Summary
Full Decision
ARBITRAL DECISION
I – REPORT
a) A... – REAL ESTATE INVESTMENT FUND MANAGEMENT, S.A., NIPC PT..., with registered office in ..., ..., ..., ...-... ..., in its capacity as management company and representing the CLOSED REAL ESTATE INVESTMENT FUND – B..., with tax identification number ..., came on 8 November 2018 to submit a request for arbitral determination, under the Legal Framework for Tax Arbitration (RJAT), with a view to obtaining a determination on
(1) – the legality of the act of tacit rejection of the request for official review (RO), submitted on 10 April 2018, following the formation of the presumption of rejection on 10 August 2018, with a view to the annulment of the tax act of assessment of Municipal Tax on Onerous Real Estate Transfers (IMT), document identification no. ... of 29.05.2014, in the amount of € 45,496.56;
(2) - the legality of the IMT assessment act itself.
b) The Claimant requests the Court that (1) "the legality of the official review request ... be assessed and the illegality of its tacit rejection be declared, as well as of the tax assessment act for IMT that is the subject thereof, also identified above, proceeding with its annulment, due to error in the factual and legal assumptions;" (2) "and, consequently, the Tax and Customs Authority be condemned to reimburse the Claimant for the full amount of the IMT unduly paid, relating to the assessment sub judice, in the total amount of € 45,496.56, plus the corresponding compensation interest, at the legal rate in force".
c) The request for constitution of the Singular Arbitral Court was accepted by the President of the CAAD and automatically notified to the AT on 09-11-2018.
d) By the Deontological Council of the CAAD, the undersigned arbitrator was appointed, and the parties were notified on 28.12.2018, who did not manifest any intention to challenge the appointment, in accordance with article 11º no. 1 letters a) and b) of the RJAT and articles 6º and 7º of the Deontological Code.
e) The Singular Arbitral Court (TAS) has been, since 17 January 2019, regularly constituted to assess and decide on the subject matter of this dispute (articles 2º, no. 1, letter a) and 30º, no. 1, of the RJAT).
f) To substantiate the request, the Claimant invokes the following, as regards the "legal framework - Decree-Law no. 1/87, of 3 January, and the IMT":
g) "Pursuant to article 1º of the aforementioned Decree-Law, it was immediately established that 'acquisitions of real estate assets made for a real estate investment fund by its respective management company are exempt from Sisa'". "Thus, in accordance with the legal provision in question, acquisitions of real estate carried out by a management company on behalf of the funds, that is, for the assets of the investment funds administered and legally represented by it, would be exempt from Sisa";
h) Since "... the Code of Sisa and Tax on Successions and Gifts, approved by Decree-Law no. 41969, of 24 November 1958, stipulated that Sisa was levied 'on transfers, for consideration, of the right of ownership or of partial aspects of that right, on real estate assets' (as amended by Decree-Law no. 223/82, of 7 June)".
i) "Subsequently, Decree-Law no. 287/2003, of 12 November, the act that reformed the taxation of assets, expressly repealed the Code of the Municipal Tax on Sisa and Tax on Successions and Gifts — extinguishing these taxes (as per no. 3 of article 3º of the aforementioned legal act) - and approved the Code of the IMT and the Code of the Municipal Tax on Real Estate ('IMI')", "and this act expressly provided in no. 2 of its article 28º, under the heading 'References', that 'all legal texts that mention Code of the Municipal Tax on Sisa and Tax on Successions and Gifts, municipal tax on sisa or tax on successions and gifts shall be deemed to refer to the Code of the Municipal Tax on Onerous Real Estate Transfers (CIMT), the Code of Stamp Tax, the municipal tax on onerous real estate transfers (IMT) and the stamp tax, respectively'".
j) "And, it further established that, 'the tax benefits relating to the municipal levy, now relating to the IMI, as well as those relating to the municipal tax on sisa established in legislation outside the Code approved by Decree-Law no. 41969, of 24 November 1958, and in the Tax Benefits Statute, which shall henceforth be reported to the IMT, remain in force'".
