Stamp Tax on Building Land Under Verba 28.1 TGIS: Real Estate Fund Challenges 2015 Liquidations at CAAD

ARBITRAL DECISION

The arbitrators Counsellor Jorge Manuel Lopes de Sousa (presiding arbitrator), Dr. José Nunes Barata and Dr. André Bacelar Gonçalves, appointed by the Deontological Council of the Center for Administrative Arbitration to form the Arbitral Tribunal, constituted on 04-11-2016, agree on the following:

1. Report

A… - Closed Real Estate Investment Fund, NIPC…, managed and represented by B…, S.A., with registered office in Lisbon, at …, nº… –…, …-… Lisbon, with the unique registration number and legal entity person …, hereinafter designated as "Claimant", came in accordance with the provisions of articles 2.º, n.º 1 letter a), and 13.º, n.º 1, of Decree-Law n.º 10/2011, of 20 January, legislation that approved the Legal Framework for Arbitration in Tax Matters ("RJAT"), to present a request for constitution of an arbitral tribunal for review of the legality of stamp tax (IS) assessments, relating to the tax year 2015, in the total amount of 111,387.04€, which concern three urban properties owned by the Fund, which are building land parcels located in the municipalities of Loulé, parish of … and also in Cascais, parish of union of parishes of … and …, namely: assessment notes n.º 2016…, in the amount of 50,807.67 € and 2016…, in the amount of 48,224.97 € (…) and assessment note n.º 2016…, in the amount of 12,354.40 € (… and …).

The PORTUGUESE TAX AND CUSTOMS AUTHORITY is named as Respondent.

The request for constitution of the arbitral tribunal was accepted by the President of CAAD and notified to the Portuguese Tax and Customs Authority on 05-09-2016.

In accordance with the provisions of letter a) of n.º 2 of article 6.º and letter b) of n.º 1 of article 11.º of the RJAT, the Deontological Council appointed as arbitrators the signatories hereof, who communicated acceptance of the assignment within the applicable period.

On 19-10-2016, the parties were notified of this appointment and expressed no intention to decline the appointment of the arbitrators, in accordance with the combined provisions of article 11.º n.º 1 letters a) and b) of the RJAT and articles 6.º and 7.º of the Deontological Code.

Thus, in conformity with the provision in letter c) of n.º 1 of article 11.º of the RJAT, the collective arbitral tribunal was constituted on 04-11-2016.

The Portuguese Tax and Customs Authority filed a response, raising exceptions of material incompetence of the Arbitral Tribunal and/or impropriety of the proceeding employed, arguing, in summary, that the Arbitral Tribunal cannot review the constitutional questions raised by the Claimant nor pronounce itself on the patrimonial value of the properties, which it contends the Claimant seeks to challenge. Furthermore, the Portuguese Tax and Customs Authority argues for the dismissal of the claims.

By order of 13-01-2016, the holding of a meeting was dispensed with and it was decided that the case should proceed by way of pleadings.

The Claimant presented pleadings and the Portuguese Tax and Customs Authority stated it did not wish to file pleadings.

The arbitral tribunal was duly constituted.

The parties possess legal personality and legal capacity (arts. 4.º and 10.º, n.º 2, of the same legislation and art. 1.º of Ordinance n.º 112-A/2011, of 22 March) and are properly represented.

The case contains no nullities.

It is necessary to review, as a priority, the questions of incompetence raised by the Portuguese Tax and Customs Authority.

2. Question of the Arbitral Tribunal's Incompetence to Review Constitutional Questions Raised or of the Impropriety of the Procedural Means Used

Article 204.º of the Constitution of the Portuguese Republic (CRP) establishes that "in cases submitted for judgment, courts cannot apply rules that violate what is provided in the Constitution or the principles enshrined therein".

In the same vein, article 2.º, n.º 2, of the 2015 Administrative and Fiscal Procedure Code (ETAF), applicable to tax arbitral proceedings by virtue of the provision in article 29.º, n.º 1, letter c), of the RJAT, establishes that "in cases submitted for judgment, courts of the administrative and fiscal jurisdiction cannot apply rules that violate what is provided in the Constitution or the principles enshrined therein".

