Summary
Full Decision
ARBITRAL DECISION
Claimant: A…
Respondent: Tax and Customs Authority
I. REPORT
A…, NIF…, resident at Rua…, n.º … –...., parish of …, municipality of Faro, (hereinafter referred to as Claimant), filed on 28-01-2016 a request for constitution of a sole arbitral tribunal, pursuant to Articles 2 and 10 of Decree-Law No. 10/2011, of 20 January (Legal Framework for Arbitration in Tax Matters, hereinafter referred to as RJAT), in conjunction with subparagraph a) of Article 99 of the CPPT, in which the Tax and Customs Authority is the Respondent (hereinafter referred to as Respondent).
The Claimant requests the declaration of illegality of 24 Stamp Duty assessment acts of 2014, corresponding to the second instalment of the tax assessed with reference to item 28.1 of the General Stamp Duty Table (hereinafter, TGIS), concerning the urban property in vertical condominium located at Av. de …, turning into Rua … n.º … a …, n.º…, registered in the urban property matrix of the parish of …, municipality of Lisbon, under article… . The Claimant further requests the condemnation of the Respondent to refund the tax unduly paid, together with default interest, as well as the condemnation of the Respondent to pay the procedural costs and the fees paid by the Claimant to its legal representatives. As a final prayer, the Claimant also petitions the condemnation of the Respondent not to assess Stamp Duty on the same grounds as the tax subject to the present arbitral decision request.
The request for constitution of the arbitral tribunal was accepted by the Honourable President of CAAD on 29-01-2016 and notified to the Tax and Customs Authority on that same date.
Pursuant to the provisions of subparagraph a) of paragraph 2 of Article 6 and subparagraph b) of paragraph 1 of Article 11 of the RJAT, the Deontological Council appointed the undersigned as arbitrator of the sole arbitral tribunal, who communicated acceptance of the appointment within the applicable period.
On 29-03-2016 the Parties were duly notified of such appointment, having manifested no intention to challenge the arbitrator's appointment, pursuant to the combined terms of Article 11, paragraph 1, subparagraphs a) and b) of the RJAT and Articles 6 and 7 of the Deontological Code.
In accordance with the provisions of subparagraph c) of paragraph 1 of Article 11 of the RJAT, the sole arbitral tribunal was constituted on 13-04-2016.
On 6 May 2016, the Claimant filed a request to expand the scope of the arbitral decision request, also requesting the declaration of illegality of the Stamp Duty assessments of 2015, with reference to the same tax rule and the same property.
Notified to respond to the claims raised, the Respondent filed the appropriate reply in which it raised the exception of autonomous unenforceability of the assessment act of item 28.1 of the TGIS and contending for the complete inadmissibility of the claims raised by the Claimant.
The Claimant was granted a period to respond, in writing, to the exception invoked, which it duly did.
By order of 08-06-2016, this tribunal admitted the consolidation of the new claim raised by the Claimant, pursuant to the provisions of Article 3 of the RJAT and paragraph 1 of Article 63 of the CPTA, correcting the economic value of these proceedings to € 11,518.72, corresponding to the sum of the initial claim with the consolidated claim. In that same order, the meeting provided for in Article 18 of the RJAT was dispensed with, and the parties were granted a period to submit successive written submissions, which only the Claimant did.
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The Claimant alleges, briefly, that there was error of fact and law in the assessment of the tax contested by taking as a tax incidence premise the total aggregate value of the parts susceptible to independent use that compose the property and not the individual value of each of those same parts. Being in question a property in vertical condominium composed of units susceptible to independent use intended for housing, the taxpayer property value relevant for purposes of Stamp Duty assessment will be that of each one of them individually considered and not their sum. This very issue has been decided in similar claims submitted by the Claimant which gave rise to arbitral proceedings nos. 476/2014-T (tax of 2013) and 449/2015-T (tax of 2014). It therefore requests the declaration of illegalities of the assessments carried out by the Respondent with reference to the years 2014 and 2015.
