Process: 59/2018-T

Date: December 18, 2018

Tax Type: IMI

Source: Original CAAD Decision

Summary

This arbitral decision (Process 59/2018-T) addresses the challenging of IMI (Municipal Property Tax) assessments for years 2009-2012 totaling €12,328.30 when first notified through tax enforcement reversal proceedings (reversão) against the current property owner, an educational institution. The claimant A... S.A. contested the assessments on two grounds: (1) statute of limitations under Article 45(1) of the General Tax Law (LGT), arguing the right to assess had expired, and (2) IMI exemption as a private educational establishment under Article 44(1)(h) of the Tax Benefits Statute (EBF). The Tax Authority raised a preliminary objection of material incompetence, arguing the arbitral tribunal lacked jurisdiction because the challenge concerned reversal proceedings under Articles 158(2) and 160 CPPT, not the underlying assessments. The tribunal rejected this exception, clarifying that the claimant's requests explicitly sought annulment of the IMI assessments themselves, not review of the reversal order. The decision establishes that CAAD has jurisdiction under Article 2(1)(a) RJAT to review IMI assessment legality even when taxpayers first learn of assessments through enforcement reversal proceedings. The tribunal emphasized the principle of party autonomy and confirmed competence to assess both the statute of limitations issue and potential tax exemption applicability. This ruling is significant for property owners facing tax enforcement through reversal, confirming their right to challenge underlying assessments in arbitration regardless of notification method.

Full Decision

ARBITRAL DECISION

REPORT

On 19 February 2018, the company A..., S.A., legal entity no. ..., with registered office at ..., no. ..., in Lisbon ("Claimant"), filed a request for arbitral pronouncement with the intervention of a single arbitral tribunal, in accordance with articles 2, no. 1, paragraph a), and 10, no. 1, paragraph a), of the Legal Framework for Arbitration in Tax Matters ("RJAT").

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

In the request for arbitral pronouncement, the Claimant requested from the Arbitral Tribunal the annulment of the assessments of Municipal Property Tax ("IMI"), relating to the years 2009 to 2012, in the total amount of EUR 12,328.30, reflected in the tax enforcement proceedings no. ...2010... .

The Claimant became aware of the aforementioned assessments at the moment it was served with the aforementioned tax enforcement proceedings, within the scope of which such assessments constitute enforceable debts.

The service of such proceedings aimed at its reversal against the Claimant in accordance with articles 158, no. 2, and 160 of the Code of Tax Procedure and Process ("CPPT").

The Claimant considers the aforementioned IMI assessments to be illegal because it became aware of them once the statute of limitations period for the right to assess provided for in article 45, no. 1, of the General Tax Law ("LGT") had expired.

Furthermore, the Claimant also bases the illegality of the acts sub judice on the IMI exemption provided for in article 44, no. 1, paragraph h), of the Tax Benefits Statute ("EBF"), considering it applicable to its sphere as it is a "private educational establishment integrated into the educational system".

The request for constitution of the Arbitral Tribunal was accepted on 19 February 2018 by the Honourable President of CAAD, and the Respondent Entity was subsequently notified.

Subsequently, in accordance with article 6, no. 1, of the RJAT, the Undersigned Arbitrator was appointed by the President of the Deontological Council of CAAD to constitute the present single arbitral tribunal, and the respective appointment was accepted on 15 March 2018 in accordance with legal provisions.

On 11 April 2018, the Parties were notified of such appointment and did not express their wish to refuse it, in accordance with the combined provisions of articles 11, no. 1, paragraphs b) and c), of the RJAT, and 6 and 7 of the CAAD Deontological Code.

The Arbitral Tribunal was constituted on 3 May 2018, in conformity with article 11, no. 1, paragraph c), of the RJAT.

On 4 July 2018, the Respondent Entity filed its response, but did not attach the administrative file.

In its response, the Respondent Entity argued for the material incompetence of the Arbitral Tribunal on the grounds that, in its view, the request for arbitral pronouncement has as its object the act of reversal of the aforementioned tax enforcement proceedings, the legality assessment of which, in light of article 204, no. 1, paragraphs e) and i), of the CPPT, would exceed the delimitation of competencies provided for in article 2 of the RJAT.

