Summary
Full Decision
ARBITRAL DECISION
The arbitrators José Poças Falcão (chairman), Jorge Bacelar Gouveia and Ana Teixeira de Sousa (members), appointed by the Deontological Council of the Administrative Arbitration Centre (CAAD) to constitute the present arbitral tribunal, agree as follows:
1. REPORT
1.1. A..., S.A. (hereinafter referred to as the "Claimant") Corporate Person No. ..., with registered office at Avenue ..., No. ..., ...-... Lisbon, having been notified of the dispatch of the Director of the Unit of Large Taxpayers (part of the Tax and Customs Authority) with registered office at Street of ..., No. ..., ...-... Lisbon, through which he expressly rejected the gracious appeal associated with procedure No. ...2018..., duly presented against the assessment of Corporate Income Tax, relating to the tax period of 2015, submitted on 29/10/2018 a request for constitution of a tribunal and arbitral pronouncement.
1.2. On 31 December 2015, the present Claimant (at that date, designated B..., SGPS, S.A.) was the dominant company of a group of entities that were part of the Special Tax Regime for Groups of Companies (RETGS), in accordance with article 69 of the Corporate Income Tax Code.
1.3. In its capacity as the dominant company, the present Claimant submitted, with reference to the tax period of 2015, the tax return declaration "Model 22" (DM22) of the Corporate Income Tax relating to the aforementioned fiscal consolidation, since, in accordance with article 115 of the Corporate Income Tax Code, in the wording at that time (which remains unchanged), the dominant company bore responsibility for payment of the Corporate Income Tax (and, naturally, prior filing of the DM22 of the Group), with the other entities of the group being jointly and severally liable for payment of the tax.
1.4. In the DM22 of the fiscal consolidation that it dominated, submitted on 31 May 2016, a negative consolidated tax result was calculated in the amount of Euro 105,801,650.02 and a total amount of autonomous taxation of Euro 437,245.64.
1.5. The present Claimant proceeded, on 31 May 2017, to submit the replacement DM22, with identification No. ..., relating to the fiscal scope of Group A....
1.6. Subsequently, and without impact on the situation set out below, the present Claimant proceeded, on 19 December 2017, to submit a new replacement DM22, with identification No. ..., relating to the fiscal scope of Group A..., in which a negative consolidated tax result was calculated in the amount of Euro 74,742,019.81, with no change being verified in the amount of autonomous taxation (i.e., Euro 437,245.64).
1.7. Within the scope of the last DM22 submitted, the present Claimant had, in the context of tax benefits, a total amount of Euro 2,606,981.65 relating to the application of the Tax Support Regime for Investment (RFAI), of which Euro 2,445,097.97 carry forward to the following periods, after deduction of the period (Euro 161,883.68).
1.8. The subject matter of the request for pronouncement is the annulment of the express rejection decision impugned and, through this, the partial annulment of the tax act in question, with the legal consequences - notably by reimbursement of the tax in the global amount of Euro 437,245.64, plus the respective compensatory interest at the legal rate.
1.9. The Deontological Council appointed as arbitrators of the collective arbitral tribunal the signatories, who communicated acceptance of the engagement within the legal time period.
1.10. On 9/01/2019 the arbitral tribunal was constituted.
1.11. In compliance with the provision of article 17, nos. 1 and 2 of Decree-Law No. 10/2011, of 20 January (RJAT), the Respondent was notified on 22/01/2019 to, if it so wished, present its reply, request the production of additional evidence and remit the administrative process (PA).
1.12. On 25/02/2019 the Respondent presented its Reply.
1.13. The tribunal on 25/04/2019 decided to dispense with the holding of the meeting to which article 18, No. 1 of the RJAT refers, based on the non-existence of exceptions to be decided and the unnecessary nature of inviting the parties to correct the procedural documents, notifying the parties to present written submissions within 20 simultaneous days.
1.14. A date was set for the pronouncement of the decision for 27/06, having been extended by a further 2 months, in accordance with the dispatches of 25/04/2019 and 05/07/2019.
1.15. The Respondent presented submissions on 24/05/2019 reproducing everything it set out in its Reply, the Claimant having not used the opportunity to present submissions.
2. POSITION OF THE PARTIES
2.1. In the request for arbitral pronouncement, the Claimant invokes, essentially, in its favour, that:
2.2. The present Claimant understands that, with respect to the tax period of 2015, the aggregate amount of autonomous taxation paid by the fiscal consolidation dominated by the present Claimant, amounting to Euro 437,245.64, should be entirely deducted by the credit corresponding to the RFAI, whereby the present Claimant should be reimbursed the total amount, paid in excess, that is, the amount of Euro 437,245.64, taking into account the total RFAI credit available of Euro 2,445,097.97.
2.3. In order to substantiate its position, the Claimant brings to the present discussion arbitral case law produced on this matter, which, in its understanding, aligns with the arguments put forward by it in the present Request for Arbitral Pronouncement, see inter alia the Decisions in Processes 672/2016-T, 219/2015-T, 769/2014-T, 370/2015, Process 637/2015-T, of 28 April 2016, and in Process 669/2016-T, of 13 June 2017.
2.4. In this same sense, it further points to quite recent arbitral decisions, namely, those relating to Processes No. 490/2017-T, of 20 April 2018, No. 45/2018-T, of 15 June 2018, and No. 626/2017-T, of 14 July 2018.
2.5. The Claimant emphasises that it has already obtained, with reference to the tax period of 2014, a favourable decision from the CAAD regarding a question in all respects identical to the one it now presents (cf. CAAD Decision in Process No. 536/2016-T, a copy of which is attached as Document No. 10).
2.6. The deductibility of the tax benefit RFAI to the amount calculated in accordance with article 90 of the Corporate Income Tax Code is not compatible with the requirement of the existence of taxable profit - moreover, only the calculation of Corporate Income Tax collection is required, which may exist even without taxable profit, in particular by force of autonomous taxation.
2.7. Autonomous taxation is Corporate Income Tax, as clarified by the new wording of article 23-A, No. 1, paragraph a) of the Corporate Income Tax Code. In fact,
2.8. In accordance with article 90, No. 2, paragraph d) of the CIRC, "to the amount calculated in accordance with the preceding number [Corporate Income Tax collection] the following deductions are made, in the order indicated: d) That relating to the payment of the RFAI referred to in article 106";
2.9. The CIRC therefore provides that the deduction relating to the RFAI must be effected up to the amount of the Corporate Income Tax collection calculated in the relevant tax period;
2.10. The fact that there are certain specific rules in the Corporate Income Tax regime for autonomous taxation, as occurs in article 88 of the CIRC, in which the taxable base and rates applicable to autonomous taxation are established, cannot be used to defend that autonomous taxation does not qualify as Corporate Income Tax, insofar as it derives from the fact that the Corporate Income Tax regime itself, which is a tax of successive application, includes elements of single obligation which is precisely the case with autonomous taxation.