k) And it concludes that "... through the joint application of the normative provisions cited above, it is evident that it was the express intention of the legislator that the exemptions applicable to the extinct Municipal Tax on Sisa and enshrined in legislation outside the Code continue to be in force in respect of the IMT", resulting that "... the aforementioned exemption from Sisa, provided for in article 1º of Decree-Law no. 1/87, of 3 January, then became applicable to the IMT and ... remains in force currently", which entails that "... the operations of acquisition of real estate assets carried out by a management company of a real estate investment fund with the intention of them becoming part of the assets of that fund are exempt from IMT, and there should be no place for the assessment of this tax in the context thereof".
l) As regards the current validity of Decree-Law no. 1/87, of 3 January, it states that "although successive legislative amendments have occurred over time, both in the context of the regulation of the activity of real estate investment funds, as well as in relation to the taxation of their assets, it is certain that it was the express intention of the legislator to keep in force certain tax benefits applicable to these entities — as, in particular, the exemption from Sisa (IMT) enshrined in article 1º of Decree-Law no. 1/87, of 3 January", as results "... from the analysis of the historical and systematic context of the rule in question", being the "(express) intention of the legislator not to proceed with the cessation of its validity, whether through the assignment of a merely temporary character to its validity, whether through subsequent repeal thereof (express or tacit)"
m) It adds that "...in analysing the (possible) repeal of that rule, and taking into consideration the provisions then 'published' with reference to this subject matter, it is necessary here to make reference, albeit brief, to article 46º of the Tax Benefits Statute ('EBF') in order to expressly rule out any intention to assign to this rule a repealing character which it, in fact, does not have", for the reason that "this rule of the EBF (later, article 49º) did, in fact, provide for an exemption from IMT applicable to real estate investment funds, in the following terms: 'real estate assets integrated in real estate investment funds are exempt from municipal tax on real estate (IMI) and municipal tax on onerous real estate transfers (IMT)'".
n) From which it follows that "there was ... indeed enshrined a (new) exemption from IMT applicable to real estate investment funds — such as the exemption enshrined in Decree-law no. 1/87", since this "... configures a complement to the exemption rule already in existence, aiming to confer greater coherence on the tax regime applicable to these entities - i.e. in this way the legislator, alongside the exemption from IMT applicable in the acquisition of real estate by real estate investment funds, also came to enshrine the exemption from IMT in the transfer of real estate by those funds".
o) Concluding that the "... new article 46º of the EBF did not repeal - express or tacitly — the regime provided for in article 1º Decree-Law no. 1/87, of 3 January", wherefore "... the exemption rule enshrined in the article of Decree-Law no. 1/87, of 3 January is in force, and should be applied to the factual situation covered by it — i.e. in operations of acquisition of real estate carried out, by a management company, with a view to its integration in the assets of the real estate investment funds managed and administered by it, such as those that occurred in the present case".
p) With respect to the jurisprudence of the CAAD, the Claimant invokes in favour of its reading of the law the arbitral decisions made in Cases 544/2016-T, 677/2016-T, 440/2017-T and 580/2017-T.
q) With respect to the specific case: on the illegality of the IMT assessment act, the Claimant states: "it is important to note that, given the absence of any indication that article 1º of Decree-Law no. 1/87 should have temporary validity and concluding that ..., it was not repealed by any other rule or act, it follows that the exemption enshrined therein remains, currently and for all purposes, in force", wherefore "... it must be concluded that acquisitions of real estate assets carried out by a management company for the assets of (on behalf of) the real estate investment funds managed and administered by it are exempt from IMT, in accordance with article 1º of Decree-Law no.1/87".
r) Concluding: "... it must be inferred that the operation of acquisition of real estate ..., carried out by the management company, ... on behalf of the Fund managed and administered by it, should have benefited from the exemption from IMT enshrined in article 1º of Decree-Law no. 1/87, of 3 January, because it was applicable, which did not occur.´", wherefore "... it follows that the tax assessment act for IMT, identified above, is manifestly illegal as it results from erroneous interpretation and application of the applicable law".