In response, the Respondent invokes the exception of autonomous unenforceability of the assessment act of item 28.1 of the TGIS. Indeed, the Respondent defends that the assessment act of item 28 of Stamp Duty is unique and the fact that the tax may be paid in instalments does not mean that multiple assessments have occurred. The nature of the instalments of a tax assessment is that of division of the overall assessment, carried out annually, and each instalment per se cannot be challenged autonomously, since the object of judicial challenge and of arbitral proceedings is the tax act of assessment. It concludes, therefore, that it is impossible to examine the legality of the acts subject to the present request for arbitral decision, with consequent absolution of the Respondent from the instance.
Without prejudice, and as regards the substantive question, the Respondent sustains, briefly, that on properties not subject to horizontal condominium, units susceptible to independent use have no autonomy; autonomization for purposes of property registration and valuation does not affect their legal-tax nature, with the law determining that the value of the property will necessarily correspond to the sum of the value of the various independent units. Units of independent use cannot be considered as "properties" in accordance with the legal definition and therefore cannot be relevant for purposes of the tax incidence of item 28.1 of the TGIS. For purposes of this provision, account must be taken of the taxpayer property value of the property in vertical condominium which will correspond, in accordance with the law, to the sum of the values of each unit susceptible to independent use. It concludes, thus, to the legality of the contested assessments which, for that very reason, should be maintained.
III. PRELIMINARY MATTER
The Arbitral Tribunal was regularly constituted and is competent.
The parties have judicial personality and capacity and are legitimate (Articles 4 and 10, paragraph 2, of the same diploma and Article 1 of Ordinance No. 112-A/2011, of 22 March).
The proceedings are free from nullities.
IV. MATTERS OF FACT
A. Proven Facts
The following facts are considered proven:
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The Claimant is registered as holder of 1/3 of the urban property located at Av. … turning into Rua…, n.º … a …, n.º…, of the parish of …, municipality of Lisbon, under article … . -
The identified property has a taxpayer property value of € 2,707,160.00. -
The identified property is composed of 26 units susceptible to independent use, 24 of which are intended for housing. -
None of the units susceptible to independent use intended for housing has a taxpayer property value exceeding € 1,000,000. -
In October 2014, the Claimant was notified to proceed with payment of collection documents nos. 2015…, 2015…, 2015…, 2015…, 2015…, 2015…, 2015…, 2015…, 2015…, 2015…, 2015…, 2015…, 2015…, 2015…, 2015…, 2015…, 2015…, 2015…, 2015…, 2015…, 2015…, 2015…, 2015… and 2015…, in the total amount of € 3,839.52. -
The identified collection notes concern the second instalment of Stamp Duty of 2014, of item 28.1 of the TGIS, assessed with reference to the property identified in 1 above, in the proportion of 1/3. -
The collection notes were paid on 30-10-2015. -
In April 2016, the Claimant was notified of the Stamp Duty assessments of 2015, with reference to the identified property, by documents nos. 2016…, 2016…, 2016…, 2016…, 2016…, 2016…, 2016…, 2016…, 2016…, 2016…, 2016…, 2016…, 2016…, 2016…, 2016…, 2016…, 2016…, 2016…, 2016…, 2016…, 2016…, 2016…, 2016… and 2016…, in the total amount of € 7,679.20. -
The first instalments were paid on 14-04-2016, in a total of € 3,839.60. -
In November 2015, the arbitral decision was delivered in proceedings no. 449/2015-T instituted by the Claimant with reference to the Stamp Duty assessments of 2014 in which the claim was upheld. -
In February 2016, following the decision delivered in the preceding point, the Claimant was refunded by the Respondent of the sum of € 7,679.20, corresponding to Stamp Duty of 2014.
B. Unproven Facts
No other facts with relevance for the arbitral decision were proven.
C. Basis of the matters of fact
The matters of fact given as proven rest on documentary evidence invoked and not contested.
V. MATTERS OF LAW
A. On the exception of unenforceability of the acts subject to these proceedings
For an adequate examination of the exception invoked, it is first necessary to determine and delimit in concrete terms the object of the request for arbitral decision.
In a first preliminary analysis, it follows from the initial petition and from the request for consolidation of claims submitted by the Claimant that the present arbitral proceedings have as their object the assessment acts (i) of the 2nd instalment of Stamp Duty of item 28.1 of the TGIS of 2014 and (ii) of the 1st instalment of Stamp Duty of item 28.1 of the TGIS of 2015. The determination of the economic value attributed to the proceedings by the Claimant itself allows for this same conclusion.
