Process: 475/2015-T

Date: March 11, 2015

Tax Type: IMT

Source: Original CAAD Decision

Summary

CAAD arbitration process 475/2015-T examined the IMT exemption for properties acquired for resale under Article 7 of the Portuguese IMT Code (CIMT). Company A acquired a residential property for €375,000 and claimed the IMT exemption for resale purposes. The exemption, provided under Article 7 CIMT, requires that properties be resold within three years and not be given a different purpose. Company A subsequently resold the property to Company B, which also declared it was acquiring for resale and claimed the same Article 7 exemption. The Tax and Customs Authority (AT) determined this constituted a violation of Article 11(5) CIMT, which explicitly states that the exemption ceases when properties are "resold again for resale." The AT issued an IMT assessment of €24,375.00 plus €6,782.26 in compensatory interest, totaling €31,157.26. Company A challenged this assessment through CAAD arbitration, arguing the declaration was an oversight, that Company B ultimately paid IMT on the property, and that no harm occurred to the state. The claimant contended the taxation violated principles of legality, equality, and legal certainty under the Portuguese Constitution, emphasizing compliance with all substantive requirements of Article 7 despite the formal defect. The AT countered that parties had legal means available to rectify the deed but failed to do so. The arbitral tribunal was constituted on September 11, 2014, with arbitrator Guilherme W. d'Oliveira Martins appointed by CAAD's Ethics Council, and oral arguments were dispensed with by agreement of both parties.

Full Decision

ARBITRAL DECISION

The arbitrator Guilherme W. d'Oliveira Martins, appointed by the Ethics Council of the Administrative Arbitration Center (CAAD) to form the present Arbitral Tribunal, constituted on 11.09.2014, decides in the terms that follow:

I. REPORT

  1. The company A, Lda., NIPC …, submitted a request for constitution of a single arbitral tribunal, in accordance with the combined provisions of articles 2 and 10 of Decree-Law no. 10/2011, of 20 January (Legal Regime for Arbitration in Tax Matters, hereinafter referred to only as RJAT), wherein the Tax and Customs Authority (AT) is the Respondent, with a view to assessing the legality of the taxation of Municipal Tax on Onerous Property Transfers (IMT) in the total amount of € 31,157.26.

  2. The request for constitution of the Arbitral Tribunal was accepted by His Excellency the President of CAAD and automatically notified to the AT on 11.07.2014.

  3. In accordance with the provisions of paragraph a) of section 2 of article 6 and paragraph b) of section 1 of article 11 of Decree-Law no. 10/2011, of 20 January, in the wording introduced by article 228 of Law no. 66-B/2012, of 31 December, the Ethics Council appointed as arbitrator of the single arbitral tribunal the herein signatory, who communicated acceptance of the corresponding charge within the applicable period.

  4. On 27.08.2014 the parties were duly notified of this appointment, and did not manifest a will to refuse the appointment of the arbitrator in accordance with the combined provisions of article 11, section 1, paragraphs a) and b) of the RJAT and articles 6 and 7 of the Code of Ethics.

  5. Thus, in accordance with the provisions of paragraph c) of section 1 of article 11 of Decree-Law no. 10/2011, of 20 January, in the wording introduced by Law no. 66-B/2012, of 31 December, the Arbitral Tribunal was constituted on 11.09.2014.

  6. On 10.12.2014 the first meeting of the Tribunal took place, in accordance with article 18 of the RJAT, and minutes thereof were drawn up, which are also attached to the case file.

  7. Upon opening of the meeting, in accordance with article 18 of the RJAT, the floor was given to the representatives of the Claimant and the Respondent to address, in this order: (i) procedural matters; (ii) any objections that should be considered and decided before the Tribunal addressed the merits of the claim; (iii) the necessity of corrections to procedural documents submitted; (iv) the necessity of scheduling a new meeting for oral arguments.

  8. Having heard the parties and with their agreement, the Tribunal decided to dispense with oral arguments.

  9. The Tribunal set 10.03.2015 as the date for the delivery of the arbitral decision.

I.2 The grounds of the Claimant's request are as follows:

  • Within the scope of the activity of purchase and sale of real property, the Claimant acquired by public deed the fraction designated by the letter "D" intended for housing, of the urban property registered in the matrix of the parish of …, municipality of Cascais under Article …, for the price of € 375,000.00.

