IMI Exemption Under Articles 44 and 46 EBF: CAAD Arbitration on Property Tax

ARBITRAL DECISION

REPORT

1. On 10 July 2014, A, taxpayer no. …, hereinafter referred to as the Claimant, resident in Portugal, requested the constitution of an arbitral tribunal and submitted a request for arbitral pronouncement, in accordance with paragraph a) of no. 1 of article 2 and paragraph a) of no. 1 of article 10 of Decree-Law no. 10/2011, of 20 January (Legal Regime of Arbitration in Tax Matters, hereinafter referred to only as RJAT), in which the Tax and Customs Authority (hereinafter referred to as AT) is the Respondent.

2. The Claimant is represented by herself, and the Respondent is represented by the legal advisers, Dr. … and Dr. ….

3. The request for constitution of the Arbitral Tribunal was accepted by the Honourable President of CAAD on 14 July 2014, and was notified to the Respondent on 15 July 2014.

4. By means of the request for constitution of the Arbitral Tribunal and for arbitral pronouncement, the Claimant seeks the annulment of the following acts of assessment of Municipal Tax on Real Property (Imposto Municipal sobre Imóveis) relating to the years 2008, 2009, 2010 and 2011, in the total amount of € 5,552.90, affecting the properties registered under the cadastral articles … (former article …), fractions designated by the letters "CD", "Q" and "R" of the parish of … (… (extinct)), municipality and district of Lisbon, which are indicated as follows:

1. Upon verification of the formal regularity of the request submitted, in accordance with the provision of paragraph a) of no. 2 of article 6 of the RJAT and given that the Claimant did not proceed to appoint an arbitrator, the Arbitrator Dr. Jorge Carita was appointed by the President of the Deontological Council of CAAD.

2. The Arbitrator accepted the appointment made, and the Arbitral Tribunal was constituted on 18 September 2014, at the headquarters of CAAD, located at …, no. …, in Lisbon, as set out in the minutes of constitution of the arbitral tribunal which were drawn up and are attached to the present proceedings.

3. The Respondent was notified, by order of 18 September 2014, in accordance with the provision of article 17 of the RJAT, and submitted its Response, arguing for the dismissal of the claim filed by the Claimant, and consequently, for the acquittal of the Respondent as to the claim brought against it.

4. The first meeting of the arbitral tribunal did not take place as it was dispensed with, with the express agreement of the Respondent, in a request of 12 November 2014, and tacit agreement of the Claimant.

5. In view of the position manifested by the parties, expressed and tacitly, the Tribunal understood that it would be appropriate to dispense with the filing of arguments, for reasons of procedural economy and expedition, although both parties proceeded to file their arguments. The Claimant on 19 November 2014, and the Respondent on 28 November 2014.

6. On 4 February, the parties were notified, by order of the arbitral tribunal, to pronounce themselves on the joinder, in accordance with the provision of no. 3 and 5 of article 111 of the Code of Tax Procedure and Process (CPPT), of the hierarchical appeals filed by the claimant which were pending consideration, following the decision to reject the administrative complaints duly filed by the same regarding the IMI assessments for the years 2008, 2009, 2010 and 2011, the parties having said nothing on this matter.

7. The Tribunal, in compliance with the provision of no. 2 of article 18 of the RJAT, set 5 May 2015, for the purpose of delivering the arbitral decision, and warned the Claimant that it should proceed to the payment of the subsequent arbitration fee, in accordance with no. 3 of article 4 of the Regulation of Costs in Tax Arbitration Proceedings, and communicate such payment to CAAD.

I. The Claimant supports its claim, in summary, as follows:

The Claimant supports the request for annulment of the acts of assessment of Municipal Tax on Real Property (IMI) to which it was subject, relating to the years 2008, 2009, 2010 and 2011, with regard to the autonomous fractions of which it is the owner, designated by the letters "CD", "Q" and "R" registered under the cadastral article …, located at …, …, corresponding to a residence (…) and two parking spaces, as unlawful, on the basis that:

a) the property on which the act of assessment of IMI relating to 2008, 2009, 2010 and 2011 here challenged is based was acquired, on 27.11.2002, by the Claimant, and is intended for its own permanent residence;

b) the property in question is classified in accordance with Ordinance no. 512/98 of 10 August and Decree no. 5/2002 of 19 February, and as such the exemption from IMI was requested in accordance with the legislation in force, having been granted on 29.10.2004, for the period of "7998" years, namely from 2002 to "9999" inclusive (as appears, manifestly by lapsus calami, in the notification sent by the AT to the claimant);

c) The Claimant, notified on 09.09.2011 to submit new documentation necessary for the maintenance of the benefit of IMI exemption, acted accordingly, and the competent Tax Office processed the assessment of IMI for the years 2008, 2009, 2010 and 2011 as if benefiting from the exemption;

d) Subsequently, in 2013, the Claimant was notified of the termination of the benefit of IMI exemption, and of the assessment of this tax with reference to the years 2008, 2009, 2010 and 2011. These taxes were assessed by the Claimant within the prescribed periods;

e) The Claimant considers that the Respondent had, in accordance with the provision of paragraph c) of article 88 of the IMI Code, as amended by Law 53-A/2006 of 29 December, a period of 180 days to notify the taxpayer of the termination of the tax benefit, which occurred only almost 5 years after that period had ended;

f) It filed an administrative complaint, response to prior hearing and hierarchical appeal of the decision to cancel the benefit, as well as regarding the determination of the tax value of the property;

g) It also filed an administrative complaint, response to prior hearing and hierarchical appeal against all IMI assessments;

h) It has not obtained, to date, any response to the hierarchical appeals, whereas in accordance with article 66 of the CPPT, hierarchical appeals shall be decided within 60 days, and these were filed on 15.01.2013, 05.06.2013 and 11.06.2013, respectively;

i) The assessments for the years 2012 and 2013 were paid without objection;

j) In view of the foregoing, the claimant requests the repayment of the IMI paid, on the basis that it considers the assessments to be unlawful, and consequently they should be annulled.

