Summary
Full Decision
ARBITRAL DECISION
I. REPORT
UNDIVIDED INHERITANCE opened by the death of A…, with Tax Identification Number…, represented by B…, resident at Avenue …, No. …, ..., …-…, in Lisbon, filed a petition for the constitution of a singular Arbitral Tribunal, pursuant to the combined provisions of Articles 2nd and 10th of Decree-Law No. 10/2011, of January 20th (Legal Regime for Arbitration in Tax Matters, hereinafter referred to as RJAT), in which the Tax and Customs Authority (hereinafter AT) is Respondent, with the objective of obtaining a declaration of illegality and unconstitutionality of the refusal (tacit) by AT concerning the request for review of the assessment of Stamp Duty (SD), duly identified, relating to the year 2012, in the amount of €10,297.40.
The petition for constitution of the Arbitral Tribunal was accepted by the Honorable President of CAAD on August 19, 2016 and automatically notified to AT.
In accordance with the provisions of subsection c) of Article 11 of RJAT, the singular Arbitral Tribunal was constituted on October 18, 2016.
AT responded, defending its discharge from the proceedings, in light of the verification of the exception of lack of jurisdiction of the tribunal or, should it not be understood this way, the exception of lapse of the right of action, further arguing the dismissal of the claim.
The meeting referred to in Article 18 of RJAT was waived, in view of the content of the matters contained in the case file, deferring the examination of the exceptions invoked by the Respondent in its response to the final decision to be rendered.
II. FACTUAL MATTERS
Based on the elements contained in the case file and in the administrative file attached to the case record, the following facts are considered proven:
A) The Claimant is the owner and legitimate proprietor of the urban property situated at Avenue …, Nos. … –…, registered in the urban property register of the parish of …, under article …;
B) The referred property constitutes a whole and complete property and is composed of 21 floors and independent units, among which 16 are designated for residential purposes;
C) The Claimant was notified, in the total amount of €10,297.40 (ten thousand, two hundred and ninety-seven Euros and forty cents), of the Stamp Duty assessment act, relating to the property identified, for the year 2012, which appears in document No. 3 attached to the case file by the Claimant;
D) The floors and independent units with residential designation were subject to Stamp Duty assessment, with the Patrimonial Value for Tax Purposes (PVTP) as a whole exceeding €1,000,000 (one million euros);
E) The PVTP of the floors and units identified was determined separately, in accordance with the provisions of Article 7, No. 2, subsection b) of the Municipal Property Tax Code (MPT);
F) On January 7, 2016, the Claimant filed a request for official review of the Stamp Duty assessment act duly identified;
G) On July 22, 2016, the Claimant filed the present petition for arbitral decision on the tacit dismissal of the request for official review filed.
There are no facts with relevance to the decision of the case that should be considered as not proven.
This Tribunal formed its conviction based on consideration of the documents attached to the case file by the Parties.
III. LEGAL MATTERS
The main material question that arises in the present case comes down to determining what is the relevant taxable Patrimonial Value for Tax Purposes for purposes of applying item 28 and 28.1 of the General Stamp Duty Table (GSDT) concerning the urban residential property constituted under a regime of vertical ownership, which comprises floors or units capable of independent use, duly identified in the case file.
The Claimant bases its claim on the following arguments:
a) There is no provision in the MPT Code that allows one to conclude that the PVTP of a property under a vertical ownership regime should be obtained by the sum of the PVTP assigned separately to the parts that constitute it;
b) Given that the rules of incidence are subject to the principle of tax legality, there appears to be no legal basis for the assessment of Stamp Duty based on the sum of the PVTP of each part of the property;
c) The rules of incidence of taxes must be interpreted in their exact terms, without recourse to analogy, making prevail the certainty and security in their application (See Decision of the Central Administrative Court of the South, rendered in the proceedings No. 7648/14, of July 10, 2014).
d) In the concrete case, all "floors and parts capable of independent use" of the properties analyzed here (designated for residential use) have a PVTP lower than €1,000,000;
e) Thus, item 28.1 of the GSDT cannot be applied to such "floors and parts capable of independent use".
