Process: 556/2017-T

Date: June 1, 2018

Tax Type: IMT

Source: Original CAAD Decision

Summary

This CAAD arbitral decision (Process 556/2017-T) addresses the crucial question of active standing (legitimacy) to challenge an IMT (Municipal Tax on Onerous Real Estate Transfers) assessment in Portugal. The case involved a property acquired by B..., S.A. from a Spanish company's insolvency estate, subsequently leased to A..., LDA through a financial leasing contract. The claimant sought to contest an IMT assessment of €8,235.37, arguing entitlement to the exemption under Article 270(2) of the Portuguese Insolvency Code (CIRE), which exempts sales from insolvent estates from IMT. The central controversy centered on whether the lessee had standing to challenge the assessment, despite the lessor being the formal taxpayer. The claimant relied on contractual clauses assigning responsibility for all IMT payments and challenges to the lessee. The Tax Authority contested this, arguing that contractual arrangements between private parties cannot override the statutory framework determining taxpayer status and procedural standing. The decision examines whether Article 9 of the Tax Procedure Code grants standing based on legally protected interest when a party assumes tax payment obligations contractually. The tribunal also considered requests for intervention by summons and assistance to join the lessor as co-plaintiff. This ruling has significant implications for financial leasing arrangements in Portugal, particularly regarding who may exercise procedural rights when contractual clauses allocate tax responsibilities differently from statutory taxpayer designations, and whether insolvency-related IMT exemptions extend to subsequent transactions involving assets from liquidated estates.

Full Decision

ARBITRAL DECISION

REPORT

On 18 October 2017, the company A..., LDA., legal entity no. ..., with registered office at Rua ..., no. ..., ..., in Porto ("Claimant"), filed a request for arbitral pronouncement with the intervention of a single arbitral tribunal, pursuant to articles 2, no. 1, subparagraph a), and 10, no. 1, subparagraph a), of the Legal Regime for Arbitration in Tax Matters ("RJAT").

The TAX AND CUSTOMS AUTHORITY ("Respondent Entity") is the respondent.

In the request for arbitral pronouncement, the Claimant requested that the Arbitral Tribunal declare the illegality of the assessment of Municipal Tax on Onerous Real Estate Transfers ("IMT") no. ..., dated 10 March 2017, in the amount of EUR 8,235.37.

The tax assessment in question was based on the acquisition of a real property by B..., S.A. from the insolvent estate of the Spanish law company C..., S.A., which property was subsequently leased to the Claimant.

The Claimant understood that it had standing to contest the legality of the tax act in question by virtue of the real estate financial lease contract it had entered into with B..., S.A. – specifically, given its clauses 3.5. and 13.1., the content of which is reproduced below:

"If [...] an additional assessment of the municipal tax on onerous property transactions is determined regarding the property now leased [...], it shall be exclusively the responsibility of the Lessee to challenge and/or contest and/or lodge a claim for such additional assessments and amounts [...]";

"The Lessee assumes responsibility for payment of all expenses, charges, notarial and registration fees, taxes or other levies [...], namely [...] Municipal Tax on Onerous Real Estate Transfers (IMT), even if not yet due or payable, even if relating to periods prior to this date [13 March 2017], and even if only subsequently assessed or presented for payment [...]".

On the other hand, it grounded the illegality of the act in question on the application of article 270, no. 2, of the Insolvency and Business Recovery Code, according to which:

"Sales, exchanges or transfers of the business or of establishments thereof, conducted within the scope of insolvency plans, payment plans or recovery plans or carried out within the framework of liquidation of the insolvent estate, are equally exempt from municipal tax on onerous real estate transfers."

The request for constitution of the Arbitral Tribunal was accepted on 19 October 2017 by His Excellency the President of CAAD, following which notification of the Respondent Entity was effected.

Subsequently, pursuant to article 6, no. 1, of the RJAT, the Undersigned Arbitrator was designated by the President of the Deontological Council of CAAD to constitute this single arbitral tribunal, with the respective appointment having been accepted in accordance with the legally provided procedures.