II. In its Response the Respondent invoked, in summary, the following:

For its part, the AT comes, in its response, to defend itself, by exception and by challenge:

a) By exception, it alleges the alleged untimeliness of the claim, on the basis that if we take into account the end of the period for voluntary payment of the IMI assessments for the years 2008, 2009 and 2010, the period of 90 days provided for in paragraph a) of no. 1 of article 2 of the RJAT has long been exhausted. If we take into account the administrative complaints filed by the Claimant regarding the IMI assessments for the years 2008, 2009, 2010 and 2011, "By comparing the administrative proceedings with the claimant's documents we can only trace the course of the administrative complaint no. … relating to the IMI assessment for 2008 – rejected on 26.04.2013, and we know that the hierarchical appeal filed has not yet received a response."

b) By challenge, the Respondent understands that, on the one hand, the revocation of the IMI exemption communicated to the Claimant and of which it had been a beneficiary since 2002, granted on the basis of the then article 40, no. 1 paragraph n) of the Tax Benefits Statute (EBF), was based on the legislative amendment made through Law no. 53-A/2006 of 29/12, in particular its article 84, which gave new wording to paragraph n) of article 44 of the EBF.

c) The respondent argues that, to comply with the law in force, the Tax Office Lisbon … notified the claimant of the legislative amendment, notified it that, "in the context of official review, an order was issued terminating the exemption granted under article 44 of the EBF, which would be withdrawn from the entry into force of Law no. 53-A/2006 of 29/12, that is 01.01.2007, to properties that did not meet the requirements described, that is individual classification, certified by IGESPAR (former IPPAR) or by CML.", and notified it, in accordance with article 60 of the LGT, in the context of prior hearing, to, within a period of 15 days, submit one of the following documents: certificate of individual classification of the property as a Property of Public Interest issued by IGESPAR, declaration of classification as a Property of Public Interest issued by the Lisbon Municipal Chamber, or declaration of classification as a Property of Municipal Interest issued by the Lisbon Municipal Chamber.

d) Having the claimant submitted, in the context of prior hearing, a certificate from the Regional Department of Culture of Lisbon and Vale do Tejo certifying that the property in question is not classified, only is covered by an administrative easement of cultural heritage, in accordance with Ordinance no. 512/98 of 8 October, the AT considered that there was no individual classification of the property in question, and therefore decided, the Tax Office Lisbon …, the termination of the exemption from 2008, based on the aforementioned article 88 of Law no. 53-A/2006 of 29 December.

e) Now, considering that the property identified did not meet the requirements certified by the competent entity, the Respondent understood that the termination of the benefit implied the taxation of the property from 2008, inclusive, in accordance with the provisions of articles 113, no. 5 and 120, nos. 3 and 4 of the IMI Code, information which it communicated to the Claimant, as well as the possibility of, within a period of 90 days from the date of notification, requesting the exemption referred to in article 46 of the EBF, exemption for own permanent residence, if it met the requirements for doing so.

f) The Respondent further argues that the fact that the AT did not, in accordance with paragraph c) of article 88 of Law no. 53-A/2006 of 29 December, notify, within 180 days of the entry into force of the law, the contributor, now Claimant, who was benefiting from the exemption referred to in paragraph n) of no. 1 of article 40 of the Tax Benefits Statute, of the termination of this benefit by alteration of its requirements, "did not prejudice her, on the contrary, determined the forfeiture of the assessment for the year 2007!"

g) The Respondent further states that: "the revocatory act of the Head of the Tax Office is a bound act, which results directly from the law, it is not a discretionary act! Indeed, one can assert that paragraph c) of article 88 of Law no. 53-A/2006 operates ipso facto and ope legis, and that the revocation of the administrative act arising therefrom was produced with effects ex nunc from 2008".

h) Concluding, to the effect that "the assessments made and now challenged should therefore, being legal, be maintained in the legal order."

III. Regularization of the Proceedings

The Tribunal is competent and is regularly constituted, in accordance with paragraph a) of no. 1 of article 2 and articles 5 and 6, all of the RJAT.

The parties have legal personality and capacity, show themselves to be legitimate and are regularly represented.

However, having the Respondent raised the exception of untimeliness of the claim, on the basis that "if we take into account the end of the period for voluntary payment of the IMI assessments for the years 2008, 2009 and 2010, the period of 90 days provided for in paragraph a) of no. 1 of article 2 of the RJAT has long been exhausted. If we take into account the administrative complaints filed by the Claimant regarding the IMI assessments for the years 2008, 2009, 2010 and 2011, "By comparing the administrative proceedings with the claimant's documents we can only trace the course of the administrative complaint no. … relating to the IMI assessment for 2008 – rejected on 26.04.2013, and we know that the hierarchical appeal filed has not yet received a response.", and since the possible success of this exception may prevent the Tribunal from considering the merits of the claim and may lead to the acquittal of the Respondent, it will be considered as a preliminary matter.

Let us see:

A. On the (In)timeliness of the Claim

I. Introduction

The claimant filed the request for constitution of the arbitral tribunal on 10.07.2014, seeking thereby the annulment of the acts of assessment of Municipal Tax on Real Property, relating to the years 2008, 2009, 2010 and 2011, in the total amount of € 5,552.90, affecting the properties registered under the cadastral articles … (former article …), fractions designated by the letters "CD", "Q" and "R" of the parish of … (… (extinct)). Indeed, the present claim arises at a time when the respective administrative proceedings are in the following phases:

i) IMI for the year 2008, hierarchical appeal under consideration;

ii) IMI for the year 2009, hierarchical appeal under consideration;

iii) IMI for the year 2010, administrative complaint awaiting finality;

iv) IMI for the year 2011, administrative complaint awaiting finality.

It should be noted that, subsequently, already in the course of the present proceedings, the Claimant:

i) filed hierarchical appeal relating to IMI for 2010;

ii) filed hierarchical appeal relating to IMI for 2011.

Reason for which there are, at this moment, four hierarchical appeals under consideration (2008 to 2011).

II. Matters of Fact Deemed Proven

Having examined the documentary evidence produced, the following facts are deemed proven and of interest for the decision of the preliminary matter:

a) On 10.10.2014, the Tax Office of Lisbon… informed that:

"• The administrative complaint no. … is attached to the hierarchical appeal process no. … under consideration by the DSMI;

• The administrative complaint no. … is attached to the hierarchical appeal process no. … under consideration by the DSMI;

• The administrative complaints no. … and no. … are awaiting finality." (Official Letter no. …, of 2014.10.08 from the Tax Office of Lisbon…, on the files of the administrative proceedings);

b) On 17.10.2014, the Claimant filed Hierarchical Appeal of the decision rejecting the administrative complaint no. …, relating to IMI/2011 (cf. on the files of the administrative proceedings);

c) On 17.10.2014, the Claimant filed Hierarchical Appeal of the decision rejecting the administrative complaint no. …, relating to IMI/2010 (cf. on the files of the administrative proceedings).

III. Assessment

Considering that, at the date of filing of the request for constitution of the arbitral tribunal, the Claimant had not been notified of the decision on the hierarchical appeals filed, the same being "under consideration by the DSIMI", as mentioned by the Respondent, in view of the provision of paragraph a) of no. 1 of article 10 of the RJAT that: "the request for constitution of an arbitral tribunal is filed within a period of 90 days, counted from the facts provided for in nos. 1 and 2 of article 102 of the Code of Tax Procedure and Process, as to acts susceptible of autonomous challenge and, likewise, from the notification of the decision or the end of the legal period for decision of the hierarchical appeal;" we believe that it is timely, and therefore the exception of untimeliness raised by the Respondent is deemed unfounded.

