Summary
Full Decision
ARBITRAL DECISION
I – REPORT
1. A…, S.A., company with NIPC … (hereinafter referred to only as the Applicant), with registered office at Rua …, no. …, in Lisbon, filed, on 01-09-2016, a request for constitution of the arbitral tribunal, pursuant to the provisions of articles 2 and 10 of Decree-Law no. 10/2011, of January 20 (Legal Regime of Arbitration in Matters of Taxation, hereinafter referred to only as RJAT), in conjunction with article 102 of the CPPT, in which the Tax and Customs Authority is requested (hereinafter referred to only as the Respondent).
2. The applicant seeks, with its request, the declaration of illegality of the Stamp Tax (IS) assessments, under numbers 2016…, 2016…, 2016… and 2016…, all relating to the year 2015, with the consequent refund of the tax paid, as well as recognition of the right to indemnitary interest.
3. The request for constitution of the arbitral tribunal was accepted by the President of the CAAD and automatically notified to the Tax and Customs Authority on 02-09-2016.
3.1. The applicant did not proceed with the appointment of an arbitrator, so, under the provisions of subparagraph a) of paragraph 2 of article 6 and subparagraph b) of paragraph 1 of article 11 of the RJAT, the President of the Deontological Council designated the undersigned as arbitrator of the collective arbitral tribunal, who communicated acceptance of the designation within the legal time limit.
3.2. On 10-11-2016 the parties were notified of the arbitrator's appointment, and no impediment was raised.
3.3. In accordance with what is provided in subparagraph c) of paragraph 1 of article 11 of the RJAT, the arbitral tribunal was constituted on 30-11-2016.
3.4. In these terms, the Arbitral Tribunal is duly constituted to assess and decide the subject matter of the proceedings.
4. In support of the request for arbitral pronouncement, the applicant alleges, in summary, the following:
That it is a credit institution that, within the scope of its commercial activity, is engaged in banking commerce, namely in the granting of credit, as a result of which, in particular through credit recovery processes, acquires properties of different kinds.
It is the owner and co-owner of four urban properties, one of which, located in the municipality of Caldas da Rainha, composed of five blocks, comprising eight floors for residential purposes, seven for commerce and, furthermore, parking; another, in the municipality of Cascais, composed of land for construction which includes, in part, an area classified as green space for protection and conservation and, in the remainder, an area classified as National Ecological Reserve (REN), allowing construction of a building with public utility for approximately 5% of the land; and two others, located in the municipalities of Sintra and Funchal—the latter in co-ownership—corresponding to land for construction.
It does not conform to the assessments in question, insofar as:
- Item 28.1 of the TGIS provides for the taxation of residential properties or land for construction whose building, authorized or planned, is for residential purposes, and whose VPT, determined in accordance with the IMI Code, is equal to or greater than € 1,000,000, so that, with respect to a property with multiple uses (residential and non-residential), that item cannot be applied.
- From the purpose of item 28.1 of the TGIS it appears that it is not intended to tax the ownership of urban properties with residential use, nor land for construction, when used for the exercise of an economic activity.
- The IS on property as defined in item 28.1 of the TGIS appears to be unconstitutional due to violation of the principle of equality, provided for in articles 13, 103, paragraph 1 and 104, paragraph 3, all of the C.R.P.
- Moreover, the IS on property, as defined in item 28.1 of the TGIS, also appears to be unconstitutional due to violation of the principle of progressivity provided for in articles 103, paragraph 1 and 104, paragraph 3, both of the C.R.P.
The applicant concludes, therefore, that the assessments that are the subject of the arbitral request are illegal and, in any case, cannot fail to be annulled by application of a materially unconstitutional rule.
5. The Tax and Customs Authority submitted a response, having raised an exception:
- The inadmissibility of both the respondent and the tribunal itself proceeding with the assessment of the applicant's claim, since from the tribunal's decision cannot result the declaration of illegality of the tax acts, inasmuch as the deciding tribunal does not have powers that allow it to consider illegal or unconstitutional item 28.1 of the TIS.