s) As regards the reimbursement of the tax paid and the compensation interest, it contends that it should be reimbursed the amount unduly paid, plus interest, by virtue of the combined provisions of article 24º no. 1 letter b) and no. 5 of the RJAT, article 100º of the LGT, no. 1 of article 43º of the LGT and 61º of the CPPT, counted from the date of payment of the tax.
t) Notified of the Respondent, it replied on 18.02.2019, indicating that it would not submit a Reply to the Request for Arbitral Determination.
u) By order of 18.02.2019, the holding of the meeting referred to in article 18º of the RJAT was dispensed with. In that same order, the Respondent was invited to attach the Administrative File only insofar as it was constituted by documents that had not been attached by the Claimant, in annex to the Request for Arbitral Determination. On 06.03.2019 the Respondent proceeded with its attachment.
v) The parties did not submit written submissions.
w) By order of 16.03.2019, the date for adoption of the final decision was set for no later than 15 April 2019 and the Claimant was invited to proceed with payment of the subsequent arbitration fee.
II – PRELIMINARY EXAMINATION
a) The parties are legitimate, enjoy legal personality and legal capacity and are duly represented (articles 4º and 10º, no. 2, of the RJAT and article 1º of Order no. 112-A/2011, of 22 March).
b) Timeliness - the request for arbitral determination was submitted on 08 November 2018. The Claimant immediately challenges the act of tacit rejection of the request for official review (RO), submitted on 10 April 2018, following the formation of the presumption of rejection on 10 August 2018, with a view to the annulment of the tax assessment act for Municipal Tax on Onerous Real Estate Transfers (IMT), document identification no. ... of 29.05.2014, in the amount of € 45,496.56.
c) The decision on the request for official review may be judicially challenged, and insofar as it upholds the assessment act, this is equally the subject matter of such challenge. The period for challenge to the CAAD is 90 days, as per letter a) of no. 1 of article 10º of the RJAT.
d) Thus, in accordance with the combined provisions of articles 95º nos. 1 and 2 letter d) of the General Tax Law and 102º no.1 letters e and d) of the CPPT, the request for arbitral determination is timely, since the Claimant submitted it on 08 November 2018 and the date of formation of the presumption of tacit rejection occurred on 10 August 2018.
e) The arbitral procedure is free from nullities.
It is necessary to assess the merits.
III - MERITS
III-1- FACTUAL MATTERS
• Facts established as proven
The following factual matters are considered to be established as proven:
a) The CLOSED REAL ESTATE INVESTMENT FUND – B..., with tax identification number..., represented by A... – REAL ESTATE INVESTMENT FUND MANAGEMENT, S.A., NIPC PT ..., is a closed real estate investment fund, whose activity is regulated by the General Framework for Collective Investment Undertakings, approved by Law no. 16/2015, of 24 February. This company, in the exercise of its activity, acquires real estate on behalf of the real estate investment funds of which it is manager, which become part of the assets of the funds – as per articles 24º, 25º and 30º of the Request for Arbitral Determination and lack of specific contest of these facts in accordance with article 110º-7 of the CPPT;
b) On 29 May 2014, with reference to the acquisition referred to in letter d), the AT issued the single collection document for IMT assessment, with no...., in the amount of € 45,496.56 – as per article 27º of the Request for Arbitral Determination, document no. 2 in annex to the Request for Arbitral Determination and pages 15 and 16 of the Administrative File attached by the AT;
c) On 29 May 2014 the Claimant proceeded to pay the amount referred to in the previous letter - as per article 28º of the Request for Arbitral Determination, document no. 3 in annex to the Request for Arbitral Determination and page 25 of the Administrative File attached by the AT;
d) On 30 May 2014 the Claimant, through deed executed from pages 77 to pages ... verso, of Book 5 ... of Notes of the Notary Office of C..., in Lisbon, acquired the following autonomous fractions of real estate in horizontal ownership: (1) Urban real estate situated in the parish of ... and municipality of Porto, article number ..., fraction "SM", for a value of € 308,224.00; (2) Urban real estate situated in the parish of ... and municipality of Porto, article number ...º, fraction "SN", for a value of € 206,170.00; (3) Urban real estate situated in the parish of ... and municipality of Porto, article number ...º, fraction "SO", for a value of € 185,553.00 – as per article 26º of the Request for Arbitral Determination and pages 19 to 24 of the Administrative File attached by the AT;
e) On 10 April 2018 the Claimant initiated with the AT a procedure for official review, which was assigned the number ...2018..., with a view to the annulment of the tax assessment act for Municipal Tax on Onerous Real Estate Transfers ("IMT") to which letters b) and c) above refer – as per first page of the Request for Arbitral Determination, article 19º of the Request for Arbitral Determination and page 2 of the Administrative File attached by the AT;
f) On 08 November 2018 the Claimant delivered the present request for arbitral determination (Request for Arbitral Determination) to the CAAD – entry record in the CAAD's File Management System of the request for arbitral determination.