In this sequence:

B. On the Joinder of Hierarchical Appeals Pending Decision upon Filing of the Present Request for Arbitral Constitution

Taking advantage of the matters of fact deemed proven above indicated, the Arbitral Tribunal determined the joinder of the hierarchical appeals pending decision with the DSIMI, to the present request for arbitral constitution, in that,

As already mentioned, the claimant filed the request for constitution of the present arbitral tribunal on 10.07.2014. In this request, the Claimant makes reference that it filed "duly substantiated administrative complaint, prior hearing response and hierarchical appeal of the IMI assessments for 2008, 2009, 2010 and 2011." (article 9 of the initial petition), adding, furthermore, that "I have not received any response to the appeals filed." (article 10 of the initial petition).

Indeed, having in mind that the hierarchical appeals filed against the IMI assessments for the years 2008, 2009, 2010 and 2011 are pending consideration with the Department of IMI Services (DSIMI), and that, in the meantime, the claimant filed the present request for constitution of an arbitral tribunal for consideration of the legality of those assessments, those appeals should be joined to the present request, in view of the provision of nos. 3 and 5 of article 111 of the CPPT, according to which: "3 - Should an administrative complaint regarding the same act have been filed prior to the reception of the petition for challenge, it must be joined to the challenge, in the state in which it is found, being considered, for all purposes, in the course of the challenge proceedings." The provision further stating, in no. 5 of this legal rule that: "The provisions of nos. 3 and 4 are equally applicable, with the necessary adaptations in the case of hierarchical appeal filed from the decision on administrative complaint under the provisions of article 76."

Accordingly, the present arbitral tribunal determined to proceed to the joinder of the hierarchical appeals filed by the Claimant, which are under consideration at the DSIMI, in the state in which they are, with the decision on these appeals to be delivered by this Tribunal, which will be done hereinafter.

IV. Matters of Fact

Of interest for the decision, the following facts are deemed proven:

A. The Claimant is the owner of the urban properties registered in the respective property register of the parish of …, municipality of Lisbon, namely the autonomous fractions identified by the letters "Q", "CD" and "R" of the article …, which correspond to a residential building, a storage room and a parking space. (by agreement and documentary evidence);

B. The Claimant acquired the above-identified properties, on 27.11.2002, intended for her own permanent residence (by agreement and documentary evidence);

C. The above-identified property, in 2002, was classified as a property of public interest (by agreement and documentary evidence);

D. The claimant submitted, on 23.02.2003, a request for tax exemption with IPPAR, regarding fractions "CD", "Q" and "R", corresponding to the 2nd A, storage room and parking space of the property located at …, … to … and …, no. …, parish of …, municipality of Lisbon (cf. document attached with initial petition);

E. The request for tax exemption of Municipal Tax (CA) filed by the Claimant was granted, by order of the Head of the Tax Office of Lisbon-…, of 2004.10.29, "having been granted exemption for the period of 7998 years, which runs from 2002 to 9999, inclusive." (cf. Official Letter no. … from the Tax Office of Lisbon-… which is attached with the initial petition, this being a manifest lapsus calami);

F. On 29.12.2008, the Claimant requested the exemption from IMI for the property registered under article …, fraction "CD", for the purposes of the tax benefit provided for in no. 1 of article 42 of the Tax Benefits Statute. (Cf. document attached with the initial petition);

G. On 09.09.2011 the Claimant was notified, by the Tax Office of Lisbon -…- that: "Law no. 53-A/2006, of 29/12 amended article 40 (current 44) no. 1, paragraph n) of the EBF, with the aim that only properties individually classified as of public interest or municipal interest could benefit from IMI exemption. In the context of official review and in compliance with paragraph c) of article 88 of the Law referred to above, exemptions granted under article 44 of the EBF will be withdrawn from the year 2007, date of entry into force of the same law, to properties that do not meet the requirements described and certified by IGESPAR (former IPPAR) or Municipal Chamber.", and to exercise, if it wishes, the right of prior hearing which it has under the provision of article 60 of the LGT, "to, within a period of 15 days present one of the documents indicated below, issued by the competent entities:

• Certificate of individual classification of the property as a Property of Public Interest, issued by IGESPAR;

• Declaration of individual classification as a Property of Municipal Interest, issued by the Lisbon Municipal Chamber;

• Declaration of classification as a National Monument issued by IGESPAR." (cf. Official Letter no. … of 31.08.2011, from the Tax Office of Lisbon … attached with the initial petition).

H. The Claimant, on 13.09.2011 submitted a request for certification of classification relating to the property registered under article …, fractions "CD", "Q" and "R", for purposes of tax benefits, with the Office of the Prime Minister of the Regional Department of Culture of Lisbon and Vale do Tejo (cf. document attached with the initial petition);

I. From that request, resulted certification by the Regional Department of Culture of Lisbon and Vale do Tejo that "the property identified in B and B1 (fractions "CD", "Q" and "R" of the property registered under article … of the parish of …) is covered by an administrative easement of cultural heritage, in accordance with Decree/Ordinance no. 512/98 of 1998.08.10," and such certification has the effect of "authorizing the onerous transfer of the right of ownership because, having weighed the essential circumstances of the transaction in question, IGESPAR does not intend to exercise the right of first refusal in this transaction." (cf. document attached with the initial petition);

J. On 13.09.2011, the Claimant filed a request for a certificate, with the Lisbon Municipal Chamber, to the effect that the property, located at …, …, be considered of municipal interest (cf. document attached with the initial petition);

K. On 20.09.2011, the claimant presented, with the Tax Office of Lisbon-…-, a request exercising the right of prior hearing, by means of which it attached, for this purpose, the proof of the request for certificate that it filed with IGESPAR and the Lisbon Municipal Chamber, "protesting to attach the certificate, as soon as it is issued" (cf. document attached with the initial petition);

L. On 25.10.2011, the Lisbon Municipal Chamber informed, in writing, the Claimant that: "pursuant to article 100 of Decree-Law no. 442/91 of 15 November, as amended by Decree-Law no. 6/96 of 31 January, it is not possible to issue a certificate in accordance with the request filed in the matter in question, regarding the property located at …, …. Furthermore, it is informed that according to information from the Department of Cultural Heritage contained in Official Letter no. …, of 29 September 2011, the aforementioned building "is not classified, nor in the process of being classified as a Property of Municipal Interest, however, it is located in a special protection zone"(…) (cf. document attached with the initial petition);

M. On 22.09.2011, from the consultation made to the Finance Portal by the Claimant, it is verified that in the year 2011, she benefited from exemption regarding the properties registered in the parish …, corresponding to the cadastral articles …-"Q", "CD" and "R" (Cf. Consultation to the Finance Portal, of 22.12.2011, document attached with the initial petition);

N. On 27.12.2011, the claimant presented a request for response to Official Letter no. …, in which she mentions "to attach certificate proving that the property is classified in accordance with Decree/Ordinance 512/98 of 1998/08/10 and Decree 5/2002 of 19/02/2002, thus meeting the conditions to benefit from IMI exemption." (Cf. document attached with the initial petition);

