Summary
Full Decision
ARBITRAL DECISION
The arbiters José Baeta de Queiroz (president), Luís Menezes Leitão and Maria Antónia Torres (members), appointed by the Ethics Council of the Centre for Administrative Arbitration ("CAAD") to form this collective arbitral tribunal, constituted on 11 January 2018, agree as follows:
REPORT
1.1. A..., S.A., taxpayer no. ..., with registered office in ..., ..., ..., Municipality of ..., following the acts of self-assessment of corporate income tax (IRC) relating to the years 2014 and 2015, against which it filed an administrative appeal, and of whose dismissal it was notified on 9 August 2017, requested the constitution of an arbitral tribunal, under article 2, no. 1, paragraph a), and article 10, both of Decree-Law no. 10/2011, of 20 January (hereinafter "RJAT"[1]).
1.2. The allegations sustaining the Claimant's request for arbitral pronouncement are, in summary, as follows:
The Claimant proceeded on 26 February 2016 to file the IRC Form 22 declaration for the fiscal year 2014, having proceeded to self-assess autonomous tax liabilities in IRC for that same year in the amount of €72,758.65.
On 23 February 2017, the Claimant filed the Form 22 declaration, with reference to the fiscal year 2015, having proceeded to self-assess autonomous tax liabilities in IRC for that same year in the amount of €65,895.33.
The Claimant filed an administrative appeal against the aforementioned self-assessments relating to fiscal years 2014 and 2015, of whose dismissal it was notified on 9 August 2017.
It happens that the AT's computer system reveals anomalies embodied in marking divergences ("errors") that prevent the Claimant from recording the value relating to the said autonomous tax rates in IRC, purged, i.e., deducted, within the scope of the IRC collection resulting from the application of these rates, the amounts of tax benefit recognised to the company under SIFIDE, in the form of tax credit deductible from the IRC collection, which resulted in an excess of tax paid by reference to the fiscal years in question.
The amount of SIFIDE allocated, available for use at the end of fiscal years 2014 and 2015, amounted respectively to €830,557.29 and €1,557,431.49.
In summary, the Claimant has IRC credits for offset against its collection in an amount far exceeding the collection of autonomous tax liabilities in IRC for the years under analysis, an offset that the AT's computer system does not permit.
It should be noted that AT did not and has not ascertained the Claimant's taxable profit by indirect methods: it was ascertained in normal terms, via submission of the Form 22.
It should furthermore be added that at the relevant time the Claimant was not an entity indebted to the State and social security for any taxes or contributions.
As mentioned, the AT's computer system, through which IRC is self-assessed, does not allow taxpayers to deduct, for the purposes of determining the IRC owed by them, from the IRC resulting from autonomous tax liabilities ascertained, SIFIDE. That system does not therefore allow the deduction of SIFIDE credits from a part of the IRC ultimately ascertained – autonomous tax liabilities.
That is, intentionally or inadvertently, the IRC Form 22 declaration and its articulation with the programming of the AT's computer system prevents deduction from the collection related to autonomous tax rates in IRC, recorded in field 365 of table 10 of the Form 22 declaration, of SIFIDE still to be deducted from the IRC collection.
The Claimant continues, arguing that it is almost unanimous case law that autonomous taxation in IRC is IRC; and that the IRC liquidation rules contained in article 89 et seq of CIRC apply to it, with several judgments to that effect.
AT's refusal is strange given that recently AT took a position on the matter having only excluded from collection of autonomous tax liabilities in IRC the deduction of tax credits for international double taxation. The incongruity lies in AT's refusal to apply the same to the collection of autonomous tax liabilities in IRC with respect to other items equally deductible from IRC collection. And the logical impossibility lies in the interpretation of the same exact wording in the same exact provision (no. 2 of article 90 of CIRC: "To the amount ascertained in accordance with the preceding number, the following deductions are made…") with opposite meanings depending on whether the deductible item, or clause in question, is one or another.
Falling equally, apparently, into logical impossibility, the State Budget Law 2016 if on the one hand it reaffirmed that article 89 of CIRC applies to autonomous taxation (part 1 of the new no. 21 of article 88 of CIRC), on the other hand excluded autonomous taxation from no. 2 of the following article 90 (part 2 of the new no. 21 of article 88 of CIRC), and to both these provisions, of opposite meaning, attributed, at first glance, and contradictorily, interpretative character.
It should be emphasised that the prism of vote counting (or weighing the inclination of case law) up to 30 March 2016 is a first symptom that one is faced with an innovative law as to the exclusion prescribed in part 2 of the new no. 21 of article 88 of CIRC.
The Claimant understands that it can and should conclude that article 135 of the State Budget Law 2016 refers only to part 1 of the new no. 21 of article 88 of CIRC, an interpretation which by the negative is authorised by the manifest incorrectness of the wording of that article 135 (as developed above), revealing the little care the legislature had in being precise, and which by the positive is authorised by the presumption that the legislature adopted the most correct solutions and by the directive of interpretation in accordance with the Constitution (at a more advanced stage of this summary of the analysis an additional ground for this interpretation of article 135 of the State Budget Law 2016 will be presented).
Furthermore, as developed above, the attribution of interpretative nature to a tax rule does not of itself trigger the application of the regime for application of laws in time provided for in the Civil Code (CC). Specifically, and in summary, the regime for application of laws in time provided for in the CC (which includes of its own right its article 13), does not apply regarding matters which have a private regime for the purpose, in obedience to distinct principles, as is the case (currently) with taxes: cf. article 12 of the General Tax Law (LGT) and article 103, no. 3, of the Constitution.
In any case article 13 of the CC and the retroactivity prescription contained therein only applies to interpretative rules, as opposed to false interpretative rules. And part 2 of the new no. 21 of article 88 of CIRC is, assuming it was truly the intention of the legislature to attribute an interpretative character to it (a matter to which we will return below), a false interpretative rule.
From nowhere in the State Budget Law 2016 results the identification of the rule which part 2 of the new no. 21 of article 88 of CIRC would aim to interpret, which constitutes yet another symptom that one is faced with a normative novelty, as opposed to an interpretative view of an old rule.
Assuming the Claimant, for the sake of argument, that the rule subject to interpretation is no. 2 of article 90 of CIRC (no other possible candidate is seen), the relevant question then becomes this: what ambiguity is detected in the reference therein to IRC that was not equally and to the same extent shared by both the preceding no. 1 of the same article 90, and by the preceding article 89?