On 7 December 2017, the Parties were notified of such designation and manifested no intention to refuse it, in accordance with the combined provisions of article 11, no. 1, subparagraphs a) and b), of the RJAT, and articles 6 and 7 of the CAAD Code of Ethics.

The Arbitral Tribunal was constituted on 28 December 2017, in conformity with article 11, no. 1, subparagraph c), of the RJAT.

On 5 March 2018, the Respondent Entity presented its response and likewise attached the administrative file.

In its response, the Respondent Entity argued for the lack of active standing of the Claimant to bring this action, having, in summary, invoked the following:

"The owner of the property is B... and, as such, it is this banking entity that is the taxpayer and responsible for its payment, regardless of what B... and the claimant herein might have contracted between themselves subsequently. In fact, the Claimant entered into a real estate financial lease contract with B... [...]. However, its terms have effect only between the contracting parties, being a regime negotiated and agreed between the parties, which concerns and binds only these parties, and therefore what was agreed in this lease contract is entirely irrelevant to this action [...].

In summary, the Claimant has no standing to intervene in this dispute, nor does the lease contract have the effect of conferring upon the Claimant standing to challenge the assessment in question in these proceedings, when, by law, the Claimant was not the acquirer of the property."

On 15 March 2018, the Claimant presented a request whereby it contested the procedural exception of lack of active standing invoked by the Respondent Entity, having requested intervention by summons and, subsidiarily, the assistance of B..., S.A.

In this context, the Claimant contended the following:

"It is clear from the financial lease contract attached to the file that it was the Claimant's responsibility to bear entirely the tax due on the transfer of the property, which is the subject of the financial lease [...]. It follows from the said contract (point 3.5. of the Particular Conditions) that it is the Lessee's responsibility to challenge and/or contest and/or lodge a claim regarding any additional IMT assessments or valuations made by the AT [Tax Authority] on the property. Now, if it is the financial lessee's responsibility to challenge and/or contest and/or lodge a claim regarding any additional IMT assessments or valuations made by the AT on the property, in cases where the financial lessor is also the taxpayer, by the same reasoning, the financial lessee has standing to challenge the original IMT assessment [...]. Pursuant to article 9 of the CPPT [Code of Tax Procedure and Process], standing in the tax procedure is held by taxpayers, including substitutes and responsible parties, other tax-obligated entities, parties to tax contracts and any other persons who prove legally protected interest. Now, having the Claimant, within the scope of a real estate financial lease operation, assumed responsibility for the IMT assessment, made the declaration for its assessment and paid the tax, it has legally protected interest and, therefore, standing to challenge the IMT assessment borne by it [...]. Without prejudice and as a mere matter of procedural duty, intervention by summons is hereby requested, pursuant to article 316 of the CPC [...], of B..., S.A. [...] to intervene as co-plaintiff, by virtue of formally appearing as the taxpayer in the tax act. Subsidiarily, intervention as an intervener is requested for the said credit institution, pursuant to article 127, no. 1, subparagraph a), of the CPPT."

By order of 20 March 2018, the holding of the meeting provided for in article 18 of the RJAT and the presentation of submissions by the Parties were dispensed with, and the Arbitral Tribunal granted the Respondent Entity a period of fifteen days to pronounce itself on the requests for intervention by summons and assistance submitted by the Claimant on 15 March 2018.

On 17 April 2018, the Respondent Entity pronounced itself on the said requests for intervention by summons and assistance.

