity of the new law.
The constitutional principle of prohibition of retroactivity of fiscal law is embodied in the prohibition of application of the new fiscal law to facts occurring within the scope of validity of the old law. The relevant moment for determining the retroactive character of fiscal law is that of verification of the taxable event, so it will be considered retroactive the law that intends to attribute tax effects to that event, when it has already been consolidated prior to the moment of its entry into force. In the present case, if the taxable event occurred at the moment of issuance of the guarantee – 17/02/2016, therefore on a date prior to the entry into force of the new law.
In summary, article 154 of Law no. 7-A/2016, of 30 March, in the part where it confers an interpretative character to no. 7 of article 7 of the CIS is materially unconstitutional, by violation of the principle of retroactivity of fiscal law, enshrined in article 103, no. 3 of the CRP.
It concludes by requesting condemnation of the AT (Tax and Customs Authority) to pay compensatory interest, as it considers that the error underlying the tax acts in question is manifest.
The Respondent presents a defence with the following grounds:
i) Exemption from Stamp Tax
The exemption provided for in article 7, no. 1, letter e) of the CIS determines that interest, commissions charged, guarantees provided or their use relate to credit granted. Or, in other words, the emphasis is placed on credit granted.
This position was endorsed by the legislator with the introduction of no. 7 to article 7 of the CIS (Law no. 7-A/2016, of 30 March) with the following wording: "The provision in letter a) of no. 1 applies only to guarantees and financial operations directly intended for the granting of credit, within the scope of the activity exercised by the institutions and entities referred to in that letter".
The number added constitutes merely an explanation of a previous rule, therefore, the legislator attributes an interpretative nature to it. The interpretation of the rule was dubious, there being case law sustaining that the catalytic element, to which interest, commissions charged, guarantees provided or their mere use were referred, was credit granted. In this way, in its view, it is not prohibited to the legislator to use interpretative law.
ii) Unconstitutionality
There is no unconstitutionality arising from an alleged retroactivity of the law, since the legislator merely sought to clarify a pre-existing concept. That is, there is an authentic interpretation.
iii) Right to Compensatory Interest
If the assessment of Stamp Tax in dispute does not suffer from vitiating defects, AT is not responsible for payment of any amount in respect of compensatory interest.
But even if the assessment were illegal, if the decision is based on the unconstitutionality of the interpretative character of article 7, no. 7 of the CIS, no compensatory interest is due, to the extent that the principle of legality binds the administration to the compliance of positivised law and, thus, it is prohibited from disapplying any norm on the basis of its unconstitutionality.
In this sequence, the following are the questions that the tribunal must address:
a) Whether the assessment of Stamp Tax is vitiated by breach of law, due to error in the legal assumptions;
b) Whether the Claimant is entitled to reimbursement of Stamp Tax paid and to compensatory interest.
3. CASE MANAGEMENT
The proceeding is free from nullities, the arbitral tribunal is regularly constituted and is materially competent to know of and decide the claim, consequently, the conditions are met for the final decision to be rendered.
4. FACTUAL MATTERS
4.1. Facts Found to be Established
4.1.1. The Claimant carries on the activity of "Other Monetary Intermediation", to which the CAE 64190 corresponds.
4.1.2. On 17/02/2016 the Claimant, in the name and at the request of A..., S.A., provided an independent first demand bank guarantee, up to the amount of 5,504,741.75 euros, intended to ensure payment, if due and when due, of the enforceable debt and respective legal increases, petitioned in the tax enforcement proceeding no. ...2016...
4.1.3. The Claimant did not assess Stamp Tax on the said bank guarantee, as it considered the exemption provided for in article 7, letter e) of the CIS to be applicable to the operation, since it was a guarantee provided by a credit institution at the request of another credit institution, both domiciled in Portugal.
4.1.4. The Claimant, by official communication dated 30/11/2017 was notified by AT to submit elements relating to the aforementioned bank guarantee and respective assessment of Stamp Tax or justifications for the possible application of the exemption.
