Summary
Full Decision
Arbitral Decision
The arbitrators, Judge Dr. José Poças Falcão (arbitrator-president), Dr. Paulino Brilhante Santos and Dr. Nuno Maldonado Sousa designated by the Deontological Council of the Administrative Arbitration Centre (CAAD) to form the Collective Arbitral Tribunal, constituted on 19 October 2016 (order of the President of the Deontological Council of CAAD of 19 October 2016), agree as follows:
I. REPORT
1. On 28 July 2016, the company "A…, S.A." legal entity number…, with registered office at Av. … no.…, …, …-… Lisbon, acting on behalf of "B… – Closed Special Real Estate Investment Fund", with legal entity number…, (hereinafter abbreviated as Claimant), pursuant to the provisions of articles 2 and 10 of Decree-Law no. 10/2011, of 20 January (Legal Regime of Arbitration in Tax Matters, hereinafter abbreviated as LRAT), files a petition for arbitral pronouncement of the illegality of Stamp Duty assessment acts – item 28.1 of the General Stamp Duty Table (GSDT), for the year 2015, effected by the Tax and Customs Authority (hereinafter abbreviated as the "Respondent Authority"), concerning collection documents nos. 2016…, 2016…, 2016…, 2016…, 2016…, 2016…, 2016…, 2016…, 2016…, 2016…, 2016… and 2016…, relating to urban properties with registration numbers…, …, … and … of the parish of …, municipality of … and district of Setúbal, in the total amount of €201,381.20.
2. The Claimant did not appoint an arbitrator, therefore, pursuant to article 6, no. 2, paragraph a), the undersigned were designated by the Honourable President of the Deontological Council of CAAD to integrate the present Collective Arbitral Tribunal, the appointment having been accepted within the prescribed time and other legally established terms.
3. On 3 October 2016 the parties were duly notified of this designation and did not express any intention to refuse the designation of the arbitrators, pursuant to the combined provisions of article 11, no. 1, paragraphs a) and b) of the LRAT and articles 6 and 7 of the Deontological Code.
4. Accordingly, in compliance with the provision of paragraph c) of no. 1 of article 11 of the LRAT, in the wording introduced by article 228 of Law no. 66-B/2012, of 31 December, the Collective Arbitral Tribunal was constituted on 19 October 2016.
5. Thus, it is important to note that the Claimant substantiated its petition as follows:
5.1 The Claimant, within the scope of its activity, is the owner of several properties, including residential properties, commercial properties and land for construction.
5.2 Within this framework, the Claimant was notified of Stamp Duty assessment acts nos. 2016…, 2016…, 2016…, 2016…, 2016…, 2016…, 2016…, 2016…, 2016…, 2016…, 2016… and 2016…, relating to urban properties with registration numbers…, …, … and … of the parish of …, municipality of … and district of Setúbal (Docs. 1 to 16).
5.3 The Claimant states that the Stamp Duty assessments in question, all relating to the year 2015, allegedly result from the application of article 1, no. 1 of the Stamp Duty Code (SDC), combined with item 28.1 of the General Stamp Duty Table (GSDT) and with article 6 of Law no. 55-A/2012, of 29 October, which provides for the taxation of "Ownership, usufruct or right of superficies of urban properties whose tax patrimonial value shown in the register, pursuant to the Municipal Property Tax Code (MPTC), is equal to or exceeding €1,000,000 – on the tax patrimonial value used for purposes of Municipal Property Tax – per residential property or per land for construction whose authorized or planned building is for housing, pursuant to the provisions of the Municipal Property Tax Code" – with new wording given to the item.
5.4 And as appears from the property registers of the properties in question, subject to the assessments sub judice, they were registered in the register as "land for construction" (Docs. 13 to 16).
5.5 The Claimant is of the opinion that properties registered in the respective register as land for construction cannot be subsumed under the concept of "properties with residential use" and, consequently, are not included within the objective scope of item 28 of the GSDT.
5.6 Therefore, the aforesaid norms could never have been applied to the properties sub judice – registered in the register as "land for construction" – thus rendering the Stamp Duty assessments in question devoid of legal foundation.
5.7 Notwithstanding not agreeing with the Stamp Duty Assessments described, the Claimant proceeded to full payment thereof (Doc. 17).
A) Item 28 of the General Stamp Duty Table:
5.8 The Claimant further states that, among other amendments, Law no. 55-A/2012, of 29 October 2012, added to the GSDT item 28, pursuant to which Stamp Duty became applicable to "ownership, usufruct or right of superficies of urban properties whose tax patrimonial value shown in the register, pursuant to the Municipal Property Tax Code (MPTC), is equal to or exceeding €1,000,000".
5.9 The Claimant states that through item 28 of the GSDT, the Government intended to institute a "special taxation" that applies only to urban properties worth more than one million euros, aimed at promoting a "more equitable tax system", in which taxpayers "are called to contribute according to their tax capacity".
5.10 From a teleological standpoint, the aforesaid item aimed to tax the wealth and economic capacity of taxpayers.
5.11 However, the Claimant alleges that the taxation achieved with reference to properties registered in the register as "land for construction" – if it were to conform with constitutional provisions, which it questions, albeit subsidiarily – cannot have application in the factual situation sub judice.
B) Item 28 of the General Stamp Duty Table: the inapplicability of taxation in the factual situation sub judice – the necessary actual building, authorized or planned, for housing
5.12 The Claimant further states that item 28.1 of the GSDT, in its current wording, provides for the taxation of land for construction whose building, authorized or planned, is for housing whose tax patrimonial value is equal to or exceeding €1,000,000.
5.13 The taxation of the properties in question, in the Claimant's understanding, resulted from the amendments introduced by Law no. 83-C/2013 of 31 December, which came into force on 1 January 2014, although the Respondent Authority, under the previous wording of the item, illegally taxed land for construction with tax patrimonial value equal to or exceeding €1,000,000.
5.14 The Claimant emphasizes that the relevant tax fact for application of Stamp Duty is based on ownership of a real right over the property, the tax patrimonial value of the property and "building authorized or planned for housing".
5.15 Therefore, the taxation in question can only be applied in situations where the actual building of the land has been authorized or planned in the concrete case and such building is intended for housing.
5.16 Contrary to the understanding of the Respondent Authority, the Claimant is of the opinion that mere registration of the property as "land for construction" does not legitimize the application of item 28 of the GSDT, but should instead be subject to a prior analysis to determine whether, for each property, there exists actual building authorized or planned for housing.
