Stamp Tax Exemption for Tourism Developments: CAAD Arbitration Case 426/2015-T

ARBITRAL DECISION

I – REPORT

1. On 13.07.2015, the Claimant, A..., S.A., NIPC..., with registered office at Plaza..., no...., district of..., ...-... Porto, requested the establishment of an arbitral tribunal from CAAD, pursuant to art. 10 of Decree-Law no. 10/2011, of 20 January (Legal Regime for Arbitration in Tax Matters), in which the Tax and Customs Authority is the Respondent, requesting the declaration of nullity of the Stamp Duty assessment act of 10.04.2015, relating to document no..., with the assessment of stamp duty, item 1.1, in the amount of € 39,040.00 and compensatory interest in the amount of € 7,812.28, which corresponds to the amount to be paid of € 46,852.28.

The Claimant, alleging to have paid the sums in question, further requests the condemnation of the Respondent to their restitution increased by indemnification interest.

1. The request for establishment of the arbitral tribunal was accepted by the Honourable President of CAAD and notified to the Tax and Customs Authority.

Pursuant to the terms and for the purposes of the provision in no. 1 of art. 6 of RJAT, by decision of the President of the Deontological Council, duly communicated to the parties, within legally applicable time periods, the undersigned was appointed as arbitrator, and communicated acceptance of the charge to the Deontological Council and the Administrative Arbitration Centre within the applicable time period.

The Arbitral Tribunal was constituted on 14.09.2015.

1. The Respondent, duly notified, presented its reply and attached the administrative file, pursuant to article 17 of RJAT.

2. The grounds presented by the Claimant, in support of its claim, were, in substance and in summary, as follows:

a. On 30 March 2010, the company F..., S.A., as first party and the Claimant, as second party, executed a public deed of dation in payment, by which the Claimant acquired from company F..., S.A. the urban property comprising a building intended for services, located at Street..., no...., described in the Land Registry of ... under no. ... and registered under the article..., in the district of ... and ... and Municipality of....

b. It was recorded in the aforesaid public deed that the transmission was exempt from Municipal Tax on Onerous Transfers of Immovable Property and subject to reduction to one-fifth of the Stamp Duty to be assessed, by application of Decree-Law no. 423/83, of 5 December.

c. From dispatch no. .../2010, of ... March 2010, of the Secretary of State for Tourism, published in the Diário da República, 2nd Series, no...., of ... April 2010, mentioned above, there is the attribution of tourist utility on a definitive basis to the ... Hotel..., of 3 stars, located in the municipality of..., of which company F..., S.A. is the claimant.

d. On 10 April 2015, the herein Claimant was notified of the assessment issued by the Tax Service of ... relating to Stamp Duty in the total amount of € 46,852.28 and to proceed with its respective payment.

e. On 13 April 2014, the Claimant made the payment of the amount of € 46,852.28 allegedly owed.

f. The assessment in question results from the allegedly improper application to the Appellant of the benefit of reduction of Stamp Duty, provided for in no. 1 of article 20 of Decree-Law no. 423/83, of 5 December, which establishes that "Acquisitions of properties or autonomous fractions intended for the installation of enterprises qualified as tourist utility are exempt from sisa and tax on succession and donations, with stamp duty reduced to one-fifth, even if such qualification is attributed on a preliminary basis, provided that it remains valid and the deadline fixed for the opening to the public of the enterprise is observed", which translates into an objective exemption, intended to benefit the implementation of the process of installation of enterprises of public utility.

g. The acquisition in question was made with a view to the installation of the tourist enterprise intended for tourist exploitation, the acquired immovable property being legally and economically assigned to the tourist enterprise, with a view to enabling its complete installation.

h. The tourist utility of the aforementioned enterprise was recognized for the period of seven years from the opening permit no. .../2009, issued on ... June, as shown in the publication of the dispatch mentioned above, thus covering the date on which the acquisition by the herein Claimant occurred.

i. Thus, the acquisition of the immovable property was intended to allow the continuity of the process of installation of the enterprise of tourist utility, and therefore enjoys the objective exemption provided for in no. 1 of article 20 of Decree-Law no. 423/83, of 5 December.

j. In these terms, the act sub judice can only be understood as a mere lapse of the Tax Authority, and the same is affected by illegality because its acquisition would always be subject to reduction to one-fifth of Stamp Duty to be assessed.

