Summary
Full Decision
ARBITRAL DECISION
The Arbitrators José Pedro Carvalho (Presiding Arbitrator), Luís Ricardo Farinha Sequeira and Raquel Franco, appointed by the Ethics Council of the Administrative Arbitration Center to form an Arbitral Tribunal, agree as follows:
I – STATEMENT OF FACTS
On 29 July 2016, A… – Real Estate Investment Fund Management Company, S.A., with tax identification number … and registered at …, no. …, …-… Lisbon, filed a request for constitution of an arbitral tribunal, pursuant to the combined provisions of Articles 2 and 10 of Decree-Law no. 10/2011, of 20 January, which approved the Legal Regime of Arbitration in Tax Matters, as amended by Article 228 of Law no. 66-B/2012, of 31 December (hereinafter, briefly referred to as RJAT), seeking a declaration of illegality of the tax assessments for Stamp Duty no. 2016…, 2016…, 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…, issued by the Tax and Customs Authority, pursuant to item 28.1 of the General Table of Stamp Duty ("GTSD"), for the year 2015, in the total amount of € 83,175.00.
To substantiate its application, the Claimant alleges, in summary, that the rule of incidence does not apply to the property in question, since the same, qualified in the land register as intended for construction, does not constitute a built property, there being thus an erroneous qualification of the taxable fact, and that the ownership of immovable property is an "inevitable consequence" of the activity of the Funds managed by the Claimant, and subsidiarily, the unconstitutionality, by violation of the constitutional principles of justice, equality and contributory capacity.
On 01-08-2016, the request for constitution of the arbitral tribunal was accepted and automatically notified to the Tax Authority.
The Claimant did not proceed to appoint an arbitrator, whereby, pursuant to the provisions of paragraph a) of Article 6(2) and paragraph a) of Article 11(1) of the RJAT, the President of the Ethics Council of the CAAD appointed the signatories as arbitrators of the collective arbitral tribunal, who communicated their acceptance of the appointment within the applicable period.
On 19-10-2016, the parties were notified of these appointments, having expressed no objection to any of them.
In accordance with the provisions of paragraph c) of Article 11(1) of the RJAT, the collective Arbitral Tribunal was constituted on 04-11-2016.
On 07-12-2016, the Respondent, duly notified for this purpose, filed its reply, defending itself by exception and by challenge.
By order of 20-12-2016, this Arbitral Tribunal officially ordered the attachment of additional documentation, and thereafter due opportunity to respond was afforded to the Respondent.
Pursuant to the provisions of paragraphs c) and e) of Article 16 and Article 29(2), both of the RJAT, the holding of the meeting referred to in Article 18 of the RJAT was dispensed with.
The parties were afforded the opportunity to submit written submissions, which they did, pronouncing themselves on the evidence produced and reiterating and developing their legal positions previously presented.
The Arbitral Tribunal is materially competent and is regularly constituted, in accordance with Articles 2(1)(a), 5 and 6(1) of the RJAT.
The parties have legal personality and capacity, are legitimate and are legally represented, in accordance with Articles 4 and 10 of the RJAT and Article 1 of Ordinance no. 112-A/2011, of 22 March.
The proceedings are not affected by any nullities.
Thus, there is no obstacle to the examination of the case.
Given all of the foregoing, it is necessary to issue:
II. DECISION
A. FINDINGS OF FACT
A.1. Facts Established as Proved
1. The Claimant, in the course of its activity, is the owner of various properties, including residential properties, commercial properties and building land.
2. In this context, it was notified of the assessments for Stamp Duty, issued pursuant to item 28.1 of the GST, with reference to the year 2015: 2016…, 2016…, 2016…, 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….