The Respondent defends for its part the following:
a) The Stamp Duty paid by the Claimant under item 28.1 of the Table attached to the Stamp Duty Code is not due, since, as has been defended by doctrine and jurisprudence, in properties under a total ownership regime with floors capable of independent use, with their own patrimonial values, it is not admissible the arithmetic sum of such values in order to reach the PVTP of €1,000,000 or higher, to apply item 28.1 of the Table attached to the Stamp Duty Code;
b) Therefore, given the situation of notorious and serious injustice of the Stamp Duty assessment acts, attributable to the services, the Claimant filed the request for review of the Stamp Duty assessments identified in the arbitral petition;
c) However, the Claimant was not notified of any decision by AT on its request for review, and there was a tacit dismissal of the request filed, by application of Nos. 1 and 5 of Article 57 of the General Tax Law (GTL), on May 6, 2016;
d) There is no provision in the MPT Code that allows one to conclude that the PVTP of a property under a vertical ownership regime should be obtained by the sum of the PVTP assigned separately to the parts that constitute it;
e) Given that the rules of incidence are subject to the principle of tax legality (See Article 103 of the Constitution of the Portuguese Republic (CPR) and Article 8 of the GTL), there appears to be no legal basis for the assessment of Stamp Duty based on the sum of the PVTP of each part of the property;
f) Once the rules of incidence of taxes must be interpreted in their exact terms, without recourse to analogy, making prevail the certainty and security in their application, AT cannot perform an assessment operation based on a rule of incidence of the tax in terms other than those as assessed;
g) In fact, AT cannot distinguish where the legislator itself understood not to do so, under penalty of violating the coherence of the tax system, as well as the principle of tax legality provided in Article 103 of the CPR, and also the principles of justice, equality and tax proportionality.
h) By the situation exposed, given the situation of notorious and serious injustice of an act committed by AT and which is attributable to its services, the Claimant filed the request for review of the Stamp Duty assessments identified.
In the response presented, AT presents its defense by way of exception and by impugnation, with the following grounds:
a) The Claimant seeks to challenge what it designates as "tacit dismissal" in the context of the request for official review filed, considering it illegal;
b) However, it is notorious that AT, having not rendered an express decision on the request filed, has not yet ruled, on the one hand, on the admissibility of the assumptions of the request for review, namely as to legitimacy, timeliness, adequacy of the remedy, established in Article 78 of the GTL and, on the other hand, and consequently, has not ruled on the substance involved (the legality of the Stamp Duty assessments);
c) That is, such tacit dismissal does not, obviously, involve the examination of the legality of the tax assessment act, which the Claimant intends, in an indirect manner, to have annulled by this arbitral tribunal;
d) In truth, it follows from Article 97, No. 1, subsection d) and No. 2 of the Tax Procedure and Process Code (TPPC) that, on the one hand, are challengeable "the administrative acts in tax matters that involve the examination of the legality of the assessment act", and, on the other hand, are appealable "the administrative acts in tax matters, which do not involve the examination of the legality of the assessment act";
e) In light of the above, and being manifest that we are not dealing with an administrative act in tax matters that involves the examination of the legality of the assessment act, the same cannot be challenged through judicial impugnation, as provided in subsection a) of No. 1 of Article 97 of the TPPC;
f) For which reason the contentious means to be used would be, in accordance with subsection p) of No. 1 and No. 2 of Article 97 of the TPPC, the formerly called "contentious appeal" (current administrative action, in accordance with Article 191 of the Code of Administrative Procedure (CAP)), provided for and regulated by Articles 37 et seq. of the CAP;
g) Since the material competencies conferred on the arbitral tribunal are restricted solely to those expressly listed in subsections a) and b) of No. 1 of Article 2 of RJAT, it is outside the material jurisdiction of the Arbitral Tribunal, the challenge and/or analysis of the "tacit dismissal" of the request for official review, when it is certain that the same does not involve the examination of the legality of the assessment act, and cannot, therefore, be subject to judicial impugnation;
h) Thus, as stated in No. 2 of Article 97 of the TPPC, the jurisdictional challenge sub judice will always be, and only be, that of the courts of administrative and tax jurisdiction, through administrative action, being thus, unequivocally, removed from the jurisdiction of arbitral tribunals.