5.17 The Claimant further adds that for application of item 28 of the GSDT, there must always be an administrative process associated with the construction and a building permit/authorization as well as a project intended for housing as determined by article 6, no. 3 of the Municipal Property Tax Code.
5.18 And the fact that land for construction is situated in an area where, in accordance with the respective Municipal Master Plan, it is possible to build, and such constructions may be intended for housing, cannot, by itself alone, generate the application of item 28 of the GSDT, and the mere expectation (or even legal possibility) that on land there may come to be built an urban property with residential use, is not sufficient to configure a tax fact subsumable under the item in question – nor would the wording of the norm permit it.
5.19 The Claimant reinforces that in accordance with the expressed intention of the legislator, the special taxation provided for in item 28.1 of the GSDT can only be applied to land for construction in situations where there exists building, authorized or planned, for housing.
5.20 And that with respect to the properties in question in the present petition, they did not have in 2015 – and do not currently have – building, authorized or planned for housing, as required by item 28.1 of the GSDT, that is, they had nor have any valid building license/authorization or any approved project, thus the prerequisites for application of item 28.1 of the GSDT are not met.
5.21 Concluding that the Stamp Duty assessments sub judice appear manifestly illegal, due to errors in factual and legal prerequisites, and should be promptly annulled.
C) From property ownership of real estate: the "inevitable consequence" of the Claimant's activity
5.22 The Claimant further adds that given the activity it conducts it is owner of multiple properties that are intended only to be (re)sold, which cannot represent a superior tax capacity of the Claimant, as the Respondent Authority intends, which could legitimize the imposition of a "solidarity tax" such as that resulting from item 28.1 of the GSDT, apart from the fact that the underlying principles of the taxation in question are not met.
D) Subsidiarily – Item 28 of the General Stamp Duty Table: its unconstitutionality when applied to "land for construction"
5.23 Subsidiarily, the Claimant alleges that the special taxation provided for in item 28.1 of the GSDT, when applied to land for construction, is contrary to the fundamental principle of equality enshrined in article 13 of the Constitution of the Portuguese Republic (CPR) and contrary to the principle of tax equality and tax capacity enshrined in article 104, no. 3 of the same statute.
5.24 The Claimant states that the principle of equality, fundamental in a rule-of-law state, translates into the prohibition of any discrimination in the treatment of equal situations and the admission of unequal treatment of unequal situations.
5.25 And that with respect to tax equality, tax capacity assumes itself as an essential element to be considered because the effective equality of tax treatment of taxpayers depends on the existence of identical taxation for identical tax capacities.
5.26 The Claimant proceeds stating that the principle of equality provided for in article 5 of the General Tax Law ("GTL") expressly determines that "taxation aims at satisfying the financial needs of the State and other public entities and promotes social justice, equal opportunities and the necessary corrections of inequalities in the distribution of wealth and income", and that "taxation respects the principles of generality, equality, legality and material justice" and that the basic idea of tax capacity is reinforced in article 55 of the GTL as a guiding parameter for all activities of the Tax and Customs Authority, bound to the need to exercise its powers in the pursuit of the public interest, in accordance with the principles of legality, equality, proportionality, justice, impartiality and celerity, in respect of taxpayers' guarantees.
5.27 And, in particular, in the matter of taxation of assets, article 104, no. 3 of the CPR provides an essential rule: "the taxation of assets must contribute to equality among citizens".
5.28 The Claimant thus understands that it is constitutionally prohibited for the ordinary legislator to create norms arbitrarily, and the same must be submitted to the dictates of equalization and positive discrimination and that item 28 of the GSDT and the special taxation resulting therefrom, promote differentiated treatment and unjustified inequality among taxpayers, in manifest violation of the principle of equality enshrined in article 13 of the CPR.
5.29 In the Claimant's understanding, the taxation enshrined in item 28.1 of the GSDT arbitrarily excludes a significant portion of high-value real estate property in violation of the principle of equality, since the relevant tax fact is restricted only to a portion of real estate property of value exceeding €1,000,000 with excluded from the scope of taxation all remaining high-value property that is allocated or intended for other purposes.
5.30 The Claimant alleges that item 28 distinguishes different uses and purposes, taxing only properties used for housing and land intended for construction for housing, excluding properties with other purposes which, regardless of their tax patrimonial value, are not subject to this taxation.
5.31 Under the principle of tax equality, grounded in the principle of tax capacity, the legislator cannot arbitrarily select certain properties that should be subject to taxation and fail to tax others.
5.32 To this end the Claimant makes reference to the jurisprudence of the Constitutional Court, namely Decision no. 47/2010, in stating that: "only the choices of regime made by the ordinary Legislator can be censured, on the grounds of violation of the principle of equality, in those cases in which it is proven that they result in differences in treatment between persons that do not find justification in reasonable, perceptible or intelligible grounds, having regard to the constitutional purposes which, with the measure of the difference, are pursued" and to the jurisprudence of the Arbitral Tribunal, namely Cases nos. 218/2013-T and 744/2014-T, in making reference to the violation of the aforesaid principle of equality.
5.33 The Claimant further adds that this special taxation, in the manner in which it was implemented, by applying to urban properties individually considered, fails to "penalize" or "aggravate" owners who hold multiple urban properties of unit value less than €1,000,000 but which in total amount to a much higher value, and which, as such, demonstrate superior tax capacity.
5.34 The Claimant concludes that the special taxation, in the context of Stamp Duty, applying to properties with residential use of value exceeding €1,000,000, introduced by Law no. 55-A/2012, violates, in the manner it was formulated, the constitutional principle of tax equality and its corollary expressed in the principle of tax capacity.
5.35 Therefore, the present petition for annulment of the tax acts of Stamp Duty assessment should proceed, on the grounds of violation of the principles of equality and tax capacity, and as a consequence, item 28 of the GSDT should be disapplied in the concrete case, due to manifest unconstitutionality, and consequently the tax acts sub judice should be annulled.
5.36 The Claimant further alleges that item 28 of the GSDT collides with the constitutional principle of tax equality in determining a manifest situation of double taxation.
5.37 Given the application of item 28 of the GSDT, the Claimant alleges that ownership of a real right is simultaneously taxed in Municipal Property Tax ("MPT"), article 1 of the Municipal Property Tax Code and in Stamp Duty, with both taxes applying to the same reality.
5.38 Also with respect to the unconstitutionality of item 28.1 of the GSDT, the Claimant alleges that with respect to land for construction, the aforesaid norm does not provide any limitation to its application based on the value of housing authorized or planned, depending only on the tax patrimonial value of the land.