3. The assessments referred to relate to the following urban properties:
i. The urban property with land register entry …, of the Union of Parishes of … and …, municipality and district of Portalegre;
ii. The urban property with land register entry …, of the parish of …, municipality of Pombal and district of Leiria;
iii. The urban property with land register entry …, of the parish of …, municipality of Lagoa (Algarve) and district of Faro;
iv. The urban property with land register entry …, of the Union of Parishes of …, … and …, municipality and district of Porto;
v. The urban property with land register entry …, of the parish of …, municipality and district of Porto;
vi. The urban property with land register entry …, of the parish of …, municipality and district of Porto;
vii. The urban property with land register entry …, of the parish of …, municipality and district of Porto;
viii. The urban property with land register entry …, of the parish of …, municipality and district of Porto;
ix. The urban property with land register entry …, of the Union of Parishes of … and …, municipality of Vila Nova de Gaia and district of Porto.
4. In the respective property register, the said properties, in 2015, were registered in the land register as "building land", with "Type of location coefficient" noted as "Housing".
5. The urban property with land register entry …, of the Union of Parishes of … and …, municipality and district of Portalegre, corresponds to lot … of the subdivision licence …/2009 of the Municipal Council of Portalegre, which authorized the construction of a building intended for housing, with six storeys and with minimum area intended for housing of 7,000.00 m² and maximum area for the same purpose of 14,000.00 m².
6. The urban property with land register entry …, of the Union of Parishes of …, … and …, municipality and district of Porto corresponds to lot … of the subdivision licence …/07 of the Municipal Council of Porto, which authorized the construction of a building intended for housing, with six storeys and with gross area intended for housing of 7,346.60 m².
7. The urban property with land register entry …, of the Union of Parishes of … and …, municipality of Vila Nova de Gaia and district of Porto, corresponds to lot … of the subdivision licence …/07 of the Municipal Council of Vila Nova de Gaia, which authorized the construction of a building intended for housing, with five storeys and with minimum area intended for housing of 12,966.80 m².
8. The Claimant made payment of the assessments within the respective legal period.
A.2. Facts Established as Not Proved
1. That, regarding the following properties, there existed, at the date of the taxable fact, a subdivision licence or building licence, or approved project, or prior communication, or favorable prior information or document evidencing constructive viability, which provided for housing as a possible construction:
i. urban property with land register entry …, of the parish of …, municipality of Pombal and district of Leiria;
ii. urban property with land register entry …, of the parish of …, municipality of Lagoa (Algarve) and district of Faro;
iii. urban properties with land register entries …, …, …, … of the parish of …, municipality and district of Porto.
A.3. Justification of the Findings of Fact Proved and Not Proved
With regard to findings of fact, the Tribunal is not required to pronounce on everything alleged by the parties, but rather has the duty to select the facts that matter for the decision and to distinguish between proved and not proved facts - (see Article 123(2) of the CPPT and Article 607(3) of the CPC, applicable pursuant to Article 29(1), paragraphs a) and e), of the RJAT).
Thus, the facts relevant to the determination of the case are selected and refined in function of their legal relevance, which is established in relation to the various plausible solutions of the legal question(s) (see former Article 511(1) of the CPC, corresponding to the current Article 596, applicable pursuant to Article 29(1), paragraph e), of the RJAT).
Thus, taking into consideration the positions assumed by the parties, in light of Article 110/7 of the CPPT, the documentary evidence and the evidence file in the record, the facts listed above were considered proved, with relevance to the decision.
In particular, the facts set out in points 5) to 7) of the findings of fact result from the documentation submitted by the Respondent, following the arbitral order dated 20/12/2016, which comprises the documents referred to in the points in question, authorizing construction intended for housing.
The fact established as not proved results from the lack of evidence regarding it. Indeed, notwithstanding the aforementioned order of 20/12/2016, no documentation was provided that would allow for a different conclusion, with respect to the properties referred to in the facts not proved.
Specifically, regarding the property referred to in point 1)i of the facts established as not proved, only a municipal certificate issued by the Municipal Council of Montijo was provided to this Tribunal, with an indication of the characterization table defined by the PDM, which expressly reserves that the same does not constitute any legal obligation (right or expectation) for future construction at the location, and therefore does not correspond to any of the types of documents referred to in the point in question.