4.1.5. On 18/12/2017 the Claimant responded to the notification stating that it did not assess Stamp Tax, as it considered the exemption provided for in article 7, letter e) of the CIS to be applicable.
4.1.6. By official communication dated 05/03/2018 the Claimant was notified of the proposed inspection report, which concluded for the correction that determined the assessment of 33,028.45 euros of Stamp Tax, plus compensatory interest, in the amount of 2,700.18 euros.
4.1.7. The Claimant on 20/03/2018 exercised the right of hearing with respect to the proposed tax inspection report.
4.1.8. By order dated 11/04/2018, the proposed tax inspection report became final, concluding that: "...because the Bank Guarantee in question was not intended directly for the granting of credit, but rather to provide a guarantee in tax enforcement proceeding no. ...2016... of the Tax Office of Lisbon..., it is not covered by the exemption provided for in letter e) of no. 1 of article 7 of the CIS".
4.1.9. In the grounds of the order referred to in 4.1.8 it is further stated that: "In view of the wording of no. 7 of article 7 of the Stamp Tax Code, introduced by Law no. 7-A/2016, of 30 March, having the Taxpayer become aware of it, even if having given a different interpretation to that expected by the legislator at the time of the facts (17-02-2016), it had the obligation to correct its procedure and to proceed with the due assessment of Stamp Tax on the issuance of the said Bank Guarantee".
4.1.10. The Claimant was notified of the assessment no. 2018... of Stamp Tax and compensatory interest, in the total amount of 35,728.63 euros, with 2,700.18 euros of compensatory interest.
4.1.11. The amount referred to in 4.1.10 was voluntarily paid by the Claimant on 22/05/2018.
4.1.12. The request for arbitral ruling was filed on 31/08/2018.
4.2. Facts Found Not to be Established
There are no other facts with relevance for the arbitral decision that have not been found to be established.
4.3. Grounds of the Factual Matters Found to be Established
The factual matters found to be established are based on the documents used for each of the alleged facts, the authenticity of which was not called into question.
5. LEGAL MATTERS
5.1. Issue of Error Concerning the Legal Assumptions
The Claimant considers that the legislator exempted from Stamp Tax interest and commissions charged and guarantees provided, without such being associated to any credit operation. On the other hand, the Respondent considers that the exemption requires the granting of credit.
Thus, it is important to identify the legal framework that the tribunal will use to assess the merits of the Claimant's claim.
Item 10 of the TGIS provided the following on the date of the taxable event: "Guarantees of obligations, whatever their nature or form, in particular aval, guarantee deposit, independent bank guarantee, surety, mortgage, pledge and guarantee insurance, except when materially ancillary to contracts specially taxed in this Table and constituted simultaneously with the guaranteed obligation, even if in a different document or instrument - on the respective value, depending on the term, always being considered as a new operation the extension of the term of the contract: (...)".
Article 7, no. 1, letter e) of the CIS, on the date of constitution of the guarantee provided that: "The following are also exempt from tax: (...)
e) Interest and commissions charged, guarantees provided and, as well, the use of credit granted by credit institutions, financial companies and financial institutions to venture capital companies, as well as to companies or entities whose form and object fill the types of credit institutions, financial companies and financial institutions provided for in community legislation, some and others domiciled in the Member States of the European Union or in any State, with the exception of those domiciled in territories with privileged tax régime, to be defined by order of the Minister of Finance".
The parties do not disagree as to the use of item 10 of the TGIS, but with respect to the application of the exemption to the situation sub judice, as well as the breach of the principle of prohibition of retroactivity of fiscal law, by the interpretative norm contained in Law no. 7-A/2016, of 30 March – no. 7, of article 7 of the CIS.
