Summary
Full Decision
ARBITRAL DECISION
I. REPORT
On 26 August 2016, the A…, SA, with NIPC … and with registered office at Praça…, n.º…, …-… … (hereinafter referred to as Claimant), came, under the combined provisions of articles 99.º of the Code of Tax Procedure and Process, 1.º, 2.º, n.º 1, paragraph a) and 10.º, n.º 2, paragraph c) of Decree-Law no. 10/2011, of 20 January, which approved the Legal Regime of Arbitration in Tax Matters (RJAT), to request the constitution of an Arbitral Tribunal, wherein the Tax and Customs Authority (hereinafter AT or Respondent) is the Respondent, with a view to declaring the illegality and consequent annulment of the additional assessment of Stamp Duty issued by the Finance Service of ... …, in the amount of € 916.80, relating to the acquisition, in December 2013, of the urban property registered under article … of the parish of …, municipality of ..., within the scope of the insolvency proceedings being conducted by the 2nd Court of the Judicial Court of ..., with n.º ....
The Claimant further requests that the Respondent be ordered to refund the amount unduly paid, increased by compensatory interest at the legal rate, attributing to the claim the economic value of € 944.36.
Summary of the Parties' Positions
a. Of the Claimant:
As grounds for the request for arbitral decision, the Claimant invokes the following:
1. On 11 December 2013, the Claimant acquired the urban property intended for residential purposes, registered in the property register of the parish of …, municipality of ..., under article…, seized for the insolvent estate, within the scope of the insolvency proceedings of B… and C…, for the amount of € 114,600.00;
2. Prior to the adjudication, the Claimant submitted, to the competent Finance Service, the declaration for assessment of IMT and Stamp Duty, having been issued the certificates of exemption from IMT, under n.º 2 of article 270.º of CIRE;
3. Having been notified by the Finance Service of ... … to proceed with payment of the Stamp Duty assessment, the Claimant proceeded to pay it on 15 January 2016;
4. Nevertheless, the Claimant filed an administrative complaint of the said assessment, which was to be dismissed on the ground that "For purposes of the Stamp Duty exemption, provided for in paragraph e) of art.º 269 of CIRE, only the acts of sale, exchange or assignment of the company or its establishments integrated within the scope of insolvency plans, payment plans or recovery plans or carried out within the scope of the liquidation of the insolvent estate";
5. The Claimant considers benefiting from Stamp Duty exemption under paragraph e) of article 269.º of CIRE, a provision that "covers (incontestably) both the transmission of real property carried out together with the company or the establishment of which they form part, and the isolated transmission of real property, separate from the company or establishment which they integrate";
6. Argues that, since the act of additional assessment of Stamp Duty challenged was based on an incorrect interpretation of paragraph e) of article 269.º of CIRE, it is afflicted with the defect of error in the legal assumptions, the consequence of which is its voidability;
7. And that, in the absence of the legally established requirements, the challenged assessment is null, due to lack of powers of the AT, which created a tax not permitted by law, and is furthermore null, due to lack of factual and legal substantiation;
8. The Claimant argues that the AT violated, among others, the principles of legal certainty and prohibition of retroactivity of tax law by applying its interpretation to a past tax fact entirely occurring under the old law;
9. Moreover, given that the AT had recognized the Claimant's right to Stamp Duty exemption, the tax benefit could not be revoked after the expiration of a one-year period from the recognition, "by combined application of the provisions of articles 141.º, n.º 1 of CPA and 58.º of CPTA".
The Claimant concludes by formulating the requests for (i) declaration of nullity or annulment of the Stamp Duty assessment which it challenges and (ii) condemnation of the Respondent to refund the amount unduly paid, increased by compensatory interest, attributing to the proceedings the economic value of € 944.38 (nine hundred and forty-four euros and thirty-eight cents).