- The material incompetence of the arbitral tribunal since, on one hand, the nature of a property cannot be subject to discussion in an arbitral tribunal, as there are specific procedures for this set out in the legal-tax regulations and the nature of the property is fixed in documents. And, on the other hand, because the facts that the applicant seeks to question were not done so in a timely manner and in the appropriate forum, allowing all the time limits at its disposal to lapse.
By way of counter-allegation, it argues that the applicant does not prove that the properties do not have a residential use exclusively, and it is certain that the property records themselves contain the results of the assessments that were not challenged by the applicant and result from the applicant's own requests.
With regard to the taxation of land for construction with residential use when used for the exercise of an economic activity, it argues that when the law speaks of owner it does not distinguish whether it is a natural person or a company.
Moreover, taking into account the exceptional historical circumstances that presided over the drafting of the rule in question, the same does not offend any constitutional principle when in a general and abstract manner it makes the tax apply objectively, regardless of the nature of the owner, usufructuary or superficiary.
The respondent concludes, therefore, that the legality of the assessment acts contested by the applicant should be maintained.
6. By order of 09-05-2017, the meeting provided for in article 18 of the RJAT was dispensed with.
7. The parties submitted allegations, maintaining the positions set out in their respective pleadings.
II – PRELIMINARY RULINGS
8.1. The tribunal is competent and duly constituted.
8.2. The parties have legal personality and capacity, show themselves to be legitimate and are duly represented (articles 4 and 10, paragraph 2, of the RJAT and article 1 of Ordinance no. 112-A/2011, of March 22).
8.3. The proceedings are not affected by any nullities.
8.4. The cumulation of claims is legal.
8.5. The Respondent raised, as an exception:
- the incompetence of the tribunal to proceed with the assessment of the applicant's claim, since from the tribunal's decision cannot result the declaration of illegality of the tax acts, inasmuch as the deciding tribunal does not have powers that allow it to consider illegal or unconstitutional item 28.1 of the TIS.
- material incompetence of the arbitral tribunal to assess the claim, since, on one hand, the nature of a property cannot be subject to discussion in an arbitral tribunal, as there are specific procedures for this set out in the legal-tax regulations and the nature of the property is fixed in documents.
In assessing such exceptions:
The respondent argues, in the first place, that the applicant's claim conflicts with the powers of the AT (which cannot refuse to apply norms on the ground of their unconstitutionality or illegality, as it is subject to the principle of legality, as provided for in articles 266, paragraph 2 of the CRP, article 3, paragraph 1 of the CPA and article 55 of the LGT), insofar as the assessment of the illegality/unconstitutionality which is invoked would imply a clear and objective violation of the legal provisions and a violation of the Constitution itself.
Hence, the Constitutional Court is the competent forum to know either the illegality or the unconstitutionality of legal norms [article 280, paragraphs 2 a) and d) and 281, paragraph 1, a) and b) and paragraph 3 of the CRP and articles 6 and 66 of the Constitutional Court Act].
This implies the material incompetence of the arbitral tribunal or the dilatory exception of impropriety of the means, from which would result the absolution of the respondent from the instance.
It should be noted that, as Rui Morais states—Manual of Procedure and Tax Procedure, Almedina - 2012, p. 247—the author "… in concretizing his claim, defines the object of the proceedings, the questions on which he requests the tribunal's pronouncement. Thinking only of impugning proceedings, the author will identify which administrative act(s) whose legality he puts in question, will expose the facts embodying the vice(s) he attributes to it(them) and will formulate his request. We have, in the first place, that the object of the proceedings is circumscribed by the act (or acts) put in question" (p. 247).