5.39 The Claimant thus considers that item 28.1 of the GSDT should be judged materially unconstitutional by offending the principle of equality enshrined in article 13 of the CPR, in that it purports to apply to land for construction with tax patrimonial value equal to or exceeding €1,000,000 for which authorized or planned construction does not include any real estate with tax patrimonial value equal to or exceeding that value.
5.40 Concluding that the Claimant that it is demonstrated that item 28 of the GSDT is manifestly contrary to the principle of equality, constitutionally enshrined, and as such the same should, pursuant to article 204 of the CPR, be disapplied in the concrete case.
5.41 And, consequently, the Stamp Duty assessments sub judice, although resulting from the application of that item, should be annulled, with all legal effects.
5.42 The Claimant raises lastly that the jurisprudence issued by the Constitutional Court related to item 28.1 of the GSDT and the Constitution of the Portuguese Republic, namely in Decision no. 590/2015, of 11 November, and in Decision no. 692/2015, of 16 December 2015, cannot be transposed to the situation of the present case as it is manifestly distinct from the situations analyzed by the said learned Court, since it concerns the appraisal of the (in)constitutionality of the norm when applied to residential properties and not to land for construction.
5.43 It concludes by petitioning for reimbursement of the payment of the Stamp Duty assessments in question for being manifestly illegal and, consequently, for the payment of compensatory interest.
6. In its Response, the Respondent Authority invoked, in summary, the following:
6.1 The Respondent Authority presented its defense by impugnation beginning by stating that what is at issue are assessments that result from the direct application of the legal norm, and which translates to objective elements, without any subjective or discretionary appraisal.
6.2 The Respondent Authority states that when consulted the certificate of the content of the urban property that forms the basis of the present assessment, it is verified that land for construction is allocated to housing, with this allocation being recorded in their respective registers, and therefore is subject to Stamp Duty, applying to it accordingly, the allocation coefficient provided for in article 41 of the MPTC.
6.3 Law 55-A/2012 of 29 October amended article 1 of the SDC and added to the GSDT item 28, coming to encompass in its scope ownership, usufruct or right of superficies of urban properties whose TPV recorded in the register, pursuant to the MPTC, is equal to or exceeding €1,000,000.
6.4 Stamp Duty thus applies to all acts, contracts, documents, titles, papers and other facts or legal situations provided for in the general table, including gratuitous transfers of goods.
6.5 The Respondent Authority continues stating that "Since there is no definition at the level of Stamp Duty of what is meant by 'urban property', 'land for construction' and 'residential use', it is necessary to resort subsidiarily to the MPTC to obtain a definition that allows to determine the possible subjection to Stamp Duty, in accordance with the provision of article 67, no. 2 of the SDC in the wording given to it by Law no. 55-A/2012, of 29/10".
6.6 It refers to the provision of no. 1 of article 2 and nos. 1 and 2 of article 6, both of the MPTC, and maintains that the notion of urban property is grounded in the part relating to the evaluation of real estate, since the purpose of the evaluation of real estate is to give it value, constituting a determining fact of distinction – coefficient – for purposes of evaluation".
6.7 The Respondent Authority considers that the legislator chose to determine the application of the methodology of evaluation of properties in general to the evaluation of land for construction, as results from the expression "value of authorized buildings" to which article 45, no. 2 of the MPTC refers and applying accordingly the allocation coefficient that is provided for in article 41 of the MPTC.
6.8 It also makes reference to Decision no. 04950/11, of 14/12/2012, of the Superior Administrative Court of the South, concluding that "the consideration for purposes of application of item 28 of the GSDT cannot be ignored, in this sense the following order of considerations applies:
a) in the application of law to concrete cases it is important to determine the exact meaning and scope of the norm, so that it reveals the rule it contains, an indispensable condition for it to be able to be applied, in accordance with article 9 of the Civil Code, pursuant to article 11 of the General Tax Law (GTL);
b) article 67, no. 2, of the SDC orders the application as a subsidiary of the provisions of the MPTC;
c) the allocation of the property (aptitude or purpose) is a coefficient that contributes to the evaluation of the property, in the determination of tax patrimonial value, applicable to land for construction;
d) the very item 28 of the GSDT refers to the expression 'properties with residential use', appealing to a classification that overlays the species provided for in no. 1 of article 6 of the MPTC."
6.9 For tax purposes the properties are land for construction as identified in the property registers, were acquired in that capacity and thus are property classified, and therefore the Respondent Authority understands that they are urban properties with residential vocation.
6.10 The property registers are absolutely clear in defining for the lots of land for construction in question, the respective area of building footprint and construction, thus the Respondent Authority considers evident the residential use of the buildings.
6.11 On the one hand, the Respondent Authority maintains, the legislator does not refer to "properties intended for housing", having opted for the notion "residential use". An expression different and broader whose meaning is to be found in the need to integrate other realities beyond those identified in article 6, no. 1, paragraph a) of the MPTC; on the other hand, tax law considers as an element forming part for purposes of evaluation of land for construction the value of the area of building footprint, which varies between 15% and 45% of the value of authorized or planned buildings based on the urbanization and construction project.
6.12 It further considers that pursuant to article 77 of the Legal Regime of Urbanization and Building (LRUB), the building permit for the carrying out of urbanization operations should contain, among other elements, the number of lots and the indication of the location area, purpose, area of building footprint, building area, number of floors, number of units of each of the lots, with specification of the units intended for housing with controlled costs.
6.13 Well before the actual building of the property, it is possible to determine and ascertain the use of the land for construction.
6.14 The Respondent Authority proceeds stating that the determination of the TPV of land for construction has as a prerequisite the determination of the value of authorized or planned buildings, for which purpose, pursuant to article 38 of the MPTC, the use of these same buildings must be taken into account, and resulting clear the application of the allocation coefficient for purposes of determining the TPV of land for construction, it is symptomatic that its consideration for purposes of application of item 28.1 of the GSDT (in the previous wording) cannot be ignored.
6.15 The Respondent Authority understands that only by mere academic exercise could it be otherwise if the legislator, in the original objective of the aforesaid item, had adopted the definition provided for in paragraph a) of no. 1 of article 6 of the MPTC ("residential urban properties"), instead of referring to "urban properties with residential use", an expression distinct and broader, revealing the intention to integrate, in the norm of subjective incidence, other realities, beyond that one.
6.16 With respect to the legal regime of urbanization and building it maintains that the same has as a prerequisite buildings already constructed, that being the intention of the legislator bearing in mind article 77 of the LRUB, which in the understanding of the Respondent Authority, in respect of the principle of social equity in austerity, in the concept of urban properties are integrated land for construction with residential use.