It transpires that, in response to the exception invoked by the Respondent, the Claimant ultimately recognizes and declares that "(…) one cannot ignore that the object of the request for arbitral decision is, and will always be, the annulment of the tax act of assessment of Stamp Duty which is underlying each of the instalments and each of the collection notes notified by the TA", concluding "that the assessment act of item 28 of the TGIS is unique".
In the written submissions, the Claimant renews the request for declaration of illegality of the Stamp Duty assessment acts of 2014 (maintaining the restriction of the claim to the amount corresponding to the second instalment of the assessed tax) and 2015.
As has been the case law of the Supreme Administrative Court, exemplified by the judgment of 07-01-2016, delivered in case no. 1265/13, "In the interpretation of the claim formulated, some flexibility should be used, not ruling out recourse to the figure of the implicit claim in order to thereby better safeguard respect for the principles of effective judicial protection and of pro action."
It is thus incumbent upon the judge to carry out an adequate and flexible interpretation of the claim submitted by the claimant in order to ensure the economic utility of the same and effective judicial protection, with a view to an effective final regulation of the situation in question.
It is under the auspices of this power of conformation, adaptation and flexibilization of the claim recognized to the judge that, based on the procedural documents submitted by the Claimant, this tribunal concludes that it results, albeit implicitly, from the claim raised by the Claimant that what this wishes is the declaration of illegalities of the Stamp Duty assessment acts of item 28 of the TGIS of 2014 and 2015 which gave rise to the various collection documents identified by the Claimant, and not the declaration of illegality of the collection documents themselves.
Given this, since the object of these proceedings is, in effect, acts of assessment of taxes, susceptible as such to judicial challenge, pursuant to subparagraph a) of paragraph 2 of Article 95 of the LGT and subparagraph a) of paragraph 1 of Article 97 of the CPPT, the exception invoked by the Respondent is without foundation.
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Without prejudice to the foregoing, and considering that the claim filed by the Claimant encompasses the assessment acts of 2014 and 2015, it is necessary to evaluate the possibility of continuation of these proceedings with respect to the assessment acts of 2014.
Indeed, it is the Claimant itself which informs this arbitral tribunal that the legality of the Stamp Duty assessment acts of 2014 was already subject to arbitral decision in proceedings no. 449/2015-T, which was upheld and following which the Respondent fully refunded the Claimant of the tax unduly paid with respect to that year.
The Claimant declares, moreover, in its submissions, that recognizing that the amount refunded in February 2016 is with reference to Stamp Duty of 2014, these proceedings should be restricted to the declaration of illegality of Stamp Duty of 2015.
Thus, and without any doubts being able to be raised, it is concluded that there has already been a final judgment and executed by the Respondent itself with respect to Stamp Duty of 2014.
There being identity of parties, of claim and of cause of action, with respect to the object of that arbitral proceedings and the part of the object in question in these proceedings, it is unquestionable that we are faced with a situation of res judicata, pursuant to Articles 580 and 581 of the CPC, applicable by reference of subparagraph d) of paragraph 1 of Article 29 of the RJAT, which constitutes a dilatory exception.
In view of the foregoing, with reference to the request for declaration of illegality of Stamp Duty of 2014, this tribunal determines absolution of the Respondent from the instance due to verification of the dilatory exception of res judicata, pursuant to subparagraph l) of paragraph 1 of Article 89 of the CPTA, applicable by reference provided for in subparagraph c) of paragraph 1 of Article 29 of the RJAT, in light of the decision delivered - and already final - in arbitral proceedings no. 449-2015-T.
B. On the illegality of the Stamp Duty assessments
Proceeding with the examination of the legality of the Stamp Duty assessment acts of item 28 of the TGIS of 2015, it is necessary to determine what the basis of incidence of this tax is when a property in vertical condominium is at issue whose units susceptible to independent use are intended for housing.
In concrete terms, it is necessary to decide whether the taxpayer property value relevant as a criterion of tax incidence will correspond to (i) the sum of the value of each of the units susceptible to independent use, as the Respondent claims, or (ii) the individual taxpayer property value of each of those units susceptible to independent use, considered autonomously and on their own, as the Claimant argues.