From these norms it follows that all courts, including arbitral tribunals (provided for in article 209.º, n.º 2, of the CRP) are competent to review the unconstitutionality of the norms that must be applied in their decisions.

"As guardians of the constitution, courts are all equal and all have the same weight in judicial review of constitutionality. Precisely for this reason, within the scope of judicial activity, they have, by reason of their competence, the duty to examine whether the norms relevant to the decision of the question submitted to their consideration are or are not in conformity with constitutional norms and principles. In other words: the constitutional question or questions that arise in the decision of the case to be resolved by the courts must be known and answered by them." "A logical corollary of all these aspects of the duty to examine normative acts potentially applicable in cases submitted for judgment is the guarantee of a judicial decision in conformity with the constitution in the concrete case ('case'). This guarantee of a judicial decision can be obtained through various procedural schemes, but in Portuguese constitutional law, it presupposes that the trial judge examines and knows the question of unconstitutionality and decides the case in accordance with the judgment made by the judge on this question." ( [1] )

This concerns concrete review of unconstitutionality, provided for in article 280.º of the CRP, of an incidental nature, to take place in the proceeding in which the questions are raised and with effects limited to it, which differs from abstract review, to which the Portuguese Tax and Customs Authority refers, which is the exclusive competence of the Constitutional Court, through appropriate procedural means, in accordance with article 281.º of the CRP.

On the other hand, the circumstance that the principle of legality prevents the Tax Administration from reviewing the unconstitutionality of the norms it applies and obliges it to apply unconstitutional norms "unless the Constitutional Court has already declared the unconstitutionality thereof with binding general force (see art. 281.º of the CRP) or there is a violation of constitutional norms directly applicable and binding, such as those referring to rights, freedoms and guarantees (see art. 18.º, n.º 1, of the CRP)" ( [2] ), which is a corollary of the principle of separation of powers, does not imply that courts have an identical impediment to review the constitutionality of the norms that should be applied in their decisions, as it is the Constitution itself, in implementation of this same principle of separation of powers, that attributes to courts the power/duty to carry out such review of normative acts enacted by bodies with legislative power.

In the case at hand, as results from the literal content of the claims formulated, the questions of unconstitutionality and non-application of the norm of item 28.1 of the TGIS are raised with an incidental nature [claim formulated in letter a) of the prayer for relief], as a prerequisite of the claims for annulment of the contested tax acts [claim b)] and for reimbursement of the amounts collected plus interest [claim c)].

Therefore, this Arbitral Tribunal is not being asked to conduct abstract review of constitutionality, which aims at its declaration of illegality without connection to any Administrative or tax act and which is only permitted to the Constitutional Court in appropriate proceedings, but rather an incidental pronouncement, connected with specific tax acts, which all courts must make, even on its own motion, by virtue of article 204.º of the CRP, with respect to all norms they must apply and regarding whose constitutionality doubts are raised.

The violation of the Constitution by norms applied in a tax act constitutes illegality and this Arbitral Tribunal, which has competence to review all questions of legality of assessment acts, in accordance with article 2.º, n.º 1, letter a), of the RJAT, necessarily has competence to review the constitutional questions raised, with effects limited to the present proceeding.

In fact, the violation of the Constitution by an assessment act constitutes an illegality generating a defect that affects it ( [3] ) and, therefore, is susceptible to being reviewed in arbitral proceedings, like any other, as article 2.º, n.º 1, letter c), of the RJAT does not exclude from the competences of arbitral tribunals the declaration of such illegalities.

On the other hand, given that it is clear that the judicial review proceeding is an appropriate procedural means for review of illegalities arising from the application of unconstitutional norms ( [4] ) and being, in principle, the arbitral proceeding an alternative means to the judicial review proceeding (article 124.º, n.º 2, of Law n.º 3-B/2010, of 3 April), such review could also be carried out in arbitral proceedings when there is no special rule that restricts or excludes its competence.

These exceptions of incompetence and/or procedural impropriety are therefore groundless.