k. Furthermore, four years have elapsed since the date of the taxable event, and therefore the right to assessment of Stamp Duty has expired; one should note the passage of the statute of limitations period provided for in art. 45 of LGT by remission of no. 1 of article 39 of the Stamp Duty Code applicable to the date on which the taxable event occurred.

l. The impugned act is affected by manifest lack of factual and legal reasoning, or at least such reasoning is insufficient, obscure and incongruous, having frontally violated art. 268/3 of CRP, articles 124 and 125 of CPA and art. 77 of LGT, and therefore the assessment act in question is null and void, as the amount exacted has no legal or factual foundation whatsoever (art. 77 of LGT and art. 99/c of CPPT; see art. 133 of CPA).

m. Furthermore, the Tax Authority violated the legitimate expectations and guarantees previously constituted for the Claimant and the principle of confidence and legal certainty inherent in the principle of the Rule of Law, in addition to having violated the principles of tax legality, prohibition of retroactivity of tax law and legal certainty and security provided for, among others, in articles 12 of LGT, 12 of CC and 103 no. 3 of CRP.

n. In effect, the interpretation of the Tax Authority applied to a past taxable event, entirely conducted under the old law, constitutes a violation of the principle of protection of confidence, in the aspect of legal certainty.

o. In this respect, there is clearly an error of law on the part of the Tax Authority, since it misled the Claimant when it granted the reduction to one-fifth of Stamp Duty to be assessed prior to the execution of the public deed.

p. It happens that the said assessment was not carried out in accordance with any generic guidelines issued by the Tax Authority considering the jurisprudence of the superior courts, pursuant to no. 4 of article 68-A of the General Tax Law.

q. Therefore, by force of no. 4 of article 68-A of the General Tax Law, the circulars, regulations or instruments of identical nature emanating from the Tax Authority and aimed at standardizing the interpretation and application of tax norms must be reviewed in compliance with the jurisprudence of the superior courts.

r. It happens that the interpretation of the Tax Authority relating to the grounds for the issuance of the impugned assessment results from an interpretation given by a judgment uniformizing jurisprudence.

s. Being certain that the Tax Authority did not issue any information to this effect, which could have led the Claimant to voluntarily self-assess this tax earlier.

t. Thus, the conduct of the Tax Authority translates, moreover, into a manifest violation of the principle of collaboration between tax administration and taxpayers, typified in article 59 of the General Tax Law.

u. The publication of generic guidelines is an essential formality relating to the formation of administrative will, the omission of which vitiates the assessment act now impugned.

v. Wherefore, the assessment in question must be annulled for preterition of legal formality, violation of the principles of collaboration and good faith in the terms referred to above (art. 59 of LGT, and art. 99/d of CPPT; see art. 7 of CPA and no. 2 of art. 266 of C.R.P).

w. Furthermore, the revocation of the reduction to one-fifth of Stamp Duty to be assessed could only be accomplished within the period of 1 year after it was granted, being an act constitutive of rights, by application of the combined provisions of articles 141, no. 1, of CPA and 58 of CPTA.

x. Thus, the revocation of such administrative act was accomplished beyond the one-year period during which it was legally possible, pursuant to articles 136 and 141 of CPA applicable ex vi art. 2, item c), of LGT and art. 2, item d), of CPPT.

y. In this respect, there is illegality of the revocation, since the revocatory act, with ex tunc effects, occurred more than one year after the act granting the reduction to one-fifth of Stamp Duty to be assessed, in clear violation of the provision of art. 141 of CPA.

1. The ATA – Tax and Customs Authority, called upon to pronounce itself, contested the Claimant's claim, arguing, in summary, as follows:

a. The question in the file appears to be a question of law, relating to the determination of the meaning and scope of art. 20, no. 1 of Decree-Law no. 423/83, of 05/12, as regards the provision "acquisitions of properties or autonomous fractions intended for the installation of enterprises qualified as tourist utility".

b. From the reading of this legal provision, acquisitions of enterprises qualified as tourist utility already installed that are not the object of remodeling or enlargement are excluded.

c. The attribution of the exemption of IMT and reduction of Stamp Duty to these acquisitions aims to benefit companies engaged in the activity of promotion/creation of the said enterprises.