b. Of the Respondent:
Notified in accordance with the terms and for the purposes provided for in article 17.º of RJAT, the AT submitted a reply and annexed the administrative file, in which, citing jurisprudence of the Supreme Administrative Court and Tax Arbitral Tribunals, came to defend the legality and maintenance of the assessment act which is the subject matter of the present request for arbitral decision, with the following grounds:
1. The issue concerns the verification of the requirements of the exemption provided for in paragraph e) of article 269.º of CIRE, with the Claimant alleging that the acquisition of the property to which the challenged assessment relates, within the scope of the liquidation of a certain insolvent estate, is covered by the said provision;
2. However, such interpretation lacks legal support, since in the concrete case, the insolvents are natural persons who at the time of the transmission of the property did not carry out any industrial, commercial or agricultural activity;
3. The current wording of paragraph e) of article 269.º of CIRE provides for Stamp Duty exemption for acts of sale, exchange or assignment of the company or its establishments, integrated within the scope of the liquidation of the insolvent estate, with the reservation that the insolvent is a company or establishment;
4. The new wording of paragraph e) of article 269.º of CIRE, concerning tax benefits, is not afflicted with organic unconstitutionality, having been introduced by article 234.º of Law no. 66-B/2012, of 31 December, which approved the State Budget for 2013;
5. The amendments introduced by article 234.º of Law no. 66-B/2012, of 31 December, to articles 269.º and 270.º of CIRE, consisted only in adding Stamp Duty and IMT exemption, respectively, to transmissions of the company or its establishments, integrated within the scope of company recovery plans;
6. Finally, the Claimant's allegation that the revocation of the tax benefit is illegal, due to violation of articles 140.º and 141.º of CPA, cannot proceed, since the AT could not refrain from assessing the tax owed, provided the period of expiry is respected (article 45.º, n.ºs 1 and 4 of LGT).
The AT concludes by requesting that the meeting referred to in article 18.º of RJAT be dispensed with, as there are no exceptions to be considered, the facts on which the decision is requested are fixed and the matter is exclusively one of law.
II. CLEANSING OF ISSUES
1. The sole arbitral tribunal is competent and was regularly constituted on 18 November 2016, in accordance with articles 2.º, n.º 1, paragraph a), 5.º and 6.º, all of RJAT.
2. The parties have judicial personality and capacity, are legitimate and are legally represented, in accordance with articles 4.º and 10.º of RJAT and article 1.º of Ordinance no. 112-A/2011, of 22 March.
3. The proceedings do not suffer from defects which would invalidate them and no exceptions have been invoked which the arbitral tribunal should consider.
4. By arbitral order of 27 December 2016, the meeting referred to in article 18.º of RJAT was dispensed with, the request for substitution of counsel presented by the AT's representative was granted and the Parties were invited to, if they wished, produce successive written submissions within a period of 10 days, beginning with the Claimant, with the latter being advised that it should proceed to pay the subsequent arbitral fee by 10 February 2017, the date set for the issuance of the arbitral decision;
5. By request of 2 January 2017, subsequently reformulated on 9 January 2017 and notified to the AT on 17 of the same month, the Claimant reproduced what was previously alleged in the initial petition, dispensing with the production of submissions.
III. SUBSTANTIATION
III.1 FACTUAL MATTERS
A – Proven Facts:
The factual matter relevant to the understanding and resolution of the case, after critical examination of the documentary evidence attached to the request for arbitral decision and to the administrative file (PA) presented by the AT, is established as follows:
1. Within the scope of the insolvency proceedings of B… and C…, which were conducted by the 2nd Court of the Judicial Court of ... under n.º ..., a deed of transmission was issued by the Court-Appointed Judicial Administrator, Dr. D…, on 11 December 2013, containing the adjudication to the Claimant, for the amount of € 114,600.00, of the "Urban property intended for residential purposes, composed of a basement for garage and ground floor with 3 rooms, located at Rua da…, …(…), parish of …(…) registered in the respective urban property register under article n.º…" and that "The adjudicatee presented the certificates of payment of Onerous Transfer Tax on Real Property and Stamp Duty which follow annexed to the present deed (…)";
2. By official communication from the Finance Service of ...…, sent under CTT registration n.º RF … PT and received on 1 October 2015, the Claimant was notified to exercise the right to be heard, in accordance with article 60.º, n.º 1, paragraph a) of the General Tax Law, within a period of 20 days from the date of notification, regarding the draft additional assessment to the IMT register n.º …/2013, of 06/12/201, in the amount of € 1,367.93 and of Stamp Duty, in the sum of € 916.80. The Claimant was further notified that within 30 days following the end of the 20 days for prior hearing, it should proceed to pay the said taxes, by means of payment forms to be requested from that Finance Service, and that, after the end of the voluntary payment period, default interest would be owed and a certificate of debt would be extracted for coercive collection;