3. Question of Incompetence Due to the Review of Property Evaluation or the Determination of Property Nature

The Portuguese Tax and Customs Authority argues that this Arbitral Tribunal is materially incompetent because the Claimant seeks to "have the evaluation of the property in question reviewed in light of the assessment, which constitutes the taxable event that is subsumed in the stamp tax assessment in question."

The Portuguese Tax and Customs Authority contends that "the nature of a property (which is what the Claimant mediately or immediately seeks to question here) is not subject to discussion in arbitral proceedings; for this purpose there are specific procedures provided for in the tax-legal regulations; moreover, and as already mentioned, the nature of the property is fixed in documentary form in the proceedings" and that "the facts which the Claimant now seeks to question, without having done so in a timely manner and in appropriate proceedings, allowing all deadlines available to it to elapse, are established in the legal order."

However, the Claimant merely requests that the illegality of the assessments be declared, not of any acts evaluating the properties in question.

In fact, the Claimant does not seek to have the properties, instead of having the value recorded in the real estate registries, have any other value, nor does it request the correction of these.

Moreover, item 28.1 does not even use the concept of "building land with residential purpose" which the Portuguese Tax and Customs Authority refers to as appearing in the real estate records and considers to be non-reviewable, as it instead refers to "building land whose authorized or intended building shall be for residential purposes, in accordance with the provisions of the Real Estate Tax Code (CIMI)," which is an autonomous concept, specifically used in this norm of the TGIS.

That is, with regard to "building land with residential purpose" defined in the respective registry, to which the Portuguese Tax and Customs Authority refers, the present proceeding does not concern whether or not they should be evaluated as having such purpose, but rather to determine whether item 28.1 is intended to tax as Stamp Tax building land with the characteristics that can be demonstrated to be those referred to in the record.

On the other hand, it is clear that the Portuguese Tax and Customs Authority is mistaken in arguing that impugnations of acts that set patrimonial values cannot be reviewed in arbitral proceedings, as article 2.º, n.º 2, letter b), of the RJAT expressly provides for the competence of the arbitral tribunals that function in CAAD for "the declaration of illegality ... of acts fixing patrimonial values."

Therefore, if the Claimant sought to impugn acts evaluating the properties, which is not the case, the Arbitral Tribunal would be materially competent.

And furthermore, if the Claimant sought to impugn evaluation acts, the appropriateness of the judicial review proceeding would also be clear, as it is the proper means to impugn acts of fixing patrimonial values or corrections of registry entries, as results from the insertion of article 134.º of the Tax Procedure Code (CPPT) in its Chapter II of Title III, relating to the judicial review proceeding. That is, the scope of the judicial review proceeding is not defined only by letter a) of n.º 1 of article 97.º of the CPPT, invoked by the Portuguese Tax and Customs Authority, but encompasses (in addition to impugnation of various other acts), "the impugnation of acts fixing patrimonial values," referred to in letter f) of the same number.

Therefore, since the arbitral proceeding is an alternative means to the judicial review proceeding, with respect to the impugnation of the acts indicated in article 2.º, n.º 1, of the RJAT, with the exceptions provided in Ordinance n.º 112-A/2011, of 22 March, it is clear that there is no obstacle whatsoever to reviewing the legality of acts evaluating real property.

For the same reason that impugnation of an act fixing patrimonial values is not at issue, there was no need to have previously used any voluntary remedies provided for in the evaluation procedure, to which n.º 7 of article 134.º of the CPPT refers.

In any case, since the Claimant does not request that the illegality of any act fixing patrimonial values be declared nor the correction of registries, this exception of incompetence is groundless.