  • In this context, the Claimant emphasizes that it intended the property in question for resale, having benefited from the IMT exemption provided for in article 7 of the CIMT. The purchase of the property and the respective IMT exemption were carried out under the condition of resale within three years, or that it would not be given a different purpose (cf. articles 7 and 11, section 5 CIMT).

  • By public deed carried out on 12.04.2007, the property would be resold to company B – Real Estate Company, S.A, which, for its part, declared to acquire the property for resale.

  • The Claimant invokes that when it alienated the fraction in question, it did not realize that the acquiring party (company B – Real Estate Company, S.A.) also intended to benefit from the exemption provided for in article 7. The Claimant states that the deed would not have been carried out with such a declaration of resale.

  • The Claimant now challenges the act of IMT taxation relative to the year 2006, concerning the acquisition of the Fraction identified above, in the amount of € 24,375.00, increased by compensatory interest in the amount of € 6,782.26 (total value of € 31,157.26).

  • By means of the Inspection Report resulting from the inspection action carried out under Service Order no. OI…, the AT alleges non-compliance with section 5 of article 11 of the IMT Code. That is, because the property was sold again for resale, it was determined that the Claimant ceased to benefit from the IMT exemption.

  • Under section 5 of article 11 of the CIMT: "5 - The acquisition referred to in article 7 shall cease to benefit from exemption as soon as it is verified that the properties acquired for resale were given a different purpose or that the same were not resold within the period of three years or were resold again for resale."

  • Thus, to the taxable value of the property determined in accordance with section 1 of article 12 of the CIMT of € 375,000.00, the tax rate was applied in accordance with article 17 CIMT, and compensatory interest was also liquidated, due in accordance with article 33 of the same code.

  • The Claimant alleges that this was due to an oversight because both the Claimant and the Acquiring party carried out dozens of deeds in the course of their activity and habitually benefited from such exemption.

  • The Claimant equally emphasizes the fact that company B paid IMT on that property, whereby the IMT exemption of which it benefited should prevail.

  • According to the Claimant, the taxation in question is flawed in legality, since, in the present case, although formally reference was made in the deed of 12.04.2007 celebrated between the Claimant and company B, to the exemption provided for in article 7 of the CIMT, the truth is that the company ended up not benefiting from that exemption, and IMT was liquidated and due.

  • The Claimant further argues violation of the principles of Legality, Equality and legal certainty provided for in the Constitution of the Portuguese Republic (CRP), sustaining that the liquidation of compensatory interest in the amount of € 6,782.26 suffers from the defect of lack of reasoning.

  • In summary, the Claimant contends that there was no prejudice whatsoever to the Tax Authority, and all requirements provided for in article 7 of the CIMT were respected.

  • In light of the above, and considering the declaration of expiration of the IMT exemption to be manifestly unlawful, in light of non-compliance with a merely formal requirement, it requests the acceptance of the claim, whereby the unlawfulness of the tax act of taxation concerning the acquisition of the fraction designated by the letter "D" intended for housing, of the urban property registered in the matrix of the parish of …, municipality of Cascais under Article … should be declared. It should equally be recognized the right to indemnificatory interest calculated at the legal rate from the date of payment of the tax until the date of its full reimbursement.

I.3 In response to the Claimant's request, the AT:

  • As regards the defect of violation of law by erroneous interpretation and application of the provisions of article 7 of the CIMT, the AT defends the following:

  • Although the Claimant states that an oversight occurred in the deed celebrated on 12-04-2014 with company B, since it did not realize that the acquiring company also intended to benefit from the exemption, the AT understands that the contracting parties could have resorted to the legal means available to rectify the said deed, and nothing of this was diligenced.

  • The company that acquired the property in question (B Real Estate Company S.A.) from the now Claimant, also enjoyed the exemption contained in article 7 of the CIMT, no oversight having occurred, since, as is stated in the deed of purchase and sale, all parties involved understood and accepted the terms of the deed that was read and explained to all those present.

  • It further emphasizes that the Claimant, by virtue of celebrating many deeds, for this reason has an increased duty to know the consequences of the terms of the contracts in which it takes part.