3. Annexed to the aforementioned official communication were notified to the Claimant the statements of the assessments mentioned therein, that of Stamp Duty (item 1.1 of TGIS) being effected at the rate of 0.08% on the declared price of € 114,600.00, from which resulted the collection of € 916.80;
4. At the end of the Stamp Duty assessment, issued on 11 December 2015 (DUC…), it is stated that this is "An additional corrective assessment of stamp duty, IMT register n.º …/2013, of 06/12/2013 (…) For purposes of the Stamp Duty exemption provided for in paragraph e) of art.º 269 of CIRE, only acts of sale, exchange or assignment of elements of company assets – understood as complex organizations – may be considered to be covered by the legal provision. Accordingly, not covered by this legal provision are insolvents who are natural persons and do not carry out an industrial, commercial or agricultural activity";
5. The challenged assessment, with a voluntary payment deadline of 14 December 2015, was paid by the Claimant on 15 January 2016, within the scope of the tax enforcement proceedings n.º …2016…, in the total amount of € 944.38, which includes costs and default interest;
6. On 21 March 2016, the Claimant filed an administrative complaint with a view to the annulment of the Stamp Duty assessment now challenged which, registered under n.º …2016…, was to be the subject of dismissal, as per the order of the Head of the Finance Service of ...…, of 20 July 2016, notified to the Claimant's Representative on 25 July 2016 (CTT registration n.º RF … PT);
7. The order dismissing the administrative complaint was limited to confirming the information provided by the technical officer responsible for conducting the procedure, in which, after indicating that the property in question is intended for residential purposes, it is stated: "For purposes of the Stamp Duty exemption, provided for in paragraph e) of art.º 269 of CIRE, only the acts of sale, exchange or assignment of company or its establishments integrated within the scope of insolvency plans, payment plans or recovery plans or carried out within the scope of the liquidation of the insolvent estate. Accordingly, not covered by this legal provision are insolvents who are natural persons and do not carry out an industrial, commercial or agricultural activity";
8. In accordance with the cadastral situation registered in the AT's System for Management and Registration of Taxpayers, the insolvent B…, with NIF … and tax domicile at Rua…, …, …-… ... (parish of…), initiated activity with CAE … – Other building finishing activities, integrated in IRS category B as business activity, on 2 January 2008 and ceased the exercise thereof, both for IRS and VAT purposes, on 30 November 2011;
9. The cadastral situation registered in the AT's System for Management and Registration of Taxpayers of the insolvent C…, with NIF … and tax domicile at Rua…, …, …-…... (parish …), indicates that she initiated activity with CAE…– Other service activities, n. e. (category B – Professional income), on 5 November 2003 and ceased its exercise, for VAT and IRS purposes, on 28 April 2004.
B – Unproven Facts:
There are no facts relevant to the resolution of the case which should be considered unproven.
III.2 ON THE LAW
1. The questions to be decided:
The questions placed before this Sole Arbitral Tribunal by the Claimant are, among others, whether (i) the Stamp Duty assessment challenged (item 1.1 of the General Table of Stamp Duty) violates the provision of article 269.º, paragraph e) of the Insolvency and Company Recovery Code (CIRE), and should be annulled due to error in the legal assumptions; (ii) whether the interpretation given by the AT to the said provision, at the origin of the challenged assessment, renders it null, as constituting an act carried out beyond the powers of the same AT; (iii) whether the challenged assessment lacks factual and legal substantiation, in violation of articles 268.º, n.º 3 of the Constitution of the Portuguese Republic (CRP), 124.º and 125.º of the Code of Administrative Procedure (CPA) and 77.º of the General Tax Law (LGT), which would lead to its nullity; (iv) whether, in issuing the challenged assessment, the AT violated the principle of prohibition of retroactivity of tax law, by applying its interpretation of the provision to a past tax fact entirely occurring under the old law, and (v) whether the exemption from which the Claimant benefited at the time of the acquisition of the property to which the Stamp Duty assessment relates could be revoked, after the expiration of the one-year period in which its revocation was legally possible.
Let us examine:
(i) As emerges both from the statement of the additional Stamp Duty assessment here challenged, and from the information provided in the administrative complaint on which the order for its dismissal was based, the interpretation given by the AT to the provision contained in paragraph e) of article 269.º of CIRE is that the exemption therein provided covers only acts of sale, exchange or assignment of the company or its establishments (company) integrated within the scope of insolvency plans, payment plans or recovery plans (of a company) or carried out within the scope of the liquidation of the insolvent estate (of a company), not applying to situations where acquisition occurs within the scope of insolvency proceedings of natural persons who do not carry on business activity.