On the other hand, the Respondent Entity contends that the Claimant intends for the Arbitral Tribunal to assess the scope of the effects of the tax benefit provided for in article 44, no. 1, paragraph h), of the EBF (that is, the years to which the benefit applies), which would likewise exceed the delimitation of competencies provided for in article 2 of the RJAT.

Finally, invoking the application of article 113, no. 1, of the IMI Code, the Respondent Entity rejects the statute of limitations of the right to assess IMI.

By order of 8 July 2018, the Arbitral Tribunal dispensed with the holding of the meeting provided for in article 18 of the RJAT and the filing of submissions by the Parties, and granted the Claimant a period of ten days to comment on the dilatory exception of material incompetence raised by the Respondent Entity and on the necessity of hearing the witness summoned in the request for arbitral pronouncement.

On 14 August 2018, the Claimant commented on the aforementioned exception, refuting it, and dispensed with the hearing of the witness.

Specifically, the Claimant argued the following:

"The entire arbitral request – as expressly results from the request – refers to the assessment of the legality of the debt in question [...]. The issue is not, therefore, in the (il)legitimacy of the Claimant in its capacity as defendant reversed, but rather in the consideration of the Claimant as the original debtor of the tax, subject of the assessment thereof [...]. It happens that the Claimant does not know whether there was or was not notification of assessments to the previous owner of the assets [...]. The Claimant considered as assessment – the moment when it became aware of the debt that was being attributed to it – the service received, and it is on such that it disputes the respective legality [...]. Additionally, and also contrary to what was intended by the Respondent in its response, the Claimant does not directly request in the present proceedings the recognition of any tax benefit retroactively [...]".

On 22 October 2018, following a request from the Arbitral Tribunal, the Respondent Entity attached the administrative file to the case.

By application of 9 November 2018, the Claimant commented on the aforementioned attachment, considering it untimely and, consequently, requesting its removal from the file.

CASE MANAGEMENT

The Arbitral Tribunal is duly constituted, in accordance with articles 5 and 6 of the RJAT.

The parties have legal personality and legal capacity and are represented, in accordance with articles 4 and 10 of the RJAT and 1 of Ordinance no. 112-A/2011, of 22 March.

The proceedings do not suffer from any nullities.

Notwithstanding the above, the Respondent Entity invoked the dilatory exception of material incompetence of the Arbitral Tribunal, requiring, therefore, and subsequently, its assessment.

- Regarding the Dilatory Exception of Material Incompetence of the Arbitral Tribunal

According to the position sustained by the Respondent Entity, the Arbitral Tribunal is materially incompetent to hear the requests formulated by the Claimant in the present proceedings because they allegedly refer to the assessment of the legality of the order of reversal issued in tax enforcement proceedings no. ...2010... and the decision to recognize the tax benefit provided for in article 44, no. 1, of the EBF, with such matters being excluded from the scope of application of article 2 of the RJAT.

In light of the requests expressly made by the Claimant in the request for arbitral pronouncement – "that [...] the present request for arbitral pronouncement be upheld [...] and, consequently, the annulment of the IMI assessment act of 2009 to 2012 be determined" – the Arbitral Tribunal does not adopt the understanding adopted by the Respondent Entity. Indeed, at no time did the Claimant request the declaration of illegality of the acts listed by the Respondent Entity.

Within the scope of the present proceedings, focusing on, by way of cause of action, the alleged statute of limitations of the right to assess the tax provided for in article 45, no. 1, of the LGT and the IMI exemption embodied in article 44, no. 1, paragraph h), of the EBF, the Claimant intends only that the IMI assessment acts of 2009 to 2012 be purged from the legal order through annulment.

In this manner, and under penalty of disregard of the principle of party autonomy and excess of the competencies attributed to this Arbitral Tribunal, the aforementioned grounds shall be assessed exclusively within the scope of the present proceedings by reference to the acts of assessment sub judice and solely for the purpose of determining their legal conformity.