  • Regarding the fact that IMT was liquidated by company B, the AT emphasizes the necessity of distinguishing between the obligations of the Claimant and the tax obligations of company B.

  • Now, company B is also a real estate company, which also has in its commercial purpose the purchase and sale of properties for resale, whereby it itself met the requirements to benefit from the exemption of article 7 of the CIMT. That is, upon acquiring the property in question for resale, company B was also obliged to comply with the requirements of resale within 3 years as a condition of exemption cf. section 5 of article 11 of the said Code.

  • Hence it is understood that the said company came to request payment of IMT to the AT on 09-09 2010, "for not having resold the property", whereby the payment of IMT made by Company B does not prove that it did not acquire the property for resale.

  • Thus, the company now Claimant, upon reselling a property that was again acquired for resale, fulfills the requirements for expiration of the IMT exemption in accordance with the terms of section 5 of article 11 of IMT, and therefore IMT was liquidated and due by the AT.

  • As regards the alleged lack of reasoning of the liquidation of Compensatory Interest, the AT argues that:

  • From a simple reading of the request for arbitral ruling it appears that the Claimant understood all the reasoning underlying the liquidation of compensatory interest.

  • The Claimant, upon stating that compensatory interest is part of the tax debt, also knew that compensatory interest would be liquidated in accordance with article 33 of the CIMT, and was notified of this in the Inspection Report. Here it is stated that, to the taxable value determined, upon official liquidation of IMT the appropriate tax rate will be applied, in accordance with article 17 of the IMT Code and the appropriate compensatory interest will be liquidated in accordance with article 33 of the same statute.

  • By virtue of there being no error on the part of the services in the application of the law to the facts at hand, the AT concludes that there is no place for payment of indemnificatory interest.

  • In these terms, it requests that the request for arbitral ruling be considered unproven and without merit, and consequently the Respondent entity to be absolved of all requests, all with the due and legal consequences.

II. PRELIMINARY EXAMINATION

  1. The Tribunal is competent and is regularly constituted, in accordance with articles 2, section 1, paragraph a), 5 and 6, all of the RJAT.

  2. 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.

  3. The process does not suffer from nullities and no prior questions were raised that warrant analysis.

  4. The conditions are thus met to assess the merits of the claim.

III. GROUNDS

III.A PROVEN FACTS

Before proceeding to the assessment of the merits of the questions, it is necessary to present the factual matter relevant to its understanding and decision, which, having examined the documentary evidence and the tax administrative process attached to the case file and having also taken into account the facts alleged, is fixed as follows:

  1. The Claimant engages in the activity of purchase and sale of real property, having acquired by public deed the fraction designated by the letter "D" intended for housing, of the urban property registered in the matrix of the parish of … municipality of Cascais under Article …, for the price of € 375,000.00.

  2. The Claimant intended the property in question for resale, having benefited from the IMT exemption provided for in article 7 of the CIMT.

  3. By public deed carried out on 12.04.2007, the property would be resold to company B – Real Estate Company, S.A, which, for its part, declared to acquire the property for resale.

  4. The AT liquidated IMT to the Claimant, relative to the year 2006, concerning the acquisition of the Fraction designated by the letter "D" intended for housing, of the urban property registered in the matrix of the parish of …, municipality of Cascais under Article …, in the amount of € 24,375.00, increased by compensatory interest in the amount of € 6,782.26.

III.B UNPROVEN FACTS

There are no alleged or ex officio known facts relevant to the decision that have not been given as proven.

III.C MOTIVATION

The fixing of factual matter was based on the administrative process, on the documents attached to the initial petition or in the course of the present process.

III.D ON LAW

At issue, then, is the liquidation of IMT to the Claimant, relative to the year 2006, concerning the acquisition of the Fraction designated by the letter "D" intended for housing, of the urban property registered in the matrix of the parish of …, municipality of Cascais under Article …, in the amount of € 24,375.00, increased by compensatory interest in the amount of € 6,782.26 (total value of € 31,157.26).

Let us proceed, then.

In the request for arbitral ruling, the Claimant invokes that when it alienated the fraction in question, and duly identified, it did not realize that the acquiring party (company B – Real Estate Company, S.A.) also intended to benefit from the exemption provided for in article 7. The Claimant states that the deed would not have been carried out with such a declaration of resale.