First and foremost, item 10 of the TGIS now taxes the constitution of any guarantees, regardless of their nature and form, with particular emphasis being given to the economic substance of the contract. Thus, guarantees will be taxed when the contract embodies a legal instrument intended for the performance of the obligation and which consequently implies the diminution of the assets of the guarantor.
Thus, first demand bank guarantees are covered by the scope – on first demand clause.
It is further important to add that excluded from taxation are guarantees materially ancillary to contracts specially taxed by the TGIS, on the condition that they are constituted simultaneously with the guaranteed obligation, even if in a different document or instrument. The exclusion from taxation requires material subsidiarity – relationship between the guaranteed obligation and guarantee provided – and formal subsidiarity, the constitution of the obligation and guarantee provided in the same document or instrument and even if contained in a different document or instrument, the constitution of the guarantee is effected simultaneously – on the same day – with the obligation.
Thus, the exemption from tax provided for in article 7, no. 1, letter e) of the CIS will, in theory, be applicable to items 10 and 17 when the conditions described in the said norm are met.
But the central issues of the proceedings, it is repeated, consist in determining whether the exemption in question operates without the guarantee being associated to any credit operation and whether the interpretative norm introduced by the 2016 State Budget offends the principle of prohibition of retroactivity of fiscal law.
The State Budget for the year 2016, approved by Law no. 7-A/2016, of 30 March, introduced a no. 7 to the said article 7 of the CIS, in which it clarifies that the said rule (article 7, no. 1, letter e) of the CIS) applies only to guarantees and financial operations directly intended for the granting of credit, within the scope of the activity of the institutions to which the rule alludes and attributes an interpretative nature to it.
If the legislator, through a law which it qualified as interpretative, determined that the exemption applies only to guarantees directly intended for the granting of credit, it is important, first and foremost, to look at the legal regime of interpretative laws.
Laws apply only for the future and, even if given retroactive effect, it is presumed that the effects already produced by the facts that the law is intended to regulate are reserved - article 12 of the CC.
Article 13, no. 1 of the CC determines that interpretative laws are immediately applicable to previous situations when they do not incorporate any innovative content, that is, the prohibition of retroactivity does not apply. But, as interpretative law provides, as a rule, for the future, when it has no innovative content, this is applicable to previous situations.
However, for us to be in the presence of a true interpretative law it is necessary to meet two requirements: i) that the previous normative solution be controversial and ii) that the solution introduced by the new law be found within the scope of the controversy and that the solution contained therein was capable of being reached by case law or by doctrine.
The issue becomes particularly acute, as, in those hypotheses where we are dealing with a false interpretative law, there will be a disguise of retroactivity of the new law and, as such, it must be ascertained whether in Fiscal Law the same is admissible in light of article 103, no. 3 of the CRP.
For that reason, it is important to ascertain whether the interpretation contained in the normative provision of 2016 was already one of the admissible, an essential condition for us to be in the presence of a true interpretative law.
In the wording of the original version (article 7, no. 1, letter e), at the time article 6), the exemption in question related to the granting of credit and the charging of commissions by credit institutions. It happens that, with the provision of a no. 2 to the said article, by Law no. 30-C/2000, of 29 December, the scope of the exemption was restricted to financial operations intended for the granting of credit. That is, the scope of application of the exemption became limited to operations directly intended for the granting of credit – objective scope – and to credit institutions – subjective scope.
It happens that, with the consolidation of the normative formulation: "...interest and commissions charged and, as well, the use of credit granted by credit institutions and financial companies" as a result of the wording given to article 7 by Law no. 32-B/2002, of 30 December and the elimination of no. 2, it became transparent that, in the purposes of the rule are inscribed, the charging of interest and commissions and, secondly, the granting of credit.
With Decree-Law no. 287/2003, of 12 November the regime of article 6, no. 1, letter e) of the CIS migrated to article 7, no. 1, letter e) of the same diploma, subsequently Law no. 107-B/2003, of 31 December altered the legislative formulation of the letter in question, broadening the scope of the exemption to "guarantees provided".