6.17 The Respondent Authority further maintains that "in an interpretation very narrowly tied to the letter of the law, one could derive from the text the meaning that the Claimant seeks to give it, but as our jurisprudence has declared, that is not the best interpretation of the law, and that in the hermeneutic task, the literal element, constituting the point of departure and limit for extracting the meaning of the norm, is not the decisive element, nor even the most important one, a role that is reserved for the 'unity of the system', pursuant to no. 2 of article 9 of the Civil Code."
6.18 It further alleges that, in the interpretation of law, in addition to the said grammatical element, there is also the logical element, requiring this, in particular, that the purpose pursued by the legislator in elaborating the norm (teleological element) be considered, in particular to examine its nature and its temporal scope of relevance, and to consider the place that the interpreted norm occupies therein (systematic element), and only from the combination of all these interpretive elements will the true meaning of that norm emerge, cf. Baptista Machado, Introduction to the Legitimating Discourse, Almedina 1983, pages 182 and 189."
6.19 And that the State Budget for 2014, Law no. 83-C/2013, of 31 December, article 194, proves its understanding.
6.20 It further adds that contrary to what is alleged by the Claimant, and as can be verified by consulting sheets 65 to 70 of the administrative process, it is clear and unequivocally recorded that the properties "are intended for housing" – Amendment no. 2 to the Subdivision Permit no. …/10 – with urbanization works, issued by the Municipal Council of….
6.21 With respect to the violation of the principle of double taxation alleged by the Claimant, the Respondent Authority considers there to be no double taxation since taxation in Municipal Property Tax and in Stamp Duty are different taxes.
6.22 From the activity pursued by the Claimant the Respondent Authority understands that the Arbitral Tribunal should not assess or discuss the merits of the legislative measure and its scope, and should limit itself to its appraisal in the aspect of its conformity with the constitutional text, referring to this purpose the Decisions of the Constitutional Court nos. 563/96, of 16 May and 187/2013 of 5 April.
6.23 With respect to the unconstitutionality of the assessments alleged by the Claimant, the Respondent Authority begins by stating that the principle of equality is one of the structuring principles of the Portuguese constitutional system, finding generic enshrinement in article 13 of the CPR and the binding of administrative authorities to the aforesaid principle finds enshrinement in article 266, no. 2, of the fundamental statute.
6.24 To this end it also makes reference to article 104, no. 3 of the CPR in prescribing that the taxation of assets must contribute to equality among citizens.
6.25 However, referring to no. 3 of article 104 of the CPR, it alleges that doctrine warns that the principle of equality, as it concerns assets, must be interpreted with some parsimony, in the sense that it does not involve a particular and autonomous legal content of the principle of equality in the sphere of taxation on assets, whereby the criteria making concrete the principle of equality generally adopted should be applied.
6.26 The most recent decisions of the Constitutional Court, in the aspect that interests us here, correctly indicate that the principle of equality requires that what is necessarily equal be treated equally and what is essentially different be treated as different, not preventing differentiated treatment, but only arbitrary, unreasonable discriminations, i.e., distinctions of treatment that do not have justification and sufficient material foundation, making allusion to Decisions nos. 197/2013, of 9 April, 593/96, of 16 May and 528/2012, of 7 November.
6.27 The Respondent Authority considers it evident that item 28.1 is a norm in conformity with the Constitution of the Portuguese Republic in which the legislator defined an economic prerequisite, constitutionally valid, as a manifestation of tax capacity (whose addressees effectively have special tax capacity in face of the adopted criterion) required for the payment of this tax.
6.28 The fact that the legislator establishes a value (€1,000,000) as a delimiting criterion of the incidence of the tax, below which the forecast of the tax norm is not filled, constitutes a legitimate choice of the legislator regarding the fixing of the material scope of the "luxury housing properties" it intends to tax more heavily, especially since any other value of analogous magnitude would assume, in the same way, an artificial character that is natural to any quantitative fixing of a level or limit.
6.29 Saving that it is not the responsibility of the Respondent Authority, in the exercise of its functions, to make considerations about the alleged unconstitutionality (but non-existent) of the norm contained in item 28.1 GSDT, bearing in mind its full binding to the law, it does not consider that therefrom results the violation of the principles of proportionality, legality, citizens' trust and tax capacity.
6.30 To this end it further makes mention of the historical and chronological context that presided over the creation of item 28.1 of the GSDT, stating that the aforesaid item arose in an exceptional context and of evident difficulties that the Country, in particular, public accounts, and that the year 2012 was marked as a particularly burdensome year in terms of budget containment measures, targeting holders of work income, which was undoubtedly at the origin not only of the creation of item 28.1 GSDT, but of the provision of an additional tax fact, as a way of equitable distribution of sacrifices, a context that demanded extraordinary measures for collecting more tax revenue.
6.31 And it further mentioned Bill no. 96/XII and the Report that accompanied the State Budget Proposal for the year 2013.
6.32 For the Respondent Authority it is clear that the tax legislator considered that ownership, usufruct or right of superficies of residential property or land for construction whose authorized or planned building was housing, of TPV equal to or exceeding €1,000,000 represented a manifestation of wealth and was capable, by itself alone, of revealing significant tax capacity, and therefore made item 28.1 of the GSDT apply to the possession of a certain type of property, by contrast with work income and pension income, already affected by other tax measures (and not only).
6.33 And it is certain that tax capacity, in addition to income and use of goods, is also expressed, pursuant to law, through ownership of assets (cf. no. 1, article 4 of the GTL).
6.34 We therefore judge this choice of mechanism for obtaining revenue to be legitimized, given that such measure is applicable indistinctly to all and any holders of real estate with residential use of value exceeding €1,000,000 applying to the wealth embodied and manifested in the value of the real estate.
6.35 The Respondent Authority concludes affirming that effectively the factual-legal reality selected by the legislator to constitute the base of incidence of the tax is the property itself considered, bearing in mind its use and its tax patrimonial value, not the overall property of the taxpayers.
6.36 It affirms that "the reference to the property individually considered results axiomatically from the cut and legal content proper to this regulation subject of item 28.1 of the GSDT, from which it is observed that this is an analytical taxation on certain and determined urban properties whose taxable matter is given by the tax patrimonial value of each property",
6.37 This results immediately i. from the reference of that item 28.1 GSDT to "per property with residential use"; ii. it is further evidenced by the provision of no. 7 of article 23 of the SDC which establishes that the "tax owing for the situations provided for in item no. 28 of the General Table" "is assessed annually, in relation to each urban property, by the central services of the Tax and Customs Authority"; iii. it is finally confirmed, with the referral, determined by no. 2 of article 67 of the SDC, to the provisions of the MPTC, it being known that "municipal property tax (MPT) applies to the tax patrimonial value of rural and urban properties situated in Portuguese territory" (cf. article 1 and article 2 of the MPTC) and that "the tax is owed by the owner of the property" (article 8, no. 1 of the MPTC, without prejudice to the provision in no. 2 regarding the usufructuary and superficiary).