O. In December 2012, the Claimant was notified of the act of assessment of IMI relating to the year 2008, in accordance with the collection document no. 2008 …. (cf. document attached with the initial petition);

P. On 02.01.2013, the Claimant was notified, by the Tax Office of Lisbon-…-, that: "by order of December 2012, (…) the order granting exemption under article 40 (current 44) of the Tax Benefits Statute (EBF) was revoked, regarding the properties indicated […-CD/Q/R – Parish: …], for not meeting the requirements certified by the competent entity." which, "will proceed to taxation of the aforementioned property from the year 2008, inclusive." And, lastly, that "in accordance with the transitional regime provided for in paragraph d) of article 88 of Law no. 53-A/2006 of 29/12, you may, within a period of 90 days from the date of notification, request the exemption referred to in article 46 of the EBF – Own permanent residence, provided you meet all the defined requirements." (Official Letter no. …, of 19.12.2012 from the Tax Office of Lisbon -…-, document attached with the initial petition);

Q. On 15.01.2013, the Claimant filed Hierarchical Appeal of the decision revoking the order granting exemption under article 40 (current 44) of the Tax Benefits Statute (cf. document attached with the initial petition);

R. On 31.01.2013, the Claimant proceeded to the payment of the amount of € 1,375.03 due to the act of assessment of IMI relating to the year 2008, in accordance with the collection document no. 2008 … (cf. document attached with the initial petition);

S. On 01.02.2013, the Claimant filed Administrative Complaint of the act of assessment of IMI no. 2008…, relating to the year 2008, with the Tax Office of Lisbon-… - to which was assigned no. …, (cf. Confirmation of receipt of administrative complaint – Via internet - document attached with the initial petition);

T. On 15.03.2013, the Claimant submitted, at the Tax Office of Lisbon …, a request for exemption from IMI regarding the property located at …, … Lisbon, of the parish of …, registered under the cadastral article …, fractions "CD", "Q" and "R" on the basis of own permanent residence, under the provision of article 46 of the EBF (document attached with the initial petition);

U. On 18.03.2013, the Claimant filed at the Tax Office of Lisbon … a request for exemption from IMI regarding the property located at …, … Lisbon, of the parish of …, registered under the cadastral article …, fraction "CD", on the basis of own permanent residence, under the provision of no. 1 of article 42 of the EBF (document attached with the initial petition);

V. On 03.04.2013, presented Administrative Complaint with the Tax Office of Lisbon-…-, to which was assigned no. …, with the following basis: "Property … The fraction was valued at 113,350.00, on 08/12/2012, following the general appraisal, whereby the tax value to be considered is the result of that general appraisal and the Rate to be considered is 0.30% and not 0.60%." (cf. Confirmation of receipt of administrative complaint –Via internet - document attached with the initial petition);

W. In April 2013, the Claimant was notified to exercise the right of hearing, provided for in article 60 of the LGT regarding the draft decision to reject the request for exemption from IMI no. …, under no. 1 of article 42 of the EBF relating to fraction "CD", registered under the cadastral article … of the parish of … (cf. Official Letter no. …, of 09.04.2013, from the Tax Office of Lisbon … – document attached with the initial petition);

X. On 28.04.2013, the Claimant exercised the right of prior hearing relating to the draft decision to reject the request for exemption from IMI no. …, under no. 1 of article 42 of the EBF relating to fraction "CD", registered under the cadastral article … of the parish of … (cf. document attached with the initial petition);

Y. On 28.04.2013, from the consultation made to the Finance Portal by the Claimant, it is verified that the request for exemption from IMI, for the purposes of the tax benefit provided for in no. 1 of article 42 of the EBF by it filed, was in the situation of draft rejection, (order of 2013.04.02), presenting as basis: "request for exemption out of time; Exemption out of time – year of commencement of exemption after the limit year". (cf document attached with the initial petition);

Z. On 30.04.2013, the Claimant proceeded to the payment of the amount of € 501.54 due to the act of assessment of IMI relating to the year 2012, in accordance with the collection document no. 2012 … (cf. document attached with the initial petition);

AA. In May 2013, the Claimant was notified of the draft decision to reject Administrative Complaint no. …, by the Tax Office of Lisbon-…- (cf. Official Letter no. … of 2013.05.08 from the Tax Office of Lisbon-…- document attached with the initial petition);

BB. In May 2013, the Claimant was notified of the decision to reject the request for exemption no. …, filed under the provision of no. 1 of article 42 of the EBF, regarding own permanent residence on the property registered in the parish of …, under the cadastral article …, fraction "CD", on the basis of "request for exemption out of time; exemption out of time – year of commencement of exemption after the limit year; the tax value to be exempted is above the maximum tier for granting exemption". (cf. Official Letter no. … from the Tax Office of Lisbon-…-, document attached with the initial petition);

CC. On 04.06.2013, the Claimant was notified by the Tax Office of Lisbon-…- that the administrative complaint no. … – IMI/2012 was archived, by order dated 2013.05.27. (cf. Official Letter no. …, of 2013.05.29 from the Tax Office of Lisbon-…-, document attached with the initial petition);

DD. On 06.06.2013, the Claimant filed Hierarchical Appeal of the decision rejecting Administrative Complaint no. …, relating to IMI/2008 (cf. document attached with the initial petition);

EE. On 11.06.2013, the Claimant filed Hierarchical Appeal of the decision rejecting the request for exemption from IMI, for "being filed out of time". (cf. document attached with the initial petition);

FF. On a date that cannot be precisely determined, the Claimant was notified of the act of assessment of IMI relating to the year 2009, in accordance with the collection document no. 2009 …. (cf. document attached with the initial petition);

GG. On 27.09.2013, the Claimant proceeded to the payment of the amount of € 1,426.59 due to the act of assessment of IMI relating to the year 2009, in accordance with the collection document no. 2009 … (cf. document attached with the initial petition);

HH. On 23.10.2013, the Claimant filed Administrative Complaint of the act of assessment of IMI no. 2009 …, relating to the year 2009, with the Tax Office of Lisbon-…-to which was assigned no. …, (cf. Confirmation of receipt of administrative complaint –Via internet - document attached with the initial petition);

II. On 14.11.2013, the Claimant was notified of the act of assessment of IMI relating to the year 2010, in accordance with the collection document no. 2010 …. (cf. document attached with the initial petition);

JJ. On 31.01.2014, the Claimant proceeded to the payment of the amount of € 1,375.64 due to the act of assessment of IMI relating to the year 2010, in accordance with the collection document no. 2010 … (cf. document attached with the initial petition);