Let it be seen, no ambiguity or opacity: all these rules are directed to IRC liquidation, without any ambiguity, in the post-regulation phase of the primary collection (which is obtained by the application of IRC rates to the taxable matter of IRC, in accordance with the preceding articles 1 to 88 of CIRC).
This leads us to yet another strong reason to consider that part 2 of the new no. 21 of article 88 of CIRC is not interpretative for purposes of application of law in time, that is, for purposes of activating the provision of article 13 of the Civil Code (assuming, for the sake of argument, that this is applicable in matters which have private regulation regarding application of law in time).
In fact, both parts, 1 and 2, of the new no. 21 of article 88 of CIRC cannot, by logical and systemic impossibility, simultaneously be interpretative of what articles 89 and 90 of CIRC provide (both inserted in the same phase of IRC liquidation, post-obtaining of primary collection), in opposite senses.
And knowing the overwhelming case law, accompanied by AT, to the effect of qualifying the collection of autonomous taxation in IRC as possessing the nature of IRC, it is easy to conclude that in this duality of provisions of opposite meaning the one that has interpretative nature is part 1, and that therefore, and necessarily, part 2 of the new no. 21 of article 88 of CIRC has an innovative character (counter-current, in the case against the inclusion of the primary collection of autonomous taxation in the IRC collection).
And with this the first of the qualitative reasons above presented is reinforced: the logical impossibility detected, the antinomy, is only resolved if the attribution of interpretative nature to the new no. 21 of article 88 of CIRC, by article 135 of the State Budget Law 2016, is interpreted as intending to refer to part 1, and not to part 2, of the said no. 21. If, notwithstanding all the reasons listed above, it is still understood (i) that article 135 of the State Budget Law 2016 (Law no. 7-A/2016, of 30 March) attributed interpretative nature also to part 2 of the new no. 21 of article 88 of CIRC, that is, also to the normative segment "no deductions being made to the global amount [of autonomous taxation in IRC] ascertained", introduced by the same State Budget Law 2016 (by its article 133), (ii) and that from this would result the application of article 13 of the CC as it prescribes the retroactive application of interpretative laws, one would be faced with a material unconstitutionality of the said article 135 of the State Budget Law 2016, for violation of the prohibition of retroactivity in tax matters provided for in article 103, no. 3 of the Constitution, whether or not it has been concluded (and it is understood that it has not), that one is faced with a materially interpretative law, and for violation, also, of the principle of separation of powers and the principle of independence of the judicial power.
Certain it is that the Claimant paid tax in an amount higher than that legally due, and that therefore, once the illegality of the (self-)assessments here petitioned is declared, the Claimant is entitled not only to the respective refund, but also, under article 43 of the LGT, to indemnificatory interest.
1.4. For its part, the Defendant Tax Authority and Customs Authority presented a reply, in which it defended, in summary, in the following terms:
Both case law and doctrine have abundantly addressed the characterisation of the figure "autonomous tax liabilities" in IRC (and in IRS) and the legislative evolution verified since its creation, by article 4 of Decree-Law no. 192/90, of 09.06, to the present day.
The considerations made in this regard reveal that the figure of autonomous tax liabilities has been used to pursue diverse objectives, which range from the original purpose of preventing evasion and fraud practices – through undisclosed or undocumented expenses, or payments to entities located in jurisdictions with privileged tax regimes, to the replacement of taxation of ancillary benefits in the form of representation expenses or assignment of vehicles to workers and members of corporate bodies, in the sphere of their respective beneficiaries, to the purpose of preventing the phenomenon designated as "dividend washing" (cf. no. 11 of article 88 CIRC) or of burdening, through tax, the payment of income considered excessive (cf. no. 13 of the same provision).
It may furthermore be added that, in terms of a common denominator, it could be affirmed that this type of taxation targets "expenses that are located in the intersection zone of the personal sphere and the business sphere, so as to prevent in-kind remuneration more attractive for purely tax reasons or the hidden distribution of profits".
It is recognised that the autonomous character of these tax liabilities, resulting from the special configuration given to the material and temporal aspects of the taxable events, imposes, in certain fields, the setting aside or an adaptation of the general rules for application of IRC.
In fact, the integration of autonomous tax liabilities into the IRC Code (and the IRS Code) conferred a dualistic nature, in certain aspects, to the normative system of this tax, which was embodied, namely, in the context of paragraph a) of no. 1 of article 90 of CIRC, in separate ascertainments of their respective collections, because they obey different rules.
That independent ascertainment implies that, in one case, it is a matter of application of the rate(s) of article 87 of CIRC to the taxable matter determined in accordance with the rules contained in Chapter III of the Code, i.e., having as a starting point the entity's profit (cf. no. 1 of article 15 of CIRC) and, in the other case, it is a matter of application of the rates to the values of the taxable matters relating to the different realities contemplated in article 88 of CIRC.
There is no single IRC liquidation, but rather two types of ascertainments, that is, two distinct calculations which, although processed in accordance with the same legal basis – paragraph a) of no. 1 of article 90 of CIRC – and in the declarations to which articles 120 and 122 of the same code refer, are effected on the basis of different parameters, as each is materialised in the application of its own rates, provided for in articles 87 or 88 of CIRC, to the respective taxable matters determined equally in accordance with its own rules. Now, when, in the liquidation process, there is place for ascertainment of IRC on the basis of taxable matter which has as its basis profit and for ascertainment of autonomous tax liabilities, the amount globally ascertained, in accordance with paragraph a) of no. 1 of article 90, does not have a unitary character, since it integrates values calculated according to different rules, to which are associated also distinct purposes, and therefore from such differentiation the necessary consequences must be drawn in the context of the deductions provided for in the paragraphs of no. 2, in the sense that they can only be effected to the part of the IRC collection with which there is direct correspondence, in order to maintain the coherence of the conceptual structure of the rule regime of the tax.
Following the integration of autonomous tax liabilities into the IRC Code, by Law no. 30-G/2010, of 29/12, the legislature does not appear to have felt the need to explicitly clarify, comprehensively – that is, in all provisions where they manifest – the consequences of the coexistence of two forms of taxation within the IRC system, limiting itself to providing for the situations in which the IRC exemption did not extend to autonomous tax liabilities.
This resulted in the amendment made to the wording of article 12 of CIRC in order to clarify, with interpretative character, that companies and other entities covered by the fiscal transparency regime are not taxed in IRC, except as to autonomous tax liabilities.