In light of the above and considering the provisions of article 2, no. 1, paragraph a), of the RJAT, in accordance with which "the competence of arbitral tribunals comprises the assessment of the [...] declaration of illegality of acts assessing taxes [...]", the Arbitral Tribunal is materially competent to assess the legality of the tax assessments identified above.

On these grounds, the dilatory exception invoked by the Respondent Entity is held to be unfounded, with no obstacles to the assessment of the merits of the case.

SUBJECT MATTER OF THE ARBITRAL PRONOUNCEMENT

The thema decidendum subject to arbitral pronouncement consists of the assessment of the legality of the IMI assessments of the years 2009 to 2012, in the total amount of EUR 12,328.30, in light of the regime applicable to the statute of limitations of the right to assess the tax, in particular provided for in article 45, no. 1, of the LGT, and, likewise, of the tax benefit (IMI exemption) embodied in article 44, no. 1, paragraph h), of the EBF.

MATTER OF FACT

Established Facts

Within the scope of the present proceedings, the following facts are considered established:

The Claimant is the owner of an immovable property located at ..., no. ..., in the parish of ..., in the municipality of Lisbon, described in the Land Registry Office of Lisbon under no. ... and inscribed in the urban property matrix of the said parish under article ... (corresponding to the former article ... of the parish of ...);

By application of 28 January 2009, the Claimant filed a protest against the property matrix with a view to "amendment of the name of the taxpayer (notation)", having justified it on the basis of "deed of sale and purchase";

On 4 October 2017, with reference to the aforementioned immovable property, the Claimant requested from the Chief of Finance of Lisbon ... the IMI exemption provided for in article 44, no. 1, paragraph h), of the EBF;

On 19 October 2017, the Claimant was notified of the draft reversal against it of tax enforcement proceedings no. ...2010... concerning IMI debts of the years 2009 to 2013, relating to the aforementioned immovable property, in the total amount of EUR 15,147.17;

The aforementioned draft is based on the application to the Claimant of the regime provided for in article 158, no. 2, of the CPPT, identifying as the defendant the company B..., LDA., legal entity no. ..., with registered office at Rua ..., no. ..., ..., in Lisbon;

On 31 October 2017, the Claimant exercised its right to a prior hearing, having contested the position adopted by the Chief of Finance of Lisbon ...;

By order of 31 October 2017 from the Chief of Finance of Lisbon ..., the aforementioned request for IMI exemption was granted with effect from the year 2018, inclusive;

By order of 15 November 2017 from the Chief of Finance of Lisbon ..., the Claimant was notified of the rejection of the requests made by it in the prior hearing;

On 28 November 2017, the Claimant was served with the reversal against it of tax enforcement proceedings no. ...2010..., within the scope of which, by virtue of the application of article 158, no. 2, of the CPPT, it became the defendant for IMI debts of the years 2009 to 2012 in the total amount of EUR 12,328.30;

With reference to the year 2009, according to the debt certificates nos. 2010/... and 2010/... attached to the reversal order, the period for voluntary payment of IMI assessments by the company B..., LDA. ended on 30 April and 1 October 2010, respectively;

With reference to the year 2010, according to the debt certificates nos. 2011/... and 2011/... attached to the reversal order, the period for voluntary payment of IMI assessments by the company B..., LDA. ended on 30 April and 30 September 2011, respectively;

With reference to the year 2011, according to the debt certificates nos. 2012/... and 2012/... attached to the reversal order, the period for voluntary payment of IMI assessments by the company B..., LDA. ended on 30 April and 30 September 2012, respectively;

With reference to the year 2012, according to the debt certificates nos. 2013/..., 2013/... and 2013/... attached to the reversal order, the period for voluntary payment of IMI assessments by the company B..., LDA. ended on 30 April, 1 August and 30 November 2013, respectively;

On 19 February 2018, the Claimant filed the request for arbitral pronouncement giving rise to the present proceedings;

On 4 July 2018, the Respondent Entity filed its response;

On 22 October 2018, following a further request from the Arbitral Tribunal, the Respondent Entity attached the administrative file to the proceedings.