i) Without forgetting the material incompetence of the arbitral tribunal in light of the immediate object of the present proceedings - tacit dismissal of the request for official review – (which requires the discharge from the proceedings), it will still be said, merely as a precaution, that, regarding the indirect claim for "declaration of illegality and/or unconstitutionality of the Stamp Duty assessment acts sub judice, identified in article 19" (see subsection b) of the claim stated in the PI, at the end), for which this arbitral tribunal would, possibly, be competent, the same is manifestly time-barred;
j) In truth, dealing with assessments relating to the year 2012, issued (and paid) in 2013, the deadline for filing the petition for constitution of the Arbitral Tribunal, provided for in Article 10, No. 1, subsection a), of RJAT, had long since expired.
k) The verification of lapse entails the full or partial dismissal of the claim, in accordance with Article 576, No. 3, of the Code of Civil Procedure (CCP).
l) The Claimant failed to prove or demonstrate, as indeed was incumbent upon it, any situation of serious or notorious injustice, or any error attributable to the services, invoking merely, in summary, having obtained a ruling in recent decisions in CAAD, regarding other Stamp Duty assessments.
m) In compliance with item No. 28.1 of the GSDT, in the wording given by Law No. 83-C/2013, of December 31st, whose rule of incidence refers to urban properties, valued in accordance with the MPT Code with PVTP equal to or exceeding €1,000,000.00, and with residential designation, AT proceeded with the notification of the collection documents with a view to payment of the assessments in question;
n) Now, what is at issue are assessments that result from the direct application of the legal rule, which translates into objective elements, without any subjective or discretionary assessment;
o) The concept of property is defined in Article 2, No. 1, of the MPT Code, being provided in its No. 4 that, in the regime of horizontal property ownership, each autonomous unit is considered as constituting a property;
p) As to the assessment of MPT, dealing with properties in total ownership, the value that serves as the basis for its calculation will indisputably be that registered in the property record as "total patrimonial value".
q) What, expressly, results from the letter of the law is that the legislator wished to tax with item 28.1 under discussion the properties as a single legal-tax reality;
r) AT further understands that the provision of item 28.1 of the GSDT does not constitute any violation of the principle of equality, with there being no discrimination in the taxation of properties constituted in horizontal property ownership and properties in total ownership with floors or units capable of independent use, or between properties with residential designation and properties with other designations;
s) Thus, it follows from the fact that Stamp Duty item 28.1 applies to the ownership of urban properties whose PVTP contained in the register, in accordance with the MPT Code, is equal to or exceeding €1,000,000.00, that the patrimonial value relevant for purposes of the incidence of the tax is clearly the total patrimonial value of the urban property and not the patrimonial value of each of the parts that comprise it, even when capable of independent use;
t) In this way, one cannot conclude from an alleged discrimination, or violation of the principle of equality when, in truth, we are dealing with distinct realities, valued by the legislator differently;
u) Thus, the assessments of Stamp Duty, item 28 of the GSDT, now challenged, remain entirely valid and legal, concluding for their legality.
Let us see what should be understood.
A – Regarding the exceptions invoked by AT
On the Material Incompetence of the Arbitral Tribunal
In accordance with the provisions of Article 16 of the TPPC, Article 13 of the Code of Procedure in Administrative Tribunals ("CAP") and Article 101 of the CCP, subsidiarily applicable pursuant to No. 1 of Article 29 of RJAT, the determination of the material jurisdiction of the courts is a matter of public order and its examination precedes that of any other matter.
In consequence, taking into account that the success of the exception invoked by AT, if verified, precludes the examination of the other questions raised, it is important to delimit the scope of jurisdiction of the tax arbitral tribunal and assess whether the jurisdiction of the tribunal extends to, or does not extend to, the act of tacit dismissal of the request for official review filed.