Alongside this, it was furthermore established (cf. the then no. 6 of article 109 of CIRC, current article 117) that the obligation to submit the periodic income declaration covers entities exempt from IRC, when they are subject to autonomous taxation.
It was thus left to the care of the interpreter and the applicator of the law the task of, when faced with the need to, for certain purposes – namely the deductions provided for in no. 2 of article 90 of CIRC or the calculation of advance payments or still the Liquidation Result (article 92) – identify the relevant part of the IRC collection, extracting from the applicable provisions a useful meaning, literally possible, which permits a coherent solution and in accordance with the nature and functions attributed to each component of the tax.
In fact, for the calculation basis of advance payments only the IRC ascertained on the basis of taxable matter determined in accordance with the rules of Chapter III and the rates of article 87 of the respective Code is considered.
For that is, it should be noted that the coherence and adequacy of this understanding is grounded in the very nature of advance payments of the tax due finally, which, in accordance with the definition of article 33 of the LGT are "the advance monetary deliveries that are made by taxpayers in the period of formation of the taxable event", constituting a "(…) form of approximation of the moment of collection to that of perception of income so as to fill situations in which that approximation cannot be effectuated through source withholding."
Accordingly, the delimitation of the content of the expression used by the legislature in no. 2 of article 90 of CIRC, "amount ascertained in accordance with the preceding number", and in no. 1 of article 105 of CIRC, "tax liquidated in accordance with no. 1 of article 90", must be made coherently; which is equivalent to saying that it corresponds to the amount of IRC calculated by application of the rates of article 87 to the taxable matter determined on the basis of profit and the rates of article 87 of the Code.
Being the only (and consistent) interpretation of the expression "amount ascertained in accordance with the preceding number" with the nature of the deductions referred to in the paragraphs in the paragraphs of no. 2 of article 90 of the IRC Code, relating to: tax credits for international legal and economic double taxation (current paragraphs a) and b)); tax benefits (current paragraph c)); special advance payment (current paragraph d)); and source withholding (current paragraph e)).
In fact, it should be noted that the common feature to all the realities reflected in the deductions referred to in no. 2 of article 90 of CIRC lies in the fact that they respect income or expenses incorporated in the taxable matter determined on the basis of the taxpayer's profit or advance payments of the tax, being therefore entirely unrelated to the realities that integrate the taxable events of autonomous tax liabilities.
For its part, as regards tax benefits, the tax credit or deduction from collection constitutes one of the technical modalities, among those provided for in no. 2 of article 2 of the Tax Benefits Statute, which have been adopted, especially, in measures of fiscal incentives to investment, fundamentally for two reasons: One, linked to the operability of the benefit, through the transparency and simplicity of the calculation of the fiscal expenditure associated, which, as is known, represents the foregone fiscal revenue (of IRC), and another, which is related to the philosophy underlying the benefits, namely its indexation to the profitability of the investment, according to which "the deduction of a certain percentage of an investment from the collection of a tax on profits can only be effected if there is profit, which rewards the profitability of the investment".
Thus, also, for deductions from collection as title of tax benefits, the amount to which they are effected can only respect the tax liquidated on the basis of taxable matter determined in accordance with the rules of Chapter III and the rates provided for in article 87 of CIRC.
This, on penalty of an incongruity resulting from the subversion of the necessary interconnection which, in the material context, must exist between the objectives pursued by the benefits and the very size represented by profit.
In fact, the position defended by AT has explicit support in the provision of no. 5 of article 90 of CIRC – through which the legislature provides a clear indication that the amount of tax liquidated, to which the deductions referred to in no. 2 of the same article are effected, does not include the amount corresponding to autonomous tax liabilities – by establishing that the deductions which are imputed to members or partners of entities covered by the fiscal transparency regime established in article 6 (entities which are subject to the payment of autonomous tax liabilities, by virtue of article 12) are "deducted from the amount ascertained on the basis of taxable matter which took into account the imputation provided for in the same article".
Given that the command of this provision is directed at the partners or members of transparent entities – who, in the process of ascertainment of their taxable profit, must integrate into it the values (relating to taxable profit/tax loss or taxable matter, as the case may be) imputed to them – what the legislature indicates, in entirely clear form, is that the deductions provided for in no. 2 of article 90 of CIRC, which are also imputed to partners or members, must be effected to the amount of tax ascertained on the basis of taxable matter in which the imputation provided for in article 6 of CIRC is reflected, and not, mark well and stress, to the amount relating to autonomous tax liabilities.
Now, if this is the procedure to be adopted by IRC subjects who are partners or members of transparent entities, regarding deductions relating to the transparent entity in which they participate, it would be entirely incongruous, in addition to having no support in law, to defend the thesis that, for the deductions referred to in no. 2 of article 90 of CIRC, which directly respect such taxpayers, the same could be effected to the amount ascertained with autonomous tax liabilities.
Starting with the deduction relating to tax benefits (paragraph b) of no. 2 of article 90), when it concerns investment benefits, which underlies the philosophy that the benefit constitutes a prize whose amplitude varies with the profitability of investments, as the higher the profit/taxable matter of IRC, the greater will be the capacity to effect the deduction.
There is therefore an indissoluble link between the amount of the tax credit for investment and the part of the IRC collection calculated on taxable matter based on profit and, were it not so, the necessary articulation which, in the material context, must exist between the objectives pursued by tax benefits and their impact on the very size which serves as the basis for calculating taxable matter and collection – profit – would be subverted.
The defence of the Claimant's thesis relies on the expression used in the SIFIDE regime regarding deduction from IRC collection (cf. no. 1 of article 36 of the Tax Investment Code, added by Decree-Law no. 82/2013, of 17/06) "amount ascertained in accordance with article 90 of the IRC Code", and up to its amount". Despite the variant wording used in different provisions of the Tax Investment Code, the Tax Benefits Statute and extraneous legislation, which regulate tax benefits, they aim to achieve the same result – deduction from IRC liquidated in accordance with paragraph a) of no. 1 of article 90 of the respective Code – and therefore introduce no difference in the delimitation of its real content.
It may be said, moreover, that to designate the same size, both no. 1 of article 92 and no. 1 of article 105 of the IRC Code refer to "tax liquidated in accordance with no. 1 of article 90" and on its content, both AT and taxpayers in general have always reported the calculations provided for in those provisions – liquidation result and advance payments, respectively – to the part of the IRC collection which has as its basis the taxable matter determined on the basis of profit, which reveals that no different scope can be attributed to identical expressions, depending on whether the effect is intended to be favourable or unfavourable to the taxpayer.