6.38 Therefore it concludes that the tax acts in question did not violate any legal principle, and should thus be maintained.
7. Neither party presented allegations.
II. SANITATION
8. The Arbitral Tribunal is competent and properly constituted, pursuant to articles 2, no. 1, paragraph a), and 30, no. 1, all of the LRAT.
9. The Parties have legal standing and capacity, are legitimate and are represented, pursuant to articles 4 and 10 of the LRAT and article 1 of Regulation no. 112-A/2011, of 22 March.
10. No nullities or preliminary questions affecting the entire process are found, therefore it is now necessary to rule on the merits of the petition.
III. QUESTIONS TO BE DECIDED
11. The following questions are placed before the Arbitral Tribunal to be decided pursuant to the description above:
11.1 Alleged defect of lack of factual and legal grounding of Stamp Duty assessments;
11.2 Alleged double taxation in Municipal Property Tax and Stamp Duty;
11.3 Alleged unconstitutionality due to violation of the principle of equality.
IV. FACTUAL MATTER
12. To prove the facts alleged, the Claimant submitted the following documentary evidence:
12.1 Collection documents for the 1st, 2nd and 3rd installments (April, July and November 2016), documents nos. 2016…, 2016… and 2016…, relating to urban property article … of the parish of … (Docs. 1 to 3);
12.2 Collection documents for the 1st, 2nd and 3rd installments (April, July and November 2016), documents nos. 2016…, 2016… and 2016…, relating to urban property article … of the parish of … (Docs. 4 to 6);
12.3 Collection documents for the 1st, 2nd and 3rd installments (April, July and November 2016), documents nos. 2016…, 2016… and 2016…, relating to urban property article … of the parish of … (Docs. 7 to 9);
12.4 Collection documents for the 1st, 2nd and 3rd installments (April, July and November 2016), documents nos. 2016…, 2016… and 2016…, relating to urban property article … of the parish of… (Docs. 10 to 12);
12.5 Urban Property Register relating to urban property article … (Doc. 13);
12.6 Urban Property Register relating to urban property article … (Doc. 14);
12.7 Urban Property Register relating to urban property article … (Doc. 15);
12.8 Urban Property Register relating to urban property article … (Doc. 16);
12.9 Proof of payment relating to collection documents nos. 2016…, 2016…, 2016…, 2016…, 2016…, 2016…, 2016…, 2016…, 2016…, 2016…, 2016… and 2016…, relating to urban properties with registration articles…, …, … and … of the parish of …, municipality of … and district of Setúbal.
13. The Respondent Authority joined the administrative process.
14. The following facts of relevance to the Arbitral Decision to be issued are considered proven, based on the documentary evidence joined to the case:
14.1 The Claimant was notified of the collection documents for the 1st, 2nd and 3rd installments of stamp duty assessed pursuant to article 28.1 of the GSDT (April, July and November 2016), documents nos. 2016…, 2016… and 2016…, relating to urban property article… of the parish of … (Docs. 1 to 3);
14.2 The Claimant was notified of the collection documents for the 1st, 2nd and 3rd installments of stamp duty assessed pursuant to article 28.1 of the GSDT (April, July and November 2016), documents nos. 2016…, 2016… and 2016…, relating to urban property article … of the parish of … (Docs. 4 to 6);
14.3 The Claimant was notified of the collection documents for the 1st, 2nd and 3rd installments of stamp duty assessed pursuant to article 28.1 of the GSDT (April, July and November 2016), documents nos. 2016…, 2016… and 2016…, relating to urban property article … of the parish of … (Docs. 7 to 9);
14.4 The Claimant was notified of the collection documents for the 1st, 2nd and 3rd installments of stamp duty assessed pursuant to article 28.1 of the GSDT (April and July 2016), documents nos. 2016…, 2016… and 2016…, relating to urban property article … of the parish of … (Docs. 10 to 12);
14.5 The properties in question in the present case, subject to the assessments sub judice, are registered in the register as "land for construction". (Docs. 13 to 16).
14.6 The Claimant proceeded to payment of the collection documents relating to collection documents nos. 2016…, 2016…, 2016…, 2016…, 2016…, 2016…, 2016…, 2016…, 2016…, 2016…, 2016… and 2016…, relating to urban properties with registration articles…, …, … and … of the parish of …, municipality of… and district of Setúbal, in the total amount of €201,381.20 (Document no. 17).
14.7 On the land mentioned it is possible for authorization to be granted for construction of buildings intended for housing or for other purposes;
14.8 The claimant did not present nor had pending in 2015 any request for building authorization for constructions on the aforesaid land;
14.9 There is no approved nor was there in 2015 any project or building authorization for the land mentioned.
15. There are no facts not proven of relevance to the Arbitral Decision to be issued.
V. APPLICABLE LAW
The Stamp Duty Code, approved by Law no. 150/99, of 11 September, began its enforcement in March 2000, being significantly altered by Decree-Law no. 287/2003, of 12 November, which republished it. With the reform of taxation of assets carried out in 2003, Stamp Duty came to be configured mainly as a tax on operations which, regardless of their materialization, reveal income and wealth, applying to a "heterogeneous multiplicity of facts or acts", without "a common feature that gives them identity" (JOSÉ MARIA FERNANDES PIRES, Lessons in Taxes on Assets and Stamp Duty, p. 453). This capacity to accommodate within itself taxation of different nature created a path for the tax legislator to assign to it a complementary role to other taxes.
As noted by J. SILVÉRIO DIAS MATEUS and L. CORVELO DE FREITAS (Taxes on Real Estate Property – Stamp Duty, p 251, Lisbon 2005) "stamp duty is configured as a means of reaching manifestations of tax capacity not covered by the incidence of any other taxes. Not having the nature of overlapping taxation, this tax tends to assume a residual function filling spaces left open by taxation of income and consumption".