Although formally reference was made in the deed of 12.04.2007 celebrated between the Claimant and company B, to the exemption provided for in article 7 of the CIMT, the truth is that the company ended up not benefiting from that exemption, and IMT was liquidated and due. In this manner, it contests the AT's understanding as to non-compliance with section 5 of article 11 of the IMT Code, in the sense that, because the property was sold again for resale, it was determined that the Claimant ceased to benefit from the IMT exemption.

The Claimant thus challenges the act of IMT taxation relative to the year 2006, concerning the acquisition of the Fraction duly identified, by considering it to be flawed in legality.

In this context, the Claimant emphasizes that it intended the property in question for resale, having benefited from the IMT exemption provided for in article 7 of the CIMT. The purchase of the property and the respective IMT exemption were carried out under the condition of resale within three years, or that it would not be given a different purpose (cf. articles 7 and 11, section 5 CIMT).

With the question presented, the crux of the discussion underlying the present proceedings concerns the terms on which the expiration of the exemption provided for in article 7 of the CIMT is based, under the heading "Exemption for acquisition of properties for resale".

Article 7 of the CIMT, under the heading "Exemption for acquisition of properties for resale", provides as follows:

"1 - Acquisitions of properties for resale are exempt from IMT, in accordance with the following section, provided it is verified that a declaration was submitted prior to the acquisition as provided for in article 112 of the Code of Tax on the Income of Natural Persons (IRS) or in paragraph a) of section 1 of article 109 of the Code of Tax on the Income of Legal Persons (IRC), as the case may be, relating to the exercise of the activity of buyer of properties for resale.

2 - The exemption provided for in the preceding section does not prejudice the liquidation and payment of the tax, in accordance with general terms, unless it is recognized that the acquirer normally and habitually exercises the activity of buyer of properties for resale.

3 - For the purposes of the preceding section, it is considered that the tax subject normally and habitually exercises the activity when it proves its exercise in the preceding year by means of a certificate issued by the competent finance service, and it shall always appear in that certificate whether, in the preceding year, a property was acquired for resale or resold a property previously acquired for that purpose.

4 - When the property has been resold without being again for resale, within three years, and tax has been paid, this shall be annulled by the chief of finances, at the request of the interested party, accompanied by a document proving the transaction."

Now, section 5 of article 11 of the CIMT provides that "5 - The acquisition referred to in article 7 shall cease to benefit from exemption as soon as it is verified that the properties acquired for resale were given a different purpose or that the same were not resold within the period of three years or were resold again for resale." [emphasis ours]

The regime described was already provided with identical contours in article 11, section 3 of the Code of Municipal Tax on Sisa and Tax on Successions and Gifts ("Sisa Code"), according to which: The following are exempt from sisa: "(…) 3. Acquisitions of properties for resale, in accordance with article 13-A, provided it is verified that a declaration was submitted prior to the acquisition as provided for in article 105 of the Code of Tax on the Income of Natural Persons (IRS) or in paragraph a) of section 1 of article 94 of the Code of Tax on the Income of Legal Persons (IRC), as the case may be, relating to the exercise of the activity of buyer of properties for resale". The Sisa Code also provided (article 16, section 1) that the exemption expired as soon as it was verified that "That the properties acquired for resale were given a different purpose or that the same were not resold within the period of three years or were resold again for resale; (…)".

For the purposes of the decision to be rendered in the present process, the question to be analyzed thus centers on the interpretation of the referred norms, in order to determine whether the conditions for expiration of the said exemption in the scope of IMT are met, and thus the determination of the respective liquidation.

Having analyzed the referred norms, as well as the proven facts here, it is demonstrated that the requirements underlying the determination of expiration of the Claimant's exemption are met. Indeed, a reading of section 5 of article 11 of the CIMT leaves no doubt as to the consequent expiration resulting from the resale option inserted in the public deed of sale of the property to company B ("5 - The acquisition referred to in article 7 shall cease to benefit from exemption as soon as it is verified that the properties acquired for resale were given a different purpose or that the same were not resold within the period of three years or were resold again for resale.")

We cannot fail to note the Claimant's own admission when it notes that it did not realize that the acquiring party (company B – Real Estate Company, S.A.) also intended to benefit from the exemption provided for in article 7, the latter's intention to benefit from the exemption provided for in article 7 of the CIMT being clear.

