Process: 526/2017-T

Date: September 25, 2018

Tax Type: IMI

Source: Original CAAD Decision

Summary

This CAAD arbitration case (Process 526/2017-T) addresses supervening inutility of proceedings in Portuguese tax arbitration concerning IMI (Municipal Property Tax). The English resident claimant requested annulment of IMI settlement note No. 2015 covering tax years 2013-2015, totaling €172,056.96, and elimination of an obsolete property record from an extinct parish following territorial reorganization. The Tax Authority raised multiple jurisdictional objections, arguing the settlement note wasn't a proper settlement act but a mere administrative document, that property record corrections required a separate objection procedure under IMI Code Article 130, and that the tribunal lacked competence for such requests. Before the tribunal ruled on jurisdiction, the claimant announced the Tax Authority had revoked the contested settlements, creating supervening inutility. The tribunal determined it had competence to rule on futility without first establishing jurisdiction over the merits, as no tribunal has jurisdiction over non-existent subject matter. Critically, the tribunal found the proceedings did have initial subject matter—the settlement note communicated an underlying tax settlement act, not merely a document. The Tax Authority's revocation after arbitration commenced caused the supervening inutility, making the Authority responsible for arbitration costs. This decision clarifies that CAAD tribunals can determine procedural futility independently of jurisdictional questions, that settlement notes embody challengeable settlement acts despite imprecise formulation, and establishes cost allocation principles when tax authorities revoke contested acts during pending arbitration.

Full Decision

Arbitral Decision

I – REPORT

A..., an English entity resident in Portugal, requested, on 29/09/2017, pursuant to Article 2, paragraph 1, subparagraphs a) and b), Article 5, paragraph 3, subparagraph a), Article 6, paragraph 2, subparagraph b) and Article 10 of the Legal Regime of Tax Arbitration approved by Decree-Law No. 10/2011, of 20 January, as amended by Article 228 of Law No. 66-B/2012, of 31 December (hereinafter, LRTA), and Articles 1 and 2 of Ordinance No. 112-A/2011, of 22/03, the constitution of an arbitral tribunal with a view to "the annulment of the settlement note No. 2015 ... and the self-initiated review demonstration No. 2015 ..., through which the TA established the following IMI amounts payable: 2013: € 83,061.98; 2014: € 45,090.79; 2015: € 43,904.19.

With all legal consequences arising therefrom, namely, the elimination of the property record ex-U-... corresponding to the extinct parish at the time of the territorial reorganization of parishes."

The request was accepted on the same date.

As the Claimant had not appointed an arbitrator, the undersigned were appointed, on 21/11/2017, by the Deontological Council of CAAD, having accepted the appointment within the legal timeframe.

Upon notification of the appointment, the parties raised no objection, with the arbitral tribunal being constituted on 14/12/2017.

On that same date, the Director-General of the Tax and Customs Authority (TA) was notified to respond, which it did on 31/01/2018.

Also on 31/01/2018, the meeting referred to in Article 18 was dispensed with, as it was considered unnecessary, and the parties were notified to submit written arguments, which they did on 09/02/2018, the Claimant, and 20/02/2018, the Respondent.

On 02/03/18, the tribunal announced its decision for 16/04/2018, which it did not deliver, and on 15/06/2018, the deadline for the decision was extended by two months, pursuant to Article 21, paragraph 2 of the LRTA.

On 01/08/2018, the Claimant came to announce that the TA had revoked the "settlements that served as the basis for the settlement note No. 2015... and the self-initiated settlement demonstration No. 2015... on a date subsequent to the submission of the request for arbitral pronouncement that gave rise to this proceeding," which "implies the supervening futility and, consequently, the extinction of the proceedings attributable, for purposes of determining responsibility for costs, to the TA."

Notified on the same date of this request, the Respondent made no statement.

II – DECISION

The request formulated by the Claimant is for "the annulment of the settlement note No. 2015 ... and the self-initiated review demonstration No. 2015..., through which the TA established the following IMI amounts payable:

  • 2013: € 83,061.98;
  • 2014: € 45,090.79;
  • 2015: € 43,904.19.

With all legal consequences arising therefrom, namely, the elimination of the property record ex-U-... corresponding to the extinct parish at the time of the territorial reorganization of parishes."