However, this is not the interpretation disputed by the Claimant which, on the contrary, argues that the Stamp Duty exemption provided for in paragraph e) of article 269.º of CIRE applies to the "transmission of real property carried out together with the company or the establishment of which they form part, as well as the isolated transmission of real property, separate from the company or establishment which they integrate".
It is therefore necessary to ascertain whether or not the property transmitted within the scope of the insolvency proceedings identified in the initial petition, which is the subject of the challenged assessment, formed part of a company or establishment thereof.
Article 2.º, n.º 1, paragraph a) of CIRE, approved by Decree-Law no. 53/2004, of 18 March, admits natural persons as passive subjects of the declaration of insolvency, although Title XII of the same Code contains specific rules on the insolvency of natural persons.
Paragraph e) of article 269.º of CIRE, in the wording given to it by article 234.º of Law no. 66-B/2012, of 31 December (State Budget for 2013), applicable to the situation of the case, provides that,
"Article 269.º - Benefit relating to stamp duty
The following acts are exempt from stamp duty, when they are subject thereto, provided they are foreseen in insolvency plans, payment plans or recovery plans or carried out within the scope of the liquidation of the insolvent estate:
a)(…);
b)(…);
c)(…);
d)(…);
e) The carrying out of financing operations, the transfer or assignment of the operation of company establishments, the constitution of companies and the transfer of commercial establishments, the sale, exchange or assignment of elements of company assets, as well as the leasing of goods;
f)(…)".
In turn, article 5.º of CIRE contains the notion of a company, which it defines as being "any organization of capital and labour intended for the exercise of any economic activity".
Now, if, on the one hand, at the date of the opening of the insolvency proceedings (2010), the insolvent Alcides carried on an activity of a business nature, it remains to be ascertained whether the urban property intended for residential purposes of which he was the owner can be considered as forming part of the company of which he was the holder, so that its transmission, within the scope of that judicial proceeding, could benefit from the Stamp Duty exemption provided for in paragraph e) of article 269.º of CIRE.
For this purpose, reference is made here to the Decision issued by the Supreme Administrative Court (STA), on 25 September 2013, in Case no. 0866/13, available at http://www.dgsi.pt/, deciding that "I – In accordance with the provisions of art. 269.º, paragraph e) of CIRE, sales of "elements of company assets" are exempt from Stamp Duty.
II – Accordingly, the said exemption does not extend to the sale of urban property intended for residential use belonging to a natural person, it not being sufficient to benefit from that exemption the fact that acts of sale are carried out within the scope of the liquidation of the insolvent estate, but rather it must be demonstrated that the property sold forms part of the assets of a company.".
In the absence of the Claimant's demonstration that the property transmitted within the scope of the insolvency proceedings, intended for residential purposes, formed part of the assets of the company of which the insolvent had been the holder, the conclusion must be drawn, following the cited Decision, that such transmission could not benefit from the said Stamp Duty exemption.
(ii) Even if the interpretation given by the AT to paragraph e) of article 269.º of CIRE is not, in the concrete case, identical to that adopted by the STA in the aforementioned Decision, it cannot be affirmed that the challenged assessment is null, as constituting an act carried out beyond its powers (article 161.º, n.º 2, paragraph b) of the new Code of Administrative Procedure (NCPA), since one of the powers of the Respondent is, precisely, to "Ensure the assessment and collection of income taxes, wealth taxes and consumption taxes, customs duties and other taxes which it is incumbent upon it to administer, as well as collect and recover other revenues of the State or public law entities", as provided in article 2.º, n.º 2, paragraph a) of Decree-Law no. 118/2011, of 15 December, which approved the organic structure of the AT.
(iii) Nor can one agree with the Claimant's allegation that the challenged assessment is null, under article 133.º of the old CPA (current article 161.º of NCPA), for lacking factual and legal substantiation, in violation of articles 268.º, n.º 3 of the CRP, 124.º and 125.º of the old CPA (corresponding to articles 152.º and 153.º of NCPA) and 77.º of the LGT.
This is because, according to Diogo Leite de Campos, Benjamim Silva Rodrigues and Jorge Lopes de Sousa, the defect of lack of legally required substantiation, "[i]n light of the criteria for qualifying defects of administrative acts which are extracted from arts. 133.º and 135.º of the [old] CPA [articles 161.º to 163.º of NCPA] (…) generates mere voidability."[1].