2.11. For this reason, and by application of the rules and general principles of interpretation and application of laws, it must be concluded that it was always the legislator's intention to qualify autonomous taxation as Corporate Income Tax (that is, it itself is Corporate Income Tax), an intention which is now literally enshrined in article 23-A, No. 1, paragraph a) of the CIRC.
2.12. Specifically with regard to the deduction of the RFAI, the Claimant draws the following conclusion regarding a potential conflict between the public interest in tax collection and the protection of extra-fiscal interests: "It is true that autonomous taxation, in addition to having the objective of guaranteeing a minimum collection for companies that present losses, aims to reduce "fiscal participation" in certain expenses and, possibly, discourage their performance, and such objectives will be less achieved with the possibility of the respective collection being subject to deductions. But, on the other hand, tax benefits are measures of an exceptional character instituted for the protection of relevant extra-fiscal public interests that are superior to those of the taxation they prevent (article 2, No. 1, of the EBF)" (cf. CAAD Decision in Process No. 370/2015-T).
2.13. "In the confrontation between these two objectives, it is the law itself that indicates to us what should prevail. The public interests that determine the creation of a tax benefit are, by nature, superior to those of the taxation they prevent. This is, furthermore, more evident with regard to fiscal incentives for investment, since they constitute a true public promise, in the sense that to taxpayers who adopt certain behaviors, supposedly of the greatest economic and social interest, a certain "fiscal reward" is guaranteed" (cf. CAAD Decision in Process No. 370/2015-T).
2.14. On the other hand, on 31 March 2016, the State Budget Law for 2016 came into force, which added No. 21 to article 88, from which it follows that "the assessment of autonomous taxation in Corporate Income Tax is effected in the terms provided in article 89 and is based on the values and rates that result from the provisions in the preceding numbers, with no deductions being made to the total amount calculated."
2.15. Now this issue has been widely discussed in Portuguese doctrine and case law, and it has been unanimously considered that for a rule to be interpretive it is necessary that two cumulative requirements are met, namely (i) the existence of a rule (to be interpreted) that is uncertain and controversial in its interpretation; and (ii) the interpretive rule integrating an interpretation that case law could, by itself, have adopted (with respect to the rule interpreted).
2.16. And although it is clear that the first requirement is met (indeed, it is a rule that is uncertain and controversial),
2.17. It is by no means true that the interpretive rule in question integrates an interpretation that case law could, by itself, have adopted, especially since there are multiple decisions demonstrating that case law adopted exactly the opposite understanding, with the Claimant citing in this respect the understanding set out in the Constitutional Court Decision No. 75/95, published on 21 February, with respect to Process No. 840/93.
2.18. The Claimant concludes by requesting:
a) That the express rejection decision impugned be annulled and, through this;
b) That the tax act in question be partially annulled, with the legal consequences - notably by reimbursement of the tax in the total amount of Euro 437,245.64, plus the respective compensatory interest at the legal rate;
c) That the Public Treasury be condemned to pay costs and other process expenses, as it caused the same.
2.19. In accordance with the notification, for this purpose, the Tax Authority presented its Reply, accompanied by the Administrative Process, upholding the total lack of merit of the Claimant's request, arguing in its favour, among other things, the understanding set out in the Arbitral Decisions rendered in arbitral processes Nos. 603/2014-T, 697/2014-T or the recent process 542/2017 of this CAAD. It argues, fundamentally, the following:
2.20. In reality, the integration of autonomous taxation in the Corporate Income Tax Code (and the Personal Income Tax Code) conferred a dualistic nature, in certain respects, to the normative system of this tax, which was embodied, in particular, in the framework of paragraph a) of No. 1 of article 90 of the CIRC, in separate calculations of the respective collections, by force of their being subject to different rules.
2.21. And that is so, since in one case, it is the application of the rate(s) of article 87 of the CIRC to taxable matter determined in accordance with the rules contained in Chapter III of the Code and, in another case, it is the application of rates to the values of taxable matters relating to the different situations contemplated in article 88 of the CIRC.
2.22. That is, contrary to what is stated in point 9 of the dissenting opinion attached to the Arbitral Decision rendered in process No. 697/2014-T, there is not a single assessment of Corporate Income Tax, but rather two calculations.
2.23. It should be clarified that the assessment of autonomous taxation is effected on the basis of articles 89 and 90, No. 1 of the Corporate Income Tax Code but, applying different rules for the calculation of the tax.
2.24. In one case, the assessment operates by applying the rates of article 87 to the taxable matter ascertained in accordance with the rules of Chapter III of the Code and
2.25. In the other case, various collections are ascertained depending on the diversity of facts that originate autonomous taxation.
2.26. That is, in overall terms, the Corporate Income Tax collection ascertained in accordance with article 89 and No. 1 of article 90 has a composite, divisible nature, on the one hand between the collection of the tax itself, resulting from the general structure of Corporate Income Tax calculation, which is due on the basis of a constitutional foundation based on the general duty of each one (in which legal persons are included) to contribute to public expenditure according to their means (Article 103, No. 1 of the CRP), from which the amounts referred to in No. 2 of article 90 are deducted, in the terms and manner referred to there and, on the other hand, the sum of the collections of autonomous taxation that incorporate a meaning and foundations of their own and which, therefore, should not be subject to confusion.
2.27. Attempting to convert a dual system of Corporate Income Tax composed of the rule-regime of taxation of the income of legal persons by the autonomous taxation of certain situations, into a unitary system of Corporate Income Tax, inevitably leads to the erroneous and unjustified thesis that there exists a single Corporate Income Tax collection and inferentially deductions referred to in No. 2 of article 90 can be made to it.
2.28. Now, when it comes to the deductions provided for in No. 2 of article 90 of the CIRC, the Claimant intends - anchoring itself in, with due respect, a simplistic and decontextualised reading of this norm - that the expression "amount calculated in accordance with the preceding number" should be understood as encompassing the sum of the amount of the Corporate Income Tax, calculated on the taxable matter determined in accordance with the rules of Chapter III and at the rates provided in article 87 of the same Code, and the amount of autonomous taxation, calculated on the basis of the rules provided in article 88.