d. It is, therefore, an objective exemption, aimed at benefiting the implementation of the process and installation of enterprises qualified as tourist utility.

e. The legislator intended to promote tourist activity by providing for the exemption/reduction of payment of Sisa (current IMT) / Stamp Duty for promoters wishing to build/create establishments (or readapt and remodel existing fractions) and not when it is a mere acquisition.

f. Now, in the case in question the Claimant's acquisition was not intended for the construction/installation of tourist enterprises, but rather for their acquisition. Therefore, it cannot benefit from the exemptions enshrined in no. 1 of article 20 of Decree-Law no. 423/83, of 5 December.

g. In fact, the acquisition occurred on 30.03.2010 and the enterprise was already installed on 12.06.2009.

h. By the foregoing, and as a conclusion, the acquisition of the immovable property here in question cannot benefit from the exemption provided for in no. 1 of article 20 of Decree Law no. 423/83, of 5 December, since the acquisition was not intended to install a tourist enterprise.

i. Contrary to what is alleged by the Claimant, there is no violation whatsoever in the case in question of the duty of reasoning on the part of the Respondent.

j. It should be noted that it was the Claimant who requested from the Respondent the issuance of Payment Guides in order to proceed with the payment of the sums owed and of any penalties, from which it is easily apparent that the same knew of the existence of a debt in favor of the Respondent and demonstrated intention to pay it, which it did.

k. In effect, as also written in the Judgment of the STA of 06-05-2015, delivered in case 0291/13, "In cases where the law does not impose special requirements of reasoning (...) compliance with the duty to reason on the part of the Tax Authority is assessed against the provision of nos. 1 and 2 of art. 77 of LGT and taking into account the purposes aimed at by the duty of reasoning".

l. Now in the case, given the context in which the act was practiced, its content, and the position of its concrete recipient, it is to be concluded that the purposes aimed at by the duty of reasoning were achieved, the recipient having effectively come to know the factual and legal reasons underlying it, in a manner that allowed them to choose, in an informed manner, between accepting the act or activating the legal means of impugning it, which was done, without difficulty.

m. Regarding the alleged violation of the principles of legal certainty and security, the thesis propounded by the Claimant lacks any legal support.

n. To safeguard the legal-tax framework of the acquisition in question and, consequently, to bind the AT to the understanding sanctioned for the purpose, the Claimant had at its disposal legal mechanisms proper to it, namely the request for binding information to be presented before the execution of the said deed, and it was incumbent upon it to ensure the legal certainty and security that it invokes, which it failed to do entirely.

o. The intervention of both the Notary and the Registrar, as public entities that in the exercise of their function interpret and apply the law, does not confer upon the Claimant any legitimate legally protected expectation as to the interpretation they may make regarding the legal-tax framework of the acquisition in question.

p. Notaries and Registrars do not form part of the tax administration nor are they legally charged with assessing taxes or recognizing tax exemptions.

q. Article 39, no. 1 of the Stamp Duty Code establishes:

1 - Tax can only be assessed within the time periods and terms provided for in articles 45 and 46 of LGT, except in the case of acquisitions of goods taxed under item 1.1 of the General Table or of gratuitous transfers, in which the assessment period is eight years from the transfer or the date on which the exemption ceased to have effect, without prejudice to the provisions of the following numbers.

r. The assessment of IS, notified at the request of the Claimant on 10 April 2015, as the Claimant acknowledges in article 35 of the request for arbitral opinion, was practiced within the legal period of limitation, since eight years had not yet elapsed from the date of the acquisition.

s. Therefore, it must be concluded that the AT was not prevented from assessing the tax owed. It is thus evident, from the text of the law, that all that is alleged by the Claimant regarding the expiration of the right to assessment is groundless.

t. The Claimant further invokes the illegal revocation of a tax benefit already granted and consolidated in its legal sphere, a thesis that appears to lack any legal support.

u. The tax benefits provided for in no. 1 of art. 20 of Decree-Law no. 423/83 are benefits of an automatic nature, which result directly and immediately from the law, not dependent on recognition.

v. Thus being, as in reality it is, the reduction of stamp duty provided for in article 20 of Decree-Law no. 423/93 operates by mere effect of law, without needing the practice of any administrative act.

w. The controversial tax benefit, being unable to be granted through any administrative act, is also not susceptible to being destroyed by an act of revocation of an annulling nature, as the Claimant seeks.