On the other hand, it is settled jurisprudence of the Supreme Administrative Court that "The substantiation of the administrative act is a relative concept which varies according to the type of act and the circumstances of the concrete case.
The point is that the substantiation responds to the needs of clarification of the taxpayer by informing him of the cognitive and evaluative itinerary followed by the author of the act to issue the decision, enabling him to know the reasons, of fact and of law, which determined its practice, so as to be able to trigger the administrative or contentious mechanisms of challenge.
An administrative act is sufficiently substantiated which, supplemented with information to which it refers, enables that objective to be achieved." – see the Decision of the STA, of 29 September 2016, case no. 0956/16, available at http://www.dgsi.pt/.
In the concrete case, the substantiation that "(…) not covered by this legal provision [paragraph e) of article 269.º of CIRE] are insolvents who are natural persons and do not carry out an industrial, commercial or agricultural activity", appears to be sufficiently clarifying of the cognitive itinerary which motivated the AT to issue the additional Stamp Duty assessment under analysis.
It is thus concluded that the lack of substantiation of the challenged assessment is not verified.
(iv) The Claimant further invokes the violation of the principle of prohibition of retroactivity of tax law, as the AT applied, in the challenged assessment, its interpretation of the provision of paragraph e) of article 269.º of CIRE to a past tax fact entirely occurring under the old law, to which the AT responds that the only change to the wording of article 269.º of CIRE, by article 234.º of Law no. 66-B/2012, of 31 December, which approved the State Budget for 2013, consisted of the addition to its preamble of the reference to transmissions of the company or its establishments, integrated within the scope of company recovery plans.
And the AT is correct.
In effect, the aforementioned article 234.º of Law no. 66-B/2012, of 31 December, introduced amendments (which were already in force at the date of acquisition of the property dealt with in the present case) to articles 16.º, 268.º, 269.º and 270.º of CIRE, with a view to including, among others, situations falling within Decree-Law no. 178/2012, of 3 August, which approved the System of Company Recovery by Extrajudicial Means (SIREVE), while maintaining the tax benefit previously provided for in paragraph e) of article 269.º of CIRE.
On the other hand, the interpretation given by the AT to the said provision, in the challenged assessment, is not innovative, already appearing in Opinion no. 166 of the Department of Legal and Litigation Services, transmitted to the Notarial Association through communication from DSIMT, of 16 July 2008, in point 14 of which it was concluded, in particular, that "c) The tax benefits of art. 269.º, paragraph e) cover all immovable property of the fixed or exchangeable assets of the company, not being applicable when the insolvent is not a company or, although being a self-employed individual, the immovable property sold, exchanged or assigned do not form part of the assets of the company of which he is the holder".
In light of the above, it is concluded that in the situation in question there has been neither the retroactive application of tax law, prohibited by article 103.º, n.º 3 of the CRP, nor the application of the interpretation given by the AT to the provision of paragraph e) of article 269.º of CIRE.
(v) The last question for the tribunal to consider is whether the revocation of the exemption from which the Claimant benefited at the time of the transmission of the property identified above, embodied in the additional Stamp Duty assessment now challenged, is illegal, due to violation of the "combined application of the provisions of articles 141.º, n.º 1 of CPA and 58.º of CPTA".
Article 141.º, n.º 1 of the old CPA (see article 168.º of NCPA) provided that "Administrative acts which are invalid can only be revoked on the ground of their invalidity and within the period of the respective contentious appeal or until the reply of the appealed entity".
This is the so-called annulling revocation or administrative revocation (in accordance with the terminology of articles 165.º and following of NCPA), doctrinally distinct from revocation proper, since it "destroys, and does not merely cease, the effects of a prior invalid administrative decision, such invalidity being the determining cause of the annulling act"[2], within the period of the respective contentious appeal (the current special administrative action to whose deduction period article 58.º of the Code of Procedure in Administrative Courts – CPTA refers).
The existence of a prior invalid administrative act is, therefore, an essential condition for administrative revocation, and it must be ascertained whether the Stamp Duty assessment which is the subject matter of the present proceedings constitutes the revocation of any prior act of the AT.
Ascertainment which necessarily refers us to the concepts of automatic tax benefits and those dependent on recognition, expressed in article 5.º of the Tax Benefits Statute (EBF), in accordance with which "the former result directly and immediately from the law, the latter presuppose one or more subsequent acts of recognition".