2.29. In reality, it should be noted that the common feature of all the situations reflected in the deductions referred to in No. 2 of article 90 of the CIRC resides in the fact that they concern income or expenses incorporated in the taxable matter determined on the basis of the profit of the taxpayer or advance payments of the tax, being, therefore, entirely foreign to the situations that integrate the facts generated by autonomous taxation.
2.30. With regard to the deduction relating to tax benefits (paragraph b) of No. 2 of article 90), when it comes to investment benefits - as is the case with the RFAI - it has underlying the philosophy that the benefit constitutes a prize whose amplitude varies with the profitability of investments, since the higher the profit/taxable matter of Corporate Income Tax, the greater will be the capacity to make the deduction.
2.31. There is, therefore, an inseparable connection between the amount of the tax credit for investment and the part of the Corporate Income Tax collection calculated on the taxable matter based on profit and, unless this is the case, the necessary articulation that, in the material plane, must exist between the objectives pursued by fiscal benefits and its impact on the very magnitude that serves as the basis for calculating the taxable matter and the collection of profit, would be subverted.
2.32. It is also important to emphasize that the arguments now wielded have already been presented in arbitral proceedings, and specifically in Processes No. 603/2014-T, Process No. 697/2014-T or the recent Process 542/2017-T, all decided in favour of the Respondent, whose sole object was the deduction to the collection of the part of Corporate Income Tax produced by the rates of autonomous taxation.
2.33. As to the alteration introduced by the State Budget for 2016 with the addition of No. 21 to article 88 of the CIRC, attributing to the same an interpretive character.
2.34. The assessment of autonomous taxation in Corporate Income Tax is effected in the terms provided in article 89 and is based on the values and rates that result from the tax in the preceding numbers, with no deductions being made to the total amount calculated.
2.35. Given this, it results that the very interpretive effect conferred by that Law would be, per se, unnecessary, insofar as, as has been demonstrated, no other interpretation would be capable of being effected having regard to the teleology and legal hermeneutics of the rules in question.
2.36. The Respondent further refers to argumentation previously used, namely considering that the position defended by the Tax Authority has explicit support in the provision of No. 5 of article 90 of the CIRC - through which the legislator provides a clear indication that the amount of the tax assessed, to which the deductions referred to in No. 2 of the same article are made, does not include the amount corresponding to autonomous taxation - by establishing that the deductions that are imputed to the partners or members of entities covered by the tax transparency regime established in article 6 (entities that are subject to payment of autonomous taxation, by force of article 12) are «deducted from the amount calculated on the basis of taxable matter that has taken into account the imputation provided in the same article». Given that the command of this norm is addressed to partners or members of transparent entities – which, in the process of calculating taxable profit, must integrate into it the values (relating to taxable profit/tax loss or to taxable matter, as the case may be) that are imputed to them – what the legislator indicates, in an entirely clear manner, is that the deductions provided for in No. 2 of article 90 of the CIRC, which are equally imputed to partners or members, must be made to the amount of the tax calculated on the basis of taxable matter in which the imputation provided in article 6 of the CIRC is reflected." (cf. articles 50 and 51 of the Response).
2.37. Now, if this is the procedure to be adopted by subjects of Corporate Income Tax who are partners or members of transparent entities, with regard to the deductions relating to the transparent entity in which they participate, it would be entirely incongruous, in addition to having no legal support, to defend the thesis that, for the deductions referred to in No. 2 of article 90 of the CIRC, which directly concern these taxpayers, the same could be made to the amount calculated with autonomous taxation." (cf. article 53 of the Response).
2.38. Finally, the Respondent considers that, for the Tax Authority to incur in the obligation to pay compensatory interest, there must be some illegality that denotes the improper nature of the tax payment in light of substantive norms, an illegality that must necessarily be attributable to error on the part of the services. Now, the assessment in question does not arise from any error on the part of the services but results directly from the application of the law. The Tax Authority limited itself, therefore, to applying the legal consequences that, from a fiscal standpoint, were imposed in view of the occurrence of the factual presuppositions underlying the correction made, whereby it should also be judged the challenge regarding the requested interest to be lacking in merit.
2.39. The Respondent concludes by the total lack of merit of the present request for arbitral pronouncement, with the legal consequences.
3. SANITATION
The arbitral tribunal was regularly constituted on the basis of articles 2, No. 1, paragraph a) and 10, No. 1 of the RJAT, being competent to examine and decide the request for arbitral pronouncement.
The parties, which are duly represented, enjoy personality and judicial capacity and have standing (articles 4 and 10, No. 2, of the same instrument and 1 of Ordinance No. 112-A/2011, of 22 March).
The process is not affected by nullities.
4. FACTS
4.1. Facts deemed proven:
a) On 31 December 2015, the Claimant (at that date, designated B..., SGPS, S.A.) was the dominant company of a group of entities that were part of the Special Tax Regime for Groups of Companies (RETGS), in accordance with article 69 of the Corporate Income Tax Code.
b) In its capacity as the dominant company, the present Claimant submitted, with reference to the tax period of 2015, the tax return declaration "Model 22" (DM22) of the Corporate Income Tax relating to the aforementioned fiscal consolidation.
c) With reference to the tax period of 2015, the present Claimant submitted the DM22 of the fiscal consolidation that it dominated, on 31 May 2016 (a copy of which is attached as Document No. 1), in which a negative consolidated tax result was calculated in the amount of Euro 105,801,650.02 and a total amount of autonomous taxation of Euro 437,245.64.
d) Subsequently, the Claimant proceeded, on 19 December 2017, to submit a new replacement DM22, with identification No. ..., relating to the fiscal scope of Group A... (cf. second replacement DM22 of the Group, with reference to the tax period of 2015, a copy of which is attached as Document No. 3), in which a negative consolidated tax result was calculated in the amount of Euro 74,742,019.81, with no change being verified in the amount of autonomous taxation (i.e., Euro 437,245.64).
e) Within the scope of the last DM22 submitted, the present Claimant had, in the context of tax benefits, a total amount of Euro 2,606,981.65 relating to the application of the Tax Support Regime for Investment (RFAI), of which Euro 2,445,097.97 carry forward to the following periods, after deduction of the period (Euro 161,883.68).
f) The Claimant did not effect deduction of any amount of the RFAI to the collection derived from autonomous taxation.
g) The Claimant considers that an error was verified in the calculation of autonomous taxation to be supported, which distorted, in a materially significant manner, the tax to be reimbursed to the Group - for which reason it presented, on 30 May 2018, the competent Gracious Appeal to the Tax Service Lisbon-... (cf. Document No. 5).
h) The aforementioned gracious appeal was rejected by dispatch of 31-07-2018 issued by the Head of Finance Directorate Division, pursuant to Delegation of Authority (document No. 2 attached with the request for arbitral pronouncement, whose content is given as reproduced);
The aforementioned dispatch manifests agreement with an information whose content is given as reproduced, in which, among other things, the following is referred to:
I - BRIEF DESCRIPTION OF THE APPEALING TAXPAYER'S ARGUMENTS
1 - The aforementioned taxpayer presents a gracious appeal against the self-assessment of Corporate Income Tax for the fiscal year 2014 effected in the income tax return statement Model 22 (pages 19 to 27 of the process).