x. Consequently, the provision of art. 140 and art. 141 of CPA regarding the revocation of acts is minimally applicable to the situation of the case file, where the assessment of tax results from the fact that the Claimant did not meet the legal requirements for the exemption sought.

y. The Respondent further alleges that the impugned act must be annulled for preterition of legal formality, violation of the principles of collaboration and good faith.

z. However, everything alleged on this matter lacks adherence to the reality of the present case file.

aa. The Tax Authority is bound by the principle of legality and its conduct has been guided by strict compliance with what is provided for in law and in the consolidated jurisprudence that the Claimant is unaware of or now claims to be unaware of.

bb. The thesis of the Claimant that the conduct of the Respondent should have been preceded by a generic guideline completely lacks any foundation, since the application of the law does not need to be preceded by the publication of generic guidelines.

1. By dispatch of 26.10.2015 it was decided to dispense with the holding of the meeting provided for in article 18, no. 1, of RJAT, on the grounds of its unnecessary nature.

The Claimant, notified to present written arguments, submitted a request in which it referred to what had already been alleged in the context of the request for arbitral opinion, the Respondent having submitted a request with identical content, referring to what had been alleged in its reply.

1. The tribunal is materially competent and is regularly constituted pursuant to the Legal Regime for Tax Arbitration.

The parties have legal capacity and standing, are legitimate and are legally represented.

The proceedings do not suffer from vices that would invalidate them.

1. It is necessary to resolve the following questions:

a) Whether the purchase of the immovable property by the Claimant benefits from the exemption of IMT, under art. 20, no. 1, of Decree-Law no. 423/83, of 5 December.

b) Whether the assessment sub judice violates the principles of legal certainty and security, of good faith and collaboration.

c) Whether the assessment constitutes the illegal revocation of a tax benefit constituted in the legal sphere of the Claimant.

d) Whether the expiration of the right to assessment has occurred.

e) Whether the assessment is affected by the vice of lack of reasoning.

f) Whether the assessment is affected by the vice of preterition of essential formality by alleged violation of no. 4 of article 68-A of the General Tax Law.

II – THE MATERIAL FACTS RELEVANT

1. The tribunal considers the following facts proven:

a) By dispatch of the Secretary of State for Tourism of 09.03.2010, published on ... April 2010, tourist utility was attributed on a definitive basis to the ... Hotel... of ... located in ... for the period of 7 years from the date of the opening permit, until 12 June 2016.

b) The prior tourist utility had been attributed, by dispatch of the Secretary of State for Tourism on ...11.2008.

c) The tourist enterprise "... Hotel..." began its operation on 12.06.2009.

d) On the same date the opening permit no. .../2009 was issued by the Municipal Chamber of....

e) By public deed executed before the Notary..., on 30.03.2010, the Claimant acquired by dation in payment the immovable property registered in the property matrix of ... under the article ... of the district of ... and ..., described in the Land Registry of ... under no...., with the tourist enterprise identified in a) implanted thereon.

f) By all the parties it was stated in the said public deed:

[content with specific declarations]

g) It further appears from the mentioned public deed the following:

[content regarding the tax treatment]

h) For the said transfer, on 26.03.2010, assessment of Stamp Duty was effected in the amount of € 9,760.00, which was paid by the Claimant, having as a basis that the Claimant benefited from the reduction of stamp duty to one-fifth provided for in no. 1 of article 20 of Decree-Law no. 423/83, of 5 December.

i) On 27.03.2015 the claimant sent to the Tax Service of ... the following communication:

[communication regarding request for IMT assessment]

j) Following this communication, the Respondent effected both the assessment of IMT and the assessment of stamp duty for the transfer of property identified in e), pursuant to which the Claimant did not benefit from the reduction of stamp duty provided for in no. 1 of article 20 of Decree-Law no. 423/83, of 5 December.

k) The notification of the assessment of stamp duty, effected jointly with the assessment of IMT for the same transfer of property, contains the following:

[details of the assessment notification]

l) On 13.04.2015 the Claimant made payment of the assessment which is the subject of the present proceedings.

1. With interest for the decision of the cause, there are no unproven facts.

2. The Tribunal's conviction regarding the decision of the material facts given as proven was based on the documents contained in the file, presented by the Claimant as well as on the documents contained in the administrative file, it being noted that there is no controversy between the parties regarding such matter.