4. Matter of Fact

4.1. Proven Facts

The following facts are considered proven:

• The A… - CLOSED REAL ESTATE INVESTMENT FUND is engaged in the development of real property located in …, in the municipality of Loulé, and in Cascais;

• The A… was the owner as of 31-12-2015 of the following urban properties – building land:

  • article …, with current patrimonial tax value of 5,080,766.67 €, located in the parish of …, municipality of Loulé;

  • article …, with current patrimonial tax value of 4,822,497.13 €, located in the parish of …, municipality of Loulé;

  • article …, with current patrimonial tax value of 1,235,440.00 € (formerly art.º … parish of…) located in the Union of parishes of … and … (formerly parish of…) (Documents n.ºs 4, 5 and 6, attached to the request for arbitral pronouncement, whose contents are given as reproduced;

• The urban properties of …- building land -, were not constructed or under construction as of 31-12-2015, nor do they result from any prior subdivision of parcels;

• The Municipal Chamber of … did not issue until 31-12-2015 any final dispatch or deliberation of the request for subdivision of the urban properties of … pending before it under n.º …/… /2004;

• The urban property of …- building land - was not constructed or under construction on the date 31-12-2015, nor does it result from any prior subdivision of parcels;

• The Municipal Chamber of … did not issue until 31-12-2015 any final dispatch or deliberation of any request for urban development operation (prior information, licensing, prior notice) and with greater reason, any authorization for subdivision or construction, relating to the urban property of … now in question, from which permission for any urban development operation would result;

• The A… was notified of the assessments of Stamp Tax (IS) relating to the tax year 2015, for the properties in question, which appear in assessment notes n.º 2016…, in the amount of 50,807.67 € and 2016…, in the amount of 48,224.97 € (…) and assessment note n.º 2016…, in the amount of 12,354.40 € (u. … and …), in a total of 111,387.04€ (documents n.ºs 1 to 3 attached to the request for arbitral pronouncement, whose contents are given as reproduced);

• In all assessments, the deadline for voluntary payment is indicated as April 2016;

• In April 2016, the Claimant paid the first installments of the assessments mentioned (documents n.ºs 7 to 9 attached to the request for arbitral pronouncement, whose contents are given as reproduced);

• The A… was notified to pay the second and third installments of the assessments mentioned, with deadlines for payment indicated in the notifications as July 2016 for the second installments and November 2016 for the third installments (document n.º 10 attached to the request for arbitral pronouncement and documents submitted on 03-01-2017, whose contents are given as reproduced);

• In July 2016, the A… paid the second installments of the assessments mentioned (documents submitted on 04-01-2017);

• In October 2016, the A… paid the third installments of the assessments mentioned (documents submitted on 03-01-2017);

• The information system of the Portuguese Tax and Customs Authority contains the evaluation forms attached to its Response, whose contents are given as reproduced, in which it is stated, among other things, regarding the "BUILDING LAND ELEMENTS" the following:

  Property with matrix article …

  Property with matrix article n.º …

  Property with matrix article n.º …

• In the real estate records of the three properties mentioned, whose copies were attached to the Response of the Portuguese Tax and Customs Authority and whose contents are given as reproduced, it is indicated, among other things, "Type of location coefficient: Residential";

• In the Real Estate Tax (IMI) Declaration Model 1 presented for registration of the property with matrix article n.º…, which was attached to the Response of the Portuguese Tax and Customs Authority and whose content is given as reproduced, the following is stated in the "Attached Documents":

• In the Real Estate Tax (IMI) Declaration Model 1 presented for registration of the property with matrix article n.º…, which was attached to the Response of the Portuguese Tax and Customs Authority and whose content is given as reproduced, the following is stated in the "Attached Documents":

• In the Real Estate Tax (IMI) Declaration Model 1 presented for registration of the property with matrix article n.º…, which was attached to the Response of the Portuguese Tax and Customs Authority and whose content is given as reproduced, the following is stated in the "Attached Documents":

• On 08-03-2016, the Claimant presented the request for arbitral pronouncement that gave rise to the present proceeding.

4.2. Reasoning for the Decision on the Matter of Fact

The facts were given as proven on the basis of documents attached to the request for arbitral pronouncement, the Response, and subsequent requests presented by the Claimant.

The Portuguese Tax and Customs Authority did not attach the administrative case file to the record.

4.3. Unproven Facts

It was not established that there exists, with respect to properties with matrix articles n.ºs … and … any act or document defining the characteristics of buildings that could be constructed on the land, namely their intended use.