It is true that the applicant devotes a large part of its extensive pleading to the invocation of unconstitutionality of the norms underlying the assessments impugned. However, it does not formulate, in its request, any request for a declaration of unconstitutionality of the norms that founded the assessments (even though it is recognized that it does so in a manner as exhaustive as if it actually intended to do so).
As stated in the Judgment of the Supreme Administrative Court of 21-01-2009—Proc. 0811/08—"it falls to the administrative and tax courts to assess disputes that have in particular as their object the protection of fundamental rights, as well as rights and legitimate interests protected of private parties directly founded on rules of administrative or tax law or resulting from legal acts performed under the provisions of administrative or tax law … is, on the other hand, excluded from the scope of administrative and tax jurisdiction the assessment of disputes that have as their object the impugning of acts performed in the exercise of political and legislative functions (al. a) of paragraph 2 of article 4 of the ETAF)".
Further stating that "although administrative and tax courts may not apply a rule that they consider unconstitutional, this only occurs incidentally and not as the main basis, since these courts do not have competence for abstract review of the constitutionality of norms".
This understanding is adopted without any reservation, so the present tribunal would never be competent to assess the constitutionality in the abstract of the norms in question.
It is not overlooked, however, that, like any other tribunal, the arbitral tribunal has competence to assess any illegality of tax acts, in particular by violation of ordinary or constitutional norms. Indeed, it follows from the RJAT itself, more specifically from paragraph 1 of article 25, that the arbitral tribunal may/should refuse to apply any norm on the ground of its unconstitutionality.
That said, in any case, given the way in which the request for arbitral pronouncement is structured, the granting of the exception invoked could never lead to the absolution of the respondent from the instance.
That only occurs when, once one of the exceptions provided for in law is verified, the tribunal becomes unable to know the merits of the case.
It happens that parallel to the material unconstitutionality invoked, the applicant points out other illegalities in the tax acts in question, such as the non-applicability of item 28.1 of the TGIS to properties with multiple uses (residential and non-residential) and that it does not apply to urban properties used for the exercise of an economic activity.
From which it results that, in any circumstance, the proceedings would have to continue for assessment of the merits of those grounds.
The respondent also invokes the material incompetence of the arbitral tribunal to assess the claim, since, on one hand, the nature of a property cannot be subject to discussion in an arbitral tribunal, as there are specific procedures for this set out in the legal-tax regulations and the nature of the property is fixed in documents, and the applicant has not discussed this matter in a timely manner and in the appropriate forum.
It may be said, with all due respect, that no ground for such an argument is perceived.
For it cannot be discerned from the analysis of the request for pronouncement (whether from the request itself or from the grounds invoked), how the respondent can argue that the applicant seeks to discuss the assessment or, even, the nature of the properties on which the tax was levied.
On the contrary, what the applicant submits to the assessment of the arbitral tribunal is the legality of the stamp tax assessment with respect to four urban properties of which it is owner and co-owner, concluding its petition with a request for declaration of illegality of those assessments and the consequent restitution of the tax paid accrued with indemnitary interest.
This is not, therefore, a matter of any request to alter the assessment made of the properties in question.
Whence, also on this point, the dilatory exception raised by the respondent is unfounded.