The question of material incompetence of arbitral tribunals has been addressed in various arbitral proceedings decided within the scope of CAAD. See in this regard the decisions rendered in the proceedings Nos. 48/2012, of July 6, 2012, 73/2012, of October 23, 2012 and 76/2012, of October 29, 2012, whose decisions we follow.
Thus, first and foremost, it is important to note the provision of No. 1 of Article 124 of Law No. 3-B/2010, of April 28, pursuant to which the Government was authorized "to legislate in order to institute arbitration as an alternative form of jurisdictional resolution of conflicts in tax matters", and, according to its No. 2, "constitute an alternative procedural means to the process of judicial impugnation and to the action for the recognition of a right or legitimate interest in tax matters."
Implementing the aforementioned legislative authorization, Decree-Law No. 10/2011, of January 20, "instituted tax arbitration limited to certain matters, enumerated in its Article 2" making "the binding of the tax administration dependent on a ministerial order of the members of the Government responsible for the areas of finance and justice" (see the reasoning of the arbitral decision rendered in Proceedings No. 76/2012 aforementioned).
The scope of tax arbitral jurisdiction was thus delimited, in the first instance, by the provision of Article 2 of RJAT which sets out, in its No. 1, the criteria for material distribution, encompassing the examination of claims aimed at the declaration of illegality of acts of assessment of taxes (subsection a)).
Through the Binding Ministerial Order (Ministerial Order No. 112-A/2011, of April 20), the Government, through the Ministers of State and Finance and Justice, bound the services of the Directorate-General of Taxes and the Directorate-General of Customs and Special Consumption Taxes to the jurisdiction of the arbitral tribunals operating in CAAD, such services corresponding, at present, to the Tax and Customs Authority, in accordance with Decree-Law No. 118/2011, of December 15, which approves the organizational structure of this Authority, resulting from the merger of several bodies.
In this Ministerial Order, additional conditions and limits of binding are established taking into account the specificity of the matters and the amount involved.
Article 2 of the Binding Ministerial Order provides:
Article 2
Object of the binding
The services and bodies referred to in the previous article bind themselves to the jurisdiction of the arbitral tribunals operating in CAAD that have as their object the examination of claims relating to taxes whose administration is entrusted to them referred to in No. 1 of Article 2 of Decree-Law No. 10/2011, of January 20, with the exception of the following:
a) Claims relating to the declaration of illegality of acts of self-assessment, withholding at source and payment on account that have not been preceded by recourse to the administrative remedy in accordance with Articles 131 to 133 of the Tax Procedure and Process Code;
b) Claims relating to acts of determination of taxable matter and acts of determination of taxable matter, both by indirect methods, including the decision of the review procedure;
c) Claims relating to customs duties on imports and other indirect taxes that apply to goods subject to import duties; and
d) Claims relating to tariff classification, origin and customs value of goods and tariff contingents, or whose resolution depends on laboratory analysis or steps to be taken by another Member State within the scope of administrative cooperation in customs matters."
It is concluded, thus, that the tax arbitral proceedings have as their object, mediate or immediate, the tax assessment act, as an act of determination of the amount of the tax to be paid (collection), by application of a rate to the taxable matter.
Now, in the case at hand, the Claimant petitions for the declaration of illegality and unconstitutionality of the refusal (tacit) by AT concerning the request for official review of the Stamp Duty assessment act relating to the year 2012 filed.
As results from subsection a) of Article 2 aforementioned, the declaration of illegality of assessment acts can be made as a corollary of the principle of legality of a second-order act (the act of dismissal of the request for review of the tax act). The petition for arbitral decision on the dismissal of the request for official review filed is a second-order act that examines (in the case, tacitly), the legality of the Stamp Duty assessment act sub judice. For this reason, it is understood that the Arbitral Tribunal is competent to examine the claim of the Claimant, in accordance with Article 2, No. 1 a) of RJAT.