• Facts not established as proven
There is no other factual matter alleged that has not been considered proven and that is relevant to the composition of the dispute.
• Basis for the establishment of factual matters
With respect to factual matters, the Court is not required to pronounce on everything alleged by the parties; rather, it is incumbent upon it to select the facts that matter for the decision and to distinguish proven from unproven matters (as per article 123º, no. 2, of the CPPT and article 607º, no. 3, of the CPC, applicable ex vi article 29º, no. 1, letters a) and e), of the RJAT).
In this manner, the facts relevant to the judgment of the case are selected and delimited based on their legal relevance, which is established in light of the various plausible solutions to the legal issue(s) (as per former article 511º, no. 1, of the CPC, corresponding to current article 596º, applicable ex vi article 29º, no. 1, letter e), of the RJAT).
Thus, having regard to the positions assumed by the parties and the documentary evidence attached, the facts listed above were considered proven, as being relevant to the decision, indicating, for each matter raised as established fact, the means of proof considered relevant as substantiation.
III-2- LAW
The issue that is the subject matter of the present proceedings is whether the acquisitions of fractions of urban real estate, carried out by the Claimant Real Estate Investment Fund, are exempt from IMT under article 1º of Decree-Law no. 1/87, of 03 January.
III-2-On the merits
A) Violation of law in the tacit rejection of the official review and in the IMT assessments.
On this matter, in particular, the CAAD has already pronounced itself, through several Arbitral Courts constituted therein.
By way of example, it is noted that in the collegiate arbitral decision CAAD, Case 580/2017-T, the same legal questions that are raised in the present proceedings were addressed, with respect to a case identical to the present one, except as regards the presumed tacit rejection of the official review procedure.
This Singular Arbitral Court adheres to the tenor of the decision adopted in CAAD Case no. 580/2017-T. In it, a situation entirely identical was dealt with. The Claimant, in the exposition of grounds, follows closely the grounds of this decision. In this manner, an identical solution is adopted here, with the collegiate CAAD decision Case no. 580/2017-T being reproduced below (in italics), in the section on legal matters, as it represents the best reading of the law.
"The assessments challenged ... result from the application ... of the rate of 6.5% provided for in letter d) of no. 1 of article 17º of the CIMT ... because it is a case of ... 'acquisition of other urban real estate and other onerous acquisitions'.
The Claimant argues that the exemption provided for in article 1º of Decree-Law no. 1/87, of 3 January, is applicable to the acquisitions, which establishes that 'acquisitions of real estate assets made for a real estate investment fund by its respective management company are exempt from sisa.'
The Claimant argues that, in Decree-Law no. 287/2003, of 12 November, which reformed the taxation of assets, and whose article 31º, no. 3 repealed the Code of the Municipal Tax on Sisa and Tax on Successions or Gifts, it was established, in article 28º, no. 2, that 'all legal texts that mention Code of the Municipal Tax on Sisa and Tax on Successions and Gifts, municipal tax on sisa or tax on successions and gifts shall be deemed to refer to the Code of the Municipal Tax on Onerous Real Estate Transfers (CIMT), the Code of Stamp Tax, the municipal tax on onerous real estate transfers (IMT) and the stamp tax, respectively'.