Law no. 55-A/2012, of 29 October, introduced a set of amendments to the codifying statutes of three taxes – Personal Income Tax, Corporate Income Tax and Stamp Duty – as well as to the General Tax Law, among which the norm now under analysis, all guided by supplementary obtaining of tax revenue and, in general, to counter budgetary imbalance. Accordingly, invoking the principles of social equity and tax justice, taxation of capital income and securities gains was increased, measures for strengthening the fight against tax fraud and evasion were introduced, through reinforcement of the regime applicable to manifestations of fortune of taxpayers and transfers to and from tax havens, to which was added the introduction, in the scope of Stamp Duty, of taxation of legal situations (expression added to no. 1 of article 1 of the Stamp Duty Code), which was understood to be capable of supporting increased tax effort, thereby distributing more equitably the sacrifice to achieve the budgetary consolidation required of taxpayers.
Thus, with the addition of item no. 28 to the General Stamp Duty Table by article 4 of Law no. 55-A/2012, a legal situation was subjected to this tax, embodied in ownership, usufruct or right of superficies of urban property with residential use, whose tax patrimonial value shown in the register, pursuant to the Municipal Property Tax Code, is equal to or exceeding €1,000,000.00, with a rate of 1% applying to such value.
The wording of item 28.1 underwent subsequent alteration, via Law no. 83-C/2013, of 31 December, coming to extend the incidence of Stamp Duty, at the rate of 1%, to "(…) urban property or (by) land for construction whose building, authorized or planned, is for housing, pursuant to the provisions of the Municipal Property Tax Code".
The incidence of Stamp Duty, marked, moreover, by heterogeneity, refers, as concerns essential elements of the assessment of the tax, in particular as regards the normative criteria defining the patrimonial value to be considered, to the regulation contained in the Municipal Property Tax Code, ensuring, or at least promoting, a certain degree of harmony between the various legislative bodies in the scope of taxation of assets. Doctrine even attributes to it the status of "additional Municipal Property Tax rate", directed to "discriminate properties of higher patrimonial value and subject them to a more onerous tax regime than the others" (JOSÉ MARIA FERNANDES PIRES, op. cit., p. 504), explaining the creation of a new fact subject to Stamp Duty, besides the heterogeneity that characterizes this tax, by the need to increase the State's tax revenues, since Municipal Property Tax revenue accrues to municipalities and Stamp Duty is a State revenue (op. cit., p. 506).
The taxation resulting from the incidence norm housed in item no. 28 assumes the nature of a partial tax (JOSÉ MARIA FERNANDES PIRES, op. cit., p. 507), taking as taxable base the urban property allocated to housing, calculating the respective tax patrimonial value by legal and economic unit relevant. It does not constitute a general tax on assets, or even a tax on all real estate property, in terms of founding a comparison grounded in a personalization perspective of the tax and from a base that takes account of all property of the taxpayer subject.
From the combined application of no. 4 of article 2 of the Stamp Duty Code and no. 1 of article 8 of the MPTC, it is concluded that the tax fact to which item 28.1 of the GSDT refers occurs on 31 December of each year. In that measure, the tax legal relationship will be fixed according to the legislation in force on that same date, independent of subsequent alterations that may be in force on the date of the assessment of the tax. Accordingly, Stamp Duty of item 28.1 of the GSDT for the year 2015, to be assessed in 2016, should be calculated and fixed in accordance with the wording of the norm, introduced by Law no. 55-A/2012, of 29 October, with the wording given to it by State Budget Law/2014 (Law no. 83-C/2013).
Recall the original wording of item 28 of the GSDT:
28. Ownership, usufruct or right of superficies of urban properties whose tax patrimonial value shown in the register, pursuant to the Municipal Property Tax Code (MPTC), is equal to or exceeding (euro) 1 000 000 – on the tax patrimonial value used for purposes of Municipal Property Tax:
28.1 Per property with residential use ----------------------------------------------- 1%
28.2 Per property, when taxpayers who are not natural persons are residents in a country, territory or region subject to a clearly more favorable tax regime, included in the list approved by regulation of the Minister of Finance............................................................................................................................7.5%
This wording (original) was the subject of several disputes opposing the Tax Authority and taxpayers, owners of land for construction, with the Superior Administrative Court understanding, e.g., in the Decision issued in case no. 048/14, of 09.04.2014, that "(...)the legislator having not defined the concept of "properties (urban) with residential use", and resulting from article 6 of the Municipal Property Tax Code (subsidiarily applicable to Stamp Duty provided for in the new item no. 28 of the General Table) a clear distinction between "residential urban properties" and "land for construction", the latter cannot be considered, for purposes of incidence of Stamp Duty (Item 28.1 of the GSDT, in the wording of Law no. 55-A/2012, of 29 October), as urban properties with residential use( (...)"
In truth, the concept of "(urban) property with residential use" was not defined by the legislator. Neither in Law no. 55-A/2012, which introduced it, nor in the Municipal Property Tax Code, to which no. 2 of article 67 of the Stamp Duty Code (also introduced by that Law), refers by way of subsidiary provision. And it is a concept that, probably due to its imprecision – a fact all the more serious given that it is according to it that the scope of objective incidence of the new taxation is determined – had a short life, as it was abandoned upon the entry into force of the State Budget Law for 2014 (Law no. 83-C/2013, of 31 December), which gave new wording to that item no. 28 of the General Table, and which now determines its objective incidence scope through the use of concepts that are legally defined in article 6 of the Municipal Property Tax Code. This amendment – to which the legislator did not attribute an interpretive character, nor do we think it did, nor is the question for us to address now – merely makes unequivocal for the future that land for construction whose building, authorized or planned, is for housing is encompassed within the scope of item 28.1 of the General Stamp Duty Table (provided that its respective tax patrimonial value is equal to or exceeding 1 million euros).
Upon presentation and discussion in the Parliament of the respective Bill, the Secretary of State for Fiscal Affairs referred (cf. Journal of the Parliament, I Series no. 9/XII – 2, of 11 October, p. 32) that: "The Government proposes the creation of a special rate on the highest value residential urban properties. This is the first time that Portugal has created special taxation on high-value properties intended for housing. This rate will be 0.5% to 0.8% in 2012 and 1% in 2013, and will apply to homes valued at €1 million or more" from which it is gathered that the reality to be taxed in mind is, after all, and despite the imprecision of terminology of the law, "the (urban) residential properties", in common language "homes", and not other realities. The fact that it can be considered that in the determination of the tax patrimonial value of urban properties classified as land for construction the allocation that will have the building authorized or planned for it should be taken into account for determination of its respective area of building footprint value (cf. nos. 1 and 2 of article 45 of the MPTC), does not determine that land for construction can be classified as "properties with residential use", because "residential use" always appears in the Municipal Property Tax Code referred to "buildings" or "constructions", existing, authorized or planned, because only these can be inhabited, which is not the case with land for construction, which do not have, in themselves, conditions for such, and are not capable of being used for housing except if and when on them is built the construction authorized and planned for them (but in that case they will no longer be "land for construction" but another species of urban properties – "residential", "commercial, industrial or for services" or "others" – article 6 of the MPTC).