III – THE APPLICABLE LAW

1. The Claimant argues that the acquisition of the immovable property was intended to allow the continuity of the process of installation of the enterprise of tourist utility, and therefore benefits from the objective exemption provided for in no. 1 of article 20 of Decree-Law no. 423/83, of 5 December, arguing that it was intended for the installation of an enterprise qualified as tourist utility.

For its part, the Respondent argues that in the case in question the Claimant's acquisition was not intended for the construction/installation of tourist enterprises, but rather for their acquisition, since at the time the transfer in favor of the Claimant took place, the tourist enterprise was already installed, and therefore the Claimant cannot benefit from the exemptions enshrined in no. 1 of article 20 of Decree-Law no. 423/83, of 5 December.

Article 20, no. 1 of Decree-Law 423/83, of 5 December provides that "Acquisitions of properties or autonomous fractions intended for the installation of enterprises qualified as tourist utility are exempt from sisa and from tax on succession and donations, with stamp duty reduced to one-fifth, even if such qualification is attributed on a preliminary basis, provided that it remains valid and the deadline fixed for the opening to the public of the enterprise is observed".

Let us examine what should be understood by "installation" of enterprises qualified as tourist utility.

It can be read in the judgment of the Supreme Administrative Court no. 3/2013, of 23.01.2013, case no. 968/12, 2nd Section[1], in enlarged judgment, pursuant to art. 148 of the Code of Procedure in Administrative Courts that "(…) Decree-Law no. 39/2008, of 7 March, which came to establish the new legal regime for the installation, operation and functioning of tourist enterprises, "proceeding with the revocation of the various enactments that currently regulate this matter and gathering in a single decree-law the provisions common to all enterprises", also does not contain a notion of «installation», but clearly distinguishes between the procedure relating to the installation of tourist enterprises (arts. 5 and 6 and Chapter IV) and their functioning and operation (Chapter VII).
In particular, art. 5, under the heading "General installation requirements" (…) provides:
"1 - The installation of tourist enterprises that involve the carrying out of urban operations as defined in the legal regime for urban planning and building must comply with the norms contained in that regime, as well as the technical norms of construction applicable to buildings in general, in particular as regards fire safety, health, hygiene, noise and energy efficiency, without prejudice to the provisions of this decree-law and its respective regulations.
2 - The location chosen for the installation of tourist enterprises must necessarily take into account the location restrictions legally defined, with a view to safeguarding the safety of persons and property against possible natural and technological risks".
(…)".
The technical legal meaning extracted from the legislation is that the concept of installation comprises all the operations and procedures ranging from the request for licensing or prior notification of urban operations, passing through the opinions and approvals of the various competent official entities, request for authorization or notification of use for tourist purposes, and obtaining the respective permit (art. 30) or title of opening to the public (art. 32). In this sequence, no. 2 of art. 12 of Decree-Law no. 423/83 provides that "the date of opening or reopening to the public is that on which the enterprise was authorized to operate by the competent authority". The notification date of the title of opening and operation being the relevant one for marking the beginning of the validity period of the tourist utility status of the tourist enterprise in question, as results in the case in question (see dispatch no. .../2011).
In other words, «installation» emerges as a procedure that comprises the legal acts and the steps aimed at licensing (in a broad sense, comprising prior notifications or authorizations, as the case may be) of the urban operations necessary for the construction of a tourist enterprise, as well as obtaining the titles that make it fit to operate and to be exploited for tourist purposes."[2]

This understanding, which we consider correct, is consensual in the jurisprudence of the Supreme Administrative Court[3] and largely predominant in the jurisprudence of the arbitral tribunals constituted under the aegis of CAAD.[4]

By the foregoing, we cannot fail to conclude that the purchase made by the Claimant, occurring on 30.03.2010, when the enterprise was already installed as of 12.06.2009, was not intended, evidently, for the installation of the enterprise, and therefore the situation in question does not come within the provision of article 20, no. 1, of Decree-Law no. 423/83, of 5 December, and the Claimant does not benefit, consequently, from the exemption provided for in this norm.