III – MATTERS OF FACT AND LAW
III.1. Matters of Fact
9. Matters of Fact
9.1. Taking into account the positions assumed by the parties and the documentary evidence attached to the file, bearing in mind that the tribunal need not pronounce on everything alleged by the parties, being rather incumbent upon it the duty to select the facts that matter for the decision and to discriminate between proven and unproven facts (cf. article 123, paragraph 2, of the CPPT and article 607, paragraphs 3 and 4, of the CPC, applicable ex vi article 29, paragraph 1, subparagraphs a) and e), of the RJAT), the following facts are considered, with relevance to the assessment and decision of the issues raised:
a) The applicant is a credit institution that, within the scope of its commercial activity, is engaged in banking commerce, namely in the granting of credit, acquiring, in particular through credit recovery processes, properties of different kinds;
b) The applicant is the owner of the following urban properties:
- Property 1: in co-ownership, with a share (74/100) of the urban property located in the municipality of Funchal, parish of …, registered in the urban property register with no. … (previous property articles nos. …, … and …), appearing in the respective property record to correspond to "land for construction and with Type of location coefficient: Residential";
- Property 2: urban property located in the municipality of Caldas da Rainha, Union of Parishes of …-…, … and … (extinct parish of …), registered in the urban property register with no. … (previous property article no. …), appearing in the respective property record to correspond to "land for construction and with Type of location coefficient: Residential";
- Property 3: urban property located in the municipality of Cascais, Union of Parishes of … and … (extinct parish of …), registered in the urban property register with no. … (previous property article no. …), appearing in the respective property record to correspond to "land for construction and with Type of location coefficient: Residential";
- Property 4: urban property located in the municipality of Sintra, Union of Parishes of … and … (extinct parish of …), registered in the urban property register with no. … (previous property article no. …), appearing in the respective property record to correspond to "property in full ownership with three floors without stories or divisions susceptible to independent use with use: residential";
c) The Department of Land Management of the Cascais Municipal Council issued, with respect to Property 3, on 09-08-2006, an opinion from which it is estimated that for the total area of the property of 6,120.00 m² a maximum implementation and buildability index of 306.00 m², with the remaining area classified as green space for protection and conservation and as National Ecological Reserve (REN);
d) The applicant proceeded to the payment of the first two installments of the assessed taxes.
9.2. Justification of matters of fact:
The matters of fact given as proven are based on the critical examination of the documentary evidence attached to the file, which is hereby reproduced.
9.3. It is not considered proven that Property 2 is composed of five blocks, comprising eight floors for residential purposes, seven for commerce and parking, inasmuch as from the document attached on 10-04-2017 it is not possible to make the correspondence with the same, insofar as it is never stated therein which property article the construction work permit relates to, nor is there any reference to the applicant therein that would allow such a connection to be established.
There are no other facts of relevance to the assessment of the merits of the case that have not been proven.
III.2. Matters of Law
As results from the arbitral request, the applicant manifested its disagreement with the assessment acts impugned, by disagreeing with the application of item 28.1 of the TGIS to the properties of which it is owner as described above.
Let us then see:
Properties with residential use became subject to Stamp Tax by virtue of item 28 of the TGIS, added by article 4 of Law 55-A/2012, of October 29, which stipulated:
"28 – Ownership, usufruct or right of superficies of urban properties whose tax patrimonial value recorded in the register, in accordance with the Municipal Tax Code on Real Estate (CIMI), is equal to or greater than € 1,000,000.00 – on the tax patrimonial value used for the purpose of IMI:
28.1 – Per property with residential use – 1%
28.2 – Per property, when the tax subjects that are not natural persons are resident in a country, territory or region subject to a clearly more favorable tax regime, contained in the list approved by order of the Minister of Finance – 7.5%".
Subsequently, Law no. 83-C/2013, of December 31, which entered into force on 1-01-2014, amended the wording of item 28.1, which now read:
"Per residential property or per land for construction whose building, authorized or planned, is for residential purposes, as provided for in the Municipal Tax Code on Real Estate".
Hence, from January 2014 onwards, land for construction "with residential use" became subject to Stamp Tax, the legislator having intended to exclude properties with other uses (in particular, with commercial, industrial or service uses).
From which it results that a property with non-residential use, even with a tax patrimonial value greater than 1,000,000.00 €, is excluded from taxation under IS by item 28.1 of the respective table.
It happens that the land described above as Property 3 has, as results from the evidence, other uses than just the residential one, with only a small portion of its total area being buildable with the remaining area having other purposes.
That means that that property has multiple uses, so that, since IS does not apply to the non-residential part of the land, there would have to be a partial annulment of the tax assessed on the same.