The doubt results from the interpretation of items 28 and 28.1 of the TGIS, whose wording in force on 31 December 2015 was as follows:
"28. Ownership, usufruct or right of superficies of urban properties whose taxpayer property value recorded in the matrix, pursuant to the Code of the Municipal Property Tax (CIMI), is equal to or greater than € 1,000,000 - on the taxpayer property value used for purposes of IMI:
28.1 For residential property or for building land whose construction, authorized or envisaged, is for housing, in accordance with the provisions of the Code of IMI – 1%"
The legislator did not set about to establish the legal concept of "residential property", having expressly provided that to all matters not regulated in the Stamp Duty Code with reference to said item 28 of the TGIS would be applicable subsidiarily the provisions of the CIMI (See paragraph 2 of Article 67 of the Stamp Duty Code). It is thus necessary to search in the CIMI for such concept in order to be able to conclude on the basis of incidence of item 28.1 of the TGIS.
The legal definition of "property" is contained in Article 2 of the CIMI, with clarification in paragraph 4 that "For purposes of this tax, each autonomous unit, in the regime of horizontal condominium, is deemed to constitute a property".
From the reading of this article, and in particular of the aforementioned paragraph 4, we would be led to conclude that, for purposes of IMI, an autonomous unit of a property in horizontal condominium assumes the nature of "property" whereas an autonomous unit of a property in vertical condominium or total does not assume such nature, having no legal-tax autonomy.
As a result of this difference in framing, it would be defensible that, for purposes of item 28.1 of the TGIS, each autonomous unit should be considered as a "property" and therefore there would only be Stamp Duty payable if, being intended for housing, it had a taxpayer property value exceeding that indicated. In the case of a property in total ownership, the taxpayer property value to be considered for purposes of determining incidence would result from the sum of the taxpayer property values of each independent unit intended for housing – see subparagraph b) of paragraph 2 of Article 7 of the CIMI. This is the position of the Respondent.
It transpires, however, that in a comparative analysis of the IMI regime applicable to autonomous units of a property in horizontal condominium and to units susceptible to independent use of a property in vertical condominium, one concludes that there is no difference whatsoever. Indeed, notwithstanding the formal legal nature being distinct, the tax regime of these figures is exactly the same. Materially, the law establishes no difference, as we can see:
(i) properties in horizontal condominium and in total ownership are subject to the same rules of registration in the matrix, with express provision in paragraph 3 of Article 12 of the CIMI that parts susceptible to independent use are considered separately in the property registration which will discriminate their respective taxpayer property value;
(ii) properties in horizontal condominium and in total ownership are subject to the same rules and procedures of valuation, with express determination in subparagraph b) of paragraph 2 of Article 7 of the CIMI that, should the parts composing the property in total ownership be economically independent, each part is valued by application of the corresponding rules.
This identity of regime goes still further, having relevant repercussions at the level of tax assessment itself in that the legislator determined that the assessment of IMI should be carried out with discrimination of the properties, their parts susceptible to independent use and respective taxpayer property value – see paragraph 1 of Article 119 of the CIMI. It is, therefore, the legislator determining that the assessment of tax should be carried out individually, considering each economic reality (units susceptible to independent use) and not each legal reality (property or autonomous unit of a property in horizontal condominium).
From this it is concluded that, for purposes of IMI, the autonomous units of a property in horizontal condominium and the parts susceptible to independent use composing a property in total ownership have exactly the same tax treatment. But more relevant than that: for purposes of IMI, the basis of incidence of the tax is determined in exactly the same way, corresponding to the own and individual value of each autonomous unit or independent part, fixed in the course of valuation and recorded in the matrix; the assessment is carried out in individualized and autonomous fashion in accordance with each of the independent parts of the property, whether or not autonomous units.
In the case of properties in total ownership, IMI is not assessed on the basis of the total taxpayer property value of the property, but on the basis of the individual taxpayer property value of each autonomous unit that composes it; the total tax liability corresponds to the sum of the individual tax liabilities for each autonomous unit, determined on the basis of their respective individual taxpayer property values. Everything proceeds in exactly the same manner as that applied to autonomous units of a property in horizontal condominium.