As the AT emphasizes, company B is also a real estate company, which also has in its commercial purpose the purchase and sale of properties for resale, whereby it itself met the requirements to benefit from the exemption of article 7 of the CIMT. That is, upon acquiring the property in question for resale, company B was also obliged to comply with the requirements of resale within 3 years as a condition of exemption cf. section 5 of article 11 of the said Code.

Given this, we accept the AT's understanding as to the request for payment of IMT to the AT by company B. Such request would be made on 09-09 2010, that is, three years later, "for not having resold the property", whereby the payment of IMT made by Company B merely demonstrates that, upon acquiring the property in question for resale, company B was also obliged to comply with the requirements of resale within 3 years as a condition of exemption cf. section 5 of article 11 of the said Code.

In a different perspective, and it being certain that the Claimant sustains its oversight in the dozens of deeds carried out in the scope of its activity, in which the benefit of that exemption habitually appears – which would only serve to ensure greater care in the conduct of sales to companies of a similar nature – one cannot fail to understand the additional arguments put forward by the AT. On one hand, in the act of deed of purchase and sale, all parties involved state that they understood and accepted the terms of the deed that was read and explained to all those present, and on the other, the contracting parties could have resorted to the legal means available to rectify the said deed.

Having analyzed the obligations of the Claimant and the tax obligations of company B, we have that the company now Claimant, upon reselling a property that was again acquired for resale, actually fulfills the requirements for expiration of the IMT exemption in accordance with the terms of section 5 of article 11 of IMT, and therefore IMT was liquidated and due by the AT. For its part, company B, being equally a real estate company, which also has in its commercial purpose the purchase and sale of properties for resale, met the requirements to benefit from the exemption of article 7 of the CIMT. That is, upon acquiring the property in question for resale, company B was also obliged to comply with the requirements of resale within 3 years as a condition of exemption cf. section 5 of article 11 of the said Code.

With regard to the alleged lack of reasoning regarding compensatory interest, it is recalled that, in accordance with article 35, section 1 of the LGT, these are due "when, by a fact attributable to the tax subject, the liquidation of part or all of the tax due or the delivery of tax to be paid in advance, or withheld or to be withheld in the scope of tax substitution, is delayed" and the act of taxation must explain "with clarity the respective calculation" (cf. section 9 of the same article).

It is important to note that compensatory interest forms an integral part of the very tax debt itself, with which it is jointly liquidated, and are covered by the duty of reasoning, as to the reasons for their respective existence and the form of calculation (basis of assessment, applicable interest rate, counting period).

It is settled jurisprudence of the Supreme Administrative Court that liability for compensatory interest has the nature of civil reparation and, therefore, depends on the adequate causal nexus between the delay in liquidation and the conduct of the taxpayer, as well as on the possibility of formulating a judgment of censure of its conduct, on the basis of intent or negligence (cf. Decision of the Supreme Administrative Court, case no. 0587/10, of 16 December 2010).

In this sense, and by considering the liquidation of compensatory interest to be reasoned, the reasoning put forward by the AT on this matter is equally shared.

By the understanding exposed, there shall be no place for payment of indemnificatory interest.

Thus, the tax act in question shall be maintained.

IV. DECISION

In these terms, and with the grounds exposed, the Arbitral Tribunal decides to judge the request for arbitral ruling unproven, as regards the liquidation of IMT concerning the fraction designated by the letter "D" intended for housing, of the urban property registered in the matrix of the parish of …, municipality of Cascais under Article …, maintaining the questioned taxation.

The value of the case is fixed at € 31,157.26, in accordance with paragraph a) of section 1 of article 97-A of the CPPT, applicable by virtue of paragraphs a) and b) of section 1 of article 29 of the RJAT and section 2 of article 3 of the Regulation of Costs in Tax Arbitration Proceedings.

The payment of the arbitration fee, in accordance with Table I of the Regulation of Costs in Tax Arbitration Proceedings, falls to the Claimant, in accordance with articles 12, section 2, and 22, section 4, both of the RJAT, and article 4, section 4, of the said Regulation.