It is thus demonstrated that the rules regulating the deduction of investment tax benefits are integrated, by the manner in which they operate and by the purposes attached to the benefits, into the structure of the rule regime of IRC, and therefore are not reconcilable with the legislative rationale of autonomous tax liabilities, nor with their taxable events, and proof is that the legislature itself took care to mark that dividing line in article 3, no. 5, paragraph a) of Law no. 49/2013.
SIFIDE 2009 and 2010, as well as SIFIDE II, allow companies to obtain a tax benefit, in IRC, proportional to investment expenditure in research and development (at the level of processes, products and organisational) which they are able to evidence, in the part which has not been subject to financial participation by the State on a non-reimbursable basis (Cf. Law no. 55-A/2010 of 31 December, Decree-Law no. 82/2013 of 17 June and Law no. 83-C/2013 of 31 December.
The benefit to be obtained with SIFIDE II is expressed in the possibility of deducting from the IRC collection ascertained in the fiscal year, an amount of tax credit that results from the sum of the following items: Base rate: 32.5% of the expenses incurred in the fiscal year; Incremental rate: 50% of the increase in expenses incurred in the fiscal year compared to the simple arithmetic average of expenses incurred in the two preceding fiscal years, up to the limit of €1,500,000.
Consequently, in the provided regime, expenses which, due to insufficient collection, cannot be deducted in the fiscal year in which they were incurred can be deducted up to the eighth immediately following fiscal year.
The essential prior question, which imposes itself here, is to know how to identify the "amount ascertained in accordance with the preceding number" to which the preamble of no. 2 of article 90, of CIRC refers to which should then be deducted the value corresponding to expenses with research and development, in the part which has not been subject to financial participation by the State on a non-reimbursable basis, in a dual percentage: a) Base rate - 32.5% of the expenses incurred in the taxation period, and b) Incremental rate - 50% of the increase in expenses incurred in the taxation period in relation to the simple arithmetic average of the two preceding fiscal years, up to the limit of 1,500,000 euros.
The values which express the tax benefit in SIFIDE are deducted "to the amounts ascertained in accordance with article 90 of the IRC Code, and up to their amount" and in the liquidation relating to the taxation period in which the expenses eligible for the purpose are incurred and, in the absence or insufficiency of collection ascertained in those terms, the expenses which cannot be deducted in the fiscal year in which they were incurred "may be deducted up to the 6th immediately following fiscal year".
Well then, the "amount ascertained in accordance with the preceding number" to which no. 2 of article 90, refers, when the liquidation should be made by the taxpayer (a situation that occurs in the case at hand), is ascertained on the basis of taxable matter based on profit, which appears in that liquidation/self-assessment [cf. article 90, no. 1, paragraph a) of CIRC].
The tax credit which SIFIDE constitutes being deducted only to the amount thus ascertained, that is, on the basis of taxable matter [what is provided for in article 5, paragraph a) of the Law regulating SIFIDE, expressly preventing the credits therefrom from being deducted when taxable profit is determined by indirect methods].
Considering the nature and reason for being of autonomous tax liabilities, it is not possible to admit, on penalty of subversion of the order of values, the deduction of SIFIDE (or other tax benefits), on penalty of mischaracterisation of the principles which specifically one intends to pursue, whether with such incentives or with autonomous tax liabilities.
Admitting such possibility would lead, in the limit, to a taxpayer being able to effect deduction as SIFIDE (or other tax benefits – see RFAI, CFEI) to the amount of autonomous tax liabilities inciding on undocumented expenses, completely subverting the function of those tax liabilities in the prevention or avoidance of fiscally and socially undesirable behaviour. Accordingly, if any doubts remained on the controversial question, they were dissipated with the interpretative nature attributed by article 135 of Law no. 7-A/2016, of 30 March, to the provision in no. 21 added to article 88 of the IRC Code, by article 133 of the same Law, with the following wording: "The liquidation of autonomous tax liabilities in IRC is effected in accordance with article 89 and is based on the values and rates which result from the preceding numbers, no deductions being made to the global amount ascertained".
The mere evidence of contradictory decisions is demonstrative per se of that which the Claimant intends to conceal, namely, that the question was not controversial, and thus to set aside the necessity of the interpretative character attributed to no. 21 of article 88 of CIRC, transforming it into a retroactive interpretation of the law, which, all agree, is constitutionally prohibited.
Given this, it results that the very interpretative effect conferred by that Law would, per se, be unnecessary, since, as has been shown, no other interpretation would be capable of being made having regard to the teleology and legal hermeneutics of the provisions in question.
Let it always be said that any interpretation which does not apply the rule contained in the State Budget Law for 2016, set forth in article 133, which added no. 21 to article 88 of CIRC, with the effects provided for in article 135, both contained in the State Budget Law for 2016, published on 30.03.2016, entering into force on the following day, in which it is provided, with interpretative character, that "The liquidation of autonomous tax liabilities in IRC is effected in accordance with the provision of article 89 and is based on the values and rates which result from the preceding numbers, no deductions being made to the global amount ascertained" and which therefore allows the deduction from the part of the IRC collection produced by autonomous tax rates of tax benefits effected in IRC, in this case SIFIDE, that decision is materially unconstitutional, for a) violation of the principle of legality, inherent in article 103, no. 2 of the CRP, b) violation of the principle of separation of powers, set forth in article 2 of the CRP, c) violation of the principle of protection of trust provided for in article 2 of the CRP, d) violation of the principle of equality, in its positive formulation of tax capacity, arising from article 13, no. 2 and article 103, no. 2 both of the CRP.
In the situation of the case, the ascertainment of the tax was effected by the Claimant, the Defendant being unaware of any generic guidance and/or published indications which would have led the Claimant to act in that manner.
1.5. The meeting of the arbitral tribunal provided for in article 18 of the RJAT was dispensed with, as well as the examination of witnesses which was considered an unnecessary act.
2. PRELIMINARY EXAMINATION
The tribunal was regularly constituted and is competent ratione materiae, in accordance with article 2 of the RJAT.
The parties have legal personality and capacity, show themselves to be legitimate and are regularly represented (cf. articles 4 and 10, no. 2 of the RJAT and article 1 of Ordinance no. 112-A/2011, of 22 March).
No procedural nullities were identified.