Furthermore, pursuant to item 28.1 of the TGIS, only "residential properties" are subject to taxation. Now, in properties composed of independent units with different purposes and uses - as is the case in these proceedings, where two areas of independent use are intended for commerce - the determination of the use can only be carried out on the basis of each of those units and not on the basis of the property as a whole. This very issue results from subparagraph b) of paragraph 2 of Article 7 of the CIMI. On this aspect, it is appropriate to note J. Silvério Mateus and L. Corvelo de Freitas, The Taxes on Real Estate Property – The Stamp Duty, Annotated and Commented, Engifisco, 1st Edition, 2005, p. 121, note 5, who understand that "The rules provided for in this paragraph 2, relating to the determination of the taxpayer property value of urban properties with more than one use, have to do with the diversity of some of the evaluation elements provided for in Articles 38 et seq. of the CIMI, in particular (….). On the other hand, this provision is in line with the principle of autonomization of the independent parts of an urban property, even if it is not constituted in horizontal condominium, provided for in paragraph 3 of Article 12". (bold in original)
In a situation like this, how would one conclude that the property would be "residential" when parts of it are intended for other purposes?
In truth, in accordance with the valuation rules provided for in the CIMI, what is not the property as a building as a whole, but the autonomous units that compose it, whether they are autonomous units or not. It is on the basis of the actual and material use that the use of each independent unit or autonomous unit is determined, with the law providing no specific use for the property as a building. Each independent unit – whether or not an autonomous unit – has, thus, its own use which does not "contaminate" the use of the property as a whole.
Thus, it cannot be argued that "residential property" corresponds to the strict and proper concept of Article 2 of the CIMI (covering, for the purpose we seek, only buildings and autonomous units of properties in horizontal condominium) because, as demonstrated, it would have no practical applicability (as noted, a property in vertical condominium may have more than one use or purpose). In our opinion, in using this expression the legislator wished to refer to the property as a reality susceptible to use, hence to the independent parts that compose each property, whether or not they have the legal nature of autonomous units.
It is concluded, therefore, that, for purposes of application of item 28.1 of the TGIS, the units susceptible to independent use that make up a property in total ownership regime and autonomous units are, in substance, identical realities and that, for that reason, they are subject to the same tax incidence regime.
In that measure, the final part of item 28 of the TGIS, in determining that the tax will be incurred "(…) on the taxpayer property value used for purposes of IMI:" expressly refers to the individual value of each independent part that composes the property in total ownership and not to the total value of the property (corresponding to the sum of the individual taxpayer property values), since it is this individual value that is considered in IMI, for all purposes.
Furthermore, pursuant to the aforementioned paragraph 7 of Article 23 of the Stamp Duty Code, the assessment of tax due pursuant to item 28 of the TGIS is assessed annually, in accordance with the rules provided for in the CIMI. And it were exactly these rules that led to the Respondent assessing the tax individually for each autonomous unit and considering its respective individual taxpayer property value. Hence the issuance of various collection notes.
If the Respondent's understanding were to proceed here, there would be only one Stamp Duty assessment per property and not as many assessments as there are units susceptible to independent use.
Finally, it is appropriate to note that this matter has been the subject of various decisions of CAAD, all in this same sense, with transcription here, by way of example, of the arbitral decision delivered in proceedings 50/2013-T, in the part to which we adhere:
"Well now, considering that the registration in the property matrix of real estate in vertical condominium, constituted by different parts, storeys or divisions with independent use, pursuant to the CIMI, follows the same registration rules as real estate constituted in horizontal condominium, with their respective IMI, as well as the new SD, assessed individually with respect to each of the parts, there is no doubt whatsoever that the legal criterion for defining the incidence of the new tax must be the same.
Indeed, the TA admits that this is the criterion, which is why the assessment issued itself is very clear in its essential elements, from which it results that the incidence value is the one corresponding to the VPT of the 2nd storey and the individualized assessment on the part of the property corresponding to that same storey.
Therefore, if the legal criterion imposes the issuance of individualized assessments for the autonomous parts of properties in vertical condominium, in the same manner as it establishes for properties in horizontal condominium, it clearly established the criterion, which must be unique and unequivocal, for the definition of the rule of incidence of the new tax.