KK. The Claimant, on 27.02.2014, was notified that the administrative complaint no. …, relating to IMI/2009 was archived, by order of 20.02.2014 from the Department of Finance of Lisbon (cf. Official Letter no. …, of 24.02.2014 from the Department of Finance of Lisbon – document attached with the initial petition);

LL. On 25.03.2014, the Claimant filed Administrative Complaint of the act of assessment of IMI no. 2010 …, relating to the year 2010, with the Tax Office of Lisbon-…-to which was assigned no. …, (cf. Confirmation of receipt of administrative complaint –Via internet - document attached with the initial petition);

MM. On 26.03.2014, the Claimant filed Hierarchical Appeal of the decision to archive the administrative complaint no. …, relating to the year 2009 (cf. document attached with the initial petition);

NN. At the beginning of April 2014, the Claimant was notified of the draft decision to reject administrative complaint no. …, relating to IMI for the year 2008, and to, if she wishes, exercise the right of prior hearing under the provision of article 60 of the LGT (cf. Official Letter no. …, of 2013.04.05 from the Tax Office of Lisbon -… – document attached with the initial petition);

OO. On 19.04.2014, the Claimant exercised the right of prior hearing which she was entitled to within the scope of the administrative complaint no. …, relating to IMI for the year 2008 (cf. document attached with the initial petition);

PP. On 02.07.2014, the Claimant was notified of the act of assessment of IMI relating to the year 2011, in accordance with the collection document no. 2011 …. (cf. document attached with the initial petition);

QQ. On 09.07.2014, the Claimant filed Administrative Complaint of the act of assessment of IMI no. 2011 …, relating to the year 2011, with the Tax Office of Lisbon-…-to which was assigned no.… (cf. Confirmation of receipt of administrative complaint –Via internet - document attached with the initial petition);

RR. On 12.08.2014, the Claimant was notified of the draft decision to reject administrative complaint no. …, relating to IMI for the year 2010, and to, if she wishes, exercise the right of prior hearing under the provision of article 60 of the LGT (cf. Official Letter no. …, of 2014.08.08 from the Tax Office of Lisbon -… –, on the files of the administrative proceedings);

SS. On 12.08.2014, the Claimant was notified of the draft decision to reject administrative complaint no. …, relating to IMI for the year 2011, and to, if she wishes, exercise the right of prior hearing under the provision of article 60 of the LGT (cf. Official Letter no.…, of 2014.08.08 from the Tax Office of Lisbon -…– on the files of the administrative proceedings);

TT. On 19.08.2015, exercised the right of prior hearing which she was entitled to within the scope of the administrative complaint no. …, relating to IMI for the year 2010 (cf. on the files of the administrative proceedings);

UU. On 19.08.2015, exercised the right of prior hearing which she was entitled to within the scope of the administrative complaint no. …, relating to IMI for the year 2011 (cf. on the files of the administrative proceedings);

VV. On 18.09.2014, the Claimant was notified that Administrative Complaint no. …, relating to IMI/2010, was rejected, by order of 11.09.2014 from the Head of the Tax Office of Lisbon-…-. (cf. Official Letter no. … of 2014/09/12 from the Tax Office of Lisbon-…- on the files of the administrative proceedings);

WW. On 18.09.2014, the Claimant was notified that Administrative Complaint no. …, relating to IMI/2011, was rejected, by order of 11.09.2014 from the Head of the Tax Office of Lisbon-…-. (cf. Official Letter no. … of 2014/09/12 from the Tax Office of Lisbon-…- cf. on the files of the administrative proceedings);

XX. On 10.10.2014, the Tax Office of Lisbon-…- informed that:

"• The administrative complaint no. … is attached to the hierarchical appeal process no. …under consideration by the DSMI;

• The administrative complaint no. … is attached to the hierarchical appeal process no. … under consideration by the DSMI;

• The administrative complaints no. … and no. …are awaiting finality." (Official Letter no. …, of 2014.10.08 from the Tax Office of Lisbon-…-, on the files of the administrative proceedings);

YY. On 17.10.2014, the Claimant filed Hierarchical Appeal of the decision rejecting administrative complaint no. … relating to IMI/2011 (cf. on the files of the administrative proceedings);

ZZ. On 17.10.2014, the Claimant filed Hierarchical Appeal of the decision rejecting administrative complaint no. …, relating to IMI/2010 (cf. on the files of the administrative proceedings).

V. Statement of Reasons for the Facts

For the conviction of the Arbitral Tribunal, with respect to the facts proven, the documents attached to the proceedings were relevant, as well as the administrative proceedings, all analyzed and considered in conjunction with the pleadings.

VI. Facts Deemed Not Proven

From the documents and elements brought to the proceedings there is no information on the tax value of the properties registered under the cadastral articles …(former article …), fractions designated by the letters "CD", "Q" and "R" of the parish of …(… (extinct)), municipality and district of Lisbon, of which the Claimant is the owner.

VII. Legal Grounds

In the present case, there are three disputed questions of law:

1. Whether the claimant should have continued to benefit from the exemption provided for in paragraph n) of no. 1 of article 40 of the EBF (current 44), after the amendment of this statute by Law no. 53-A/2006 of 29 October, and consequently whether the revocation of this tax benefit by the AT is lawful;

2. Whether the claimant should or should not be recognized the tax benefit provided for in the current article 46 of the Tax Benefits Statute, by virtue of the own permanent residence which it acquired in 2002;

3. Whether the IMI assessments relating to the years 2008, 2009, 2010 and 2011, in the total amount of € 5,552.90, affecting the properties registered under the cadastral articles … (former article …), fractions designated by the letters "CD", "Q" and "R" of the parish of …(…(extinct)), municipality and district of Lisbon, owned by the claimant since 2002, are lawful.

Let us see:

A. On the Tax Benefit Relating to IMI Exemption for Classified Properties, Provided for in Paragraph n) of No. 1 of Article 40 of the EBF (Current Article 44)

Background

1. The tax benefit relating to exemption from the former municipal property tax (now IMI) for classified properties first appeared in the EBF, in 2002, by the addition of paragraph n) of no. 1 of article 40, through Law no. 109-B/2001 of 27 December, which adopted the following wording: "1 - The following are exempt from municipal property tax: (…)

n) properties classified as national monuments or properties of public interest and likewise those classified as properties of municipal value or as cultural heritage in accordance with applicable legislation."

1. It happens that, on 1 January 2007, Law no. 53-A/2006 of 29 December, which approved the State Budget Law for 2007, (SBL2007), came into force, causing a revision of the statutes and tax codes, adapting the rules now amended and introduced to the needs of the State's finances for the fiscal year 2007. Thus, the legislator understood that it should amend, among other rules, the wording of articles 40 and 42[1] of the Tax Benefits Statute, which had been in force until then.

2. Indeed, demonstrating some concern for legal certainty and security and protection of the expectations of IMI taxpayers who benefited from the exemption provided for in paragraph n) of no. 1 of article 40 of the EBF, the legislator understood it appropriate to adopt some transitional provisions, which were contained in article 88 of the SBL2007.