Regarding the property referred to in point 1)ii of the facts established as not proved, the property assessment form for the property in question was provided to this Tribunal, which not only does not allow for the conclusion, with the necessary certainty, of the existence of any of the documents referred to in the point in question, as well as their content, but also shows "0" as the number of the same, and the mention "Plot of land intended for the construction of various uses – Housing, Services and Others, (swimming pools and tennis courts)" can also be read.
Regarding the properties referred to in point 1)iii of the facts established as not proved, it was found that the assessment for IMI purposes was carried out on the basis of the existence of a detailed plan, for the zone where the property in question is located. As mentioned in the preamble of Decree-Law no. 380/99, of 22 September, within the scope of a detailed plan, there is provided for the "establishment of an average utilization index, according to which the plan establishes an abstract right to build corresponding to an average buildability, with the concrete right to build resulting from the licensing acts of urban operations", and therefore the detailed plan in question cannot be equated with a subdivision licence or building licence, or approved project, or prior communication, or favorable prior information or document evidencing constructive viability.
Nothing further having been possible to gather, the fact in question had to be established as not proved.
B. ON THE LAW
The sole issue to be resolved in the present proceedings of tax arbitration process relates to the application of item 28.1 of the table annexed to the CIS (General Table of Stamp Duty) to the building land to which the assessments sub iudice relate.
At issue, therefore, is the definition of the scope of item no. 28.1 of the GTSD, as amended by Law no. 83-C/2013, of 31 December, more specifically to determine whether the building land in question in the present case can be subsumed within the concept of "building land whose construction, authorized or provided for, is for housing, in accordance with the provisions of the IMI Code" to which the said item refers, taking into account that the respective property values are equal to or greater than € 1,000,000.00.
The issue arises by virtue of taxation of stamp duty on the ownership, usufruct or right of superficies of urban properties whose taxable property value, recorded in the land register, is equal to or greater than € 1,000,000, in which case tax is due, at the rate of 1%, on the taxable property value used for IMI purposes, for property with housing use.
This issue is not new, having been the subject of consideration both in arbitral jurisdiction and in the jurisprudence of the Supreme Administrative Court; and in the context of the CIS wording given by Law no. 55-A/2012, of 29 October, the decisions issued were always contrary to what the Tax Administration sought[1].
The situation sub iudice, however, arises within a differentiated legal framework, insofar as the facts should be assessed in light of the CIS wording introduced by the State Budget for 2014, Law no. 83-C/2013, of 31 December (Article 194, under the heading - Amendment to the General Table of Stamp Duty), in accordance with which item 28.1 of the General Table of Stamp Duty, annexed to the Stamp Duty Code, approved by Law no. 150/99, of 11 September, took on the following wording:
"28.1 — For residential property or for building land whose construction, authorized or provided for, is for housing, in accordance with the provisions of the IMI Code — 1%".
Within this new legal framework, decisions have already been issued in arbitral proceedings, also unfavorably to what the Tax Authority sustained[2], as well as others, partially or wholly in favor[3].
The said jurisprudence is based on the understanding that should be considered as meeting the requirements of the new item 28.1 of the GTSD:
"with regard to building land, whether or not located within an urban settlement, as defined in Article 3/4 of this diploma [IMI Code], should, as such, be considered the land for which has been granted: - licensing for subdivision operation; - building license; - authorization for subdivision operation; - building authorization; - admitted favorable prior communication of subdivision or construction operation; issued favorable prior information of subdivision or construction operation, as well as; - those that have been declared as such in the title of acquisition, it being necessary to bear in mind that, for that purpose also, only the title of acquisition with the form prescribed by civil law should be relevant, that is, the public deed or the authenticated private document referred to in Article 875 of the CC." [see ANTÓNIO SANTOS ROCHA / EDUARDO JOSÉ MARTINS BRÁS – Taxation of Assets. IMI-IMT and Stamp Duty (Annotated and Commented). Coimbra, Almedina, 2015, p. 44]."[4]
Also in the decision issued in the arbitral case 142/2016T, already cited, which equally concluded for the merit of the application filed there, the following can be read:
"There is no indication in these GTSD and IMI Code rules of what should be understood by 'provided for construction', but, taking into account the documents required for the assessment of building land, indicated in Article 37(3) of the IMI Code, it is concluded that one can only speak of authorized or provided for construction when the 'building to be constructed', referred to in Article 45(1), is defined in a subdivision licence or building licence, or approved project, or prior communication, or favorable prior information or document evidencing constructive viability".