In response to this request, the Respondent raises the exception of lack of jurisdiction of the arbitral tribunal, sustaining it on several grounds:

  • on the one hand, the document attached by the Claimant, whose annulment it seeks, does not constitute a settlement act, such that the tribunal lacks jurisdiction in light of the provision of Article 2, paragraph 1 of the LRTA;

  • on the other hand, in that the document targeted by the Claimant does not constitute a settlement act, but "a mere act in tax matters," the appropriate procedure to contest it would be administrative action, for which the aforementioned legal provision does not confer jurisdiction on arbitral tribunals;

  • furthermore, in alleging that the challenged act does not embody an arbitral decision that has become res judicata, the Claimant raises a question to be resolved within the scope of a judgment execution proceeding, and on this point as well there is no provision conferring jurisdiction on arbitral tribunals;

  • lastly, in "objecting to the circumstance that the document sub judice indicates an old property record (No. ...), corresponding to a parish that has since been extinct (...), instead of referring to the new property records (No. ...), corresponding to the new parish resulting from the administrative reorganization carried out in 2013 (Union of Parishes of ... and ...)," petitioning for "the elimination of the property record ex-U-... corresponding to the extinct parish at the time of the territorial reorganization of parishes," the Claimant does not raise a question of illegality, but a mere irregularity, there being, on this point, no injury to its interests, to which is added that "the request for correction of property records is necessarily preceded by the filing of a Property Record Objection (Article 130 of the IMI Code)," against whose decision judicial relief may be sought through administrative action, and such objection was not filed by the Claimant.

Lack of jurisdiction concerns the tribunal's knowledge of the merits of the action brought, in the manner in which the matter is submitted to a tribunal that does not possess the necessary jurisdiction to decide the substance of the case.

The incompetent tribunal has, notwithstanding its lack of jurisdiction, sufficient competence to declare that lack of jurisdiction, refraining from hearing the case.

Similarly, the tribunal whose jurisdiction has not yet been established is competent to conclude on the impossibility or futility of the dispute, even though it would be incompetent to decide on the merits. Indeed, it is competent to judge the non-existence of the subject matter of the case – in fact, as a proceeding has no subject matter, no tribunal exists that would have jurisdiction to consider that non-existent subject matter.

In summary, to decide the Claimant's request, it is not necessary for the tribunal to first affirm its jurisdiction.

It is also important to address the likewise invoked non-existence of subject matter of the proceeding.

This question is not inconsequential, reflecting itself, in the present case, on responsibility for costs of the proceeding: if the proceeding lacked subject matter, it is the Claimant who must bear the costs; conversely, if the subject matter existed and disappeared as a result of action by the Respondent, the latter must bear the costs.

Now, on this point, it is noted that the Respondent, in the same breath in which it affirms the lack of subject matter, alleges the impropriety of the procedural remedy chosen, saying that the subject matter of the proceeding is a mere act in tax matters, challengeable through administrative action, and not a settlement act, challengeable before arbitral tribunals.

That is, the subject matter of the proceeding exists, and it is the Claimant itself that says so.

And that subject matter is the settlement note identified by the Claimant, which necessarily underlies a tax settlement act, which that note communicates and whose content demonstrates the reason for being and the manner in which the settlement was effected – identifying the taxable event, quantifying it, and explaining the process by which the amount of tax due was reached.

Concluding on this point: the proceeding has (or had) subject matter, albeit the formulation of the request chosen by the Claimant is not altogether the most felicitous: a settlement note is nothing more than a document, and documents are not, in themselves, the subject matter of a tribunal's pronouncement. Documents are a means of evidence, and their challengeability is restricted to truthfulness and probative force. Points that the Claimant did not even raise in the present proceeding.

However, it is repeated, a settlement note communicates and "demonstrates" a tax settlement act.

From the intervention of the Respondent in the proceeding, it flows with sufficient clarity that the TA well understood that the Claimant seeks to have the settlement act, which it deems illegal and which was communicated to it through the said settlement note, subject to review.

The Respondent also raises, albeit not assertively, the expiry of the right to challenge, writing:

"(...) the Claimant would have been notified of another document with respect to which it could react graciously and/or judicially, and naturally, the reaction period must be counted from it, and not from Document 1 attached to the present document. Note is further made that there is no date from which the 90-day period for filing the request for arbitral pronouncement can be counted!"

Now, if the Respondent intended to raise the issue of lack of timeliness of the request, it should have done so clearly, pointing to the relevant dates to assess such lack of timeliness. Dates that are within its knowledge and whose burden of proof is its own, according to Article 74 of the LGT, in harmony, moreover, with the provision of Article 342 of the Civil Code.

In summary, on this point nothing more can be said than that the lack of timeliness of the request is not established.

Now, according to the uncontested assertion of the Claimant, the TA, after 29/09/2017, revoked settlements Nos. ... and ..., communicated through settlement note No. 2015 ....

Consequently, the dispute became superveniently futile, since it is not possible to annul an act that has ceased to exist in the legal order.

Reason for which the dispute is deemed extinct, due to supervening futility, and the Respondent is condemned to bear the costs, which it caused such futility, as provided in Article 536, paragraph 3 of the Code of Civil Procedure, applicable pursuant to Article 29, paragraph 1, subparagraph e) of the LRTA.

In accordance with the provisions of Articles 97-A, paragraph 1, a), of the CPPT and Article 3, paragraph 2 of the Regulation of Costs in Tax Arbitration Proceedings (RCPAT), the case value is set at € 172,061.52 (one hundred and seventy-two thousand and sixty-one euros and fifty-two cents).