2 - It requests reimbursement of the amount of € 125,362.41, alleging, in summary, the following:
• It is an established point in doctrine and case law that autonomous taxation assumes the nature of Corporate Income Tax.
• In the absence of any provision in the Corporate Income Tax Code that provides specific terms for the assessment of autonomous taxation, it must be concluded that its article 90 encompasses the calculation of the amount of collection that results from the rates applicable to the tax facts which, by force of article 88 of the same Code, are subject to autonomous taxation, all the more so since this tax assumes the nature of Corporate Income Tax.
• The DSIRC, having regard to its understanding as to the nature of autonomous taxation (document attached on pages 29 to 36), admits the possibility that tax credits approved by itself in the same tax period be deducted from its value, as well as those relating to preceding periods and which are still available for deduction.
• Since the appellant ascertained autonomous taxation collection in the amount of € 125,362.41, in light of that understanding, it could have deducted, up to its amount, the value of tax benefits - in this case, SIFIDE - still available. The value of the SIFIDE that was available for deduction in the period of 2014, and which was not deducted due to alleged insufficiency of collection, amounted to € 4,603,239.40.
• On a subsidiary basis, if the Tax Authority understands that it is not possible to effect the deduction of the SIFIDE tax credit to the amount of autonomous taxation, arguing that its assessment has no framework in article 90 of the CIRC, then the appellant considers that those autonomous taxation would not be due due to non-existence of an assessment rule, for which reason it requests reimbursement of the respective amount.
3 - It further requests compensatory interest, under article 43 of the LGT, on the amount paid improperly.
II - ANALYSIS OF THE REQUEST
1 - The appellant has standing (article 9 of the Code of Procedure and Tax Procedure), and the request is legal and was presented on time, within the two-year period following the filing of the return, in accordance with No. 1 of article 131 of the CPPT (dates of filing of the m/22 return, 28-05-2015, page 19; appeal filed on 29-02-2016, page 4).
For the purposes of the provision of No. 3 of article 111 of the CPPT, it was verified, by consultation of the Computer System, that up to the present date no judicial challenge with the subject matter of the appeal under analysis has been presented.
2 - The appellant alleges that the value of the SIFIDE tax benefit to be deducted with reference to the fiscal year of 2014 should be capable of being deducted from that of autonomous taxation ascertained in the Model 22 return of that year, on the basis of No. 2 of article 90 of the CIRC, because autonomous taxation has the nature of Corporate Income Tax and because there is no assessment rule other than that article 90.
In effect, the autonomous taxation referred to in article 88 of the CIRC has the nature of Corporate Income Tax, but assessed autonomously.
Contrary to what is stated in the appeal, the information from the DSIRC attached to it (pages 29 to 36) does not contain the possibility of any deduction to the amount of autonomous taxation.
In accordance with the provision of No. 21, added to article 88 of the CIRC by Law No. 7-A/2016 of 30/3 (State Budget Law for 2016): "The assessment of autonomous taxation in Corporate Income Tax is effected in the terms provided in article 89 and is based on the values and rates that result from the provisions in the preceding numbers, with no deductions being made to the total amount calculated."
That No. 21 was attributed an interpretive nature by article 135 of the same law.
Thus, on the basis of that legal norm, tax benefits are not deductible from the amount of autonomous taxation.
As to the allegation, on a subsidiary basis, of the absence of a legal basis for the assessment of autonomous taxation, it is to be noted that, as expressed in the norm transcribed above, the respective assessment is effected in the terms provided in article 89, on the basis of the values and rates that result from article 88, both of the CIRC.
3 - Given that, as set out in the preceding point, the appellant's position is not sustainable, it is proposed that the request be rejected, maintaining the Corporate Income Tax assessment subject to appeal.
It is further added that, given that the presuppositions of No. 1 of article 43 of the LGT are not met in this case, the appellant is not entitled to compensatory interest.
III - PRIOR HEARING
The appellant was notified of the draft rejection decision by electronic data transmission on 06-09-2016, as stated on pages 45 and 46 of the process, to exercise the prior hearing right provided for in article 60 of the General Tax Law.
With the notification, a copy of the draft decision was sent, with the 15-day period being respected in accordance with No. 6 of article 60 of the General Tax Law.
After the said period elapsed, the appellant did not exercise the right.
Given the foregoing, and having regard to the facts and grounds invoked in the preceding points and which reproduce the said draft decision, it is proposed that the request be decided in the same sense as the rejection (cf. point III-3 above).
k) On 29/10/2018, the Claimant presented the request for arbitral pronouncement that gave rise to the present process.
4.2. Facts deemed not proven
There are no facts with relevance to the arbitral decision that have not been given as proven.
4.3. Substantiation of the facts deemed proven
The facts deemed proven have their origin in the documents used for each of the facts alleged and whose authenticity was not placed in issue, with the same not having been impugned by the Respondent Tax Authority.
5. QUESTION TO BE DECIDED
The only question to be resolved is whether the amount of the tax benefit relating to the RFAI can be deducted from the amounts due by way of autonomous taxation of the 2015 fiscal year.
6. LAW
6.1. Applicability of articles 89 and 90 of the CIRC to the calculation of autonomous taxation
6.2. Articles 89 and 90 of the CIRC establish the following, in the wording in force until 31.12.2013 and in the wording subsequently given by Law No. 2/2014, of 16 January, in force during the year 2014:
Article 89
Competence for assessment
The assessment of Corporate Income Tax is effected:
a) By the taxpayer himself, in the returns to which articles 120 and 122 refer;
b) By the Directorate-General of Taxes, in the remaining cases.