Yet, it can still be said that the factuality that gave rise to the controversy in the case of the aforementioned judgment of the Supreme Administrative Court and which gave rise to doubts of interpretation/application of article 20, no. 1 of Decree-Law 423/83, of 5 December does not even occur in the present proceedings.[5]

In the case of the file, there is no doubt whatsoever, in light of the material facts proven and consensually recognized by the parties that, at the moment of acquisition of the property by the Claimant, the tourist enterprise in question was already installed, with no right to the tax benefit provided for in no. 1 of article 20 of Decree-Law no. 423/83, of 5 December.

1. The Claimant also alleges that the assessment sub judice violates the principles of legal certainty and security, of good faith and collaboration and, further, of no. 4 of article 68-A of the General Tax Law.

It should be noted, however, that the tax administration merely applied the legal norms in force at the date of the transfer in question and, as results from what has already been referred to above, it does not emerge from the file that there has been in the assessment that is the subject of the present proceedings, interpretation or application of no. 1 of article 20 of Decree-Law no. 423/83, of 5 December different from that which occurred previously regarding identical situations.

It is, moreover, to be noted that the Claimant, despite alleging violation by the Respondent of the duty to review generic guidance, imposed by art. 68-A, no. 4, of LGT, does not point out any concrete guidance in need of such review.

Differently, what results from the file is that the Claimant, with the transferor, declared in the public deed "under its sole responsibility, namely for tax purposes, that the said immovable property is intended for the installation of a tourist enterprise" when, in reality, the same was already installed and, indeed, already benefiting from the qualification of tourist utility on a definitive basis.

Furthermore, it appears from the said deed that the parties "assume full responsibility for the content of this declaration, assuming responsibility for any additional assessment of taxes if the exemption recognized by DL no. 423/83 of 5.12 is not recognized or ceases to have effect"[6], from which it results there are no grounds for the Claimant to have had solid expectations in the immutability of the tax situation in question, all the more so since the original quantification of the tax obligation was based on inaccurate assumptions indicated by the Claimant itself, and it does not emerge from the file that there has been any conduct by the Respondent creating the alleged expectation of the Claimant.

In view of the foregoing and without need for further consideration, the groundlessness of the allegations that the assessment sub judice violates the principles of legal certainty and security, of good faith and collaboration and, further, of no. 4 of article 68-A of the General Tax Law is manifest.

1. The Claimant further contends that "the revocation of the reduction to one-fifth of Stamp Duty to be assessed could only be accomplished within the period of 1 year after it was granted, being an act constitutive of rights, by application of the combined provisions of articles 141, no. 1, of CPA and 58 of CPTA", and that "In this respect, there is illegality of the revocation, since the revocatory act, with ex tunc effects, occurred more than one year after the act granting the reduction to one-fifth of Stamp Duty to be assessed, in clear violation of the provision of art. 141 of CPA."

However, it follows from articles 20 and 21 of Decree-Law no. 423/83, of 5 December that the tax benefit in question is automatic, not depending on any administrative act of recognition by the administration.[7]

Furthermore, it does not result from the material facts proven the existence of any administrative act of recognition of the tax benefit in question, nor does the Claimant even invoke it.
Thus being, as is clear to see, the assessment in question does not constitute revocation of a prior administrative act, and the regime for the revocation of such acts is inapplicable to the case file.

It is thus concluded that the assessment in question does not constitute illegal revocation of a tax benefit.

1. The Claimant further alleges that "four years have elapsed since the date of the taxable event, and therefore the right to assessment of Stamp Duty has expired, one should note the passage of the statute of limitations period provided for in art. 45 of LGT by remission of no. 1 of article 39 of the Stamp Duty Code applicable to the date on which the taxable event occurred, from which resulted a statute of limitations period of four years."

For its part, the Respondent argues "The assessment of IS, notified at the request of the Claimant on 10 April 2015, as the Claimant acknowledges in article 35 of the request for arbitral opinion, was practiced within the legal period of limitation, since eight years had not yet elapsed from the date of the acquisition."

Let us examine this.

No. 1 of article 39 of the Stamp Duty Code, in the wording of Law no. 66-B/2012, of 31-12, with entry into force on 1.01.2013, establishes the following:

"Tax can only be assessed within the time periods and terms provided for in articles 45 and 46 of LGT, except in the case of acquisitions of goods taxed under item 1.1 of the General Table or of gratuitous transfers, in which the assessment period is eight years from the transfer or the date on which the exemption ceased to have effect, without prejudice to the provisions of the following numbers."