3. FACTUAL MATTERS
With relevance for the substantive decision, the Tribunal considers the following facts proved:
The Claimant proceeded on 26 February 2016 to file the IRC Form 22 declaration for the fiscal year 2014, having proceeded to self-assess autonomous tax liabilities in IRC for that same year in the amount of €72,758.65.
On 23 February 2017, the Claimant filed the Form 22 declaration, with reference to the fiscal year 2015, having proceeded to self-assess autonomous tax liabilities in IRC for that same year in the amount of €65,895.33.
An administrative appeal was filed by the Claimant against the aforementioned self-assessments relating to fiscal years 2014 and 2015, of whose dismissal it was notified on 9 August 2017.
The AT's computer system does not enable taxpayers to record the value relating to the said autonomous tax rates in IRC, purged of the amounts of tax benefit recognised to the company under SIFIDE, in the form of tax credit deductible from the IRC collection.
The amount of SIFIDE allocated to the company, available for use at the end of fiscal years 2014 and 2015, amounted respectively to €830,557.29 and €1,557,431.49.
The Claimant's taxable profit was ascertained in normal terms, via submission of the Form 22.
At the relevant time the Claimant was not an entity indebted to the State and social security for any taxes or contributions.
Facts Not Proved:
No essential facts, with relevance for the appraisal of the merits of the case, which were not proved, were found.
Reasoning on Factual Matters
The conviction regarding the facts given as proved was based on the documentary evidence presented by the Claimant and the Defendant, attached to the case file.
4. ON THE LAW
With the factual matters established, it is important to know the legal issues raised by the parties. The following are the questions to be examined:
The illegality of the IRC self-assessment declaration and respective autonomous tax rates
The right to indemnificatory interest
A) THE ILLEGALITY OF THE IRC SELF-ASSESSMENT DECLARATION AND RESPECTIVE AUTONOMOUS TAX RATES
The System of Fiscal Incentives for Business Research and Development II (SIFIDE II), approved by article 133 of Law no. 55-A/2010, of 31 December, establishes the following, in its articles 4 and 5:
Article 4
Scope of Deduction
1 - IRC taxpayers resident in Portuguese territory who exercise, as a principal or secondary activity, an activity of an agricultural, industrial, commercial or services nature and non-residents with a permanent establishment in that territory may deduct from the amount ascertained in accordance with article 90 of the IRC Code, and up to its amount, the value corresponding to expenses with research and development, in the part which has not been subject to financial participation by the State on a non-reimbursable basis, incurred in the taxation periods from 1 January 2011 to 31 December 2015, in a dual percentage:
a) Base rate - 32.5% of the expenses incurred in that period;
b) Incremental rate - 50% of the increase in expenses incurred in that period in relation to the simple arithmetic average of the two preceding fiscal years, up to the limit of €1,500,000.
2 - For IRC taxpayers that are SMEs in accordance with the definition contained in article 2 of Decree-Law no. 372/2007, of 6 November, that have not yet completed two fiscal years and that have not benefited from the incremental rate fixed in paragraph b) of the preceding number, an increase of 10% is applied to the base rate fixed in paragraph a) of the preceding number.
3 - The deduction is made, in accordance with article 90 of the IRC Code, in the liquidation relating to the taxation period mentioned in the preceding number.
4 - Expenses which, due to insufficient collection, cannot be deducted in the fiscal year in which they were incurred may be deducted up to the sixth immediately following fiscal year.
5 - For the purposes of the preceding numbers, when in the year of commencement of enjoyment of the benefit there is a change in the taxation period, the annual period which commences in that year shall be considered.
6 - The incremental rate provided for in paragraph b) of no. 1 is increased by 20 percentage points for expenses relating to the recruitment of doctorate holders by companies for research and development activities, with the limit provided for in the same paragraph becoming €1,800,000.
7 - To taxpayers which reorganise, as a result of concentration acts as defined in article 73 of the IRC Code, the provision of no. 3 of article 15 of the Tax Benefits Statute applies.
Article 5
Conditions
Only IRC taxpayers meeting cumulatively the following conditions may benefit from the deduction referred to in article 4:
a) Their taxable profit is not determined by indirect methods;
b) They are not indebted to the State and social security for any taxes or contributions, or have their payment duly assured.
Article 3 of Law 49/2013, of 16 July (CFEI) states:
Article 3
Tax Incentive
1 - The tax benefit to be granted to the taxpayers referred to in the preceding article corresponds to a deduction from IRC collection in the amount of 20% of investment expenses in assets devoted to exploitation, which are incurred between 1 June 2013 and 31 December 2013.
2 - For the purposes of the deduction provided for in the preceding number, the maximum amount of eligible investment expenses is €5,000,000, per taxpayer.
3 - The deduction provided for in the preceding numbers is made in the liquidation of IRC relating to the taxation period which commences in 2013, up to 70% of the collection of this tax.
4 - In the case of taxpayers which adopt a taxation period not coinciding with the calendar year and commencing after 1 June 2013, the expenses relevant for the purposes of the deduction provided for in the preceding numbers are those incurred in eligible assets from the beginning of the said period until the end of the seventh following month.
5 - When the special regime of group taxation of companies is applicable, the deduction provided for in no. 1:
a) Is effected to the amount ascertained in accordance with paragraph a) of no. 1 of article 90 of the IRC Code, on the basis of the taxable matter of the group;
b) Is made up to 70% of the amount mentioned in the preceding paragraph and cannot exceed, in relation to each company and per fiscal year, the limit of 70% of the collection which would be ascertained by the company which incurred the eligible expenses, if the special regime of group taxation of companies did not apply.
6 - The amount which cannot be deducted in accordance with the preceding numbers can be, under the same conditions, in the five immediately following taxation periods.
7 - To taxpayers which reorganise, as a result of any operations provided for in article 73 of the IRC Code, the provision of no. 3 of article 15 of the Tax Benefits Statute applies.
As provided for in article 3 of the Tax Support Investment Regime (approved by article 13 of Law 10/2009, of 10 March):
Article 3
Tax Incentives
1 - To IRC taxpayers resident in Portuguese territory or who have a permanent establishment therein, who exercise as a principal activity a commercial, industrial or agricultural activity covered by no. 1 of the preceding article which effect, in 2009, investments considered relevant, the following tax benefits are granted:
a) Deduction from IRC collection, and up to 25% of the same, of the following amounts, for investments made in regions eligible for support within the scope of incentives with a regional purpose:
i) 20% of the relevant investment, for investment up to the amount of €5,000,000;
ii) 10% of the relevant investment, for investment in an amount exceeding €5,000,000;
b) Exemption from municipal tax on real property, for a period up to five years, relating to land properties of its ownership which constitute relevant investment;
c) Exemption from municipal tax on onerous transfers of real property for acquisitions of properties which constitute relevant investment;
d) Exemption from stamp tax for acquisitions of properties which constitute relevant investment.