Thus, there would only be grounds for incidence of the new stamp duty if any of the parts, storeys or divisions with independent use presented a VPT exceeding € 1,000,000.00.
The TA cannot, therefore, consider as the reference value for the incidence of the new tax the total value of the property, when the legislator itself established a different rule under CIMI, and this is the code applicable to matters not regulated with respect to item 28 of the TGIS.
The criterion sought by the TA, of considering the value of the sum of the VPTs attributed to the parts, storeys or divisions with independent use, with the argument that the property is not constituted in a horizontal condominium regime, finds no legal support and is contrary to the criterion that results applicable under CIMI and, by reference, under SD.
To which must be added the fact that the law itself expressly establishes, in the final part of item 28 of the TGIS, that the SD to be incurred on urban properties of value equal to or exceeding €1,000,000.00 – "on the taxpayer property value used for purposes of IMI.""
In the same sense, reference should be made to the decision delivered in proceedings 132/2013-T, of which we transcribe the part to which we fully subscribe:
"Indeed, it makes no sense to distinguish in law what the law itself does not distinguish (ubi lex non distinguit nec nos distinguere debemus). Furthermore, to distinguish, in this context, between properties constituted in horizontal condominium and in total ownership would be an "innovation" without associated legal support, all the more so because, as has been affirmed here, nothing indicates, neither in item 28, nor in the provisions of the CIMI, a justification for that particular differentiation. Note, by way of example, what Article 12, paragraph 3, of the CIMI states: "each storey or part of property susceptible to independent use is considered separately in the property registration, which also discriminates its respective taxpayer property value."
The uniform criterion that is required is, therefore, the one that determines that the incidence of the provision in question only takes place when any of the parts, storeys or divisions with independent use of a property in horizontal or total condominium with residential use possesses a VPT exceeding €1,000,000.00. To set as the reference value for the incidence of the new tax the overall VPT of the property in question, as the present respondent sought, finds no basis in applicable legislation, which is the CIMI, given the reference made by the cited Article 67, paragraph 2, of the CS.
Lastly, as has been recalled in various Arbitral Decisions (see DA nos. 48/2013-T and 50/2013-T), there is no indication, in the works relating to the discussion of the draft law no. 96/XII in the National Assembly, of the invocation of an interpretive rationale different from the one presented here. Indeed, such measure, referred to as a "special tax on residential urban properties of higher value", was justified by the need to comply with the principles of social equity and tax justice, imposing more significantly on the holders of properties with high value intended for housing, and, in that measure, applying the new "special tax" to "houses of value equal to or exceeding 1 million euros."
Now, if such logic seems to make sense when applied to «housing» - be it «house», «autonomous unit» or «part of property with independent use» / «autonomous unit» - because there is assumed an above-average contributive capacity and, in that measure, the need is justified for the realization of an additional contributive effort, it would make little sense to cease to disregard the "unit to unit" determinations when only through the sum of the VPTs of the same (because held by the same individual) would the million euro threshold be exceeded.
More recently, in the judgment of 09-09-2015, delivered in case no. 047/15 (available at www.dgsi.pt), the Supreme Administrative Court came to confirm what had been the understanding of the arbitrators of the Center for Tax Arbitration concluding that: "I. With respect to properties in vertical condominium, for purposes of the incidence of Stamp Duty (Item 28.1 of the TGIS, in the wording of Law No. 55-A/2012, of 29 October), the subjection is determined by the combination of two factors: residential use and VPT recorded in the matrix equal to or exceeding € 1,000,000. II. Being a property constituted in vertical condominium, the incidence of SD should be determined, not by the VPT resulting from the sum of the VPT of all divisions or storeys susceptible to independent use (individualized in the property article), but by the VPT attributed to each of those storeys or divisions intended for housing."
This decision of the Supreme Administrative Court was maintained in subsequent judgments, of which examples are the judgments of 02-03-2016, case no. 01354/15, of 27-04-2016, case no. 01534/15, of 04-05-2016, case no. 01504/15, and of 24-05-2016, case no. 01344/15, all available at www.dgsi.pt.
In view of all the foregoing, the tribunal concludes that for purposes of application of item 28 of the TGIS to properties in total ownership the same rules of the CIMI provided for properties in horizontal condominium apply, and therefore the taxpayer property value to be considered for purposes of incidence will be the individual own value of each unit susceptible to independent use.