It would be strange, moreover, that the determination of the scope of the tax incidence norm of item no. 28 of the General Stamp Duty Table would be found, in the end, in the norms for determination of tax patrimonial value of the Municipal Property Tax Code, and that the imprecision of terminology of the legislator in the wording of that rule would, after all, be elucidated and finally clarified by way of an indirect and equivocal referral to the allocation coefficient established by the legislator in relation to built properties (article 41 of the Municipal Property Tax Code). Accordingly, bearing in mind that land for construction – whatever the type and purpose of the building that will, or may be, erected on it – does not satisfy, by itself, any condition to be licensed as such or to be defined as having housing as its normal destination, and referring the incidence norm of stamp duty to urban properties with "residential use", without any specific concept being established for the purpose, cannot therefrom be extracted that the same contains a future potentiality, inherent in a distinct property that may perhaps come to be built on the land.
In truth, referring to urban properties, no. 1 of article 6 of the MPTC distinguishes various species, dividing them into residential, commercial, industrial or services, land for construction and others, in accordance with the following criteria: "residential, commercial, industrial or for services" – buildings or constructions licensed for such or, in the absence of a license, that have as their normal destination each of those purposes (cf. article 6, no. 2 of the MPTC); "land for construction", lands situated within or outside an urban settlement, for which a license or authorization has been granted, prior notification admitted or favorable prior information issued for a subdivision or construction operation, and also those that have been so declared in the title of acquisition, excepting lands where the competent entities prohibit any of those operations, in particular those located in green areas, protected areas or that, in accordance with municipal land planning plans, are allocated to spaces, infrastructure or public facilities" (cf. article 6, no. 3 of the MPTC, in the wording of Law no. 64-A/2008, of 31/12); "Others", are as such considered lands situated within an urban settlement that are not land for construction nor are classified as rural property, in accordance with its legal concept, and also buildings and constructions licensed, or in the absence of a license, that have as their normal destination other purposes than those referred to above (cf. article 6, no. 4 of the MPTC).
By imposing taxation on urban properties "with residential use", the legislator does not in truth establish in the Stamp Duty Code any specific concept to be considered for this purpose, but instead refers the application of the taxation regime for properties to which that Item 28 refers to the norms of the MPTC, which establishes clear distinction between residential properties and land for construction, with the former being thus classified in accordance with their municipal authorization, or, where this does not exist, as a result of normal use, and the latter are defined in accordance with their legal potentiality.
In this light, land for construction – whatever the type and purpose of the building that will, or may be, erected on it, including that intended for housing – does not satisfy by itself the requirement provided for in items 28 and 28.1 of the GSDT (wording of Decree-Law no. 7/2015), that is, that "(...) the building "authorized or planned, is for housing (...)".
In truth, where the incidence norm of stamp duty refers to urban properties with residential use, without any specific concept being established for this purpose, cannot therefrom be extracted, as previously seen, that the same contains a future potentiality, along with others, inherent in a distinct property that may perhaps come to be built on the land.
The expression "with residential use" inculcates, in a simple reading, an idea of real and present functionality.
On the other hand, nor can the understanding be accepted that the concept of "residential use" derives from the norm of article 45 of the MPTC, because this refers to the rules applicable in determining the tax patrimonial value of land for construction, establishing that this is what results from the value of the area of building footprint of the building to be constructed added to the land adjacent to the footprint. In fixing the value of that area a percentage is considered, variable between 15% and 45%, of the value of buildings authorized or planned.
On the other hand still, nothing in the law allows concluding that the legislator of stamp duty intended to extend, for purposes of the incidence of this tax, to the species provided for in no. 1 of article 6 of the MPTC, and that the application of an allocation coefficient refers to one of the elements to be considered in the evaluation of the land, that is, in the determination of the value of buildings authorized or planned.
Regardless of whether, in determining the value of buildings authorized or planned for land for construction, an allocation coefficient should or should not be considered, it is admitted, being obvious and of common knowledge, that the value of land is determinatively influenced by the type and characteristics of those buildings. However, this is a matter that goes beyond the question on which the present petition for arbitral pronouncement is focused.
In the conditions referred to, the circumstance that, for a given parcel of land for construction, building of property intended for housing, or for any other purpose, has been authorized, although it should be considered in its evaluation, does not determine any change in the classification of the land which, for tax purposes, continues to be considered as such.
As such, resulting from article 6 of the MPTC a clear distinction between, on the one hand, residential urban properties and, on the other hand, land for construction, the latter cannot be considered, for purposes of incidence of stamp duty, as "properties with residential use".
In fact, in this sense the constant and uniform arbitral jurisprudence prior to the new wording of item 28 of the GSDT introduced by article 194 of Law no. 83-C/2013, of 31/12, has been oriented, with this (wording) the provision that the taxation in question came to apply, at the rate of 1%, to residential property or land for construction whose building, authorized or planned, is for housing.
This amendment to the General Stamp Duty Table, introduced by article 194 of Law no. 83-C/2013, of 31 December, in the part in which it adds to item 28.1 of the same Table, the reference to "land for construction whose building, authorized or planned, is for housing, pursuant to the provisions of the Municipal Property Tax Code" and, as a consequence, determines the incidence of stamp duty, pursuant to the provisions of items 28 and 28.1, on ownership of land for construction, whose building, authorized or planned, is for housing and whose tax patrimonial value is equal to or exceeding €1,000,000.00, does not translate into a normative amendment that justifies substantial alteration of the understanding that prior to the new wording of that norm was being followed by Jurisprudence (underlined by us).
Subsumption
Now, in light of the evidence produced, it is clear that on the land in question building for allocation to housing or other purposes may come to be authorized. That is: being residential purposes only one of the potentialities of the buildings to eventually be authorized or erected on the land, without it being demonstrated that there exist, on the date of the concrete assessment, concrete licenses or approved projects for those purposes (residential), it results in the exclusion of the taxation of the properties in light of article 28 of the GSDT [which, moreover, is now repealed by Law no. 42/2016 – State Budget Law for 2017 – article 210-2, being to some extent succeeded by the current articles 135-A et seq., of the MPTC, inserted in the new chapter of that Code with the heading "additional to municipal property tax"].
The assessments sub judice are therefore defective with error as to the factual and legal prerequisites.