It happens that, as stated in the arbitral decision rendered in Proc. 478/2016-T, of 03-03-2017, which we subscribe to, "it is not legally possible to proceed with the assessment as to the part relating to the residential use of the property, under penalty of violation of article 7, paragraph 2, subparagraph b) of the CIMI. On the other hand, one would be considering, for purposes of fixing the application of item 28.1 of the TGIS, values that do not correspond to the tax patrimonial value used for purposes of IMI and, hence, for purposes of application of item 28.1 of the TGIS), that is, one would be adopting a tax patrimonial value that finds no support in law" (in the same sense, arbitral decision rendered in Proc. no. 522/2015-T, of 18-03-2016).
It is, therefore, illegal the assessment of IS with respect to the property located in the municipality of Cascais, Union of Parishes of … and … (extinct parish of …), registered in the urban property register with no. …, so the applicant's request proceeds on this point.
The applicant also argues that all assessments suffer from illegality due to error in the factual and legal presuppositions, in defending that from the purpose of article 28.1 of the TGIS it results that this provision is not intended to tax the ownership when the properties and land for construction—both with residential use—are used for the exercise of an economic activity, as is the case.
Moreover, it argues that the holding and enjoyment of an urban property with residential use has as its presupposition that its owner from the outset inhabits it (in a permanent or merely sporadic manner), so it cannot but be considered that the urban properties whose ownership is sought to be taxed in this connection necessarily have to be used for personal purposes.
In sum, the intention of the legislator would not be to tax under IS the ownership of urban properties that are used for the exercise of an economic activity.
Is it so?
We do not accept that it results directly from the letter of the law, nor from its teleological interpretation, the understanding advocated by the applicant.
There is, however, a need to ascertain whether, as the applicant argues, item 28.1 of the TGIS is inapplicable to the case due to alleged unconstitutional application thereof.
On the question of the doubt of constitutionality of the norm, various arbitral decisions have already pronounced themselves.
If some go in the direction of its unconstitutionality. See, in particular, decision rendered in Proc. no. 507/2015-T (when it considers that "item 28.1 of the TGIS, as worded by Law no. 83-C/2013, of December 31, is materially unconstitutional, insofar as it subjects to taxation under Stamp Tax the ownership of land for construction whose tax patrimonial value recorded in the register, in accordance with the Municipal Tax Code on Real Estate (CIMI), is equal to or greater than € 1,000,000, with respect to which the building, authorized or planned, does not include any individual housing of value equal to or greater than that, as well as insofar as it applies to situations in which land for construction belongs to companies engaged in the commercialization of land for resale").
Others pronounce themselves in the opposite sense (decisions in Proc. nos. 495/2015-T, 515/2015-T and 516/2015-T).
The question remains, therefore, under controversy, and the jurisprudence of the Constitutional Court, which, in these cases, cannot fail to serve as the main support, is not, yet, decisive for the case in concrete. For, the said Court having already judged on the constitutionality of the item of the TGIS in question, has not yet pronounced itself, at least to the knowledge of this Arbitral Tribunal, on the specific case of land for construction with residential use…
In any case, it is not without usefulness to recall what in Proc. 543/2014 the Constitutional Court says and which refute the arguments put forward by the applicant:
- "… from the classification of the taxation in analysis within the scope of Stamp Tax, and not in other types of taxes, does not result, in itself, an infraction of any constitutional parameter. Even if it were to be concluded that the introduction of a factor of incoherence, or even of imbalance, in the system of taxation of real estate property, as the recurrent party claims, the mere lack of systematicity of the questioned norm is not fit to determine constitutional censure (cf., albeit in other fields of regulation, Judgments nos. 353/2010 and 324/2013)» (...).
- "Other routes can certainly be conceived that are within the reach of the legislator, possibly through recourse to other types of taxes, but it is no less certain that the option taken is inscribed in the broad margin of conformation of the tax legislator, being incapable of founding autonomous constitutional censure".