The Claimant further states that no. 6 of article 31º of Decree-Law no. 287/2003 establishes that 'the tax benefits relating to the municipal levy, now relating to the IMI, as well as those relating to the municipal tax on sisa established in legislation outside the Code approved by Decree-Law no. 41969, of 24 November 1958, and in the Tax Benefits Statute, which shall henceforth be reported to the IMT, remain in force'.
The acquisitions referred to fall within the provision of the aforementioned article 1º of Decree-Law no. 1/87, and, if this rule remains in force, the exemption, relating to the IMT, shall apply, by virtue of these provisions of Decree-Law no. 287/2003."
"The framework for the cessation of the validity of law is provided for in article 7º of the Civil Code, which establishes the following:
Article 7º
Cessation of the validity of law
1. Where it is not intended to have temporary validity, the law only ceases to be in force if it is repealed by another law.
2. Repeal may result from express declaration, from incompatibility between the new provisions and the preceding rules or from the circumstance that the new law regulates the entire subject matter of the preceding law.
3. A general law does not repeal a special law, except if the legislator's unequivocal intention is otherwise.
4. The repeal of a law that repeals does not bring about the rebirth of the law that it had repealed.
No temporary validity was provided for article 1º of Decree-Law no. 1/87, and, therefore, any cessation of its validity may only result from repeal by another law, as follows from no. 1 of this article 7º of the Civil Code."
• "Express repeal
No express repeal occurred, in particular before or with the Tax Benefits Statute, approved by Decree-Law no. 215/89, of 1 July.
In fact, the approval of the Tax Benefits Statute was preceded by a comprehensive reassessment of tax benefits, which was initiated by Law no. 2/88, of 26 January (State Budget for 1989), which in its article 49º repealed various tax benefits, including the one provided for in article 7º of Decree-Law no. 1/87, but not the one provided for in article 1º, which is at issue here.
The list of expressly repealed tax benefits came to be completed by Decree-Law no. 485/88, of 30 December, in which the tax benefit provided for in that article 1º of Decree-Law no. 1/87 is also not included.
Following the approval of the Tax Benefits Statute, there is also no law that expressly repeals that article 1º of Decree-Law no. 1/87.
In particular, express repeal was proposed by the Government in article 81º, no. 3, of the Proposed State Budget for 2007 (Bill no. 99/X), in a list of tax benefits to be repealed, but it was not included in the approved Budget Law (Law no. 53-A/2006, of 29 December), although express repeal of other tax benefits was maintained, in article 87º
It is, therefore, unequivocal that there was no intention to expressly repeal article 1º of Decree-Law no. 1/87".
• "Tacit repeal
In the absence of express repeal, the repeal of that article 1º of Decree-Law no. 1/87 could only result from tacit repeal, resulting from 'incompatibility between the new provisions and the preceding rules or from the circumstance that the new law regulates the entire subject matter of the preceding law'.
The Tax Benefits Statute, in its original version, does not include any provision on taxes on assets relating to real estate investment funds, and therefore it cannot be understood that it regulated the entire subject matter of the preceding law.
Moreover, the fact that the Tax Benefits Statute was preceded by the express repeal of tax benefits, which included one provided for in Decree-Law no. 1/87, but not the one provided for in its article 1º, requires that it be concluded that it was not intended to repeal this tax benefit.
Decree-Law no. 189/90, of 8 June, added to the Tax Benefits Statute article 56º relating to 'Real estate investment funds', establishing that 'real estate assets integrated in real estate investment funds are exempt from the municipal levy'. Law no. 39-B/94, of 27 December, amended the wording of this article to 'real estate assets integrated in real estate investment funds and comparable ones, in pension funds constituted in accordance with national legislation and in savings-pension funds are exempt from the municipal levy'.