Furthermore, as results from the Legislative authorization law (Law No. 3-B/2010, of April 28), "The tax arbitral proceedings should constitute an alternative judicial means to the process of judicial impugnation". In consequence, also in light of this, and contrary to what AT argues, the tax arbitral proceedings encompass the dismissal (tacit) of the request for official review filed concerning Stamp Duty assessment acts. In fact, instead of resorting to the tax arbitral proceedings, the Claimant could have opted to judicially challenge the dismissal in question, being that the appropriate procedural means, in accordance with the provisions of Articles 97 and 99 of the TPPC.
Considering that the request for official review filed seeks the review of the Stamp Duty assessment act of 2012, with no act in question aimed merely at the declaration or recognition of a right, it is concluded that this arbitral tribunal is competent to decide on the arbitral petition filed regarding the dismissal of the request for official review, in accordance with the combined provisions provided in Article 95, Nos. 1 and 2 d) of the GTL, in Article 99 of the TPPC and in Article 2, No. 1 a) of RJAT.
On the Lapse of the Right of Action
Article 78 of the GTL provides as follows:
"1 - The review of tax acts by the entity that performed them may be carried out at the initiative of the taxpayer, within the period for administrative complaint and on the grounds of any illegality, or at the initiative of the tax administration, within four years after the assessment or at any time if the tax has not yet been paid, on the grounds of error attributable to the services.
2 - (Repealed by subsection h) of No. 1 of Article 215 of Law No. 7-A/2016 of March 30)
3 - The review of tax acts in accordance with No. 1, regardless of whether it is a matter of material or legal error, implies the respective recognition duly substantiated in accordance with No. 1 of the previous article. (Wording of Law 55-B/2004, of December 30)
4 - The head of the service may authorize, exceptionally, within three years after the year of the tax act the review of the taxable matter ascertained on the grounds of notorious or serious injustice, provided that the error is not attributable to negligent conduct of the taxpayer. (Wording of No. 1 of Article 57 of Law No. 60-A/2005, of December 30)
5 - For purposes of the previous number, only notorious injustice that is manifest and unequivocal is considered, and serious injustice is that resulting from taxation manifestly excessive and disproportionate to reality or that has resulted in serious prejudice to the National Treasury. (Wording of Law 55-B/2004, of December 30) (Previous No. 4.)
6 - The review of the tax act by reason of duplication of collection can be carried out, whatever the grounds, within four years. (Wording of Law 55-B/2004, of December 30)
7 - The request of the taxpayer directed to the competent body of the tax administration for its performance interrupts the deadline for official review of the tax act or the taxable matter. (Wording of Law 55-B/2004, of December 30) (Previous No. 6.)"
In light of the provisions of Article 78, Nos. 1 and 2 of the GTL, it is understood that the request for official review of the Stamp Duty assessment act already identified is timely and admissible, since it was filed within the period of 4 years.
In truth, the Claimant filed the request for official review on January 7, 2016, concerning the Stamp Duty assessment act issued on March 22, 2012, that is, within the period of 4 years after the assessment.
Having occurred the tacit dismissal of that request on May 7, 2016, in light of the provision of Article 57, No. 1 of the GTL, the filing of the arbitral petition, on July 22, 2016, is timely, in accordance with the provision of Article 10, No. 1 a) of RJAT.
It is concluded, thus, that there is no lapse of the right to file the arbitral petition under examination.
In light of the foregoing, and without need for further considerations, the exceptions of material incompetence of the arbitral tribunal and lapse of the right of action are judged to be dismissed.
B – On the interpretation of Item 28.1 of the GSDT
It follows from Article 11 of the General Tax Law (GTL) that the interpretation of tax law must be carried out in accordance with the general principles of interpretation.
The general principles of interpretation are established in Article 9 of the Civil Code (CC), as follows:
"1. The interpretation should not be confined to the letter of the law, but should reconstruct from the texts the legislative thought, having particularly in mind the unity of the legal system, the circumstances in which the law was elaborated and the specific conditions of the time in which it is applied.
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However, the interpreter cannot consider the legislative thought that does not have in the letter of the law a minimum of verbal correspondence, even if imperfectly expressed.
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In fixing the meaning and scope of the law, the interpreter shall presume that the legislator adopted the most appropriate solutions and knew how to express its thought in adequate terms."