5. Matter of Law

5.1. Defect of Error Regarding Factual and Legal Presuppositions

The first defect that the Claimant attributes to the contested assessments is that of being affected by an error regarding factual and legal presuppositions.

The Stamp Tax assessments contested are relating to the year 2015 and are based on item 28.1 of the TGIS.

Item 28.1 of the TGIS, in the wording given by Law n.º 83-C/2013, of 31 December, in force in the year 2015, establishes the following:

28 - Ownership, usufruct or right of superficies of urban properties whose patrimonial tax value contained in the registry, in accordance with the Real Estate Tax Code (CIMI), equals or exceeds € 1,000,000 - on the patrimonial tax value used for the purpose of Real Estate Tax:

28.1 – For a residential building or for building land whose authorized or intended building shall be for residential purposes, in accordance with the provisions of the Real Estate Tax Code - 1%

As is clear from the text of these norms in force in 2015, there is error on the part of the Portuguese Tax and Customs Authority in seeking to define the scope of this item 28 of the TGIS through the use of the concept of "properties with residential purpose," which was used in item 28 of the TGIS in the original wording, introduced by Law n.º 55-A/2012, of 29 October, but has no correspondence in the texts currently in force.

On the other hand, as regards building land, which is what matters in the case at hand, the scope is currently defined through the concept of "building land whose authorized or intended building shall be for residential purposes, in accordance with the provisions of the Real Estate Tax Code," which has no textual correspondence with that concept of "purpose" (nor is it conceivable that it could have materially, as land, by itself, is not, by nature, dedicated to residential purposes; only a hypothetical property built thereon could be).

In fact, as the Claimant correctly argues, the CIMI, to which the final part of that item 28.1 of the TGIS refers, addresses the evaluation of building land by reference to a future building aptitude, never using the expression "purpose," valuing land according to a future and hypothetical destination, computing the area of the building footprint and the area of the land free of any building that could be possible, using for that calculation the elements referred to in article 37.º of the CIMI (which are subdivision authorization and, if no subdivision exists, building authorization, approved project, prior notice, favorable prior information or documentary evidence of constructive viability) and, in the case of the latter document, when it only makes reference to the indices of the Municipal Master Plan, evaluation experts must, on a substantiated basis, estimate the respective building area, taking into account, in particular, the average building areas of the surrounding zone.

Therefore, there is no support in current legislation for seeking to define the scope of that item 28.1, as regards building land, through an imaginary correspondence of references to "purpose" used in the TGIS and in the CIMI.

Moreover, although the Portuguese Tax and Customs Authority states that "the property owners as of the date requested the evaluations declaring the properties in question as building land with residential purpose (see Doc. 2 to Doc. 7)," the fact is that it did not present any of those hypothetical requests, and, of the nine documents it attached to its Response, only the three Real Estate Tax Declaration Model 1 forms would have been issued by the property owners and none of them makes any reference to residential purpose of the land.

Furthermore, as is clear from the "Attached Documents" that are referred to in each of those Declaration Model 1 forms, only the one relating to the property with matrix article 13009 makes reference to having presented a "Project or Constructive Viability," but also without indication of the intended use of the planned construction.

The references that in item 28.1 and in article 45.º, n.º 2, of the CIMI are made to buildings intended to be built, in addition to those authorized, allow the conclusion that it will not be necessary that there already exists an administrative act of approval of a construction project (which would constitute "authorization"), being sufficient that a building with determined characteristics is intended, at least as regards the area of the building footprint to be constructed and its intended use.

There is no indication in these norms of the TGIS and of the CIMI as to what should be understood by "intended building," but in article 37.º, n.º 3, of the latter it is stated that "regarding building land, there must be presented a photocopy of the subdivision authorization, which must be replaced, if there is no subdivision, by a photocopy of the building authorization, approved project, prior notice, favorable prior information or documentary evidence of constructive viability."