Article 90
Procedure and form of assessment
1 - The assessment of Corporate Income Tax proceeds in the following terms:
a) When the assessment is to be made by the taxpayer in the returns to which articles 120 and 122 refer, it is based on the taxable matter contained therein;
b) In the absence of filing of the return referred to in article 120, the assessment is effected by 30 November of the following year to which it relates or, in the case provided for in No. 2 of the said article, by the end of the 6th month following the end of the deadline for filing of the return mentioned therein and is based on the value of the annual minimum monthly remuneration or, when higher, the total taxable matter of the fiscal year closest to which is determined;
c) In the absence of assessment in the terms of the preceding paragraphs, the same is based on the elements which the tax administration has available.
2 – To the amount calculated in accordance with the preceding number the following deductions are made, in the order indicated:
a) The one corresponding to international double taxation;
b) The one relating to tax benefits;
c) The one relating to the special payment on account referred to in article 106;
d) The one relating to tax withholdings not capable of compensation or reimbursement in accordance with applicable legislation.
3 – (Repealed by Law No. 3-B/2010)
4 - To the amount calculated in accordance with No. 1, with regard to the entities mentioned in No. 4 of article 120, only is the deduction relating to tax withholdings when these have the nature of tax on account of Corporate Income Tax.
5 - The deductions referred to in No. 2 relating to entities to which the tax transparency regime established in article 6 is applicable are imputed to the respective partners or members in the terms established in No. 3 of that article and deducted from the amount calculated on the basis of the taxable matter that has taken into account the imputation provided in the same article.
6 - When the special regime for taxation of groups of companies is applicable, the deductions referred to in No. 2 relating to each of the companies are effected in the amount calculated with regard to the group, in the terms of No. 1.
7 – The deductions made in accordance with paragraphs a), b) and c) of No. 2 cannot result in a negative value.
8 - With regard to taxpayers covered by the simplified regime for determining taxable matter, to the amount calculated in accordance with No. 1 only the deductions provided for in paragraphs a) and e) of No. 2 are to be made (wording in force from 01.1.2014).
9 - The deductions made in accordance with paragraphs a) to d) of No. 2 cannot result in a negative value (wording in force from 01.01.2014)
10 - To the amount calculated in accordance with paragraphs b) and c) of No. 1 only the deductions of which the tax administration has knowledge and that can be effected in the terms of Nos. 2 to 4 (former No. 8) are made.
11 - In cases where the provision of paragraph b) of No. 2 of article 79 is applicable, assessments are made annually on the basis of taxable matter determined with a provisional character, and, in view of the assessment corresponding to taxable matter relating to the entire assessment period, the difference ascertained must be collected or cancelled.
6.3. Before proceeding, let us recall that the numerous processes that have reached the courts, requesting a decision on the deduction to the collection, specifically the collection of autonomous taxation, of the values provided for in No. 2 of article 90 of the CIRC, are to some extent a logical consequence of the interpreter's doubts about the legal possibility of deducting autonomous taxation itself from Corporate Income Tax.
6.4. The doubt about the deductibility of autonomous taxation in the context of the previous wording of the Corporate Income Tax Code arose as a consequence of the interpretive margin created by the conjunction of two norms: on the one hand, the general principle of deductibility of expenses demonstrably essential for the realization of income subject to tax or for the maintenance of the income-producing source, in particular those of a fiscal and parafiscal nature, which resulted from article 23, No. 1, paragraph f), of the Corporate Income Tax Code and, on the other hand, the non-deductibility rule provided for in paragraph a) of No. 1 of article 45 of the same Code, according to which Corporate Income Tax and any other taxes that directly or indirectly affect profits were not deductible for the purpose of determining taxable profit.
6.5. Specifically, doubts arose because the norm provided for in paragraph a) of No. 1 of article 45 of the Corporate Income Tax Code (with the wording in force in 2010) did not expressly mention autonomous taxation and because the general principle in the context of Corporate Income Tax was and is the deductibility of expenses essential for the realization of income subject to tax or for the maintenance of the income-producing source. Thus, faced with a general principle of deductibility of expenses and the absence of express reference to autonomous taxation, the doubt arises as to whether the legislator intended to include them or not in the exception of non-deductibility provided for in paragraph a) of No. 1 of article 45.
6.6. Autonomous taxation was introduced into the Portuguese legal system through article 4 of Decree-Law No. 192/90, of 9 June, which provided for autonomous taxation, at the rate of 10%, on confidential expenses, subsequently and progressively moving on to autonomously tax such a diverse set of situations as representation expenses, vehicle costs, indemnities and variable remuneration of statutory body members.
6.7. It became settled, following numerous arbitral case law and the positions assumed by the Tax and Customs Authority, that the tax collected on the basis of autonomous taxation provided for in the CIRC has the nature of Corporate Income Tax.
6.8. See, for example, the conclusion of process No. 209/2013 – T, in which the CAAD understood that "(…) the legal regime of the autonomous taxation in question only makes sense in the context of taxation in Corporate Income Tax.", further adding that "Its existence, its purpose, its explanation, ultimately, its juridicity, is only comprehensible and acceptable within the framework of the legal regime of Corporate Income Tax.".
6.9. See also the Supreme Administrative Court Decision in process 0146/16 dated 09/27/2017: "In the first place, because, although, as we have stated, autonomous taxation constitutes a tax imposition distinct from Corporate Income Tax, the truth is that, at least since 1 January 2001, with the entry into force of Law No. 30-G/2000, of 29 December – which, in its own terms, reforms income taxation and adopts measures intended to combat tax evasion and fraud, altering, among other things, the CIRC –, autonomous taxation has always been included in this Code. That is, formally, autonomous taxation has always been dealt with within the scope of Corporate Income Tax, within the Code that regulates this tax, being assessed simultaneously with it.
That situation, by itself, may have convinced the legislator of the unnecessary nature of expressly enshrining autonomous taxation in paragraph a) of No. 1 of article 45 of the CIRC (The inclusion of autonomous taxation in that concept of Corporate Income Tax, moreover, was never subject to controversy until this Supreme Administrative Court's case law, following the dissenting opinion rendered in decision No. 18/2011 of the Constitutional Court, came to emphasize the distinct nature of autonomous taxation in relation to Personal Income Tax.).