3. Thus, article 40 of the EBF came to provide that "The following are exempt from municipal property tax: n) Properties classified as national monuments and properties individually classified as of public interest, of municipal value or cultural heritage, in accordance with applicable legislation."

4. Providing, in turn, article 88 of the SBL2007, under the heading "transitional provisions in the area of tax benefits" that: "To the amendments introduced by this law to the Tax Benefits Statute applies the following transitional regime:

a) The tax benefits contained in parts II and III whose rights were acquired up to 31 December 2006 are maintained as they were granted;

b) The application of the regime provided for in no. 1 of article 2-A cannot result in the extension of the periods established for the duration of benefits contained in the Tax Benefits Statute, approved by Decree-Law no. 215/89 of 1 July;

c) The tax administration shall notify, within 180 days after the entry into force of this law, all taxpayers who are benefiting from the exemption referred to in paragraph n) of no. 1 of article 40 of the Tax Benefits Statute, of the termination of this benefit by alteration of its requirements;

d) The taxpayers referred to in the preceding paragraph may, within a period of 90 days from the date of notification, request the exemption referred to in article 42 of the Tax Benefits Statute if they meet all the requirements stated therein and if for the same property they have not already benefited from this regime;

(…)"

1. It happens that, in 2008, the EBF again underwent some amendments, through Decree-Law no. 108/2008 of 26 June, the same having been renumbered, with the former article 40 becoming article 44 (current), and the former article 42 becoming article 46 (current), maintaining, however, the former, the wording given by the SBL2007.

2. Having said that, let us proceed to the assessment of the first question that concerns us here, as to the legality or otherwise of the revocation of the tax benefit exemption which was provided for in the former article 40 of the EBF (current article 44), affecting the property owned by the Claimant, based on the amendment of the Tax Benefits Statute by Law no. 53-A/2006 of 29 December.

Let us see:

Assessment

1. From the facts deemed proven, we can infer that the Claimant acquired, on 27.11.2002, the properties registered under the cadastral articles … (former article …), fractions designated by the letters "CD", "Q" and "R" of the parish of … (… (extinct)), municipality and district of Lisbon.

2. Indeed, at that date, the aforementioned properties were classified in accordance with Ordinance no. 512/98 of 10 August and Decree no. 5/2002 of 19 February, and therefore, following the request filed by the Claimant, with the Tax Office of Lisbon-…-, for exemption from Municipal Tax under the provision of the former article 40, no. 1 of the EBF, the same was granted on 29.10.2004, for the period of "7998" years, namely from 2002 to "9999" inclusive. (as stated, manifestly by lapsus calami, in Official Letter no. … from the Tax Office of Lisbon-…-, of 04.11.2004.

3. It happens that, in view of the amendment of this rule, by the SBL2007, the claimant was notified, through Official Letter no. …, of 31.08.2011, that: "Law no. 53-A/2006 of 29.12 amended article 40 (current 44), no. 1 paragraph n) of the EBF, with the aim that only properties individually classified as of public interest or municipal interest could benefit from IMI exemption. In the context of official review and in compliance with paragraph c) of article 88 of the Law referred to above, exemptions granted under article 44 of the EBF will be withdrawn from the year 2007, date of entry into force of the same Law, to properties that do not meet the requirements described and certified by IGESPAR (former IPPAR) or Municipal Chamber.", and to exercise, if it wishes, for the purposes of the provision of article 60 of the LGT, the right of prior hearing, presenting one of the documents indicated there.

4. In this sequence, the Claimant was diligent with IGESPAR and the Lisbon Municipal Chamber to obtain the documents necessary to maintain the exemption, and which would consequently certify that the property in question was "individually classified". In response to the Claimant's request, it was informed by both entities that "the property identified in B and B1 (fractions "CD", "Q" and "R" of the property registered under article … of the parish of …) is covered by an administrative easement of cultural heritage, in accordance with Decree/Ordinance no. 512/98 of 1998.08.10," (response from IGESPAR), and that "pursuant to article 100 of Decree-Law no. 442/91 of 15 November, as amended by Decree-Law no. 6/96 of 31 January, it is not possible to issue a certificate in accordance with the request filed in the matter in question, regarding the property located at …. Furthermore, it is informed that according to information from the Department of Cultural Heritage contained in Official Letter no. …, of 29 September 2011, the aforementioned building "is not classified, nor in the process of being classified as a Property of Municipal Interest, however, it is located in a special protection zone"(…) (response from CMLisboa).

5. From this it follows that, not being verified the certification, by the competent entities for that purpose, that the property, owned by the Claimant, was individually classified as of municipal interest, it ceased to meet the requirements of the benefit provided for in paragraph n) of no. 1 of article 40 (current 44) of the EBF.

6. Moreover, no. 8 of article 40 (current 44) of the EBF also provided, in fine, that the benefits "of paragraph n) cease in the year, inclusive, in which the properties are to be declassified."

7. In view of the foregoing, it is manifest that the Claimant ceased to be able to enjoy the tax benefit provided for in paragraph n) of no. 1 of article 40 (current 44) of the EBF, because its requirements were not met, ceasing, the same, in the year in which the property was declassified, namely in 2007.

8. However, the SBL 2007 provided, for the situation of possible declassification of properties and consequent cessation of the tax benefit of IMI exemption regarding taxpayers who previously benefited from it, transitional provisions provided for in paragraphs c) and d) of article 88 of the SBL2007, which we reproduce here:

"c) The tax administration shall notify, within 180 days after the entry into force of this law, all taxpayers who are benefiting from the exemption referred to in paragraph n) of no. 1 of article 40 of the Tax Benefits Statute, of the termination of this benefit by alteration of its requirements;

d) The taxpayers referred to the preceding paragraph may, within a period of 90 days from the date of notification, request the exemption referred to in article 42 of the Tax Benefits Statute if they meet all the requirements stated therein and if for the same property they have not already benefited from this regime; (…)"

1. It thus results, under those transitional rules, that the AT should notify all taxpayers who were benefiting from IMI exemption, under paragraph n) of no. 1 of article 40 of the EBF, "within 180 days, of the termination of the tax benefit, by alteration of the requirements, being able, under paragraph d) of the same article, to request IMI exemption for own permanent residence if they meet the requirements for recognition of the same."

2. It happens that, in the case sub judice, the period of 180 days to notify the Claimant of the termination of the tax benefit provided for in paragraph n) of no. 1 of article 40 of the EBF, by alteration of its requirements, was not complied with, having taken place only in 2011.

3. The Claimant refers, on this matter, that "in accordance with Law no. 53-A/2006 of 29 December, Article 88, paragraph c), the tax administration had 180 days to notify the taxpayer of the termination of the tax benefit. Such notification occurred on 09/09/2011, through Official Letter … of 31/08/2011, that is almost 5 years after it had ended." That is, well beyond the period that the Law gave the AT to act.