(…)
Article 90 of CIRC states, in the wording in force until 31 December 2013:
1 — IRC liquidation is effected in the following terms: (Wording given by Law no. 3-B/2010-28/04)
a) When liquidation should be made by the taxpayer in the declarations referred to in articles 120 and 122, it is based on the taxable matter contained therein;
b) In the absence of submission of the declaration referred to in article 120, the liquidation is effected by 30 November of the year following that to which it relates or, in the case provided for in no. 2 of the said article, by the end of the 6th month following the end of the deadline for submission of the declaration mentioned therein and is based on the annual amount of the minimum monthly remuneration or, when higher, the whole of the taxable matter of the nearest fiscal year which is ascertained; (Wording given by Law no. 3-B/2010-28/04, producing effects from January 2011, as regards the simplified regime - no. 2 of article 92 of the law referred to).
c) In the absence of liquidation in accordance with the preceding paragraphs, it is based on the elements of which the tax administration has at its disposal.
2 — To the amount ascertained in accordance with the preceding number, the following deductions are made, in the order indicated:
a) That corresponding to international double taxation;
b) That relating to tax benefits;
c) That relating to the special advance payment referred to in article 106;
d) That relating to source withholding not capable of compensation or refund in accordance with the applicable legislation.
3 — (Revoked by Law no. 3-B/2010-28/04, producing effects from January 2011, as regards the simplified regime - no. 2 of article 92 of the law referred to).
4 — To the amount ascertained in accordance with no. 1, relating to the entities mentioned in no. 4 of article 120, only the deduction relating to source withholding when it has the nature of tax on account of IRC is to be made.
5 — The deductions referred to in no. 2 relating to entities for which the fiscal transparency regime established in article 6 applies are imputed to their respective partners or members in accordance with the terms established in no. 3 of that article and deducted from the amount ascertained on the basis of taxable matter which took into account the imputation provided for in the same article.
6 — When the special regime for taxation of groups of companies applies, the deductions referred to in no. 2 relating to each of the companies are effected to the amount ascertained relating to the group, in accordance with no. 1.
7 — From the deductions effected in accordance with paragraphs a), b) and c) of no. 2 no negative value can result.
8 — To the amount ascertained in accordance with paragraphs b) and c) of no. 1 only the deductions of which the tax administration has knowledge and which can be effected in accordance with nos 2 to 4 are made.
9 — In cases in which the provision of paragraph b) of no. 2 of article 79 applies, annual liquidations are effected on the basis of taxable matter determined with provisional character, and, considering the liquidation corresponding to taxable matter relating to the whole liquidation period, the difference ascertained is charged or cancelled.
10 — The liquidation provided for in no. 1 may be corrected, if the case may be, within the period referred to in article 101, the differences ascertained then being charged or cancelled.
Article 88 of the same act also states (in the same wording):
1 — Undocumented expenses are taxed autonomously, at the rate of 50%, without prejudice to their non-consideration as expenses in accordance with article 23.
2 — The rate referred to in the preceding number is raised to 70% in cases where such expenses are incurred by taxpayers which are totally or partially exempt, or which do not exercise, as a principal activity, activities of a commercial, industrial or agricultural nature and also by taxpayers which earn income covered by article 7. (Wording given by article 113 of Law no. 64-B/2011, of 30 December)
3 - Charges incurred or borne by taxpayers not exempt subjectively and which exercise, as a principal activity, an activity of a commercial, industrial or agricultural nature, relating to light passenger or mixed vehicles whose acquisition cost is equal to or below the amount fixed in accordance with paragraph e) of no. 1 of article 34, motorcycles or motorbikes, excluding vehicles driven exclusively by electric energy, are taxed autonomously at the rate of 10%. (Wording of Law no. 55-A/2010, of 31 December)
4 - Charges incurred or borne by the taxpayers mentioned in the preceding number, relating to light passenger or mixed vehicles whose acquisition cost exceeds the amount fixed in accordance with paragraph e) of no. 1 of article 34, are taxed autonomously at the rate of 20%.(Wording given by Law no. 55-A/2010-31/12)
5 — Charges relating to light passenger vehicles, motorcycles and motorbikes, are considered, in particular, depreciations, rents or leases, insurance, maintenance and conservation, fuel and taxes inciding on their ownership or use.
6 — Excluded from the provision of no. 3 are charges relating to light passenger vehicles, motorcycles and motorbikes, devoted to the operation of a public transport service, intended to be leased in the normal exercise of the taxpayer's activity, as well as depreciations relating to vehicles as to which the agreement provided for in no. 9) of paragraph b) of no. 3 of article 2 of the IRS Code has been entered into.
7 - Charges deductible relating to representation expenses are taxed autonomously at the rate of 10%, such being considered in particular expenses incurred with receptions, meals, travel, outings and entertainment offered in the country or abroad to clients or suppliers or to any other persons or entities. (Wording of Law no. 55-A/2010, of 31 December)
8 — Expenses corresponding to amounts paid or owed, on any account, to natural or legal persons resident outside Portuguese territory and submitted therein to a clearly more favourable tax regime, as defined in accordance with the Code, are subject to the regime of no. 1 or no. 2, as the case may be, with the applicable rates being respectively 35% or 55%, unless the taxpayer is able to prove that they correspond to operations actually effected and do not have an abnormal character or an exaggerated amount.
9 — Charges deductible relating to travel allowances and compensation for travel in the worker's own vehicle, in service of the employer entity, not invoiced to clients, written up on any account, except to the extent that there is IRC taxation in the sphere of the respective beneficiary, as well as non-deductible charges in accordance with paragraph f) of no. 1 of article 45 borne by taxpayers which present tax loss in the taxation period to which the same relate are also taxed autonomously at the rate of 5%.
10 — (Revoked by Law no. 3-B/2010-28/04, producing effects from January 2011, as regards the simplified regime - no. 2 of article 92 of the law referred to)
11 — Profits distributed by entities subject to IRC to taxpayers which benefit from total or partial exemption are taxed autonomously at the rate of 25%, encompassing, in this case, capital income, when the partnership shares to which the profits relate have not remained in the ownership of the same taxpayer, uninterruptedly, for the year preceding the date of their being made available and are not to be maintained for the time necessary to complete that period. (Wording given by article 113 of Law no. 64-B/2011, of 30 December)
12 — From the amount of tax determined, in accordance with the preceding number, is deducted the tax which may have been withheld at source, in which case the tax withheld cannot be deducted under no. 2 of article 90.