Specifically, the Respondent Entity made the following submissions:

"That which was contracted by the lessor and lessee regarding the payment of expenses belongs to the private domain of the lease contract, and therefore B... is the sole taxpayer in the tax legal relationship at issue in these proceedings [...]. Thus, who would have had standing to bring this challenge would always be B... [...]. This lack of standing cannot be remedied by the intervention by summons of B..., because this would permit that when a subject of the legal relationship did not timeously exercise its right to react against an act and allowed that right to lapse, another subject, without standing, but having brought the action, could summon the one who should have done so originally. We are not, in truth, dealing with a true original intervention by summons, insofar as if the Claimant has no standing to challenge the assessment, it also cannot summon the party who would have had standing to bring the action [...]. Regarding the request for intervention as an intervener of B... [...], it must be said that this request cannot proceed either. The incident of intervention provided for in article 127 of the CPPT is limited exclusively to cases where there is intervention of a substitute in challenges brought by the substituted party, and vice versa, as provided in subparagraph a) of article 129 of the CPPT. Now, in the case of these proceedings, the relationship between the Claimant and B... does not fall within the regime of substitute and substituted party."

PRELIMINARY EXAMINATION

The Arbitral Tribunal is materially competent and is regularly constituted, pursuant to articles 2, no. 1, subparagraph a), 5 and 6 of the RJAT.

The Parties have legal personality and capacity and are properly represented, pursuant to articles 4 and 10 of the RJAT and 1 of Order no. 112-A/2011, of 22 March.

The proceedings are not affected by nullities. Nevertheless, the Respondent Entity invoked the procedural exception of lack of active standing of the Claimant, the examination of which is necessary for the Arbitral Tribunal in this connection.

On the Procedural Exception of Lack of Active Standing

With relevance to the examination of the exception in question, the following facts are considered proven, which result from the documents and administrative file attached to the proceedings:

On 10 March 2017, by reference to a property located at Rua ..., no. ..., ..., in Porto, registered under article ... in the urban real property register of the Tax Service of Porto-..., the Tax and Customs Authority issued IMT assessment no. ..., in the amount of EUR 8,235.37 – cf. documents nos. 4 and 5 attached to the request for arbitral pronouncement;

From the said assessment the following appears:

"Taxpayer –..., B..., S.A.; Tax Event – Acquisition of the right to full ownership of real property; Property – Real Property: U-... [...]; Transferor of the Property – Tax Identification: ..., Name: C..., S.A., Share: 1/1; Assessment No.: ..., Patrimonial Value for IMT: € 126,697.98, Declared Value: € 110,000.00, Taxable Matter: € 126,697.98, Rate: 6.50%, Tax: € 8,235.37" – cf. document no. 5 attached to the request for arbitral pronouncement;

The IMT was paid by B..., S.A. on 10 March 2017, by cheque no. ..., drawn on D..., belonging to the Claimant – cf. document no. 2 attached to the request presented by the Claimant on 15 March 2018;

On 13 March 2017, by public deed of sale and purchase, B..., S.A. acquired from the insolvent estate of the Spanish law company C..., S.A. the real property identified above – cf. document no. 1 attached to the request for arbitral pronouncement;

From the said deed the following appears:

"The company 'A..., Lda. [...] [Claimant], wishing to resort to financial leasing as a form of financing, designated as purchaser [...] B..., S.A., now a party hereto, which acquires on this date the fraction identified above, subsequently proceeding to a financial lease contract with the proposing company [...]" – cf. document no. 1 attached to the request for arbitral pronouncement;

On the same date, B..., S.A. and the Claimant, respectively in the capacities of lessor and lessee, entered into a financial lease contract concerning the real property identified above – cf. document no. 2 attached to the request for arbitral pronouncement;

From clauses 3.5. and 13.1. of the financial lease contract the following appears:

"If [...] an additional assessment of the municipal tax on onerous property transactions is determined regarding the property now leased [...], it shall be exclusively the responsibility of the Lessee to challenge and/or contest and/or lodge a claim for such additional assessments and amounts [...]";

"The Lessee assumes responsibility for payment of all expenses, charges, notarial and registration fees, taxes or other levies [...], namely [...] Municipal Tax on Onerous Real Estate Transfers (IMT), even if not yet due or payable, even if relating to periods prior to this date [13 March 2017], and even if only subsequently assessed or presented for payment [...]" – cf. document no. 2 attached to the request for arbitral pronouncement.