The undersigned fully subscribes to the understanding of the said decisions, as to what, in light of the new CIS wording, should be understood by "building land whose construction, authorized or provided for, is for housing, in accordance with the provisions of the IMI Code".
In effect, in accordance with the IMI Code, building land, which, in accordance with Article 6(1)(c) of such Code, constitutes a type of urban property, may have housing as its use, as results from Article 41, also of the IMI Code, which use, as results, among other things, expressly from Article 45(5) of the IMI Code, will be determined on the basis of the elements referred to in Article 37 of the same Code, with paragraph 3 of this article providing that:
"With regard to building land, a photocopy of the subdivision licence must be presented, which should be replaced, if there is no subdivision, by a photocopy of the building licence, approved project, prior communication, favorable prior information or document evidencing constructive viability".
The reference in item 28.1 of the GTSD under analysis should thus be read as referring to the material content of what, in light of the IMI Code, is "building land whose construction, authorized or provided for, is for housing", not being sufficient the mere formality of the Tax Authority – whether rightly or wrongly – in application of the rules of that Code (IMI Code), having classified for purposes of the land register a particular property as having that use, since if that were the legislator's intention, within the presumption of reasonableness underlying it, it would surely have used the expression "land whose type of location coefficient used for determining the VPT is housing", or another, analogous.
It is concluded, thus, as in the jurisprudence cited above, that should be considered as "building land whose construction, authorized or provided for, is for housing, in accordance with the provisions of the IMI Code", that land in which the 'building to be constructed' is defined as intended for housing in a subdivision licence or building licence, or approved project, or prior communication, or favorable prior information or document evidencing constructive viability.
Now, in the case, it was not established that there existed, at the date of the taxable fact, a subdivision licence or building licence, or approved project, or prior communication, or favorable prior information or document evidencing constructive viability, which provided for housing as a possible construction, regarding the following land to which the Stamp Duty assessments referred to in the present arbitral case relate:
- urban property with land register entry …, of the parish of …, municipality of Pombal and district of Leiria;
- urban property with land register entry …, of the parish of …, municipality of Lagoa (Algarve) and district of Faro;
- urban properties with land register entry…, …, …, … of the parish of …, municipality and district of Porto.
Thus, it is not possible to conclude that the 'building to be constructed' on the land in question was defined in any of those documents deemed relevant, as having housing as its purpose.
The fact that, in 2015, in the respective property register of the properties in question, the mention "Housing" appears as "Type of location coefficient" does not stand in the way of the conclusion reached, since such mention could be due to error[5], or to some other circumstance that was not established, it being certain that no elements were presented that substantially support such mention, despite it having been expressly afforded to the Respondent, in honor of the duty to establish the material truth, the opportunity to do so.
In light of the foregoing, it cannot be considered demonstrated that, regarding the land referred to, the same is a "building land whose construction, authorized or provided for, is for housing, in accordance with the provisions of the IMI Code", the requirement of item 28.1 of the table annexed to the CIS, in the applicable wording, not being met, and therefore the tax acts challenged that have them as their object will be affected by error as to the factual requirements, and consequent error in law, and should, therefore, be annulled, the arbitral application succeeding, in that respect.