- "Neither is there in the norm of application in question an arbitrary fiscal measure, because lacking rational foundation. As seen, the legislative amendment had as its purpose to broaden the taxation of property, making it fall more intensely on ownership which, by its value considerably higher than that of the generality of urban properties with residential use, reveals greater indicators of wealth and, as such, is capable of founding the imposition of an increased contribution for the remedying of public accounts by its holders, in realization of the aforementioned principle of equity in austerity".
- "It should be noted that the existence of distinct applicative results in the face of very approximate values—by excess or by defect—of a quantitative expression stipulated normatively as a limit—positive or negative—of any legal effect is congenial to its fixing by the legislator. Both in the definition of tax incidence, and in the enactment of exemptions or tax benefits based on value criteria, it is always possible to find examples of taxpayers with differentiated treatment based on a quantitative variation of very small significance. Because it must necessarily be so, the differentiation reflected in the second hypothesis placed does not appear to be devoid of rational foundation, in accordance with the scope, structure and nature of the norm in analysis: aimed at increasing the taxation of properties with residential use of high value, the fiscal measure could not fail to determine, by imperative of the principle of fiscal legality, the concrete tax patrimonial value from which a special rate of Stamp Tax would begin to apply to such properties, which also excludes, on this point, the verification of arbitrariness on the part of the legislator".
That said, it should also be noted that the principle of equality, in the aspect of contributive capacity—on which the applicant primarily bases its argument—is not an absolute principle, but rather being bound to coexist with other principles and interests that also merit consideration.
With effect, the freedom enjoyed by the legislator, to whom tasks beyond those relating to taxation are incumbent, requires that the principle of contributive capacity enjoys some flexibility and may yield, to a certain limit, before other purposes of the State.
On the other hand, the aforementioned principle is also respected when unequal things are treated unequally, which moreover is required when they are unequal.
All to conclude that when a situation apparently or tendentially equal is treated in a somewhat different manner, one can only speak of fiscal inequality if there are no reasonable grounds that have led the legislator to make the choices it made.
That is to say, what is constitutionally forbidden to the legislator is pure arbitrariness, treating unequally "for no reason", but not already when it has in view the pursuit of objectives to which it attributes greater value.
That same freedom of conformation of the legislator also allows that it has fixed the tax patrimonial value of real property subject to one million or more euros. And that it has not taken into account the sum of real estate property, precisely because the sum of values, possibly not very high, of several properties does not necessarily reveal the same contributive capacity. And what applies to a natural person does not cease to apply to a legal person.
Besides, nothing obliged the legislator to institute a general tax on property, as it did not, being able to choose to limit its scope to some, but not necessarily to all, of the properties of one same owner.
Also when the legislator taxed only residential properties, refraining from making stamp tax apply to others used for other purposes, took a measure of distinguishing what is unequal, making a choice whose justification appears clear: not to increase the tax burden on productive sectors, aiming at the much-publicized needs for investment and economic growth.
Even if the contributive capacity revealed may be equal, no violation of the principle of equality is perceived, taking into account the reasonableness of the distinction and the purposes envisaged.
But, as a decisive ground, the applicant also invokes the circumstance that the ownership of land for construction whose building, authorized or planned, is for residential purposes, does not, in the cases of credit institutions, translate any indication of increased contributive capacity or wealth that may justify the subjection to IS.
On this point, we would tend, in theory, to accept the position defended by the applicant.
With the reservation that such understanding cannot be applied indiscriminately to all companies, but only to those whose corporate purpose and obtaining of profits depends on real property.
With effect, being companies whose corporate purpose is the commercialization of real property, the application of item 28.1 of the TGIS to the properties that it commercializes would offend the principle of equality and contributive capacity (with arguments a contrario of those set out above).