All the more so, in our opinion, the teleology of autonomous taxation requires the refusal of the deductibility of fiscal expenses supported with the same. This refusal is evident with regard to those expenses that are not, themselves, deductible for the purpose of determining the taxable matter, as is the case with undocumented expenses and amounts paid or owed, for any reason, to residents outside the Portuguese territory and there subject to a privileged fiscal regime. But also in cases – as in the one we are now dealing with – in which autonomous taxation affects expenses that are fiscally deductible, it would be difficult to understand that the legislator's intention, which is to attenuate or even cancel the financial effect resulting from the deduction, would subsequently be contradicted by the deduction of expenses with that autonomous taxation. If autonomous taxation serves, in these cases, to meet the difficulty of rigorous control of expenses of a business character and of a personal character, discouraging their performance, and to compensate for the loss of tax revenue resulting from that performance, constituting, ultimately, a reduction in the amount of costs deductible in determining taxable matter, it would not make sense that, subsequently, the deduction of expenses with autonomous taxation should be permitted".
6.10. This was also the understanding of the Tax and Customs Authority, which repeatedly held that "autonomous taxation does not, ontologically, constitute a type of tax distinct from Corporate Income Tax, as, for example, is the municipal surcharge", with which "the characteristics that make them a distinct and special tax in relation to Corporate Income Tax", so that "autonomous taxation is neither nor has ever been an autonomous special tax", and that "in a teleological, systemic and functional perspective, (…) autonomous taxation must be considered an additional component of Corporate Income Tax", grounding the Tax Authority's conclusions on the understanding that the purpose of autonomous taxation "is undoubtedly ancillary to income taxation", not being "correct to affirm that autonomous taxation stands apart, either from the function and nature of Corporate Income Tax, or even from the calculation of taxable profit.", a position cited in the Process of the CAAD No. 411/2016-T, of 26/06/2017.
6.11. Moreover, apart from the case law, article 23-A, No. 1, paragraph a), of the CIRC, in the wording of Law No. 2/2014, of 16 January, leaves today no room for any reasonable doubt, corroborating what already previously resulted from the literal content of article 12 of the same Code.
6.12. Following here the position expressed in various decisions of the CAAD, in particular in processes No. 59/2017-T and 221/2018-T:
6.13. Article 90 of the CIRC refers to the forms of assessment of Corporate Income Tax, by the taxpayer or by the Tax Administration, applying to the calculation of the tax due in all situations provided for in the Code, including additional assessment (No. 10).
6.14. Therefore, that article 90 also applies to the assessment of the amount of autonomous taxation, which is calculated by the taxpayer or by the Tax Administration, following the filing or non-filing of returns, there being no other provision that provides for different terms for its assessment.
6.15. Thus, the differences between the determination of the amount resulting from autonomous taxation and that resulting from taxable profit are restricted to the determination of taxable matter and the rates applicable, which are those provided in Chapters III and IV of the CIRC for Corporate Income Tax on the basis of taxable profit and in article 88 of the CIRC for Corporate Income Tax on the basis of the taxable matter of autonomous taxation and the respective rates.
6.16. But the forms of assessment provided for in Chapter V of the same Code are of common application to autonomous taxation and to the remaining taxable matter of Corporate Income Tax.
6.17. However, the fact that a self-assessment of Corporate Income Tax, made in accordance with No. 1 of article 90, may contain various partial calculations on the basis of various rates applicable to certain taxable matters does not imply that there is more than one assessment, as results from the very terms of that norm when making reference to «assessment», in the singular, in all cases in which it is «made by the taxpayer in the returns to which articles 120 and 122 refer», having «as basis the taxable matter contained therein» (whether that determined in accordance with the rules of articles 17 et seq. or that determined in accordance with the various situations provided for in article 88).
6.18. Moreover, it is not only the assessments provided for in article 88 that may encompass various calculations of the application of rates to certain taxable matters, as the same may occur in the situations provided for in Nos. 4 to 6 of article 87. ( )
6.19. In any event, whatever the calculations to be made, the self-assessment that the taxpayer or the Tax and Customs Authority must effect in accordance with articles 89, paragraph a), 90, No. 1, paragraphs a), b) and c), and 120 or 122 is unitary, and it is on the basis thereof that the overall Corporate Income Tax is calculated, whatever the taxable matters relating to each of the types of taxation underlying it. ( )
6.20. Moreover, if this article 90 were not applicable to the assessment of autonomous taxation provided for in the CIRC, we would have to conclude that there would be no norm that provided for its assessment, which would reduce to illegality, by violation of article 103, No. 3, of the CRP, which requires that the assessment of taxes be made «in accordance with the law».
6.21. Reference should also be made to the new norm of No. 21 added to article 88 of the CIRC by Law No. 7-A/2016, of 30 March, regardless of whether it is truly interpretive or not, in no way alters this conclusion, as it is established there, with regard to the form of assessment of autonomous taxation, that it «is effected in the terms provided in article 89 and is based on the values and rates that result from the provisions in the preceding numbers».
6.22. For it is true that this new norm comes to explain how the amounts of autonomous taxation are calculated (which already resulted from the very text of the various provisions of article 88) and that the responsibility falls to the taxpayer or the Tax Administration, in accordance with article 89, it is also clear that the necessity of using the procedure provided for in No. 1 of article 90 is not ruled out, in particular in the cases provided for in its paragraph c) in which the assessment is the responsibility of the Tax and Customs Authority, with «basis on the elements which the tax administration has available», which will encompass the possibility of assessing on the basis of autonomous taxation, if the Tax and Customs Authority has elements that prove its presuppositions.
6.23. As referred to above, both the Tax Authority and the arbitral tribunals in dozens of arbitral decisions that ruled in favour of the Tax Authority understand that the collection of autonomous taxation in Corporate Income Tax is Corporate Income Tax, including in the purposes or function that it serves (combating, through compensatory taxation, expenses and charges of dubious business character, at least in their entirety, but nonetheless deducted by the enterprises in calculating their taxable profit in Corporate Income Tax).
6.24. This conclusion is also a requirement of the principle of coherence and systematic interpretation: one cannot simultaneously conclude (without a law that previously creates the dissonance) that when the Corporate Income Tax Code refers to Corporate Income Tax collection in its article 45, No. 1, paragraph a) (in the wording and numbering in force until 2013), autonomous taxation collection in Corporate Income Tax is included there, without need for separate naming (and overwhelming tax case law concluded this, at the request of the Tax Authority) and in articles further ahead (article 90, No. 2, of the Corporate Income Tax Code) conclude, in opposition, that Corporate Income Tax collection does not encompass autonomous taxation collection in Corporate Income Tax.