The prior wording of the provision was as follows:

"Tax can only be assessed within the time periods and terms provided for in articles 45 and 46 of LGT, except in the case of gratuitous transfers, in which the assessment period is eight years from the transfer or the date on which the exemption ceased to have effect, without prejudice to the provisions of nos. 2 and 3"

For its part, article 297, no. 2, of the Civil Code, under the heading "Alteration of time periods":

"The law fixing a longer period is also applicable to periods already in course, but the entire time elapsed since its commencement shall be computed in it".

As J. Baptista Machado writes, this norm "establishes that the new law is also applicable to periods in course, but the entire period elapsed since its commencement shall be computed in it.

We note that this second norm is merely a direct application of the general criteria of transitional law. In effect, having the global passage of the period the value of a constitutive (or extinctive) fact of a right or legal situation, if such period was still in course at the moment of entry into force of the new law, it is because such legal situation was not yet constituted (or extinguished) at this moment. Therefore, it is incumbent upon the new law to determine the requirements of the same legal situation. Being a legal situation in the process of constitution, its constitutive process becomes immediately subject to the new law"[8]

At the moment of entry into force of the new wording of article 39, no. 1, of the Stamp Duty Code, the statute of limitations period was in course, and therefore the new eight-year period is applicable, with the entire time elapsed since the taxable event being computed.

Thus being, with the taxable event having occurred on 30.03.2010, at the time of the assessment and its notification to the Claimant, such period had not yet elapsed, and therefore the allegation of expiration of the right to assessment is groundless.

1. Finally, there is need to examine the alleged vice of lack of reasoning of the tax act which is the subject of the present proceedings.

For the Claimant "The impugned act is affected by manifest lack of factual and legal reasoning, or at least such reasoning is insufficient, obscure and incongruous, having frontally violated art. 268/3 of CRP, articles 124 and 125 of CPA and art. 77 of LGT, and therefore the assessment act in question is null and void, as the amount exacted has no legal or factual foundation whatsoever (art. 77 of LGT and art. 99/c of CPPT; see art. 133 of CPA)."

For its part, the Respondent argues that "It should be noted that it was the Claimant who requested from the Respondent the issuance of Payment Guides in order to proceed with the payment of the sums owed and of any penalties, from which it is easily apparent that the same knew of the existence of a debt in favor of the Respondent and demonstrated intention to pay it, which it did." And that "in the case, given the context in which the act was practiced, its content, and the position of its concrete recipient, it is to be concluded that the purposes aimed at by the duty of reasoning were achieved, the recipient having effectively come to know the factual and legal reasons underlying it, in a manner that allowed them to choose, in an informed manner, between accepting the act or activating the legal means of impugning it, which was done without difficulty."

The assessment "sub judice", according to what appears in the probative file, was effected following a request by the Claimant for an assessment of IMT for the same transfer.

From the content of the assessment, sent to the Claimant, it appears that it is an assessment of stamp duty carried out under item 1.1 of its respective general table, the taxable value in question, the rate applied, the value of the assessment paid previously, as well as the compensatory interest accounted for since the date thereof.

Taking into account the Claimant's knowledge of the first assessment, its initiative for an assessment of IMT which would naturally also imply the assessment of stamp duty, as was already known to it, the reasoning mentioned above appears sufficient in light of art. 77, no. 2, of the General Tax Law, and no obscurity or contradiction is perceived in it, it being noted, moreover, that the Claimant revealed knowledge of the factual and legal reasons that moved the Respondent to practice the assessment act which is the subject of the present proceedings.

In these terms, the alleged vice of lack of reasoning cannot fail to be judged as groundless.

Thus being, the grounds invoked in the request for arbitral opinion do not occur for the declaration of nullity or annulment of the assessment act in question, which necessarily entails the groundlessness of the remaining claims of the Claimant.

IV – DECISION

Thus, the arbitral tribunal decides to judge the present request for arbitral opinion groundless, with the assessment impugned remaining in the legal order.

Amount of the action: € 46,852.28 (forty-six thousand eight hundred and fifty-two euros and twenty-eight cents), pursuant to the provision of art. 315, no. 2, of CPC and 97-A, no. 1, item a), of CPPT and 3, no. 2, of the Regulation of Costs in Arbitration Proceedings.