Unestablished Facts

Of the facts with interest for the decision of the case, contained in the request for arbitral pronouncement and in the response, all subject to concrete analysis, those not included in the factuality listed above have not been established.

Reasoning of the Decision on the Matter of Fact

The facts were established on the basis of the documents attached to the request for arbitral pronouncement and, likewise, in the administrative file, the request for removal from the file of the administrative file formulated by the Claimant being unfounded, in accordance with the provisions of article 110, no. 5, of the CPPT, applicable pursuant to article 17, no. 2, of the RJAT, and the principles of discovery of material truth and the tribunal's autonomy in conducting the proceedings. Notwithstanding the above, the conduct of the Respondent Entity – of not attaching the administrative file to the proceedings contemporaneously with the filing of its response – is reprehensible, and no acceptable justification has been presented for the adoption of such conduct.

MATTER OF LAW

As results from the factuality above, in the situation subject to analysis within the scope of the present proceedings, the Claimant became aware of the IMI assessments of the years 2009 to 2012 on 28 November 2017, upon service of tax enforcement proceedings no. ...2010... .

With the aforementioned service, the Tax Administration aimed at operationalizing the application of the regime provided for in article 158, no. 2, of the CPPT, in accordance with which "if, in the executions referred to in the preceding number, it is found that the collection instruments were processed in the name of the former holder, enjoyer or owner, the official or other person who must carry out service shall inform who was the holder, enjoyer or owner of the assets during the period to which the enforceable debt relates, so that the tax enforcement officer shall have them served, if so appropriate, in accordance with tax laws".

Indeed, and as likewise results from the factuality above, the collection instrument was initially issued in the name of the company B..., LDA., and such company was apparently notified of the aforementioned tax assessments, the periods for voluntary payment of which expired between 30 April 2010 and 30 November 2013, and subsequently served as defendant in the aforementioned tax enforcement proceedings no. ...2010... .

Subsequently, when the Tax Administration realized that the owner of the immovable property giving rise to the aforementioned IMI assessments was the Claimant and not the company B..., LDA., the Tax Administration reversed the tax enforcement proceedings against the Claimant, in accordance with article 158, no. 2, of the CPPT, with a view to the coercive collection of such tax debts.

In light of this context, it is important to subsequently determine the nature of the tax liability underlying this rule: whether original, joint or subsidiary.

Joint and subsidiary liabilities presuppose the existence of a plurality of tax liable parties, a situation which is not at issue in the present case.

On the other hand, the legal provisions which provide for them – as regards joint liability: articles 21, 26, no. 1, final part, and 27 of the LGT; as regards subsidiary liability: articles 24, 28, nos. 2 and 3, of the LGT – are not shown to be applicable in the case sub judice.

By process of elimination and likewise having regard to the combined application of articles 8 of the IMI Code and 22, no. 2, first part, of the LGT, the Arbitral Tribunal considers that the tax liability in question is of an original nature, notwithstanding its operationalization through the figure of reversal.

In the same sense, LOPES DE SOUSA pronounces, emphasizing the following:

"The present article refers to the determination of the defendant in cases of taxes on movable or immovable property whose element defining the objective scope of application is constituted by the possession or enjoyment or ownership of certain assets. These are not situations of subsidiary liability, for the person against whom execution will be directed will be the original debtor of the tax, these being rather cases in which it is detected that the execution was directed against a person who is not the original responsible party for the payment of the tax" [emphasis added] – cf. LOPES DE SOUSA, Code of Tax Procedure and Process Annotated and Commented, Volume III, 6th Edition, 2011, Áreas Publisher, pages 101 and 102.