In accordance with the rules of interpretation of Law, it is important to note that Law No. 55-A/2012, of October 29, added to the GSDT item 28 and 28.1, creating the Stamp Duty rate on urban properties of high patrimonial value.
The creation of this new tax fact occurred in the context of economic crisis and serious crisis in public finances, with the purpose of increasing the State's tax revenues, through the taxation of those who show greater indicators of wealth.
The special Stamp Duty rate on properties valued above €1,000,000.00, also known as the "luxury tax", aimed to ensure the distribution of sacrifices among all and not only among those who live on the income of their work.
In these circumstances, item 28 and 28.1 established the incidence of Stamp Duty in the following terms:
"Ownership, usufruct or surface right of urban properties whose patrimonial value for tax purposes contained in the register, in accordance with the Municipal Property Tax Code (MPTC), is equal to or exceeding €1,000,000 – on the patrimonial value for tax purposes used for purposes of MPT:
28.1. – For residential property or for land for construction whose building, authorized or foreseen, is for residential purposes, in accordance with the provisions of the Municipal Property Tax Code…… 1%."
It results, therefore, from the letter of the law that the rate provided for in item 28.1 applies to the right of ownership over property with residential designation, whose PVTP used for purposes of MPT is equal to or exceeding €1,000,000.00.
In accordance with the provision of Article 1, No. 6 of the Stamp Duty Code, "For purposes of this Code, the concept of property is that defined in the Municipal Property Tax Code (MPTC)."
In turn, the MPT Code determines in its Article 2 the following:
Concept of property
"1 - For purposes of this Code, property is any portion of territory, encompassing waters, plantations, buildings and constructions of any nature incorporated therein or resting thereon, with a permanent character, provided it is part of the assets of a natural or legal person and, in normal circumstances, has economic value, as well as waters, plantations, buildings or constructions, in the circumstances above, endowed with economic autonomy in relation to the land where they are implanted, although situated in a portion of territory that constitutes an integral part of a diversified asset or does not have patrimonial nature.
2 - Buildings or constructions, although movable by nature, are considered as having a permanent character when devoted to non-transitory purposes.
3 - The permanent character is presumed when the buildings or constructions have been in the same location for a period exceeding one year.
4 - For purposes of this tax, each autonomous unit, under the regime of horizontal property ownership, is considered as constituting a property."
Having in mind the concept of property established in Law, it is clear that properties constituted under vertical property ownership constitute properties, for purposes of item 28.1 of the GSDT.
To the extent that the property under analysis (hereinafter Property) constitutes a Property, in accordance with the provisions of Article 2 of the MPT Code, it is literally covered by item 28 and 28.1.
In truth, the law does not distinguish, at any point, between property in horizontal property ownership and property in vertical property ownership, the provision limiting itself in No. 4 of Article 2 to establishing that under the regime of horizontal property ownership each autonomous unit is considered as property.
From the aforementioned in No. 4 of Article 2 does not result, contrary to what Respondent argued in its response, that only the autonomous units of property under horizontal property ownership regime are considered as properties.
Nevertheless, the special Stamp Duty rate fixed in the item in question only applies if the Property constitutes a residential property, whose patrimonial value for tax purposes contained in the register, in accordance with the MPTC Code, is equal to or exceeding €1,000,000.
Since the Stamp Duty Code does not establish what is meant by "residential", by virtue of the provision of No. 2 of Article 67 of the said Code, the rules provided for in the MPT Code are also applicable here, namely those established in Articles 6 and 41 of that Code.
From the analysis of the said rules, it also results clearly that the Property is covered by item 28.1, as an urban property with residential designation.
It remains, therefore, to ascertain whether the PVTP contained in the register of the Property, in accordance with the MPT Code, is equal to or exceeding €1,000,000.
Now, as follows from the letter of the Law, the PVTP of the Property shall be that which is used for purposes of MPT.
To this purpose, it is determined in No. 1 of Article 7 of the MPT Code, applicable pursuant to No. 7 of Article 23 of the Stamp Duty Code, that "The patrimonial value for tax purposes of properties is determined in accordance with this Code."