*
As for the following properties to which Stamp Duty assessments, the subject of the present arbitral case, relate, it was established that:
v The urban property with land register entry …, of the Union of Parishes of … and …, municipality and district of Portalegre, corresponds to lot … of the subdivision licence …/2009 of the Municipal Council of Portalegre, which authorized the construction of a building intended for housing, with six storeys and with minimum area intended for housing of 7,000.00 m² and maximum area for the same purpose of 14,000.00 m²;
v The urban property with land register entry…, of the Union of Parishes of …, … and …, municipality and district of Porto corresponds to lot … of the subdivision licence …/07 of the Municipal Council of Porto, which authorized the construction of a building intended for housing, with six storeys and with gross area intended for housing of 7,346.60 m²;
v The urban property with land register entry …, of the Union of Parishes of … and …, municipality of Vila Nova de Gaia and district of Porto, corresponds to lot … of the subdivision licence …/07 of the Municipal Council of Vila Nova de Gaia, which authorized the construction of a building intended for housing, with five storeys and with minimum area intended for housing of 12,966.80 m².
Thus, there can be no doubt that the 'building to be constructed' on the land in question is defined in a subdivision licence or building licence, or approved project, or prior communication, or favorable prior information or document evidencing constructive viability, as having housing as its purpose.
In light of the foregoing, those properties should be considered as "building land whose construction, authorized or provided for, is for housing, in accordance with the provisions of the IMI Code", meeting, as such and regarding them, the requirement of item 28.1 of the table annexed to the CIS, in the applicable wording, with nothing to censure in the tax acts challenged that had them as their object and the arbitral application should, as such, not succeed in that respect.
The fact alleged by the Claimant that the documents referred to above were all issued in the legal sphere of previous owners of the properties does not stand in the way of the conclusion reached, first because the same has no support in any legal rule that confers relevance upon it, and second because the administrative acts to which the documents in question refer embody the removal of restrictions on the content of real rights (namely the right to build), and are therefore exercised by the owner of the property, which in this case is the Claimant, it being further certain that it is the Claimant who benefited, as of the date of the taxable facts, from the appreciation of the properties, resulting from the constructive capacity assured by the administrative acts that recognize such, appreciation that was not unrelated, notoriously, to the contractual relationships whose development culminated in the acquisition by the Claimant of the properties taxed, and that is independent of the effective subjective intention of the owner to build or not.
Likewise, the allegation of the Claimant that the properties in question are in its patrimony because they are the object of its habitual activity, and therefore do not denote any "superior" contributory capacity, is not subscribed to.
Indeed, since the ownership of immovable property is a normal consequence of the activity of the funds, even if intended for resale, they denote exactly the same contributory capacity of any other holder of property, in particular that which is intended for resale, it being further certain that the Claimant, like any other economic operator, will not dispense with, in resale, the increase in value resulting from the constructive capacity of the properties, nor from any other gain that, for any reason, may come to be incorporated in the properties, and thus no unconstitutionality is discerned, particularly with regard to the violation of the principles of equality, fiscal equality and contributory capacity, provided for respectively in Articles 13 and 104(3) of the Constitution, contrary to what was alleged by the Claimant, either by virtue of the circumstance referred to, either because a threshold of €1,000,000.00 is fixed for subjection to the taxation in question, or because the eventual value of the housing or housing units whose construction is authorized is not taken into account.
The Constitutional Court has pronounced itself several times on the principle of fiscal equality, having stated, for example, in Decision no. 590/2015, that:
"The constitutional principle of fiscal equality, as a specific expression of the general structural principle of equality (Article 13 of the Constitution), finds expression 'in the generality and uniformity of taxes. Generality means that all citizens are obligated to pay taxes (…); in turn, uniformity means that the distribution of taxes among citizens obeys the same identical criterion for all' (Teixeira Ribeiro, Lessons in Public Finance, 5th edition, p. 261). And such criterion, as Casalta Nabais points out, is found in the principle of contributory capacity: 'This thus implies equal tax for those with equal contributory capacity (horizontal equality) and different tax (in qualitative or quantitative terms) for those with different contributory capacity in proportion to this difference (vertical equality)' (Tax Law, 7th edition, 2012, p. 155). As a presupposition and criterion of taxation, the principle of contributory capacity 'on the one hand, constituting the ratio or cause of taxation, removes the tax legislator from arbitrariness, obliging it that in the selection and articulation of taxable facts, it adheres to revelations of contributory capacity, that is, establishes as the object and taxable matter of each tax a particular economic presupposition that is a manifestation of that capacity and is present in the various legal hypotheses of the respective tax' (Casalta Nabais, op. cit., p. 157)."