4. For its part, the Respondent argues that "the fact that the AT did not, in accordance with paragraph c) of article 88 of Law no. 53-A/2006 of 29/12, notify, within 180 days of the entry into force of the law, the contributor, now Claimant, who was benefiting from the exemption referred to in paragraph n) of no. 1 of article 40 of the Tax Benefits Statute, of the termination of this benefit by alteration of its requirements, did not prejudice her, on the contrary, determined the forfeiture of the assessment for the year 2007!"

5. Adding, furthermore, that "the period of 180 days is a period governing administrative activity, whose non-observance does not adversely affect taxpayers."

Let us see who is right:

1. Article 57 of the Code of Administrative Procedure (CPA)[2] enshrines the duty of expedition on the part of administrative bodies, which, pursuant to article 58 of the same statute, have 90 days to complete the procedure, "unless another period follows from law or is imposed by exceptional circumstances." In the same sense, no. 1 of article 57 of the LGT provides that the tax procedure must be completed within four months.

2. In truth, and as far as the nature of the period for conclusion of the procedure is concerned, whether it is an ordering/governing or imperative one, it is important to point out that the case law that has dealt with this subject has held that it has a merely ordering or governing nature.

3. See, the Judgment of the Supreme Administrative Court delivered in case no. 0498/09, of 08 October 2009, to the effect that: "The periods fixed in the CPA for administrative activity, as a rule, have an ordering or governing nature and their fixing is intended to promote the proper functioning of that activity and to carry out the duty of expedition provided for in the aforementioned article 57. Which means that, unless there is any element from which it results that its nature is peremptory, the violation of such periods does not have as a consequence the illegality of the act being formed in the procedure."[3] (emphasis ours), and "The period intended to govern or regulate procedural proceedings is merely indicative, ordering or governing, so that its possible disregard does not extinguish the right to practice it, nor does it cause the nullity of the process or illegality capable of affecting the act, and may only imply disciplinary infraction".

4. Now, since there are no elements from which could result the imperative nature of this period, we tend to conclude that the same, provided for in the transitional provisions of paragraph c) of no. 1 of article 88 of the SBL2008, has a merely ordering nature. Reason for which we can conclude that the compliance with the 180-day period by the AT is not mandatory, so that it could, at any time, notify the here Claimant of the termination of the tax benefit of which it benefited under the provision of paragraph n) of no. 1 of article 40 of the EBF, due to non-verification of its requirements.

However,

1. Considering that the tax benefit provided for in paragraph n) of no. 1 of article 40 of the EBF (current 44) ceased in the year 2007, and that the Claimant was only notified of this termination in the year 2012, it is necessary to mention that the AT is dependent on the period of forfeiture of the right to assess IMI, provided for in articles 45 and 46 of the LGT, to proceed to the additional assessment of IMI, whose exemption was revoked, for ceasing to meet the requirements that justified it.

2. Thus, and in this sequence, because the question of forfeiture of the right to assess has been raised by the Claimant, in the context of the hierarchical appeals filed against the rejection of the administrative complaint which it filed against the assessment of IMI for the years 2008, 2009, 2010 and 2011, whose assessment must be made in the context of the arbitral tribunal, given the joinder of the same under the terms of nos. 3 and 5 of article 111 of the CPPT, we will always say that,

3. …pursuant to the provision of article 116 of the IMI Code, "assessments of the tax, even if additional, are made in the periods and terms provided for in articles 45 and 46 of the General Tax Law, except in the situations provided for in no. 5[4] of article 113, in which case the assessment is made for all the years in which the taxpayer unjustly enjoyed the benefits, with the limit of eight years following the year in which the requirements of the exemption ceased to be met."

4. And that no. 1 of article 45 of the LGT provides that: "The right to assess tributes is forfeited if the assessment is not validly notified to the taxpayer within a period of four years, when the law does not set another." Providing no. 4 of the same legal rule that: "the forfeiture period is counted, in periodic taxes, from the end of the year in which the taxable fact occurred (…)"

5. Diogo Leite de Campos, Benjamin Silva Rodrigues and Jorge Lopes de Sousa teach, in General Tax Law, commented and annotated, 3rd Edition, September 2003, Vislis Publishers, page 208 that: "8 – The forfeiture period, in the case of tax benefits that implied the non-assessment of the tax or its assessment in an amount lower, begins to be counted from the non-verification of the requirements of those benefits. Namely, from the verification of the resolutory term."

6. In these terms, the Arbitral Tribunal understands that, since the Claimant failed to prove that the property is individually classified, and for that reason does not meet the requirements of the tax benefit provided for in paragraph n) of no. 1 of article 40 of the EBF, operated by Law no. 53-A/2006 of 29 December, it is, on the one hand, legal and timely the termination of that benefit by the AT, even though the notification provided for in article 88 of the SBL2007 did not occur within the 180-day period therein provided, since this period is only governing the activity of the AT and not imperative. Moreover, the Tribunal understands that, as a result of the termination of the tax benefit provided for in paragraph n) of no. 1 of article 40 of the EBF (current 44), only being notified to the Claimant in the year 2012, the IMI assessments for the years 2008, 2009, 2010 and 2011 comply with the four-year period provided for in article 45 of the LGT, as well as article 116 of the IMI Code, and therefore are lawful, the forfeiture period being verified with respect to IMI for the year 2007, which, for that same reason, is not at issue here.

As to the second disputed question:

B. On the Tax Benefit Provided for Own Permanent Residence

Assessment

1. From the facts deemed proven, we can infer that the Claimant acquired, on 27.11.2002, the properties registered under the cadastral articles … (former article …), fractions designated by the letters "CD", "Q" and "R" of the parish of … (… (extinct)), municipality and district of Lisbon, having affected such property to its own permanent residence.

2. The above-identified property, in 2002, was classified as a property of public interest, and the claimant was granted the exemption provided for in paragraph n) of no. 1 of article 40 of the EBF.

3. On 29.12.2008, the Claimant requested the exemption from IMI for the property registered under article …, fraction "CD", for the purposes of the tax benefit provided for in no. 1 of article 42 of the Tax Benefits Statute – own permanent residence.

4. Subsequently, on 02.01.2013, the Claimant was notified, by the Tax Office of Lisbon-…-, that: "by order of December 2012, (…) the order granting exemption under article 40 (current 44) of the Tax Benefits Statute (EBF) was revoked, regarding the properties indicated [… – Parish: …], for not meeting the requirements certified by the competent entity." which, "will proceed to taxation of the aforementioned property from the year 2008, inclusive." And, lastly, that "in accordance with the transitional regime provided for in paragraph d) of article 88 of Law no. 53-A/2006 of 29/12, you may, within a period of 90 days from the date of notification, request the exemption referred to in article 46 of the EBF – Own permanent residence, provided you meet all the defined requirements.", wherefore, on 18.03.2013, the Claimant filed with the Tax Office of Lisbon a new request for exemption from IMI regarding the property located at … Lisbon, of the parish of …, registered under the cadastral article …, fraction "CD", on the basis of own permanent residence, under the provision of no. 1 of article 42 of the EBF.