Costs are computed at € 3,672.00 (three thousand six hundred and seventy-two euros) according to Article 22, paragraph 4 of the LRTA and Table I attached to the RCPAT.

Let it be notified.

Lisbon, 25 September 2018

The Arbitrators

(José Baeta de Queiroz)

(Luís Menezes Leitão)

(Nuno Maldonado Sousa)

Frequently Asked Questions

Automatically Created

What is supervening inutility of proceedings (inutilidade superveniente da lide) in Portuguese tax arbitration?
Supervening inutility of proceedings (inutilidade superveniente da lide) occurs when the subject matter of tax arbitration ceases to exist during the proceedings, typically because the Tax Authority revokes or annuls the contested act. The CAAD tribunal retains competence to declare the proceedings extinct due to futility without first establishing jurisdiction over the merits, as no tribunal can have jurisdiction over non-existent subject matter. The timing and cause of the inutility determine cost responsibility: if proceedings lacked subject matter from inception, the claimant bears costs; if subject matter existed but disappeared due to the Tax Authority's actions (such as revoking contested settlements), the Authority bears arbitration costs as the party causing the futility.
Can the CAAD arbitral tribunal rule on IMI property tax matrix elimination requests?
CAAD arbitral tribunals have limited competence regarding IMI property matrix elimination requests. Under Article 2(1) of the LRTA, tribunals have jurisdiction over the legality of settlement acts and certain administrative acts in tax matters. A settlement note communicates an underlying tax settlement act, which falls within tribunal competence. However, requests for correction or elimination of property records (matriz predial) under IMI Code Article 130 require a prior Property Record Objection procedure, with judicial relief available through administrative action in tax courts, not arbitration. The tribunal can rule on settlement acts affecting IMI liability but lacks direct competence to order property matrix corrections unless necessarily consequent to annulling the underlying settlement. Claimants must distinguish between challenging tax assessments (arbitrable) and seeking cadastral corrections (requiring separate administrative procedures).
What happens when the Tax Authority revokes IMI assessments after an arbitration request is filed?
When the Tax Authority revokes IMI assessments after an arbitration request is filed, supervening inutility occurs, extinguishing the proceedings. The CAAD tribunal determines whether the proceedings had valid subject matter initially. If the settlement note communicated a genuine tax settlement act (identifying taxable events, quantifying tax, and explaining calculation methodology), the proceedings had proper subject matter that subsequently disappeared due to the Authority's revocation. This constitutes supervening inutility attributable to the Tax Authority, not initial lack of subject matter. The tribunal can declare extinction without ruling on the merits or its own jurisdiction over those merits, as the substantive question has become moot. The Authority's post-filing revocation implicitly acknowledges the settlement's problematic nature, supporting attribution of responsibility for costs to the Respondent despite the proceedings not reaching a merits-based decision.
Who bears the arbitration costs when the Tax Authority revokes the contested IMI liquidation during proceedings?
The Tax Authority bears arbitration costs when it revokes contested IMI liquidations during proceedings, as the supervening inutility is attributable to the Authority's actions. The cost allocation principle depends on whether subject matter existed initially: if proceedings lacked subject matter from inception (claimant's error), the claimant bears costs; if valid subject matter existed but disappeared due to the respondent's conduct, the respondent bears costs as the party causing futility. In this case, the settlement note constituted communication of a tax settlement act with proper subject matter. The Authority's subsequent revocation, occurring after arbitration commenced, caused the proceedings' futility. This post-filing revocation suggests the Authority recognized the settlement's irregularity or illegality, making it responsible for the costs incurred. The tribunal's analysis focuses on causation—who caused the proceedings to become futile—rather than who would have prevailed on the merits.
What are the competence limits of CAAD arbitral tribunals regarding IMI property valuations and tax assessments?
CAAD arbitral tribunals have competence over the legality of IMI settlement acts under Article 2(1)(a) and (b) of the LRTA, including challenges to tax calculations, application of rates, and assessment procedures. However, competence limits exist: tribunals cannot rule on matters requiring prior administrative procedures (like Property Record Objections under IMI Code Article 130), cannot decide issues properly within administrative court jurisdiction (such as direct cadastral corrections), and cannot resolve execution-related questions concerning res judicata arbitral decisions. A settlement note, despite being a document, communicates an underlying settlement act (identifying taxable events, quantifying liability, explaining tax calculation) that falls within tribunal competence. Tribunals have sufficient competence to determine their own lack of jurisdiction and to rule on supervening inutility without establishing merits jurisdiction. Claimants must properly formulate requests to challenge settlement acts themselves rather than the documentary evidence of those acts, and must exhaust required administrative remedies for non-settlement matters like property matrix corrections before seeking judicial or arbitral relief.