13 — Expenses or charges relating to indemnifications or any compensation owed not relating to the achievement of previously defined productivity objectives in the contractual relationship, when there is termination of functions of manager, administrator or managing partner, as well as expenses relating to the part which exceeds the value of remunerations which would be earned through the exercise of those positions until the end of the contract, when it is a matter of termination of a contract before the term, in whatever form of payment, whether this is effected directly by the taxpayer or there is transfer of the inherent responsibilities to another entity are taxed autonomously at the rate of 35%: (No. 13 added by Law no. 3-B/2010-28/04)
a) Expenses or charges relating to bonuses and other variable remunerations paid to managers, administrators or managing partners when these represent a portion exceeding 25% of annual remuneration and have a value exceeding €27,500, unless their payment is subordinated to the deferment of a part not less than 50% for a minimum period of three years and conditioned to the positive performance of the company during that period.
b) Expenses or charges relating to bonuses and other variable remunerations paid to managers, administrators or managing partners when these represent a portion exceeding 25% of annual remuneration and have a value exceeding €27,500, unless their payment is subordinated to the deferment of a part not less than 50% for a minimum period of three years and conditioned to the positive performance of the company during that period.
14 - The autonomous tax rates provided for in this article are increased by 10 percentage points for taxpayers which present tax loss in the taxation period to which any of the taxable facts referred to in the preceding numbers relate. (Added by Law no. 55-A/2010, of 31 December).
There was an addition to article 88 of CIRC, which resulted from the entry into force of Law no. 7-A/2016 of 30 March, regarding this aspect (no. 21), and therefore in the now effective wording the following is stated:
"21 - The liquidation of autonomous tax liabilities in IRC is effected in accordance with the provision of article 89 and is based on the values and rates which result from the preceding numbers, no deductions being made to the global amount ascertained".
However, this legislative amendment changes nothing in the case in hand. Notwithstanding the law stating that it concerns a law of an interpretative nature, what occurs is that interpretative laws have retroactive nature and such a situation would be unconstitutional in fiscal matters, for violation of the provision of article 103, no. 3 of the Constitution of the Portuguese Republic: "No one can be obliged to pay taxes which have not been created in accordance with the Constitution, which have a retroactive nature or whose liquidation and collection are not effected in accordance with the law."
On the other hand, the majority of arbitral case law considers that there should be the possibility of deductions from the amount ascertained as autonomous taxation in IRC, which, at the date when the facts occurred, was not contrary to law.
See, for example, the CAAD Judgment no. 769/2014-T:
"Thus, the essential question which is the object of the present case is to know whether the tax credits which, in the year 2011, were recognised to the Claimant, in SIFIDE, can be deducted from the collection produced by the autonomous tax liabilities which burdened it in that fiscal year, to the extent that they cannot be deducted from the remaining IRC collection. There are autonomous tax liabilities provided for in CIRC (article 88 of CIRC) and autonomous tax liabilities provided for in CIRS (article 73 of CIRS). The collection provided by them constitutes collection of the respective tax, being subject to the generality of provisions provided for in the codes referred to, potentially applicable. As regards IRC, in addition to the unanimity of case law, article 23-A no. 1, paragraph a) of CIRC, in the wording of Law no. 2/2014, of 16 January, leaves no room for any reasonable doubt, corroborating what previously already resulted from the literal content of article 12 of the same Code. But the solution of this conceptual question regarding the nature of the collection from the autonomous tax liabilities provided for in CIRC does not permit resolution of the question of whether credits from SIFIDE can be deducted from that same collection. In fact, the act which approved SIFIDE does not state that credits therefrom are deductible from all and any IRC collection, rather it defines the scope of deduction alluding, in its no. 1 of article 4, to "the amount ascertained in accordance with article 90 of the IRC Code, and up to its amount". No. 3 of the same article confirms that it is to the amount which is ascertained in accordance with article 90 of CIRC that is relevant for concretising the deduction by stating that "the deduction is made, in accordance with article 90 of the IRC Code, in the liquidation relating to the taxation period mentioned in the preceding number". Thus, the question which matters to resolve is, independently of the nature of the tax to which the autonomous tax liabilities refer, that of knowing whether the amount of the autonomous tax liabilities is "ascertained in accordance with article 90 of CIRC", for if it is, one would have to conclude that, to determine the limit of deduction, one attends to the collection from the autonomous tax liabilities. Article 90 of CIRC refers to the forms of IRC liquidation, by the taxpayer or by the Tax Administration, applying to the ascertainment of the tax owed in all situations provided for in the Code, including additional liquidation (no. 10). Because of this, it also applies to the liquidation of the amount of the autonomous tax liabilities, which is ascertained by the taxpayer or by the Tax Administration in accordance with article 90 of CIRC, there being no other provision which provides different terms for its liquidation. Its autonomy is restricted to the applicable rates and the respective taxable matter, but the ascertainment of its amount is effected in accordance with article 90. The differences between the determination of the amount resulting from autonomous tax liabilities and that resulting from taxable profit are based on the determination of the taxable matter and the rates, provided for in Chapters III and IV of CIRC, but not on the forms of liquidation, which are provided for in Chapter V of the same Code and are of common application to autonomous tax liabilities and to the remaining taxable matter of IRC. Because of this, being to article 90, inserted in this Chapter V, that the reference is made in article 4, no. 1 of SIFIDE, no legal support is seen for making a distinction between the collection from autonomous tax liabilities and the remaining IRC collection, due to the fact that the rates and the forms of determination of taxable matter are distinct."