With the renumbering carried out by Decree-Law no. 198/2001, of 3 July, this article 56º became article 46º.
Law no. 32-B/2002, of 30 December, gave article 46º the following wording: 'Real estate assets integrated in real estate investment funds and comparable ones, in pension funds and in savings-pension funds that are constituted and operate in accordance with national legislation are exempt from the municipal levy'.
With Law no. 53-A/2006, of 29 December, article 46º of the Tax Benefits Statute came to cover tax benefits in respect of IMT, relating to real estate assets integrated in real estate investment funds.
This article 46º came to have the following wording:
1- Real estate assets integrated in real estate investment funds, in pension funds and in savings-pension funds that are constituted and operate in accordance with national legislation are exempt from municipal tax on real estate (IMI) and municipal tax on onerous real estate transfers (IMT).
2 - Real estate assets integrated in mixed or closed real estate investment funds with private subscription by non-qualified investors or by financial institutions on behalf of them do not benefit from the exemptions referred to in the preceding number, and the rates of IMI and IMT are reduced by half.
With Decree-Law no. 108/2008, of 26 June, this article 46º became article 49º of the Tax Benefits Statute.
This article 49º was successively amended by Law no. 3-B/2010, of 28 April, by Law no. 55-A/2010, of 31 December, by Law no. 83-C/2013, of 31 December, and came to be repealed by Law no. 7-A/2016, of 30 March.
In any of the aforementioned wordings, article 49º only refers to real estate assets integrated in real estate investment funds, and does not refer to the IMT relating to their acquisition.
In this context, it cannot be understood that tacit repeal of article 1º of Decree-Law no. 1/87 occurred, as the entire subject matter provided for therein was not regulated by any subsequent law, in particular that which concerns benefits relating to the acquisition of real estate by real estate investment funds.
On the other hand, no rule is found that is incompatible with that tax benefit.
Furthermore, the fact already mentioned that express repeal of Decree-Law no. 1/87 was proposed, and the proposal was not approved, corroborates the conclusion that there was no intention to repeal its article 1º.
Therefore, it must be concluded that article 1º of Decree-Law no. 1/87, of 3 January, was not repealed in ... 2014 ..., when the acquisitions in question were made, and therefore the assessments challenged are vitiated by a violation of law that justifies their annulment, in accordance with article 163º, no. 1, of the Administrative Procedure Code subsidiarily applicable in accordance with article 2º, letter c), of the General Tax Law."
B) Right to reimbursement of tax unduly paid and compensation interest
The Claimant formulates a request for reimbursement of the amount of € 45,496.56 relating to the IMT paid, plus the corresponding compensation interest.
Article 24º, no. 1, letter b) of Decree-Law no. 10/2011, of 20 January (RJAT), provides that in the event of a ruling in favour of the arbitral decision, the AT must: "(…)restore the situation that would have existed if the tax act that is the subject matter of the arbitral decision had not been performed, adopting the acts and operations necessary for such purpose;".
In the present case, following the illegality of the assessment act, reimbursement of the illegally paid tax is due, by virtue of articles 24º, no. º1, letter b), of the RJAT and 100º of the General Tax Law, as this is essential to "restore the situation that would have existed if the tax act that is the subject matter of the arbitral decision had not been performed".
Therefore, the Claimant should be reimbursed for the tax it illegally bore.
The Claimant further formulated a request for condemnation of the AT to the payment of compensation interest, so it is necessary to ascertain whether it is entitled to the same.
Article 43º, no. 1, of the General Tax Law provides that: "Compensation interest is due when it is determined, in administrative appeal or judicial challenge, that there was an error attributable to the services resulting in payment of the tax debt in an amount higher than that legally due".
In other words, there are three requirements for the right to such interest: i) the existence of an error in a tax assessment act attributable to the services; ii) the determination of such error in a process of administrative appeal or judicial challenge; and iii) the payment of a tax debt in an amount higher than that legally due.
In this manner, it is possible immediately to formulate a question: is it permissible to determine the payment of compensation interest in a tax arbitral process? The answer will be in the affirmative.