Costs to be borne by the Claimant, in the amount of €2,142.00 (two thousand one hundred and forty-two euros), pursuant to no. 4 of art. 22 of RJAT.

Lisbon, CAAD, 22.01.2016

The Arbitrator

Marcolino Pisão Pedreiro

[1] Which can be consulted on the website "www.dgsi.pt"

[2] Our emphasis.

[3] Following the judgment of jurisprudence uniformization referred to, this understanding was followed in the judgments of the STA, of 23.1.2013, Cases 01001/12, 01005/12 and 01069/12, of 30.1.2013, Cases 0970/12, 0971/12, 0972/12, 0999/12, 01003/12 and 01193/12, of 6.2.2013, Case 01000/12, of 8.2.2013, Case 01004/12, of 17.4.2013, Cases 01023/12 and 01002/12, of 23.4.2013, Case 01195/12, of 11.9.2013, Case 01049/13, of 25.9.2013, Case 01038/13, of 9.10.2013, Cases 01050/13, 1040/13 and 01015/13, of 18.10.2013, Case 01048/13, of 30.10.2013, Case 01052/13, of 13.11.2013, Case 01054/13, of 4.12.2013, Case 0824/13, of 29.1.2014, Case 01043/13, of 5.2.2014, Cases 01041/13, 01047/13 and 01917/13, of 26.2.2014, Cases 0860/13 and 08763, of 2.4.2014, Case 01914/13, of 9.4.2014, Case 0859/13, of 28.5.2014, Case 0291/14, and of 18.6.2014, Case 01527/13, of 17.09.2014, Case 01228/13, among others.

There were also, in this sense, arbitral decisions delivered in cases nos. 102/2014-T (https://caad.org.pt/tributario/decisoes/decisao.php?s_imt=1&s_processo=&s_data_ini=&s_data_fim=&s_resumo=&s_artigos=&s_texto=&listPage=2&id=367) and 104/2014-T (https://caad.org.pt/tributario/decisoes/decisao.php?s_imt=1&s_processo=&s_data_ini=&s_data_fim=&s_resumo=&s_artigos=&s_texto=&listPage=2&id=345).

[4] In this sense, among others, the decisions delivered in cases numbered 102/2014-T, 103/2014-T, 104/2014-T, 105, 109, 110/2014-T, 317/2014-T, 342/2014-T

[5] In that proceeding there was at issue a tourist settlement subject to the regime of plural ownership – in which each autonomous fraction constitutes a functional element (accommodation unit) integral to the organizational unit erected for the provision of tourist exploitation services (the tourist enterprise). The question that arose was whether the acquisitions that should benefit from the IMT and Stamp Duty exemptions there established were: only acquisitions of properties or autonomous fractions by promoters with a view to constructing and installing the tourist enterprises, or also the first acquisition of each of these functional elements, on the grounds that they could be considered as still intended to enable the entry into operation of the enterprise as a whole, considering, in this perspective, that it did not obtain success, that the mentioned acquisition fell within the process of installation of the enterprise.

[6] Pursuant to articles 23, no. 1, and 2, no. 3, of CIS, the assessment of stamp duty is incumbent upon the individuals or legal entities to whom the goods are transferred in the acts and contracts subject to item 1.1. (See António Santos Rocha-Eduardo José Martins Brás, in TAXATION OF PROPERTY, IMI-IMT AND STAMP DUTY (ANNOTATED AND COMMENTED), Almedina, 2015, page 635)

[7] As Jorge Lopes de Sousa writes "As results from the provision of no. 1 of this art. 65, absent a legal provision that provides for the automatic benefit, its recognition is necessary. However, as follows from the definition of automatic tax benefit contained in art. 4, no. 1, of EBF, it is not necessary that such legal provision expressly refer to this automatism, it being enough that it results from the law directly and immediately attributing the benefit, without making its relevance dependent on prior recognition, which means that, in practice, one will be faced with an automatic benefit whenever the law does not provide for the need for recognition" (Code of Procedure and Tax Process annotated and commented, Áreas Editora, 2006, pages 508-509)

[8] INTRODUCTION TO LAW AND LEGITIMIZING DISCOURSE, Almedina, Coimbra, 1996, pages 242-243.