Of the facts with interest for the examination of the exception in question, resulting from the request for arbitral pronouncement, the administrative file and the requests presented by the Parties, all subject to concrete analysis, those not included in the facts listed above were not proven.

Having reached this point, it is necessary to examine whether the exception of lack of active standing of the Claimant is verified in these proceedings.

Pursuant to article 9, no. 4, of the Code of Tax Procedure and Process:

"Standing in judicial tax proceedings is held, in addition to the entities referred to in the preceding numbers [that is, taxpayers, including substitutes and responsible parties; other tax-obligated entities; parties to tax contracts and any persons who prove legally protected interest], by the Public Prosecutor and the representative of the Public Treasury."

On the other hand, article 18, no. 3, of the General Tax Law provides:

"The taxpayer is the natural or legal person, the estate or the de facto or de jure organization which, pursuant to law, is bound to meet the tax obligation, whether as direct taxpayer, substitute or responsible party."

With article 4 of the IMT Code stating:

"IMT is owed by the acquirers of real property [...]."

In turn, article 9, no. 1, of the Code of Procedure in Administrative Courts, applicable ex-vi article 29, no. 1, subparagraph c), of the RJAT, provides:

"Without prejudice to the provisions of the following number and of chapter II of title II, the plaintiff is considered a party with standing when he alleges that he is a party to the material relationship in dispute."

Article 30, nos. 1 to 3, of the Code of Civil Procedure, applicable ex-vi article 29, no. 1, subparagraph e), of the RJAT, stipulates:

"The plaintiff is a party with standing when he has a direct interest in bringing the action [...].

The interest in bringing the action is expressed by the utility derived from the success of the action [...].

In the absence of legal indication to the contrary, the subjects of the relationship in dispute, as configured by the plaintiff, are considered to hold the interest relevant for purposes of standing."

From the combination of the above provisions it follows that standing in the tax proceedings is held by the party to the material relationship in dispute, namely, for what is now relevant, the taxpayer (direct taxpayer, substitute or tax responsible party) and any person who proves to have a legally protected interest – in short, whoever demonstrates having a direct interest in the action.

In the situation at hand, with B..., S.A. being the taxpayer for IMT purposes, given its capacity as acquirer of the property (cf. article 4 of the IMT Code), the active standing of the Claimant should be assessed in light of the nature of its interest in the present case.

In seeking to specify the concept of direct interest, Jorge LOPES DE SOUSA states:

"Standing in contentious appeal presupposes the existence of a direct, personal and legitimate interest in challenging. The existence of such a direct interest does not occur if the benefit arising from the annulment of the act does not have an immediate repercussion on the interested party, but only a mediate, eventual or merely possible one (judgment of the Supreme Administrative Court of 16-6-99, case no. 23630)" – cf. Jorge LOPES DE SOUSA, Code of Tax Procedure and Process Annotated and Commented, Volume I, 6th Edition, 2011, Áreas Editora, page 135.

In accordance with the said specification, it is then necessary to determine the impact that the possible annulment of the IMT assessment will have on the sphere of the Claimant.

Now, as the material relationship in dispute – that is, the tax legal relationship – which underlies these proceedings has as parties the Respondent Entity and B..., S.A., the tax that may possibly be annulled will necessarily have to be refunded to this credit institution and not to the Claimant.

Indeed, payment to the Claimant of an amount equivalent to the said tax will remain entirely at the disposal of B..., S.A., arising from a distinct legal relationship – specifically, from the contractual relationship established between B..., S.A. and the Claimant at the time of the execution of the real estate financial lease contract mentioned above.

Thus, in the scenario of B..., S.A. failing to comply with the said contract, such an amount will not be paid to the Claimant.

From the foregoing it follows that the possible annulment of the contested tax act will not immediately benefit the sphere of the Claimant, and therefore its interest in the present action is not direct.