And, likewise, the jurisprudence of the superior courts:

"Having the TA initiated tax execution against a taxpayer, for collection of debt relating to Municipal Contribution relating to a period between the years 1994 to 1999, in which the same was no longer the owner of the respective properties, and having subsequently the execution reversed against the challenger, under the provisions of art. 158º of the CPPT, and having this been notified of the assessments only when served for the tax execution on 22/8/2005, the statute of limitations period for the right to assess had then elapsed, and any notification of the former owner will not be sufficient for it to be held that the statute of limitations is prevented, since the defendant reversed is the original responsible party and not subsidiary responsible for the enforceable debt" – cf. Decision of the Central Administrative Court South no. 0911/11, of 5 September 2012.

Accordingly, any notifications and service sent to the company B..., LDA. are not susceptible to relevance in the sphere of the Claimant for purposes of determining its tax liability.

The effectiveness of such acts lacks relevance within the scope of the present proceedings. To be specific: the possible notification of the IMI assessments to the company B..., LDA. and its service within the scope of tax enforcement proceedings no. ...2010... do not assume any relevance for the good decision of the present case, not contributing to the formation of any legal nonconformities that would invalidate the IMI assessment acts whose assessment constitutes the purpose of the present proceedings.

Accordingly, the statute of limitations of the right to assess – a vice invoked by the Claimant susceptible to affecting the legality of the contested tax assessments – must necessarily be assessed by reference to the communications addressed by the Tax Administration to the Claimant – that is, by reference to the service of tax enforcement proceedings no. ...2010... carried out on 28 November 2017, an act through which the Claimant became aware of the tax assessments. This is because at no point up to the aforementioned service was the Claimant notified by the Tax Administration for payment of the IMI of the years 2009 to 2012.

In a consistent sense, LOPES DE SOUSA sustains:

"For the same reason that it is an original liability and not subsidiary, what is relevant for purposes of preventing the statute of limitations of the right to assess is the notification or service of the person against whom the execution is reversed and not that of the person against whom execution was originally directed" – cf. LOPES DE SOUSA, Code of Tax Procedure and Process Annotated and Commented, Volume III, 6th Edition, 2011, Áreas Publisher, page 102.

"The calling to execution of the person against whom execution must be reversed is made through service which, if the person to be served has not been notified of the assessment, shall contain the essential elements thereof, including its respective justification, as the effectiveness of the tax act in relation to the person served depends upon such (art. 77, no. 6, of the LGT and 36, no. 1, of the CPPT). This requirement is expressly formulated for cases of reversal of execution against subsidiary or joint responsible parties in no. 4 of art. 22 of the LGT, where the person served is attributed the rights of protest and challenge of the debt, in addition to the rights which are attributed to any defendant. Although in this art. 158 there is a different reversal, in the event that service is made to a person who has not been notified to protest or challenge the assessment, one is faced with a situation substantially identical, in which it is necessary to ensure, in a similar manner, the possibility that the person served may use all the means of defense attributed by law to tax liable subjects. For this reason, the analogous application of that no. 4 of art. 22 of the LGT is justified" – cf. LOPES DE SOUSA, Code of Tax Procedure and Process Annotated and Commented, Volume III, 6th Edition, 2011, Áreas Publisher, page 106.

Having arrived here, it is important to then verify whether the Claimant became aware of the IMI assessments of the years 2009 to 2012, through service on 28 November 2017, within the statute of limitations period for the right to assess.

In accordance with article 116, no. 1, of the IMI Code, "tax assessments, even if additional, are made within the periods and in the manner of articles 45 and 46 of the LGT", with article 45, no. 1, of the LGT providing that "the right to assess taxes lapses if the assessment is not validly notified to the taxpayer within a period of four years, when the law does not provide otherwise".

On the other hand, in accordance with no. 4 of the aforementioned article 45 of the LGT: "The statute of limitations period is counted, in periodic taxes, from the end of the year in which the tax fact occurred and, in taxes of single obligation, from the date on which the tax fact occurred, except for the tax on added value and income taxes when the taxation is carried out by withholding at source on a definitive basis, in which case that period is counted from the beginning of the calendar year following that in which, respectively, the exigibility of the tax or the tax fact occurred".

In the case of IMI, the tax fact occurs on the last day of each calendar year.