The Constitutional Court has affirmed this, another example being Decision no. 84/2003, where it states that:
"The principle of contributory capacity expresses and concretizes the principle of fiscal or tax equality in its aspect of 'uniformity' – the duty of all to pay taxes according to the same criterion – with contributory capacity filling the unitary criterion of taxation", understanding such criterion as being that in which "the incidence and distribution of taxes – of 'fiscal taxes' more precisely – should be made according to the economic capacity or 'capacity to spend' (…) of each person and not according to what each person eventually receives in goods or public services (criterion of benefit). (…) Notwithstanding the silence of the Constitution, it is the generalized understanding of doctrine that 'contributory capacity' continues to be a basic criterion of our 'Fiscal Constitution' and that it can (or should) be reached from the structural principles of the tax system formulated in Articles 103 and 104 of the Constitution (…)".
This Tribunal has, however, emphasized that the principle of contributory capacity does not dispense with the concurrence of other constitutional principles. As was stated in Decision no. 711/2006, "it is clear that the 'principle of contributory capacity' must be reconciled with other principles with constitutional dignity, such as the principle of the Social State, the legislator's freedom to make decisions, and certain requirements of practicability and cognoscibility of the taxable fact, equally indispensable for the fulfillment of the purposes of the tax system". And it continues: "To ascertain, however, the existence of a particularism sufficiently distinct to justify an inequality of legal regime, and to decide on the circumstances and factors to be considered as relevant in that ascertainment, is a task that primarily falls to the legislator, which holds the primacy of the concretization of constitutional principles and the corresponding freedom to make decisions. For this reason, the principle of equality presents itself fundamentally to legal operators, in the context of constitutionality review, as a negative principle (…) - as a prohibition of arbitrariness".
In sum, in the synthesis of Decision no. 695/2014, "the principle of fiscal equality can be concretized through diverse aspects: a first, is in the generality of the tax law, in its application to all without exception; a second, in the uniformity of the tax law, in treating equally the taxpayers who find themselves in equal situations and differently those who find themselves in different situations, in the measure of the difference, to be assessed by contributory capacity; a last, is in the prohibition of arbitrariness, in preventing the introduction of discriminations between taxpayers that are devoid of rational foundation".
Indeed, since it does not appear arbitrary that, in a period of crisis, the State, in function of the political choices of those who direct it, calls upon property owners with a particular use or characteristics, and above a particular property value, to contribute in a more accentuated manner, no double taxation being verified, but rather an additional and exceptional taxation, similar, without prejudice to respect for better opinion, for example, to the surcharge on income tax, it is concluded that no violation of any constitutional rule occurs, in particular those indicated by the Claimant, in the taxation in question.
*
In a petition presented on 21-03-2017, the Claimant requested that, should it be decided to maintain all or some (which is the case) of the tax acts subject to the present arbitral case in the legal order, the same should be partially annulled in the parts corresponding to the property value that may have been calculated on the basis of uses other than housing.
In this regard, it should be noted that the requested matter constitutes an alteration of the application and the cause of action initially formulated, which is not deemed to be a development or consequence of the initial application, and will therefore be inadmissible from the outset.
Without prejudice, it may be said that the taxation in question, resulting from item 28.1 of the General Table of Stamp Duty would not permit the acceptance of the Claimant's claim, since the incidence of the said taxation is the VPT of the property and its requirements are that the property has a housing use, in the terms already explained, and a VPT greater than €1,000,000.00, with no foundation being found in the letter of the law nor in the overall and articulately combined legal system for reducing either the value whose excess triggers the taxation, or the value of incidence of the tax, to that which was used for the part of the VPT calculated in function of the provided for housing use.