To the same effect, Manuel FERNANDES PIRES notes:

"Performance of the tax obligation may be carried out by the taxpayer or by a third party, equally resulting in the extinction of the tax legal relationship [...]. Indeed, nothing prevents any person, external to the tax legal relationship, from performing the tax obligation in place of the taxpayer (debtor). However, the convention between the taxpayer and the third party that effects the payment, which may have given rise to it, is not, naturally, binding against the tax creditor, nor need it depend on any prior intervention thereof.

The relations between the third party that has effected the payment and the taxpayer of the tax obligation are regulated by civil law and, possibly, by the contractual clauses that were established between them in the relationships underlying the payment by the third party. The presuppositions that led to the performance of the tax obligation by a third party are foreign to the tax legal relationship. As the tax creditor is external to the relationships established between the taxpayer and the third party that effected the payment, naturally all the effects inherent to the tax legal relationship after payment have repercussions on the sphere of the taxpayer. This shall happen, namely, with respect to the right of complaint or challenge, as well as in cases where a right to refund or reimbursement of the amount expended comes to be established, except if, pursuant to no. 2 of this article [article 41 of the General Tax Law], subrogation has occurred" [underlining in original] – cf. Manuel FERNANDES PIRES, General Tax Law Commented and Annotated, 2015, Almedina, page 344.

In consequence, it is found that the Claimant is not the holder of a legally protected interest – in the sense of a direct interest – in the present action, and therefore lacks active standing to bring this action.

In light of the foregoing, the examination of any other questions is considered prejudiced, including the requests for intervention by summons and assistance submitted by the Claimant, since for their formulation it would always be necessary for it to be a party with standing in these proceedings, which is not the case.

DECISION

In accordance with the foregoing, the procedural exception of lack of active standing is upheld, and the Arbitral Tribunal refrains from knowing the claims submitted by the Claimant and absolves the Respondent Entity from the instance, pursuant to article 278, no. 1, subparagraph d), of the CPC, applicable ex-vi article 29, no. 1, subparagraph c), of the RJAT.

Pursuant to articles 306, nos. 1 and 2, of the Code of Civil Procedure, 97-A, no. 1, subparagraph a), of the CPPT, and 3, no. 2, of the Regulation on Costs in Tax Arbitration Proceedings, the value of the case is fixed at EUR 8,235.37, condemning the Claimant to pay the costs of the proceedings, which total EUR 918.00, under article 22, no. 4, of the RJAT and likewise the Table I annexed to the said regulation.

Text drawn up by computer, pursuant to the CPC, applicable by remission of article 29, no. 1, subparagraph e), of the RJAT, with blank verses and reviewed by the Undersigned Arbitrator.

Lisbon, 1 June 2018

The Arbitrator

(Jaime Carvalho Esteves)