A position which, moreover, we have already subscribed to in the decision of Proc. 458/2016-T (in the case regarding Real Estate Investment Funds), having been there transcribed what had been said in the arbitral decision in Proc. 507/2015-T:
- "It is unequivocal that companies dedicated to the commercialization of land for construction are burdened with a significant additional burden in relation to the generality of companies, based on a hypothetical index of contributive capacity that does not necessarily correspond to reality, since the imposition of taxation has no relation whatsoever with the actual income of the activity carried out by the companies and burdens them even if they have negative results, the taxation being accentuated, accumulated annually, precisely in situations where, due to failure of the commercialization activity, the land is held for several years and, therefore, there would be less justification for the imposition of an additional taxation, exclusive to this type of company.
On the other hand, neither is there any reason perceived to distinguish between companies that commercialize land for construction of residential buildings and those that commercialize land for other purposes.
Therefore, also from this perspective, item 28.1 of the TGIS materializes an unjustified negative discrimination of land commercialization companies, which implies its material unconstitutionality, due to offense of the principle of equality".
And the same understanding was already subscribed to in arbitral decision no. 2/2016–T.
It happens that this is not the case of the applicant.
Its activity has nothing to do with the commercialization or management of real property, so there is no argument, in particular, of a constitutional nature, that prohibits the application of item 28.1 of the TGIS to the properties of which it is owner and with respect to which the requirements provided for in that provision are verified.
It is therefore unfounded, on this point, the applicant's claim.
INDEMNITARY INTEREST
In addition to the restitution of the wrongfully paid tax, the applicant seeks that the right to payment of indemnitary interest be declared.
Such right is provided for in article 43 of the LGT, which has as its presupposition that it is ascertained, in amicable reclamation or judicial impugning—or in tax arbitration—that there was error imputable to the services from which results payment of the debt in an amount greater than legally due.
The recognition of the right to indemnitary interest in the arbitral proceedings results from the provisions of article 24, paragraph 5 of the RJAT, when it stipulates that "payment of interest is due, regardless of its nature, in accordance with the terms provided for in the general tax law and in the Code of Procedure and Tax Procedure".
In the case at hand, with respect to the IS assessment on the land for construction of which the applicant is owner registered in the urban property register with no. … (previous property article no. …), of the Union of Parishes of … and … (extinct parish of …), there was, in fact, error imputable to the AT in the assessment in question that, on its own initiative, it made without legal support.
Wherefore the applicant is entitled to the sought payment of indemnitary interest with respect to that wrongfully paid tax.
IV. DECISION
It is hereby decided in this Arbitral Tribunal:
a) To judge partially upheld the arbitral claim formulated and, consequently, to declare the illegality of the stamp tax assessment no. 2016… relating to the property registered in the urban property register with no. … (previous property article no. …), of the Union of Parishes of … and … (extinct parish of …).
b) To condemn the Tax and Customs Administration to refund to the applicant the amount of tax paid with respect to the said assessment, accrued with the respective indemnitary interest.
c) To judge as unfounded the remaining requests.
d) To condemn both parties to pay the costs of proceedings, in the proportion of 72% by the applicant and 28% by the respondent.
V. VALUE OF PROCEEDINGS
The value of proceedings is fixed at 47,241.47 €, in accordance with article 97-A, paragraph 1, a), of the Code of Procedure and Tax Procedure, applicable by virtue of subparagraphs a) and b) of paragraph 1 of article 29 of the Legal Regime of Tax Arbitration and paragraph 2 of article 3 of the Regulation of Costs in Tax Arbitration Proceedings.
VI. COSTS
The amount of the arbitration fee is fixed at 2,142.00 €, in accordance with Table I of the Regulation of Costs in Tax Arbitration Proceedings, in accordance with articles 12, paragraph 2, and 22, paragraph 4, both of the Legal Regime of Tax Arbitration, and article 4, paragraph 4, of the aforementioned Regulation.
Notify hereof.
Lisbon, 27 June 2017
The Arbitrator
(António Alberto Franco)
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