An identical position is presented by CAAD Judgment no. 219/2015-T, which emphasises:
"It is certain that, as the Tax Authority and Customs Authority refers, autonomous tax liabilities aim to discourage certain behaviour by taxpayers capable of affecting taxable profit and their disincentive force will be attenuated with the possibility of their collection being able to be the subject of deductions. But it is also certain that, as is inherent in that statement, these autonomous tax liabilities only aim to protect or increase fiscal revenues, and tax benefits granted, by definition, are 'measures of an exceptional nature instituted for the protection of relevant extrafinancial public interests which are superior to those of the taxation itself which prevents them' (article 2, no. 1 of the Tax Benefits Statute). And, in the case of SIFIDE tax benefits, the extrafinancial reasons which justify their superposition over fiscal revenues are, in the legislative perspective, of enormous importance, as is inferred from the fact that these benefits are indicated as being specially excluded from the general limit to the relevance of tax benefits in IRC, which is indicated in article 92 of CIRC. Because of this, it is certain that one is faced with tax benefits whose justification is legislatively considered more relevant than the obtaining of fiscal revenues, being inferred from that article 92 that the legislative intention to encourage investments in research and development provided for in SIFIDE is so firm that it goes to the point of not even establishing any limit to the deductibility of IRC collection, despite this fiscal regime having been created and applied in a period of notorious difficulties in public finances. Thus, no legal foundation is seen, in particular in light of the legislative intention which is possible to detect, for setting aside the deductibility of the SIFIDE tax benefit from the collection of the autonomous tax liabilities which results directly from the wording of article 4, no. 1 of the respective act, combined with article 90 of CIRC. As regards the allegation of the Tax Authority and Customs Authority on the unconstitutionality of this interpretation due to incompatibility 'with the constitutional principles of tax legality, equality in the distribution of the tax burden, the pursuit of satisfaction of the financial needs of the State and other public entities and taxation on real profit, in accordance with articles 13 and 103, no. 1 and 2 of the CRP', it is not made explicit by the Tax Authority and Customs Authority why it understands that this incompatibility exists, nor is it seen how it could exist. In fact, as regards the principle of tax legality, the legal interpretation is that defended by the Claimant, by what has been said, the interpretation defended by the Tax Authority and Customs Authority being illegal. On the other hand, the principle of legality encompasses the form of liquidation of taxes, their liquidation being able to be effected only 'in accordance with the law' [articles 103, no. 3 of the CRP and 8, no. 2, paragraph a) of the LGT], and so, were it not the case that article 90 of CIRC applied to the liquidation of autonomous tax liabilities, one would have to conclude that there would be no provision in CIRC regarding the form of liquidation of these tax liabilities, which would lead to the conclusion that their liquidation would be affected by unconstitutionality, for breach of the principle of legality, which is not compatible with liquidation of taxes without the terms in which it is effected being provided for in the law. As regards the principles of equality in the distribution of the tax burden, the pursuit of satisfaction of the financial needs of the State and other public entities and taxation on real profit, neither is it seen that they collide with the interpretation of the Claimant, as this is applicable to the generality of taxpayers in the same situation and tax benefits, if it is certain that they diminish the tax burden, have justification in reasons of public interest which are superposed to the interests of taxation, as was referred to."
Also CAAD Judgment no. 369/2015-T, as regards RFAI, presents a similar understanding:
"An interpretation of the law, not expressly imposed by the legal text, which restricts the 'use' of the tax benefits in question would strike at the credibility of the 'legislative promises' in tax matters, it would, in short, be contrary to the principle of trust, inherent in the idea of a Rule of Law. Accepting the deductibility from the collection of autonomous tax liabilities of credits resulting from RFAI, the question arises: regarding a group of companies subject to the RETGS, the deduction should be made to the collection of autonomous tax liabilities relating to the whole of the companies of the group or only as regards that of each one of the companies which availed itself of such tax benefit? We think that the answer results directly from the law, since no. 6 of article 90 of CIRC provided that when the special regime for taxation of groups of companies applies, the deductions referred to in no. 2 relating to each of the companies are effected to the amount ascertained relating to the group, in accordance with no. 1".
This understanding is reinforced by CAAD Judgment no. 370/2015-T, which decided in the same terms.
Taking into account the provision of the legal acts at that date, and in accordance with the understanding of the majority of arbitral case law, it would therefore have to be understood that the Tax Authority should admit the deduction of tax benefits (namely SIFIDE) by the Claimant from the collection of autonomous taxation, and therefore the IRC self-assessments would have to be considered as illegal.
B) THE RIGHT TO INDEMNIFICATORY INTEREST
As stated in no. 1 of article 43 of the LGT, indemnificatory interest is due "when it is determined, in administrative appeal or judicial challenge, that there was an error attributable to the services from which results payment of the tax debt in an amount higher than that legally due."
As also follows from no. 5 of article 24 of the RJAT, the right to indemnificatory interest can be recognised in arbitral proceedings.
However, it must be determined whether or not there was an error attributable to the services.
In the case at hand, we are faced with self-assessment declarations, which were formulated in accordance with the computer system made available. It then occurs that the declarations were formulated by the Claimant, with the limitations which the computer system imposed on it and not directly by the Defendant.
However, in the situation at hand, the Defendant, after submission of the administrative appeal, could have corrected the error in question, which it did not do, dismissing it instead.
We are, in this case, faced with a decision on the part of the Tax Authority, a decision which is expressed in an "error attributable to the services", as provided for in article 43 of the LGT.
Taking into account the provision of article 61 of the Tax Procedure Code and given that there was found to exist an error attributable to the services of the Tax Administration, from which resulted payment of the tax debt in an amount higher than that legally due (see article 43/1 of the LGT), we can understand that the Claimant is entitled to indemnificatory interest at the legal rate, calculated on the amount in question, until the complete refund of that same amount.
5. DECISION
The claim for declaration of illegality of the IRC self-assessments, including autonomous tax rates, of the Claimant, relating to fiscal years 2014 and 2015, in the amount corresponding to the amounts of autonomous taxation, of respectively €72,758.65 and €65,895.33, is upheld, determining their restitution increased with indemnificatory interest, until its complete payment.
The value of the case is fixed at €138,653.98 (one hundred thirty-eight thousand six hundred fifty-three euros and ninety-eight cents), in accordance with the provision of articles 3, no. 2 of the Regulation on Costs in Tax Arbitration Proceedings (RCPAT), 97-A, no. 1, paragraph a) of the Tax Procedure Code and 306 of the Civil Procedure Code.
The amount of costs is fixed at €3,060 (three thousand and sixty euros) under article 22, no. 4 of the RJAT and Table I attached to the RCPAT, to be paid by the Defendant, in accordance with the provision of articles 12, no. 2 of the RJAT and 4, no. 4 of the RCPAT.
Let notification be made.
Lisbon, 11 June 2018
The Arbiters
(José Baeta de Queiroz)
(Luís Menezes Leitão)
(Maria Antónia Torres)
[1] Acronym for Regime for Tax Arbitration.
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