*
As regards the request for compensatory interest formulated by the Claimant, Article 43(1) of the General Tax Law establishes that compensatory interest is due when it is determined that there was error attributable to the services resulting in payment of the tax debt in an amount greater than that legally due.
In the case, the error affecting the annulled assessments is attributable to the Tax and Customs Authority, which performed the assessment act on its own initiative, without the necessary factual and legal support.
The Claimant thus has the right to be reimbursed for the amount it paid (in accordance with the provisions of Articles 100 of the General Tax Law and 24(1) of the RJAT) by force of the acts annulled and, further, to be indemnified for the improper payment through the payment of compensatory interest, by the Respondent, from the date of payment of the amount, until reimbursement, at the legal supplementary rate, in accordance with Articles 43(1) and (4), and 35(10) of the General Tax Law, Article 559 of the Civil Code and Ordinance no. 291/2003, of 8 April.
C. Decision
In light of all the foregoing, it is decided to judge the arbitral application partially well-founded and, in consequence:
a) Annul the assessments relating to the following properties:
i. Urban property with land register entry …, of the parish of …, municipality of Pombal and district of Leiria;
ii. Urban property with land register entry …, of the parish of …, municipality of Lagoa (Algarve) and district of Faro;
iii. Urban properties with land register entries…, …, …, … of the parish of …, municipality and district of Porto.
b) Condemn the Respondent to the restitution of the amounts improperly paid, by force of the assessments now annulled, as well as to the payment of the corresponding compensatory interest, from the date of improper payment of the amount, until its reimbursement, in the terms determined above;
c) Judge the arbitral application not well-founded as to the remaining assessments;
d) Condemn the parties to the costs of the proceedings in proportion to their respective failure, fixing at € 1,389.10 the part charged to the Claimant and at € 2,282.90 the part charged to the Respondent.
D. Value of the Proceedings
The value of the proceedings is fixed at € 183,185.00, in accordance with Article 97-A(1)(a) of the Code of Tax Procedure and Process, applicable by force of paragraphs a) and b) of Article 29(1) of the RJAT and Article 3(2) of the Regulation of Costs in Tax Arbitration Proceedings.
E. Costs
The value of the arbitration fee is fixed at € 3,672.00, in accordance with Table I of the Regulation of Costs in Tax Arbitration Proceedings, to be paid by the parties in proportion to their respective failure, since the application was partially well-founded, in accordance with Articles 12(2) and 22(4), both of the RJAT, and Article 4(4) of the cited Regulation.
Notify.
Lisbon, 17 April 2017
The Presiding Arbitrator
(José Pedro Carvalho)
The Arbitrator Member
(Luís Ricardo Farinha Sequeira)
The Arbitrator Member
(Raquel Franco)
[1] See, for example, Decisions 49/2013-T of 18 September 2013, 53/2013-T of 2 October, 231/2013-T of 3/2/2014, Case no. 7/2014-T, of 3 July, 56/2014-T of 31 July, 210/2014-T of 30 July, Case no. 125/2015-T, of 12 October, all of the CAAD (available at www.caad.org.pt) and the Decision of the SAC of 9 April 2014, P1870/2013, followed by several others of similar content, available at http://www.dgsi.pt/jsta.
[2] See, for example, the decisions of arbitral cases 156/2016T, 142/2016T, 524/2015T, 578/2015T, 467/2015T, and 290/2016T, all available at www.caad.org.pt.
[3] See cases 459/2016T and 481/2016T, also available at www.caad.org.pt.
[4] See in this sense, the decision issued in case 156/2016T, already cited.
[5] See for example, in that sense, the factual situation underlying arbitral case 490/2016T of the CAAD, available at www.caad.org.pt.
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