Lisbon, 11 March 2015

The Arbitrator,

Guilherme W. d'Oliveira Martins

Frequently Asked Questions

Automatically Created

What is the IMT tax exemption for properties acquired for resale under Article 7 of the Portuguese IMT Code (CIMT)?
The IMT exemption under Article 7 of the Portuguese IMT Code (CIMT) applies to properties acquired specifically for resale purposes. Companies engaged in real estate trading activities can benefit from this exemption when purchasing properties with the intention to resell them. The exemption is conditional: the property must be resold within three years of acquisition and cannot be given a different purpose during this period. However, Article 11(5) CIMT establishes that the exemption terminates if the property is resold again for resale, meaning the purchaser also claims the Article 7 exemption. This provision prevents successive exemptions on the same property transaction chain. If conditions are violated, the Tax Authority can retroactively assess IMT on the original acquisition, including compensatory interest from the date of the initial transaction.
How can a company challenge an IMT tax assessment through CAAD arbitration in Portugal?
Companies can challenge IMT tax assessments through the Administrative Arbitration Center (CAAD) by submitting a request for constitution of an arbitral tribunal under the Legal Regime for Arbitration in Tax Matters (RJAT - Decree-Law 10/2011). The process begins with filing a formal arbitration request identifying the contested tax act and stating legal grounds. CAAD's President accepts the request and notifies the Tax Authority (AT), which becomes the respondent. The Ethics Council appoints an arbitrator, and parties have the right to refuse the appointment. Once constituted, the tribunal holds a preliminary meeting to address procedural matters, objections, and scheduling. Parties may agree to dispense with oral arguments. The tribunal examines the legality of the tax assessment, considering both parties' arguments and applicable tax law provisions, before issuing a binding arbitral decision within established deadlines.
What are the requirements to qualify for the IMT resale exemption under Portuguese tax law?
To qualify for the IMT resale exemption under Article 7 of the Portuguese CIMT, companies must meet several requirements: (1) the acquiring entity must be engaged in the business activity of buying and selling real estate; (2) the property must be acquired specifically with the intention of resale, not for own use or rental; (3) this resale intention must be declared in the acquisition deed; (4) the property must actually be resold within three years from the acquisition date; (5) during this three-year period, the property cannot be given a different purpose than resale; and (6) critically, when reselling, the property cannot be sold to another party that also claims the Article 7 exemption for resale purposes, as Article 11(5) CIMT expressly prohibits "resale again for resale" transactions. Failure to meet any of these conditions results in loss of the exemption and retroactive IMT assessment with compensatory interest.
What was the outcome of CAAD arbitration process 475/2015-T regarding the IMT exemption for property resale?
The complete outcome of CAAD arbitration process 475/2015-T is not provided in the available excerpt, which concludes during the presentation of the Tax Authority's response arguments. The case involved Company A's challenge to an IMT assessment of €31,157.26 (€24,375.00 tax plus €6,782.26 compensatory interest) after the Tax Authority determined the company violated Article 11(5) CIMT by reselling a property to Company B, which also claimed the resale exemption. Company A argued this was an oversight and that Company B ultimately paid IMT, causing no prejudice to the state. The arbitral tribunal, constituted on September 11, 2014, with arbitrator Guilherme W. d'Oliveira Martins, scheduled the decision delivery for March 10, 2015. However, the final ruling, reasoning, and whether the tribunal found in favor of the claimant or upheld the Tax Authority's assessment is not included in the provided text excerpt.
What is the role of the Tax and Customs Authority (AT) in IMT exemption disputes before CAAD arbitral tribunals?
The Tax and Customs Authority (AT) serves as the respondent in IMT exemption disputes before CAAD arbitral tribunals, defending the legality of tax assessments and liquidations. In arbitration proceedings, the AT is automatically notified when a taxpayer files an arbitration request and must present its defense arguments. The AT's role includes justifying the legal basis for denying or revoking tax exemptions, presenting inspection reports and factual findings that support the assessment, interpreting and applying relevant IMT Code provisions, and responding to taxpayer claims of procedural or substantive illegality. In process 475/2015-T, the AT argued that Company A lost its Article 7 exemption because the property was "resold again for resale" to Company B in violation of Article 11(5) CIMT, and that taxpayers had legal remedies available to rectify the deed but failed to utilize them. The AT defends the state's fiscal interests while ensuring tax law compliance and preventing abusive use of exemptions.