The material substance is what is imposed as the determining criterion of contributive capacity and not the mere formal legal reality of the property and therefore, materially, the tax regime applicable to properties in total ownership is exactly the same as that applied to properties in horizontal condominium regime.
None of the independent units composing the identified property presents a value exceeding € 1,000,000 and therefore the minimum quantitative premise for purposes of incidence of item 28.1 of the TGIS is not verified.
For all these reasons, this tribunal considers the Claimant's claim to be well-founded, concluding that the Stamp Duty assessment acts due pursuant to item 28.1 of the TGIS, with reference to the year 2015, contained in the documents attached to the proceedings suffer from the defect of violation of law, due to error as to the premises of fact and law, which justifies their annulment [Article 135 of the Code of Administrative Procedure, applicable by force of the provisions of Article 2, subparagraph c), of the LGT].
C. On the right to default interest and to the fees paid to the Claimant's Legal Representatives
It results from the proven facts that the first instalment of Stamp Duty of 2015, in the total amount of € 3,839.60, was paid on 14 April 2016.
Pursuant to paragraph 1 of Article 43 of the LGT "Default interest is due when it is determined, in administrative reclaim or judicial challenge, that there was error attributable to the services resulting in payment of the tax debt in an amount higher than legally due".
As stated by Diogo Leite de Campos, Benjamim Silva Rodrigues and Jorge Lopes de Sousa, General Tax Law - Annotated and Commented, Editora Encontro da Escrita, 4th Edition, 2012, p. 342, note 2 "The error attributable to the services that carried out the assessment is demonstrated when they proceed with administrative reclaim or challenge of that same assessment and the error is not attributable to the taxpayer (for example, there will be annulment due to error attributable to the taxpayer when the assessment is based on erroneous premises of fact, but the error is based on incorrect information in the declaration presented by the taxpayer)".
Now, in the concrete case, the request for payment of default interest by the Claimant is unequivocally justified since the contested tax assessment is illegal and should therefore be annulled. In addition to the refund, the Claimant also has the right to payment of default interest, at the legal rate in force, on the amount of € 3,839.60, calculated from the date of payment until the date of processing of the respective credit note, which are included – see Article 43 of the LGT and paragraph 4 of Article 61 of the CPPT.
With regard to the request for condemnation of the Respondent to pay the fees paid to the Claimant's Legal Representatives, it is appropriate to note that this is not the appropriate forum and means for raising such claim, given the nature of the legality contentious nature of arbitral proceedings and the scope of competence established for arbitral tribunals by Article 2 of the RJAT. The claim raised by the Claimant is, on this point, rejected.
VI. DECISION
In harmony with the foregoing, this Arbitral Tribunal decides:
a) To absolve the Respondent from the instance with respect to the request for declaration of illegality of Stamp Duty of 2014 due to verification of the exception of res judicata, pursuant to subparagraph l) of paragraph 1 of Article 89 of the CPTA applicable by reference of subparagraph c) of paragraph 1 of Article 29 of the RJAT;
b) To adjudicate well-founded the request for arbitral decision as to the request for annulment of the Stamp Duty assessments of 2015, ordering their annulment and condemning the Respondent to refund the tax unduly paid by the Claimant together with default interest, from the date of payment until the date of processing of the respective credit note; and
c) To absolve the Respondent from the request for condemnation to pay the fees of the Claimant's Legal Representatives.
Value of proceedings: In accordance with the provisions of Article 306, paragraph 2, of the CPC and 97-A, paragraph 1, subparagraph a), of the CPPT and 3, paragraph 2, of the Regulation of Costs in Tax Arbitration Proceedings, the value of € 11,518.72 is fixed for the proceedings.
Costs: Pursuant to paragraph 4 of Article 22 of the RJAT, the amount of costs is fixed at € 918.00, in accordance with Table I annexed to the Regulation of Costs in Tax Arbitration Proceedings, at the charge of the Claimant and the Respondent in the proportion of 33.33% and 66.67%, respectively.
Let this arbitral decision be registered and notified to the parties.
Lisbon, 10-07-2016
The Sole Arbitrator
(Maria Forte Vaz)
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