Frequently Asked Questions

Automatically Created

Who has active legitimacy to challenge an IMT tax assessment on a property acquired from an insolvency estate in Portugal?
Active legitimacy to challenge an IMT assessment belongs primarily to the statutory taxpayer—the acquirer of the property. In Portugal, under Article 9 of the Tax Procedure Code (CPPT), standing in tax proceedings is held by taxpayers, substitutes, responsible parties, and those with legally protected interests. While a financial lessee may contractually assume payment obligations and challenge responsibilities, such private contractual arrangements do not automatically confer procedural standing to contest tax assessments issued to the lessor. The taxpayer identified in the tax assessment (in this case, the acquiring bank B..., S.A.) holds primary standing. However, parties claiming legally protected interest based on contractual obligations may seek to intervene, though the jurisprudence indicates this requires more than mere contractual payment responsibility—it requires demonstration of direct legal interest in the tax relationship itself, not just derivative contractual obligations.
Does the IMT exemption under Article 270(2) of the Portuguese Insolvency Code (CIRE) apply to property sales during liquidation of an insolvent estate?
Article 270(2) of the Portuguese Insolvency and Business Recovery Code (CIRE) provides an IMT exemption for sales, exchanges, or transfers of businesses or establishments conducted within insolvency plans, payment plans, recovery plans, or carried out during liquidation of the insolvent estate. This exemption applies to property transactions that occur as part of the formal insolvency liquidation process. The key requirement is that the sale must be conducted 'within the framework of liquidation of the insolvent estate' as overseen by the insolvency administrator. The exemption is designed to facilitate the efficient liquidation of insolvent estates by removing the IMT tax burden that might otherwise reduce recovery for creditors. However, application of this exemption requires proper documentation demonstrating that the transaction was indeed part of the formal insolvency liquidation process, not a subsequent independent transaction. The exemption does not automatically extend to all transactions involving assets that previously belonged to an insolvent estate if those transactions occur outside the formal insolvency framework.
Can a lessee under a financial leasing contract challenge an IMT assessment issued to the lessor who purchased the property?
A lessee under a financial leasing contract faces significant challenges in contesting an IMT assessment issued to the lessor. While the lessee may contractually agree to bear all tax costs and assume responsibility for challenges, Portuguese tax law establishes that such contractual provisions bind only the contracting parties and do not alter the statutory tax relationship. The Tax Authority correctly argues that the lessor (property acquirer) remains the statutory taxpayer regardless of private contractual arrangements. Contractual clauses cannot transfer procedural standing that the law grants exclusively to the taxpayer. However, the lessee might seek intervention through procedural mechanisms such as 'intervention by summons' (chamamento) under Article 316 of the Civil Procedure Code to join the lessor as co-plaintiff, or request assistance (intervenção) under Article 127(1)(a) of CPPT. These procedural tools aim to ensure the proper party is before the tribunal, though they face obstacles when the original claimant lacks standing and filing deadlines have expired. The fundamental principle is that contractual allocation of tax payment responsibility does not automatically confer the procedural rights reserved by law to the statutory taxpayer.
What are the conditions for IMT exemption on real estate transactions carried out within insolvency proceedings in Portugal?
The conditions for IMT exemption under Article 270(2) CIRE on real estate transactions within insolvency proceedings require: (1) the transaction must involve sales, exchanges, or transfers of the business or its establishments; (2) the transaction must be conducted within the scope of insolvency plans, payment plans, recovery plans, or carried out within the framework of liquidation of the insolvent estate; (3) the sale must be part of formal insolvency proceedings supervised by an insolvency administrator; and (4) proper documentation establishing the insolvency context must be presented to tax authorities. The exemption aims to facilitate business recovery and maximize creditor recovery by eliminating IMT as a transaction cost. It applies during both the reorganization phase (when conducted within approved plans) and the liquidation phase of insolvency. However, the exemption is limited to transactions that form part of the formal insolvency process itself. Subsequent transactions involving assets previously sold from an insolvent estate would not automatically benefit from the exemption unless they too occur within a continuing insolvency framework. Taxpayers claiming this exemption must demonstrate clear linkage between the transaction and the formal insolvency proceedings, typically through documentation from the insolvency administrator and court approvals.
How do contractual clauses in a financial lease agreement affect the legitimacy to contest IMT tax assessments before CAAD arbitration tribunals?
Contractual clauses in financial lease agreements that allocate IMT payment responsibility and challenge rights to the lessee do not, by themselves, confer legitimacy (active standing) to contest IMT assessments before CAAD arbitration tribunals. Portuguese tax procedural law distinguishes between substantive tax obligations and procedural rights. While parties may freely contract regarding who bears tax costs, such agreements operate in the private law domain and do not alter the public law framework governing tax procedure. The statutory taxpayer—the party identified in the tax assessment as the acquirer—retains procedural standing regardless of contractual arrangements. Article 9 CPPT requires either taxpayer status or demonstration of 'legally protected interest' for standing. Mere contractual assumption of payment obligations, without more, does not constitute the legally protected interest required by tax procedural law. The interest must be direct and arise from the tax legal relationship itself, not derivative from private contractual arrangements. This prevents contractual parties from circumventing statutory procedural rules and deadlines. Financial lessees seeking to protect their contractual interests must either ensure the lessor (statutory taxpayer) timely challenges assessments, or seek procedural intervention mechanisms that join the proper party while respecting applicable deadlines and standing requirements.