5. It happens that, in May 2013, the Claimant was notified of the decision to reject the request for exemption no. …, filed under the provision of no. 1 of article 42 of the EBF, regarding own permanent residence on the property registered in the parish of …, under the cadastral article …, fraction "CD", on the basis of "request for exemption out of time; exemption out of time – year of commencement of exemption after the limit year; the tax value to be exempted is above the maximum tier for granting exemption".

6. Not conforming to that decision of the AT, on 11.06.2013, the Claimant filed Hierarchical Appeal of the decision rejecting the request for exemption from IMI, for "being filed out of time".

7. Now, pursuant to article 12 of the EBF "the right to tax benefits must be dated to the date of verification of their respective requirements (…)".

8. Considering that the acquisition, on a paid basis, of the property that constitutes own permanent residence of the Claimant, took place in 2002, it is from that year that, according to no. 1 of article 42 of the EBF (current 46) the requirements for the application of this benefit are verified.

9. Moreover, and so that the taxpayer may enjoy the tax benefit provided for in article 42 of the EBF (current 44.6) it is necessary to take into account another requirement, that of taxable value, which conditions the period of exemption.

10. Thus, no. 5 of article 42 of the EBF, with the wording of the year 2002, provided that "the period of exemption to be granted shall be determined in accordance with the following table:

| | Taxable Value (in euros) | Period of Exemption (years) | | Own Permanent Residence | Rental for Residence (no. 1 and 3) |
|---|---|---|---|---|
| Up to 111,266.97 | 10 | |
| More than 111,266.97 up to 139,199.03 | 7 | |
| More than 139,199.03 up to 168,258.62 | 4 | |

1. In truth, this number of article 42 of the EBF (current 46) underwent some amendments in wording, giving greater and lesser periods of exemption to taxpayers, based on the tax value of the property on which they affected, but which we will not occupy ourselves here.

2. Moreover, no. 7 of that legal rule provided that: "7 - The tax benefits referred to in this article cease as soon as the requirements that determined them cease to be met, and the owners, usufructuaries or superficiaries must comply with the provision of no. 1 of article 13 of the Municipal Property Tax Code." (wording given by the SBL2007)

3. Indeed, from the elements brought to the proceedings, it is not possible for the tribunal to determine what the tax value of the properties registered under the cadastral articles…(former article …), fractions designated by the letters "CD", "Q" and "R" of the parish of … (… (extinct)), municipality and district of Lisbon, is, in order to ascertain what period of IMI exemption, under the benefit provided for in article 42 of the EBF, from which the Claimant could benefit.

4. Moreover, and notwithstanding the fact that it has been deemed a matter of fact established, that on 29.12.2008, the claimant requested IMI exemption under the provision of article 42 of the EBF, the truth is that from that request, and as is evident from the document attached with the initial petition, to the proceedings, results the observation of the AT to the effect that "request for exemption [was made] out of time; exemption out of time – year of commencement of exemption after the limit year."

5. In view of the foregoing, the assessment by the Tribunal of the question of granting the tax benefit provided for in article 42 of the EBF, as to own permanent residence and respective period of exemption, is affected, because the elements necessary for its assessment have not been brought to the proceedings, namely the tax value of the properties registered under the cadastral articles … (former article …), fractions designated by the letters "CD", "Q" and "R" of the parish of … (… (extinct)), municipality and district of Lisbon, in 2002, and consequently the assessment of the granting of this benefit, under the transitional provision provided for in paragraph d) of article 88 of the SBL2007, according to which the Claimant had a period of 90 days "from the date of notification [of the termination of the benefit provided for in paragraph n) of no. 1 of article 40 of the EBF of which the claimant benefited], to request the exemption referred to in article 42 of the Tax Benefits Statute if it meets all the requirements stated therein and if for the same property it has not already benefited from this regime".

6. Moreover, it is consequently affected, the assessment by the Arbitral Tribunal, as to the other arguments invoked by the claimant in the context of the hierarchical appeals filed, due to the rejection of the administrative complaints filed by the claimant against the IMI assessments for the years 2008, 2009, 2010, 2011 and respective exemptions.

As to the third disputed question:

C. On the Legality of the IMI Assessments for the Years 2008, 2009, 2010 and 2011

1. In view of the foregoing, the Tribunal understands that the IMI assessments made on the properties registered under the cadastral articles … (former article …), fractions designated by the letters "CD", "Q" and "R" of the parish of … (… (extinct)), municipality and district of Lisbon, owned by the claimant, are legal and timely, as they comply with the forfeiture period provided for in article 45 of the LGT, given that the notification to the Claimant of the termination of the tax benefit provided for in paragraph n) of no. 1 of article 40 of the EBF, by alteration of its requirements, took place in 2012, and therefore should be maintained.

DECISION

In accordance with the foregoing, it is decided:

1. To dismiss the exception of untimeliness of the request for arbitral constitution raised by the claimant as unfounded;

2. To dismiss, as not proven, the challenge to the legality of the acts of assessment of IMI for the years 2008, 2009, 2010 and 2011 at issue.

Value of the Proceedings

The value of the proceedings is fixed at € 5,552.90 pursuant to article 97-A, no. 1, a), of the CPPT, applicable by virtue of paragraphs a) and b) of no. 1 of article 29 of the RJAT and no. 2 of article 3 of the Regulation of Costs in Tax Arbitration Proceedings.

Costs

Costs to the charge of the Claimant, in accordance with article 22, no. 2 of the RJAT, article 4 of the RCPAT, and Table I attached thereto, which are fixed at the amount of € 612.00.

Notify.

Lisbon, 5 May 2015

The Arbitrator

(Jorge Carita)

[1] The amendment that the SBL2007 made to article 42 of the EBF will be dealt with in the appropriate place, below.

[2] Article 59 of the new Code of Administrative Procedure, approved by Decree-Law no. 4/2015 of 7 January, also provides for the duty of expedition, with the following wording: "The person responsible for directing the procedure and the other bodies involved in its conduct must ensure its rapid and efficient progress, both by refusing and avoiding anything impertinent and dilatory, and by ordering and promoting everything necessary to a diligent follow-up and to the taking of a decision within a reasonable period."

[3] In judgment delivered in case no. 057/11, of 31 March 2011, available at www.dgsi.pt

[4] No. 5 of article 113 of the IMI Code provides that: "whenever the requirements of the exemption cease to be met and the taxpayers do not comply with the provision of paragraph g) of no. 1 of article 13, the tax administration proceeds to the extraordinary assessment of the tax from the year, inclusive, to that of the forfeiture of the exemption."