Taking into account the documents required for the evaluation of building land to be carried out, indicated in article 37.º, n.º 3, of the CIMI, to which article 45.º, n.º 5, refers, it is concluded that one can only speak of authorized or intended building when the "building to be constructed," referred to in n.º 1 of article 45.º, is defined in a subdivision authorization or building authorization, or approved project, or prior notice, or favorable prior information or documentary evidence of constructive viability. In fact, it will only be in these situations that there will be legal consistency in predicting the future realization of building with determined characteristics, as even in the situation provided for in the final part of n.º 3 of article 45.º, in which attention is paid to "average building areas of the surrounding zone," the evaluation does not inherently contain any judgment regarding the predictability of the specific construction that will be possible to build.

In the case at hand, faced with the Claimant's assertion that "none of the properties on which the contested assessments were levied have in force any 'license or authorization, admitted prior notice or issued favorable prior information of subdivision or construction operation,' nor was it expressly declared in the title of acquisition that they would be destined for residential purposes," such that it will not be possible to affirm that the "(...) authorized or intended building shall be for residential purposes," the Portuguese Tax and Customs Authority did not present any document of one of the types referred to in which its conclusion that the properties had authorized or intended building for residential purposes had been based.

Since the possibility of building residential units invoked by the Portuguese Tax and Customs Authority as the basis of the assessment acts is the fact on which falls the burden of proof of that fact, as follows from article 74.º, n.º 1, of the General Tax Law (LGT), which establishes that "the burden of proof of facts constituting the rights of the tax administration or of taxpayers falls on whoever invokes them."

Thus, the doubt regarding the existence or non-existence of the possibility of constructing residential buildings on the land in question must be valued procedurally in favor of the Claimant, leading to the annulment of the acts performed, as is required by n.º 1 of article 100.º of the CPPT, subsidiarily applicable by virtue of the provision in article 29.º, n.º 1, letter c), of the RJAT.

By the foregoing, the request for arbitral pronouncement is granted as to this first defect attributed by the Claimant to the contested assessments, due to error regarding factual and legal presuppositions, which justifies their annulment [article 163.º, n.º 1, of the Administrative Procedure Code, subsidiarily applicable in accordance with article 2.º, letter c), of the LGT].

5.2. Questions of Prejudiced Knowledge

Since the contested assessments are to be annulled on the basis of the first defect attributed to them by the Claimant, the review of the remaining defects raised is prejudiced, being useless (article 130.º of the Code of Civil Procedure).

6. Claim for Indemnatory Interest

The Claimant paid all installments of the amounts assessed and claims indemnatory interest.

In accordance with the provision in letter b) of art. 24.º of the RJAT, the arbitral decision on the merits of the claim insofar as it is not subject to appeal or impugnation binds the Tax Administration from the end of the period provided for appeal or impugnation, and the latter must, in the exact terms of the substantiation of the arbitral decision in favor of the taxpayer and until the end of the period provided for the voluntary execution of decisions of tax courts, "restore the situation that would have existed if the tax act that is the subject matter of the arbitral decision had not been performed, adopting the necessary acts and operations to that effect," which is in harmony with what is provided for in art. 100.º of the LGT [applicable by virtue of the provision in letter a) of n.º 1 of art. 29.º of the RJAT] which establishes that "the tax administration is obliged, in case of total or partial substantiation of complaint, judicial impugnation or appeal in favor of the taxpayer, to immediate and full restoration of the legality of the act or situation that is the subject matter of the dispute, comprising the payment of indemnatory interest, if applicable, from the end of the period for execution of the decision."

Although art. 2.º, n.º 1, letters a) and b), of the RJAT uses the expression "declaration of illegality" to define the competence of the arbitral tribunals that function in CAAD, making no reference to condemnatory decisions, it should be understood that the competences granted in judicial review proceedings to tax courts are comprised therein, being this the interpretation that harmonizes with the meaning of the legislative authorization on which the Government based itself to approve the RJAT, in which is proclaimed, as the first guideline, that "the tax arbitral proceeding must constitute an alternative procedural means to the judicial review proceeding and to the action for recognition of a right or legitimate interest in tax matters."