Article 7, no. 1, letter e) of the CIS maintained, from then on, the following wording: "...interest and commissions charged, guarantees provided and, as well, the use of credit granted by credit institutions, financial companies and financial institutions to venture capital companies, as well as to companies or entities whose form and object fill the types of credit institutions, financial companies and financial institutions provided for in community legislation, some and others domiciled in the Member States of the European Union or in any State, with the exception of those domiciled in territories with privileged tax régime, to be defined by order of the Minister of Finance".
It was with the reformulation effected by Law no. 32-B/2002, of 30 December that there was a line of demarcation, as the legislator assimilated the two modalities of financial operations - i) interest charged and the use of credit and ii) commissions charged by credit institutions in the same letter of the rule. Likewise, it is further notable that with Law no. 107-B/2003, of 31 December the scope of the exemption was broadened to "guarantees provided".
In summary, the historical evolution of article 7, no. 1, letter e) of the CIS attests that only in the original version did the exemption relate to the granting of credit and the charging of commissions by credit institutions. Subsequently with the establishment of a new no. 2 to the article, through Law no. 30-C/2000, of 29 December, which limited the exemption to financial operations directly reserved for the granting of credit, is that this exemption became circumscribed to credit operations.
Thus, while on the one hand, one cannot fail to highlight that it was with Law no. 32-B/2002, of 30 December that, within the scope of the exemption, interest charged and the use of credit and commissions charged by credit institutions became associated with the granting of credit itself, a circumstance which associated with the extension of the exemption to "guarantees provided", promoted its loss of characterisation.
Thus, no. 7, of article 7 of the CIS introduced by Law no. 7-A/2016, of 30 March, by restricting the scope of the exemption to operations directly intended for the granting of credit bears an innovative nature, by delimiting the scope of the said exemption in a interpretative framework that did not correspond to its grammatical meaning and to the circumstances in which the rule was drafted.
But against this conclusion some case law could still be raised which states the following: "In fact, it does not seem to make any sense to establish autonomy between interest, commissions charged and guarantees provided, on the one hand, and the use of credit granted, on the other, and only with respect to the latter could it be connected dependently, to the granting credit institutions and financial companies or institutions and the observing companies or entities, in form and in object, of the types of credit institutions and financial companies and institutions beneficiaries. (...) – Rather, the only reading that seems to us legitimate, for being coherent, of the provision in question is that it relates to interest, commissions charged, guarantees provided or to the mere use, in all cases, by reference to credit granted in accordance with what is stipulated in the rule in question, as the Honourable Judge below considered".
Or, in the same vein: "Thus, we also consider that the provision in question relates to interest, commissions charged, guarantees provided or to the mere use, in all cases, by reference to credit granted in accordance with what is stipulated in the rule in question, as the judgment appealed by us considered, so that it becomes unnecessary to analyse whether or not the subjective requirements alleged in the conclusions of appeal are met since we must immediately conclude that, since it is not, in this case, the granting of any type of credit, nor, much less, the type of institutions listed in the law, the commissions in question here were not exempt from Stamp Tax, under the aforementioned article 7, no. 1, letter e), of the CIS".
It happens that this line of case law relates to facts subject to item 22 of the TGIS and not to item 10 or 17.
But, the legislator, it is repeated, attributed to the rule an interpretative nature, that is, with retroactive effect to the date of entry into force of the old law, as expressly and concretely determined by article 13, no. 1 of the CC, that is, if its effects are retroactive to the date of entry into force of the old law, it is important to understand the consequences of the principle of prohibition of retroactivity of fiscal law with respect to the interpretative law.
But do interpretative laws that bind the interpreter retroactively contend with retroactivity prohibited by the Constitution?
The answer to the question is not unanimous, as the admissibility of interpretative laws, in the face of the prohibition of retroactivity in Fiscal Law, has divided doctrine.