In fact, article 24º, no. 5 of the RJAT provides 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 Tax Procedure and Process Code".
However, in the present case, the cognition activity of the court concerns a decision of tacit rejection of a request for review of tax acts and article 43º, no. 1 of the General Tax Law determines that compensation interest for undue collection is only due when the taxpayer challenges or appeals. However, "official review" constitutes a distinct mechanism from administrative appeal and judicial challenge.
In this regard, article 43º, no. 3 of the General Tax Law provides that: "Compensation interest is also due in the following circumstances: (…) c) When the review of the tax act at the initiative of the taxpayer is carried out more than one year after the request thereof, unless the delay is not attributable to the tax administration»".
Thus, if "official review" of the tax act is requested by the taxpayer, should the AT exceed the period of one year to proceed with such review and should it decide favourably, compensation interest is only due after the expiration of one year. And if the taxpayer needs to resort to the judicial route? The question is answered by jurisprudence by stating that: "…if the taxpayer is forced to resort to the court to obtain a decision, because the Administration, within or outside that period, did not review the act, this taxpayer is not treated differently from one who obtained the same favourable decision by the administrative route after one year has elapsed. Similar to the interested party whose review request had a favourable outcome dictated by the Administration after one year has elapsed, also he to whom the court only gave reason after that time is entitled to the same interest. This is because, in either case, the delay of more than one year is attributable to the Administration: either because it was slow to decide, or because it decided unfavourably to the taxpayer, only to be shown in court that it should have decided otherwise" (Judgment of the Supreme Administrative Court rendered in the scope of case no. 0918/06, of 12/12/2006, reported by Counsellor BAETA DE QUEIROZ).
That is, article 43º, no. 3, letter c) of the General Tax Law applies to a reality distinct from reimbursement to the taxpayer as a result of "error attributable to the services", namely the delay of the AT in concluding the "official review" procedure.
Reverting such interpretation to the present case, if the review request was formulated on 10 April 2018 and because the formation of the presumption of tacit rejection occurred on 10 August 2018, compensation interest is only due from 11 August 2018.
There is, therefore, a place, following the declaration of illegality of the IMT assessment act and equally of the act of tacit rejection of the official review, for the payment of compensation interest, in accordance with the aforementioned provisions of articles 43º, no. 3 letter c) of the General Tax Law and 61º, no. 5, of the CPPT, calculated on the amount that the Claimant unduly paid, at the legal rate of interest (articles 35º, no. 10, and 43º, no. 4, of the General Tax Law).
IV. DECISION
Given the grounds set out:
a) The request for arbitral determination is held to be well-founded, and the act of tacit rejection of the request for official review (RO), formed on 10.08.2018, to which it is referred in e) of the proven facts, as well as the tax assessment act for Municipal Tax on Onerous Real Estate Transfers (IMT), with document identification no..., of 29.05.2014, in the amount of € 45,496.56, are declared to be in violation of article 1º of Decree-Law no. 1/87, of 3 January;
b) The assessment and the decision of tacit rejection of the official review are annulled.
c) The Respondent is condemned to reimburse to the Claimant the amount of 45,496.56 euros.
d) The request for payment to the Claimant of compensation interest is held to be well-founded, calculated at the legal rate, with initial term from 11 August 2018 and until the date of processing of the respective credit note.
V - VALUE OF PROCEEDINGS
The value of the proceedings is fixed at 45,496.56 €, in accordance with article 97º - A of the Tax Procedure and Process Code (CPPT), applicable by virtue of the provision in article 29º, no. 1, letter a) of the RJAT and article 3º, no. 2 of the Regulation of Costs in Tax Arbitration Proceedings (RCPAT).
VI – COSTS
Costs to be borne by the Respondent, in the amount of 2,142.00 €, in accordance with article 22º, no. 4 of the RJAT and Table I annexed to the RCPAT.
Notify.
Lisbon, 18 March 2019
Singular Arbitral Court,
Augusto Vieira
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