The judicial review proceeding, although essentially a proceeding for annulment of tax acts, admits condemnation of the Tax Administration to the payment of indemnatory interest, as is apparent from art. 43.º, n.º 1, of the LGT, in which it is established that "indemnatory interest is due when it is determined, in a gracious complaint or judicial impugnation, that there was error imputable to the services from which results payment of the tax debt in an amount exceeding that legally due" and from art. 61.º, n.º 4 of the CPPT (in the wording given by Law n.º 55-A/2010, of 31 December, to which corresponds n.º 2 in the original wording), that "if the decision that recognized the right to indemnatory interest is a judicial decision, the payment period is counted from the beginning of the period for its voluntary execution."

Thus, n.º 5 of art. 24.º of the RJAT, in stating that "payment of interest is due, regardless of its nature, in the terms provided for in the general tax law and in the Tax Procedure and Process Code," should be understood as permitting recognition of the right to indemnatory interest in the arbitral proceeding.

In the case at hand, it is clear that, as a result of the illegality of the assessment acts, payment of indemnatory interest is warranted, as the assessments and the errors affecting them are imputable to the Tax Administration, which, on its own initiative, performed them without legal support.

Consequently, the Claimant is entitled to indemnatory interest, in accordance with articles 24.º, n.º 5, of the RJAT, 43.º, n.º 1, of the LGT and 61.º of the CPPT, to be determined by the Portuguese Tax and Customs Authority in execution of the present judgment.

The indemnatory interest is owed at the legal supplementary rate counted, for each payment made, on the basis of its amount and the period that elapses between the date each payment was made and the reimbursement of the amount paid, in accordance with articles 43.º, n.ºs 1 and 4, and 35.º, n.º 10, of the LGT, 61.º, n.ºs 2, 3, 4 and 5, of the CPPT, and article 559.º of the Civil Code and Ordinance n.º 291/2003, of 8 April.

7. Decision

In these terms, the Arbitral Tribunal agrees on:

• To grant the request for arbitral pronouncement;

• To declare the illegality of the Stamp Tax assessments n.ºs 2016 …, 2016 … and 2016 …, in the total amount of 111,387.04 €;

• To annul the said Stamp Tax assessments;

• To grant the claim for payment of indemnatory interest and to condemn the Portuguese Tax and Customs Authority to pay it to the Claimant calculated on each of the amounts paid and from the date each payment was made until its reimbursement.

8. Value of the Case

In accordance with the provision in article 306.º, n.º 2, of the Code of Civil Procedure, 97.º-A, n.º 1, letter a), of the Tax Procedure Code and 3.º, n.º 2, of the Regulation of Costs in Tax Arbitration Proceedings, the value of the case is fixed at € 111,387.04.

9. Costs

In accordance with articles 12.º, n.º 2, and 22.º, n.º 4, of the RJAT, the amount of costs is fixed at € 3,060.00, in accordance with Table I attached to the Regulation of Costs in Tax Arbitration Proceedings, to be borne by the Portuguese Tax and Customs Authority.

Lisbon, 24-01-2017

The Arbitrators

(Jorge Manuel Lopes de Sousa)

(José Nunes Barata)

(André Bacelar Gonçalves)

[1] J.J. GOMES CANOTILHO and VITAL MOREIRA, Constitution of the Portuguese Republic Annotated, 4th edition, Volume II, page 519.

[2] As has been uniformly understood by the Supreme Administrative Court, as can be seen, among others, from the judgment of 04-03-2015, case n.º 01529/14.

[3] The defect will be voidability or nullity (in this case when it affects the essential core of a fundamental right) as has been uniformly understood by the Supreme Administrative Court: judgments of 04-03-1998, case n.º 019305, BMJ n.º 475, 380; of 8-7-1998, case n.º 022201; of 30-6-1999, case n.º 022251; of 02-05-2001, case n.º 25696, AD n.º 484, 492; of 10-4-2002, case n.º 026390, AP-DR of 08-03-2004, 988; of 11-10-2006, case n.º 0676/06.

[4] As has always been understood by the Supreme Administrative Court and is evident in all the cases cited in the preceding note.