For SALDANHA SANCHES before the constitutional revision it was admissible, in theory, the retroactivity of truly interpretative laws, to be ascertained by resorting to a weighing of the gravity of the injury to confidence and the values aimed at and underlying the interpretative law. This conclusion was supported by the fact that the Constitution did not impose any generalised prohibition of retroactivity, but only that which violated in an inadmissible manner confidence and legal certainty. The situation changed with the constitutional revision of 1997, a change which, in his view, even when we are dealing with a truly interpretative law, the hypothesis is covered by the constitutional prohibition of retroactivity.
In the opposite sense, another sector of doctrine holds that interpretative laws do not violate ipso facto the principle of prohibition of retroactivity of fiscal law, it all depends on the weighing that is done between the protection of the confidence of taxpayers and the urgency in obtaining tax revenue. For example, for DIOGO LEITE DE CAMPOS/BENJAMIM SILVA RODRIGUES/JORGE LOPES DE SOUSA: "Interpretative norms are not true legal norms, but rather rules of a "pedagogical" character. The question arises whether the interpretation made by the legislator of a previous rule is valid for situations of fact prior to the publication of such interpretation. In principle, it will be valid: we are not dealing with a legal norm in the proper sense; and the applicable rule is the interpreted, not the interpretative. But only so will it be, if the interpretative rule limits itself to fixing the dominant meaning that was attributed to the interpreted rule. Otherwise, under the cover of a pseudo-interpretation, a rule with retroactive character is being created".
The tribunal also considers that interpretative norms that limit themselves to fixing the majority meaning to the interpreted rule are valid and constitutionally admissible. In this respect it is always important to analyse the question from the perspective of the Constitutional Court: "From all this framework of the question of constitutionality, relating to the prohibition of retroactivity in fiscal matters, in comparison with interpretative laws, it results, from the outset, that any doctrinal controversy about the nature truly or only apparently retroactive of interpretative laws does not take centre stage in the constitutionality question here formulated. In fact, the core of the constitutionality issue here raised consists, rather, in knowing whether interpretative laws that bind the interpreter retroactively contend with retroactivity prohibited in the Constitution. Now, the grounds for prohibition of retroactivity respect the security of citizens. Thus, such security is affected by legislative amendments which, at the moment of the practice or occurrence of the facts they involve, could neither have been foreseen nor were required to be foreseen. But such security is also affected where the binding of the State by the Law it created is concerned, through alteration of situations already instituted or previously resolved. In this way, if it is true that authentically interpretative laws do not truly shake the concrete prior expectations of those subject to them, in the case that the interpretation made binding is already known and has even been applied (cf. on this nature of authentically interpretative laws, BAPTISTA MACHADO, op. cit., p. 247), however, even in such cases, the interpretative binding that such laws entail, by becoming the exclusive legal criterion for the application of the previous text of the law, modifies the relationship of the State, emitter of norms, with its addressees. The exclusion by the interpretative law of other interpretations advocated and already applied in other cases (as happens in the present situation) leads to the State being able ex post facto to prevent the Law it created from functioning through its intrinsic logic communicable to those subject to the rules, allowing an imperative and immediate power that alters the framework of the relevant elements of legal interpretation to interfere in legal interpretation. In this measure, it can be understood that the interpretative law, even if authentic, in intending to be valid for the period prior to its issuance, in accordance with article 13 of the Civil Code, alters the context of self-binding of the organs of application of Law by the Law and, consequently, affects the security of those subject to the rules protected by a (constitutional) prohibition of retroactivity. There will, consequently, in this latter situation, be a stronger guarantee of security inherent in the prohibition of retroactivity.".
Now, the interpretation effected by AT that the exemption to which article 7, no. 1, letter e) of the CIS does not apply to financial operations not directly intended for the granting of credit by way of the interpretative nature of article 7, no. 7 of the CIS is innovative and aggravates the position of the taxpayer who ceases to be able to benefit from the exemption. Its application to a taxable event prior to the entry into force of the interpretative law is in breach of the principle of prohibition of retroactivity of fiscal law.