In this essential line of orientation, there are, as mentioned, among others, the decisions issued by the Arbitral Tribunals constituted within the scope of the CAAD, in cases nos. 522/2015-T, 532/2015-T, 467/2015-T (citing various Superior Administrative Court decisions), 578/2015-T, 642/2015-T, 551/2015-T, 2016/2016-T and 412/2016-T, almost all published on the CAAD website (www.caad.org.pt).
VI. Questions of Barred Cognition
In the judgment, the judge must pronounce on all questions that he must appraise, abstaining from pronouncing on questions of which he must not know (closing segment of no. 1 of article 125 of the Tax Procedure and Process Code), and the questions on which the tribunal's powers of cognition rest are, in accordance with no. 2 of article 608 of the Civil Procedure Code, applicable as a subsidiary to the arbitral tax process, by referral of article 29, no. 1, paragraph e), of the LRAT, "the questions that the parties have submitted for its appraisal, except those whose decision is barred by the solution given to others (…)".
Resulting from what is exposed the declaration of illegality of the assessment object of the present process – principal petition – due to defect of violation of law that prevents renewal of the acts, the cognition of other defects is barred, in particular the unconstitutionalities emerging from possible violation of the principles of tax capacity, of tax equality (articles 13 and 104 of the Constitution and 5 and 55 of the GTL)
In truth, article 124 of the Tax Procedure and Process Code, subsidiarily applicable by force of the provisions of article 29, no. 1, of the LRAT, in establishing an order of cognition of defects, presupposes that, once a defect is judged to exist that ensures effective protection of the rights of those challenging, it is not necessary to know of the others, because if it were always necessary to appraise all defects imputed to the impugned act, it would be indifferent the order of their cognition.
From what is exposed, cognition is not taken of the remaining defects imputed by the Claimant to acts as to whose declaration of illegality it petitioned.
That is: in light of the solution given to the question relating to the concept of "property with residential use/land for construction with residential use", the cognition of the questions of constitutionality placed by the Claimant is barred.
VII. Compensatory Interest
In accordance with the provision of paragraph b) of article 24 of the LRAT, the arbitral decision on the merits of the petition which is not subject to appeal or impugnation binds the tax administration from the end of the period prescribed for appeal or impugnation, and this, in the exact terms of the success of the arbitral decision in favor of the taxpayer and until the end of the period prescribed for execution of the judgments of the tax judicial tribunals, shall "re-establish the situation that would exist if the tax act subject of the arbitral decision had not been carried out, adopting the acts and operations necessary for the purpose", which is in harmony with the prescription of article 100 of the GTL [applicable by force of the provision of paragraph a) of no. 1 of article 29 of the LRAT] which establishes that "the Tax Administration is obligated, in case of full or partial success of a claim, judicial impugnation or appeal in favor of the taxpayer, to the immediate and full reconstitution of the legality of the act or situation subject of the dispute, including the payment of compensatory interest, if applicable, from the end of the period of execution of the decision".
Although article 2, no. 1, paragraphs a) and b) of the LRAT uses the expression "declaration of illegality" to define the competence of the arbitral tribunals functioning in the CAAD, making no reference to condemnatory decisions, it should be understood that comprised in its competencies are the powers that in a process of judicial impugnation are attributed to the tax tribunals, and this is the interpretation that harmonizes with the meaning of the legislative authorization on which the Government based itself to approve the LRAT, in which is proclaimed, as the first directive, that "the arbitral tax process must 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".
The process of judicial impugnation, despite being essentially a process of annulment of tax acts, admits condemnation of the Tax Administration in the payment of compensatory interest, as appears from article 43, no. 1, of the GTL, in which it is established that "compensatory interest is owed when it is determined, in gracious claim or judicial impugnation, that there was error attributable to the services resulting in payment of the tax debt in an amount superior to the legally due" and from article 61, no. 4 of the Tax Procedure and Process Code (in the wording given by Law no. 55-A/2010, of 31 December, which corresponds to no. 2 in the initial wording), which «if the decision recognizing the right to compensatory interest is a judicial decision, the period for payment counts from the start of the period of its execution».
Accordingly, no. 5 of article 24 of the LRAT in saying that "payment of interest, regardless of its nature, is owed in the terms provided for in the general tax law and in the Tax Procedure and Process Code" should be understood as permitting the recognition of the right to compensatory interest in the arbitral process.
This is the situation in the case at issue, that is, the Tax Authority will refund the tax paid, with payment of compensatory interest in the terms exposed, the Tax Authority determining the amount to be refunded to the Claimant and calculating the respective compensatory interest, at the legal subsidiary rate for civil debts, pursuant to articles 35, no. 10, and 43, nos. 1 and 5, of the GTL, 61 of the Tax Procedure and Process Code, 559 of the Civil Code and Regulation no. 291/2003, of 8 April (or statute or statutes that succeed it), with compensatory interest owed from the dates of the payments now judged undue until that of the processing of the credit note, in which they are included (article 61, no. 5, of the Tax Procedure and Process Code).
VII. Decision
In view of the above, this Arbitral Tribunal decides:
a) To judge the petition totally successful;
b) To declare, in consequence, the illegality of the stamp duty assessments object of the petition;
c) To annul the collection documents numbered 2016…, 2016… and 2016…, relating to urban property article… of the parish of…; nos. 2016…, 2016… and 2016…, relating to urban property article … of the parish of …; nos. 2016…, 2016… and 2016…, relating to urban property article … of the parish of … and nos. 2016…, 2016… and 2016…, relating to urban property article … of the parish of….
d) To condemn the Tax and Customs Authority to the reimbursement of the amounts paid relating to the aforesaid assessments and collection documents, with compensatory interest in the terms set out above; and
e) To further condemn the Tax and Customs Authority in the costs of this process.
Value of the Case
The value of the case is fixed at €201,381.20, pursuant to article 97-A, no. 1, a), of the Tax Procedure and Process Code, applicable by force of paragraphs a) and b) of no. 1 of article 29 of the LRAT and no. 2 of article 3 of the Regulation of Costs in Tax Arbitration Proceedings.
Costs
The arbitration fee is fixed at €4,284.00, pursuant to Table I of the Regulation of Costs in Tax Arbitration Proceedings, payable by the Respondent, since the petition was totally successful, pursuant to articles 12, no. 2, and 22, no. 4, both of the LRAT, and article 4, no. 4, of the cited Regulation.
Let notice be given.
Lisbon, 27 March 2017
The Arbitral Tribunal,
José Poças Falcão
(Arbitrator President)
Paulino Brilhante Santos
(Adjunct Arbitrator)
Nuno Maldonado Sousa
(Adjunct Arbitrator)
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