6.25. See in support the provision of Decision in process No. 223/2018-T which we follow: "There is no other article in the CIRC, other than article 90, that distinguishes the process of assessment of autonomous taxation from the remaining Corporate Income Tax. And, in these terms, the assessment of both - autonomous taxation and remaining Corporate Income Tax - is unitary and has the same legal support. Autonomous taxation does not result from a distinct process of tax assessment. Understanding as it is that autonomous taxation is (part of) Corporate Income Tax, it is comprehensible that Corporate Income Tax assessment is unitary, including the part that comes from autonomous taxation. There is a unitary Corporate Income Tax assessment that comprises two parts: the assessment of autonomous taxation and that of remaining Corporate Income Tax, each one with taxable matter determined in its own way and with its own taxation rates, but both assessed in accordance with article 90 of the CIRC. Being a unitary assessment, it is concluded that the part of collection that comes from autonomous taxation is an integral part of Corporate Income Tax collection. To the contrary, in any other article of the CIRC there is no reference to the assessment of autonomous taxation as a distinct process. To accept that the collection of autonomous taxation is not included in article 90 of the CIRC would be to accept that there is a gap in the law and, given that this is tax law, it does not permit integration. And thus, the Tax and Customs Authority may well have erred, by not allowing the deduction of the amounts relating to the PEC that the Claimant had the right to deduct from the collection. To accept that the assessment of autonomous taxation is outside article 90, No. 1 of the CIRC and, therefore, to exclude from its collection the deductibility of the PEC provided for in paragraph c) of No. 2, would be to oblige the taxpayer to pay a tax whose assessment is not made in accordance with the law, contrary to No. 3 of article 103 of the CRP and the principle of tax legality that the General Tax Law, in its article 8, No. 2, paragraph a), establishes. If the Tax and Customs Authority assumed that the collection of autonomous taxation was calculated outside article 90 of the CIRC, it should indicate the norm on the basis of which it made the assessment. With no separate norm on the assessment of autonomous taxation, it seems that it must be accepted that Corporate Income Tax collection encompasses it, being included in article 90, No. 1 of the CIRC, and therefore the deduction of the special payment on account referred to in paragraph c) of No. 2 would be deductible. Note, moreover, that in the following numbers of that article 90 the legislator was concerned with enunciating various exceptions and limits to the deductibility rules of number 2. In number 4, when it provides that "only the deduction relating to tax withholdings when these have the nature of tax on account of Corporate Income Tax is to be made", it is revealing: it is understood that this is so, because it is in the Corporate Income Tax collection that it is intended to deduct them, or, in number 7, when it prescribes that the deductions made in accordance with paragraphs a), b) and c) of No. 2 cannot result in a negative value, in a general manner and without distinguishing the collection resulting from the application of autonomous taxation rates. In none of them - and this would, undoubtedly, be the right place – and in no other norm is any limitation to the deductibility of the special payments on account to the part of Corporate Income Tax collection that results from autonomous taxation referred to, and therefore it must be concluded that it did not intend to do so. Note, moreover, that, although article 90 was altered with Law No. 2/2014, of 16 January, which republished the CIRC, what is said here not only persists but, from an interpretive point of view, is even reinforced, insofar as the legislator added some limitations and exceptions to the deductions to the collection provided for in number 2 and again did not refer to the part of the collection that results from the application of autonomous taxation rates. It is verified, however, that the computer system does not allow the deduction of the PEC to the part of Corporate Income Tax collection coming from autonomous taxation. The fact that the forms of determination of taxable matter and the rates of autonomous taxation of Corporate Income Tax are established separately and are different from those of the remaining Corporate Income Tax does not seem to be a sufficient reason, nor to have legal support, for the existing computer solution. To consider that the assessment of autonomous taxation is outside the collection calculated by article 90, No. 1 of the CIRC, is to accept that this understanding would be provided for in another legal provision and, as this does not exist, the assessment cannot but be made within the scope of article 90 of the CIRC. Thus, the deduction of PEC to Corporate Income Tax collection must be accepted, necessarily including the portion coming from autonomous taxation".
6.26. With regard to the RFAI, it is important to note that, as introduced within Portuguese legislation by the Supplementary Budget for 2009 (article 13 of Law No. 10/2009, of 10 March), being successively extended by the following State Budgets, and subsequently transferred by Decree-Law No. 82/2013, of 17 June, to the Tax Code for Investment (CFI), approved by Decree-Law No. 162/2014, of 31 October (and subsequently subject to rectifications and alterations), the RFAI concerns a tax benefit for investment in tangible fixed assets and intangible assets, embodied in deductions to Corporate Income Tax collection, exemption from Stamp Duty and exemption or reduction of Municipal Property Tax (IMI) and Municipal Tax on Transfers of Immovable Property for Consideration (IMT) with regard to immovable property acquired or constructed within this scope.
6.27. The RFAI is provided for and regulated in the Tax Code for Investment, revised by Decree-Law No. 162/2016, of 31/10, which in its article 1, No. 2 provides the following: - The regime of contractual tax benefits for productive investment and the RFAI constitute aid regimes with a regional purpose approved in accordance with Regulation (EU) No. 651/2014 of the Commission, of 16 June 2014, which declares certain categories of aid compatible with the internal market, in application of articles 107 and 108 of the Treaty, published in the Official Journal of the European Union, No. L 187, of 26 June 2014 (hereinafter General Block Exemption Regulation or GBER).
6.28. Article 8 provides the applicable tax benefits, as follows:
1 - To the investment projects provided for in the preceding articles, the following tax benefits may be granted cumulatively:
a) Tax credit, determined on the basis of the application of a percentage, between 10% and 25% of the relevant applications of the investment project effectively carried out, to be deducted from the amount of Corporate Income Tax collection ascertained in accordance with paragraph a) of No. 1 of article 90 of the Corporate Income Tax Code;
b) Exemption or reduction of IMI, during the validity of the contract, with regard to properties used by the promoter within the scope of the investment project;
c) Exemption or reduction of IMT, with regard to the acquisition of properties included in the investment plan and carried out during the investment period;
d) Exemption of Stamp Duty, with regard to all acts or contracts necessary for the realization of the investment project.
2 - The deduction provided for in paragraph a) of the preceding number is effected in the assessment of Corporate Income Tax relating to the tax period in which the relevant applications were carried out, and that deduction may also be used, under the same conditions, in the assessment of tax periods up to the end of the validity of the contract referred to in article 16, when it has not been fully made in that tax period.
3 - The deduction provided for in paragraph a) of No. 1 has the following limits:
a) In the case of creation of companies, the annual deduction may correspond to the total collection ascertained in each tax period;
b) In the case of projects in already existing companies, the maximum annual deduction cannot exceed the greater value between 25% of the total tax benefit granted or 50% of the collection ascertained in each tax period.