Thus it is unconstitutional, by violation of the principle of prohibition of retroactivity of fiscal law, provided for in article 103, no. 2 of the CRP, the interpretation of article 7, no. 1, letter e) and no. 7 of the CIS and of article 154 of Law no. 7-A/2016, of 30 March, in accordance with which the exemption enshrined in letter e) of no. 1 applies only to guarantees and financial operations directly intended for the granting of credit within the scope of the activity exercised by the institutions mentioned herein.
Reason for which the refusal to apply the normative interpretation deemed unconstitutional determines the illegality of the act of assessment of Stamp Tax in question and of compensatory interest.
5.2. Issue of Reimbursement of Stamp Tax Paid and Condemnation of AT to Payment of Compensatory Interest
In this respect, article 100 of the General Tax Law, applicable by reference from article 29, no. 1, letter a) of RJAT, provides that: "The tax administration is obliged, in case of total or partial admissibility of complaints or administrative appeals, or of court proceedings in favour of the taxpayer, to the immediate and complete reconstitution of the situation that would have existed if the illegality had not been committed, including the payment of compensatory interest, in accordance with the terms and conditions provided for in the law". That is, the judicial annulment of the act implies the destruction of its effects ex tunc, that is, everything must happen as if it had not been practiced.
Now, the reconstitution of the present hypothetical situation underpins the obligation to reimburse the tax that was paid. Reason for which, in the present case, in the face of the illegality of the assessment, there is indisputably a place for reimbursement of the amount of Stamp Tax paid by the Claimant.
But it is legitimate to pose the following question: is the Claimant entitled to compensatory interest?
Article 43, no. 1 of the LGT provides that: "Compensatory interest is due when it is determined, in a complaint or in 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 other words, there are three requirements for the right to said interest: i) existence of an error in an act of assessment of tax attributable to the services; ii) determination of such error in a complaint proceeding or judicial challenge and iii) payment of a tax debt in an amount greater than legally due. And the payment of compensatory interest can be determined in a tax arbitration process, as article 24, no. 5 of RJAT admits, provided that, naturally, the requirements described above are met.
It happens that for the decision of AT the establishment of no. 7 of article 7 of the CIS was decisive, to which an interpretative nature was attributed.
Now the Administration is bound by the principle of legality – article 266, no. 2 of the CRP, not thus having freedom to renounce the normative command, by way of its unconstitutionality, a function which in light of article 213 of the Fundamental Law is attributed to the Courts.
Since the arbitral decision is based on the refusal to apply a norm on grounds of unconstitutionality, the necessary prerequisite for the condemnation of compensatory interest is not met.
6. DECISION
In these terms it is decided:
i) to judge the request for annulment of the assessment of Stamp Tax no. 2018 ... and compensatory interest to be well-founded and, in consequence, to condemn the Respondent to restore the amount of tax wrongfully paid by the Claimant;
ii) to dismiss AT from payment of compensatory interest.
7. VALUE OF THE PROCEEDING
The value of the proceeding is fixed at 35,728.63 euros, in accordance with article 97-A of the Code of Tax Procedure and Process (CPPT), applicable by force of the provision in article 29, no. 1, letter a) of RJAT and article 3, no. 2 of the Regulation of Costs in Tax Arbitration Proceedings (RCPAT).
8. COSTS
Costs to be borne by the Respondent, in the amount of 1,836 euros, see article 22, no. 4 of RJAT and Table I attached to the RCPAT.
In view of the refusal to apply the norm contained in a legislative act, the Public Prosecutor's Office, represented by the Attorney-General of the Republic, shall be notified, in accordance with the terms and for the purposes of article 280, no. 3 of the CRP.
Notify.
Lisbon, 6 May 2019
The Arbitrator,
(Francisco Nicolau Domingos)
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