In light of the legal framework set out, there can be no doubt that, if the Tax Administration intended to additionally assess and collect IMI by reference to tax facts occurring on 31 December 2009, 2010, 2011 and 2012 (cf. article 8 of the IMI Code), it would invariably have had to notify the taxpayer by the deadline dates of 31 December 2013, 2014, 2015 and 2016, respectively, under penalty of statute of limitations of the respective right.

Indeed, the institution of statute of limitations – like that of prescription – has an unambiguous nature of guarantee of the rights and legitimate interests of tax liable subjects, and it is appropriate in this regard to emphasize what was expressed in the Decision of the Central Administrative Court South no. 810/2015 of 15 November 2005: "Being the fact preventing the statute of limitations of the right to assess not its effectiveness but the notification thereof to the tax liable subject within the period legally established for the tax administration to exercise such right, and it not being proven that the notification of the tax liable subject has been effected in the legal manner or any other, within the said period, the statute of limitations of the respective right to assess is held to have occurred. [...] The statute of limitations of the power of determination of the amount of the tax and other tax obligations, by the services of the TA, is a guarantee of the taxpayers, when the value of that determination is not notified to the taxpayer within the period fixed by law [...]. Thus, the statute of limitations of the right to assess, like statute of limitations in general, operates through pre-fixed periods, characterized by their peremptory nature and, in the teaching of Aníbal de Castro, in "The Statute of Limitations in Doctrine, Law and Jurisprudence", p. 41, aims to "limit the lapse of time from or within which the right must be exercised...", having been invoked already in the initial pleading as a ground for the challenge" [emphases added].

Accordingly, there can be no doubt that the Tax Administration, if it intended to demand from the Claimant payment of the IMI sub judice, by reference to tax facts occurring until 31 December 2012, should have notified it before the end of the year 2016, which indeed did not happen, and any notification made to the company B..., LDA., is irrelevant, reiterate, even if within that period.

In other words, any right of credit that the Tax Administration could oppose to the Claimant, relating to the aforementioned tax facts, had already lapsed by 28 November 2017, the moment when, through the service effected in the aforementioned tax enforcement proceedings, it sought to exercise it.

In this context, and contrary to the understanding adopted by the Respondent Entity, neither the alleged non-compliance by the Claimant of the declaratory obligations resulting from articles 12 et seq. of the IMI Code – non-compliance, moreover, which is doubtful in light of the protest against the property matrix filed by the Claimant (cf. paragraph b. of the matter of fact established as proven) – nor the circumstance that the assessments were issued under article 113 of the IMI Code prevent the aforementioned position, since they are not relevant for purposes of calculating the statute of limitations period. The law does not provide for any suspensive, interruptive or extinctive causes of the institution of statute of limitations based on such facts.

In light of the above, the Arbitral Tribunal considers that the IMI assessments of the years 2009 to 2012, in the total amount of EUR 12,328.30, are illegal because they were made known to the Claimant once the statute of limitations period of four years resulting from the combined application of articles 116, no. 1, of the IMI Code and 45, nos. 1 and 4, of the LGT had elapsed.

Finally, as regards the (il)legality of the IMI assessments, by force of the alleged application of the exemption provided for in article 44, no. 1, paragraph h), of the EBF, the Arbitral Tribunal considers the question to correspond to one whose assessment has been prejudiced by the solution previously adopted. Indeed, the Arbitral Tribunal has the obligation to assess and resolve all questions submitted to its assessment, regardless of their relevance or viability, with the exception of questions whose assessment and decision has been prejudiced by the solution given to others (cf. article 608, no. 2, of the Code of Civil Procedure ("CPC")).

DECISION

In harmony with the above, the request for arbitral pronouncement is held to be entirely well-founded and, consequently, the IMI assessments of the years 2009 to 2012, in the total amount of EUR 12,328.30, are declared to be illegal, and are annulled in accordance with article 163 of the Code of Administrative Procedure, on the ground of a defect consisting of violation of law, through failure to observe the statute of limitations period of the right to assess provided for in article 45, no. 1, of the LGT.