In turn, in Nos. 2 and 3 of Article 7 of the MPT Code, the rules for determination of the PVTP of properties with two or more classifications are established.
Since the rate provided for in item 28 and 28.1 of the GSDT applies only to properties with residential designation, the rules established in Nos. 2 and 3 of Article 7 of the MPT Code are not applicable to the determination of the PVTP relevant within the scope of the said item.
In truth, the PVTP of properties with residential designation, provided for in item 28 and 28.1 of the GSDT, must be determined taking into account No. 3 of Article 12 of the MPT Code, according to which:
"Each floor or part of property capable of independent use is considered separately in the property registration, which also distinguishes the respective patrimonial value for tax purposes."
Thus, taking into account that the legislator does not give any significance to the fact that the property is constituted under a regime of vertical property ownership, the PVTP should be attributed to each floor or part of property capable of independent use.
In fact, there is no provision in the MPT Code that allows one to conclude that the PVTP of a property under a vertical property ownership regime should be obtained by the sum of the PVTPs assigned separately to the parts that constitute it (See, among others, the arbitral decisions rendered in Proceedings 50/2013-T, 131/2013-T, 177/2014-T, 396/2014-T).
Taking into account that the rules of incidence are subject to the principle of tax legality (See Article 103 of the Constitution of the Portuguese Republic (CPR) and Article 8 of the GTL), there appears to be no legal basis for the assessment of Stamp Duty based on the sum of the PVTPs of each part of the Property.
In fact, AT cannot perform an assessment operation based on a rule of incidence that does not expressly provide for the basis of incidence of the tax in terms assessed, since the rules of incidence of taxes must be interpreted in their exact terms, without recourse to analogy, making prevail the certainty and security in their application (See Decision of the Central Administrative Court of the South, rendered in Proceedings 7648/14, of July 10, 2014).
It is understood, thus, that there is no legal basis that allows AT to add the patrimonial values for tax purposes of the floors or parts of property capable of independent use, in order to achieve the threshold of eligible taxation of €1,000,000.00, provided for in item 28 of the GSDT.
In light of the foregoing, having none of the floors, capable of independent use, a patrimonial value for tax purposes exceeding €1,000,000.00, there is no application of the rate provided for in item 28 of the GSDT.
In consequence, the request for official review must be admitted and the consequent annulment of the Stamp Duty assessment act sub judice is imposed, as well as the recognition of the right to indemnity interest of the Claimant regarding the Stamp Duty paid, since the illegality of the assessment act is attributable to error of the Respondent, in accordance with the provisions of Article 43, Nos. 1 and 3 c) of the GTL.
IV. DECISION
In these terms, this Arbitral Tribunal decides:
A) To judge as fully justified the claim for annulment of the dismissal of the request for official review filed concerning the Stamp Duty assessment act for the year 2012;
B) To condemn the Tax and Customs Authority to refund to the Claimant the amount of tax paid, increased by indemnity interest, in accordance with legal provisions;
C) To condemn the Respondent in the costs of the present proceedings, as the unsuccessful party.
V. VALUE OF THE CASE
In accordance with the provision of Article 306, No. 2 of the Code of Civil Procedure, Article 97-A, No. 1 a) of the TPPC and Article 3, No. 2 of the Regulation of Costs in Tax Arbitration Proceedings, the value of the claim is fixed at €10,297.40.
VI. COSTS
In accordance with the provisions of Articles 12, No. 2 and 22, No. 4, both of RJAT, and in Article 4, No. 4 of the Regulation of Costs in Tax Arbitration Proceedings, the value of the arbitration fee is fixed at €918, in accordance with Table I of the mentioned Regulation, at the expense of the Respondent.
Let it be notified.
Lisbon, November 29, 2016
The Arbitrator
Magda Feliciano
(The text of this decision was prepared by computer, in accordance with Article 131, No. 5, of the Code of Civil Procedure, applicable by reference in Article 29, No. 1, subsection e) of Decree-Law No. 10/2011, of January 20 (RJAT), with its drafting governed by the spelling prior to the Orthographic Agreement of 1990).
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