At the time of the transmission of the property dealt with in the present case, the exemptions contained in articles 268.º to 270.º of CIRE depended only on prior recognition by the AT, when applied within the scope of SIREVE, approved by Decree-Law no. 178/2012, of 3 August, as provided in n.º 2 of article 16.º of CIRE, in the wording given to it by article 234.º of Law no. 66-B/2012, of 31 December.
Accordingly, even if the transmitted property were not intended for residential purposes and formed part of the company of which the insolvent was the holder, it is doubtful and the Claimant does not prove that there was recovery of that company, as emerges from the fact that, at the time of transmission, the insolvent had already ceased his business activity, as emerges from the factual matter established above.
It is thus concluded that, should the tax benefit provided for in paragraph e) of article 269.º of CIRE have been applicable to the situation of the present case, it would always have had the nature of an automatic tax benefit, not requiring any prior act of recognition by the AT.
Reason why one cannot invoke, as a ground for challenge of the additional Stamp Duty assessment, the revocation of an administrative act which the AT did not perform (and which would be that of recognition of the tax benefit provided for in paragraph e) of article 269.º of CIRE), since one is dealing with an automatic tax benefit, and should rather conclude that, in the exercise of the power-duty of control of the requirements of tax benefits, even automatic ones (article 7.º, n.º 1 of EBF), the AT could always proceed to the assessment of the tax owed, within the period of expiry (article 45.º of LGT), as it came to do.
Having considered the questions outlined above and, anticipating the decision, we state that the challenged assessment is not subject to censure, as it does not suffer from the defects imputed to it by the Claimant, and should be maintained in the legal order.
2. Questions of impaired knowledge
In the decision, the judge must pronounce on all the questions he should consider, refraining from pronouncing on questions which he should not know (final part of n.º 1 of article 125.º of CPPT), and the questions on which the powers of cognition of the tribunal fall are, in accordance with n.º 2 of article 608.º of CPC, applicable as a subsidiary to tax arbitral proceedings, by referral of article 29.º, n.º 1, paragraph e) of RJAT, "the questions which the parties have submitted to his consideration, except those whose resolution is prejudiced by the solution given to others (…)".
In light of the solution given to the questions identified above, knowledge of the other questions relating to the violation of other constitutional principles and norms invoked by the Claimant is impaired, as well as those relating to the refund of the amount of tax paid and the compensatory interest which would be owed in the event of annulment of the challenged assessment, due to error attributable to the Respondent.
IV. DECISION
On the basis of the factual and legal grounds set out above, it is decided, judging the present request for arbitral decision to be wholly unsuccessful, to determine the maintenance of the Stamp Duty assessment (item 1.1 of TGIS) challenged.
VALUE OF PROCEEDINGS: In accordance with the provisions of article 306.º, n.ºs 1 and 2 of CPC, 97.º-A, n.º 1, paragraph a) of CPPT and 3.º, n.º 2 of the Regulation of Costs in Tax Arbitration Proceedings, the value of the proceedings is set at € 916.80 (nine hundred and sixteen euros and eighty cents), equivalent to the amount of the challenged assessment.
COSTS: Calculated in accordance with article 4.º of the Regulation of Costs in Tax Arbitration Proceedings and Table I annexed thereto, in the amount of € 306.00 (three hundred and six euros), at the charge of the Claimant.
Lisbon, 10 February 2017.
The Arbitrator,
/Mariana Vargas/
Text prepared by computer, in accordance with n.º 5 of article 131.º of CPC, applicable by referral of paragraph e) of n.º 1 of article 29.º of Decree-Law 10/2011, of 20 January.
The drafting of this decision is governed by the 1990 orthographic agreement.
[1] – See the Authors cited, in General Tax Law, annotated and commented, 4th Edition, Encontros da Escrita, 2012, p. 687, with reference to Decision no. 594/2008 of the Constitutional Court, of 10.12.2008, which "judged not unconstitutional the interpretation of arts. 123.º, n.º 1, paragraph d), 124.º, n.º 1, paragraph a) and 133.º, n.ºs 1 and 2, paragraph d) of CPA, in the sense that it is not the substantiation of administrative acts affecting rights and legally protected interests their essential element and fundamental right of citizens whose violation determines their nullity".
[2] Thus, Mário Esteves de Oliveira, Pedro Costa Gonçalves and J. Pacheco de Amorim, Code of Administrative Procedure, Annotated, Vol. II, Almedina, Coimbra, 1995, p. 178.
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