In accordance with articles 306, nos. 1 and 2, of the CPC, 97-A, no. 1, paragraph a), of the CPPT, and 3, no. 2, of the Regulation of Costs in Tax Arbitration Proceedings, the value of the case is fixed at EUR 12,328.30, and the Respondent Entity is condemned to pay the costs of the proceedings, which amount to EUR 918.00, under article 22, no. 4, of the RJAT and, likewise, under Table I attached to the Regulation of Costs in Tax Arbitration Proceedings.

Text prepared by computer, in accordance with the CPC, applicable by referral of article 29, no. 1, paragraph e), of the RJAT, with blank verses and revised by the Undersigned Arbitrator.

Lisbon, 18 December 2018

The Arbitrator

(Jaime Carvalho Esteves)

Frequently Asked Questions

Automatically Created

What happens when IMI property tax liquidations are challenged after reversal against the property owner in a tax enforcement proceeding?
When IMI assessments are challenged after reversal against the property owner in enforcement proceedings, the CAAD arbitral tribunal has jurisdiction to review the legality of the underlying tax assessments themselves, not the reversal order. The taxpayer can challenge the assessments on substantive grounds including statute of limitations and tax exemptions, even though notification occurred through reversal proceedings under Articles 158(2) and 160 CPPT. The tribunal clarified that the object of challenge is the IMI assessment acts for 2009-2012, not the enforcement reversal procedure.
Does the statute of limitations under Article 45(1) of the Portuguese General Tax Law (LGT) apply to IMI tax liquidations notified through enforcement proceedings?
Yes, the statute of limitations under Article 45(1) LGT can apply to IMI assessments first notified through enforcement proceedings. The claimant argued that awareness of assessments occurred only upon service of the enforcement reversal, by which time the limitation period had expired. However, the Tax Authority invoked Article 113(1) of the IMI Code to reject the statute of limitations defense. The tribunal confirmed competence to assess this issue, recognizing that taxpayers may first learn of assessments through reversal proceedings and can invoke limitation periods from that point.
Can educational institutions claim IMI property tax exemption under Article 44(1)(h) of the Portuguese Tax Benefits Statute (EBF)?
Educational institutions can claim IMI exemption under Article 44(1)(h) EBF if they qualify as private educational establishments integrated into the educational system. The claimant A... S.A. asserted this exemption as grounds for annulling the IMI assessments. The tribunal confirmed jurisdiction to assess the applicability of this tax benefit to the claimant's situation, rejecting the Tax Authority's argument that determining exemption scope exceeded CAAD competence. The decision permits arbitral review of whether specific properties and years qualify for educational institution exemptions.
Does the CAAD arbitral tribunal have jurisdiction to review the legality of IMI liquidations underlying a tax reversal (reversão) in enforcement proceedings?
Yes, the CAAD arbitral tribunal has jurisdiction under Article 2(1)(a) RJAT to review the legality of IMI assessments underlying a tax reversal (reversão) in enforcement proceedings. The tribunal rejected the Tax Authority's material incompetence objection, emphasizing that the claimant's explicit request sought annulment of the IMI assessment acts for 2009-2012, not review of the reversal order itself. The decision distinguished between challenging enforcement reversal procedures (outside CAAD competence per Article 204 CPPT) and challenging the underlying tax assessments (within CAAD competence), confirming arbitral jurisdiction over substantive assessment legality.
What is the deadline for challenging IMI tax assessments for years 2009 to 2012 under Portuguese tax arbitration rules?
The deadline for challenging IMI assessments through tax arbitration depends on when the taxpayer became aware of the assessments. In this case, the claimant learned of the 2009-2012 assessments only upon service of enforcement reversal proceedings in 2018. The arbitral request was filed on 19 February 2018, shortly after notification. Under RJAT rules, taxpayers have 90 days from notification or definitive knowledge of the contested act to file arbitration requests. When assessments are first discovered through reversal proceedings, this period runs from service of the enforcement notice, allowing challenges even for assessments from earlier years if never previously notified.