4 - The proof of the exemption from the tax provided for in paragraph b) of No. 1 is effected by presentation of the contract referred to in article 16 to the entity responsible for the respective assessment, not depending on any other formality.
5 - The exemptions from the taxes provided for in paragraphs c) and d) of No. 1 are proved by presentation of the contract referred to in article 16 to the entity responsible for the respective assessment, at the moment of the performance of the act to which these exemptions apply.
6- The provision in Nos. 4 and 5 must be duly documented and justified in the tax documentation process provided for in article 130 of the Corporate Income Tax Code.
6.29. Thus, pointing to the literal wording of article 8 of the Tax Code for Investment in the sense that the deduction also applies to Corporate Income Tax collection derived from autonomous taxation calculated in accordance with article 90 of the CIRC, only through a restrictive interpretation can the application of the tax benefit be excluded from the Corporate Income Tax collection provided by autonomous taxation.
6.30. The viability of a restrictive interpretation encounters, from the outset, a general obstacle, which is that the norms that create tax benefits have the nature of exceptional norms, as results from the express wording of article 2, No. 1, of the EBF, so that, in the absence of a special rule, they must be interpreted in their precise terms, as is settled case law.
6.31. In the case of tax benefits, an extensive interpretation is explicitly provided for (article 10 of the EBF), but not a restrictive interpretation, so that, as a rule, the tax benefit should not be interpreted with less amplitude than that which, in a declarative interpretation, results from the wording of the norm that provides for it.
6.32. In any case, a restrictive interpretation is only justified when «the interpreter arrives at the conclusion that the legislator adopted a text that belies his thought, insofar as it says more than what he intended to say. Here too, the ratio legis will have a decisive say. The interpreter should not be carried away by the apparent scope of the text, but should restrict it so as to make it compatible with legislative thought, that is, with that ratio. The argument on which this type of interpretation is based is usually expressed as follows: cessante ratione legis cessat eius dispositio (where the reason for the law ends, its scope ends)» ( ).
6.33. As grounds for a restrictive interpretation, one could venture that some autonomous taxation aims to discourage certain conduct by taxpayers capable of affecting taxable profit, and consequently diminishing tax revenue, and its deterrent force will be attenuated with the possibility of the respective collection being subject to deductions.
6.34. But the discouragement of such conduct is justified only by concerns for the protection of tax revenue, and tax benefits granted are, by definition, «measures of an exceptional character instituted for the protection of relevant extra-fiscal public interests that are superior to those of the taxation they prevent» (article 2, No. 1, of the EBF).
6.35. And, in the case of the tax benefits of the RFAI, the extra-fiscal reasons that justify its overriding of tax revenue are, in the legislative perspective, of enormous importance, aimed at ensuring investment in regions and at a specific time when the creation of companies and employment is critical, being qualified as an aid regime with a regional purpose, authorized by the European Union.
6.36. Thus, no legal ground is perceived, in particular in light of the legislative intention that can be detected, for, on the basis of a restrictive interpretation, excluding the deductibility of the tax benefit of the RFAI to the collection of autonomous taxation that results directly from the letter of article 8 of the respective instrument, combined with article 90 of the CIRC.
7. COMPENSATORY INTEREST:
7.1. The Claimant petitions for the annulment of the tax act in question, with the legal consequences - notably by reimbursement of the tax in the total amount of Euro 437,245.64, plus the respective compensatory interest at the legal rate.
7.2. With regard to compensatory interest, article 43, No. 1 of the LGT prescribes that "compensatory interest is due when it is determined, in a gracious appeal or judicial challenge, that there was an error attributable to the services from which results payment of the tax debt in an amount higher than the legally due."
7.3. Article 43, No. 1 of the General Tax Law establishes that compensatory interest is due "when it is determined, in a gracious appeal or judicial challenge, that there was an error attributable to the services from which results payment of the tax debt in an amount higher than the legally due".
7.4. Being that this right is recognized in arbitral proceedings, by force of article 24, No. 5 of the RJAT.
7.5. In the case in question, the self-assessment declaration was formulated by the Claimant itself and not directly by the Tax Authority, now the Respondent.
7.6. However, it must be taken into account that the Claimant, in the formulation of the said declaration, was limited by the computer services through which the declaration is formulated, services which are made available by the Tax Authority, and in relation to which the Claimant cannot make any alterations.
7.7. On the other hand, there was a prior appeal by administrative means in which the Claimant already set out all its reasons, and the Tax Authority could have already corrected the error in question, which it did not do, persisting in the same grounds.
7.8. We are, in this case, faced with negligence on the part of the Tax Authority, negligence which translates into an «error attributable to the services», as stated in article 43 of the LGT.
7.9. Having regard to the provisions of article 61 of the CPPT and having verified the existence of an error attributable to the services of the Tax Administration, from which resulted payment of the tax debt in an amount higher than the legally due, it is understood that the Claimant is entitled to compensatory interest at the legal rate, calculated on the amount of € 437,245.64, which shall be counted from the date of payment until the full reimbursement of that amount.
8. DECISION
In accordance with the foregoing, the arbitrators of this Tribunal agree:
a) To judge the request for arbitral pronouncement sustainable with regard to the declaration of illegality of the non-deduction of the amount of the RFAI to the collection resulting from autonomous taxation of the 2015 tax year and to annul the self-assessment, in the respective part, as well as the decision on the gracious appeal;
b) To judge the request for reimbursement of the amount of €437,245.64 and compensatory interest, at the legal rate, sustainable in accordance with the terms defined in section 7 of this decision.
9. VALUE OF THE CASE
In accordance with the provision of article 305, No. 2, of the CPC and 97-A, No. 1, paragraph a), of the CPPT and 3, No. 2, of the Regulation of Costs in Tax Arbitration Proceedings, the case is assigned the value of € € 437,245.64 (four hundred and thirty-seven thousand, two hundred and forty-five Euros and sixty-four cents).
10. COSTS
In accordance with article 22, No. 4, of the RJAT, the amount of costs is set, entirely at the charge of the Respondent, at € 7,038.00, in accordance with Table I annexed to the Regulation of Costs in Tax Arbitration Proceedings.
Lisbon and CAAD, 07-07-2019
The Arbitrator Chairman
José Poças Falcão
Dissenting opinion. I would judge the request lacking in merit for the reasons defended, among others and because it is relatively recent, in the arbitral Decision rendered by the Tribunal to which I presided in the CAAD process No. 569/2018-T.
The Arbitrator Member
(Jorge Bacelar Gouveia)
The Arbitrator Member
(Ana Teixeira de Sousa)
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