Summary
Full Decision
CASE NO. 6/2015-T
PARTIES
Claimant: A..., S.A, with registered office at ... Street, ... Condominium, Shop ..., ...-... ..., Tax ID PT ...;
Defendant: Tax and Customs Authority (AT).
The arbitrators Dr. Jorge Manuel Lopes de Sousa (presiding arbitrator), Dr. Augusto Vieira and Dr. Suzana Fernandes da Costa, appointed by the Deontological Council of the Centre for Administrative Arbitration to form the Arbitral Tribunal, constituted on 16-03-2015, hereby agree as follows:
1. REPORT
A..., S.A, with registered office at ... Street, ... Condominium, Shop ..., ...-... ..., legal entity ..., (hereinafter referred to as "Claimant") came, pursuant to articles 2.º and 10.º of Decree-Law No. 10/2011, of 20 January (hereinafter "RJAT"), to request the constitution of a collective arbitral tribunal, with a view to the declaration of illegality of three assessment acts for Stamp Tax, each relating to an urban property – construction plots, with the following identifications and taxable patrimonial values:
(i) property article ... of the Union of Parishes of ..., ... and ..., (...) with a taxable patrimonial value of €12,615,759.62;
(ii) property article ... of the parish of ... (...) with a taxable patrimonial value of €10,747,898.25; and
(iii) property article ... of the same parish of ... (...) with a taxable patrimonial value of €4,241,486.75.
The Claimant also requests the refund of the sums paid and the payment of compensatory interest on the sums paid, relating to the aforementioned assessments.
The request for constitution of the arbitral tribunal was accepted by the President of CAAD and notified to the TAX AND CUSTOMS AUTHORITY on 02-01-2015.
Pursuant to the provisions of subparagraph a) of paragraph 2 of article 6.º and subparagraph b) of paragraph 1 of article 11.º of the RJAT, as amended by article 228.º of Law No. 66-B/2012, of 31 December, the Deontological Council appointed as arbitrators the signatories, who communicated acceptance of the charge within the applicable timeframe.
On 27-02-2014, the Parties were notified of such appointment, having manifested no willingness to challenge the appointment of the arbitrators, pursuant to the combined provisions of article 11.º paragraph 1 subparagraphs a) and b) of the RJAT and articles 6.º and 7.º of the Deontological Code.
Thus, in accordance with the provisions of subparagraph c) of paragraph 1 of article 11.º of the RJAT, as amended by article 228.º of Law No. 66-B/2012, of 31 December, the collective arbitral tribunal was constituted on 16-03-2015.
The Tax and Customs Authority responded defending the lack of merit of the claims.
By order of 29-04-2015, the hearing provided for in article 18.º of the RJAT and submissions were dispensed with.
The arbitral tribunal was regularly constituted and is materially competent, in accordance with the provisions of articles 2.º, paragraph 1, subparagraph a), and 30.º, paragraph 1, of the RJAT.
The parties have legal personality and capacity, are entitled (articles 4.º and 10.º, paragraph 2, of the same legislation and article 1.º of Decree No. 112-A/2011, of 22 March) and are duly represented.
The proceedings contain no nullities.
2. FACTS
2.1. Facts Deemed Proven
a) In 2013, the Claimant was the owner of three urban properties – construction plots, with the following identifications and taxable patrimonial values:
– property article ... of the Union of Parishes of ..., ... and ..., (...) with a taxable patrimonial value of €12,615,759.62 - (document No. 1 attached with the request for arbitral decision, the contents of which are hereby reproduced);
– property article ... of the parish of ... (...) with a taxable patrimonial value of €10,747,898.25 (document No. 2 attached with the request for arbitral decision, the contents of which are hereby reproduced); and
– property article ... of the same parish of ... (...) with a taxable patrimonial value of €4,241,486.75 - (document No. 3 attached with the request for arbitral decision, the contents of which are hereby reproduced);
b) The Claimant's properties, in relation to which Stamp Tax was assessed, are construction land, whose authorized building is, at least partly, for residential purposes - (article 5.º of the request for arbitral decision and Documents Nos. 1 to 3 attached with the request in the part referring to the "location coefficient type");
c) Regarding each of the aforementioned properties, the Tax and Customs Authority issued the following Stamp Tax assessment acts, Item 28.1, for the year 2013:
Property article ... – ... – ... and ...
ü Assessment of 18.3.2014, document identification Nos. 2014 ... (1st installment of €42,052.54 – payable by April 2014), 2014 ... (2nd installment of €42,052.53 – payable by July 2014), and 2014 ... (3rd installment of €42,052.53 – payable by November 2014) generating a total collection of €126,157.60 - (Document No. 1 attached to document No. 16 and Documents Nos. 5 and 6, all attached with the request for arbitral decision);
Property article ... - ...
ü Assessment of 17.3.2014, document identification Nos. 2014 ..., (1st installment of €35,826.34 – payable by April 2014), No. 2014 ..., (2nd installment of €35,826.32 – payable by July 2014) and 2014 ... (3rd installment of €35,826.32 – payable by November 2014), generating a total collection of €107,478.98 - (documents Nos. 8, 7 and 9 attached with the request for arbitral decision, the contents of which are hereby reproduced);
Property article ... - ...
ü Assessment of 17.03.2014, document identification Nos. 2014 ... (1st installment of €14,138.29 – payable by April 2014), 2014 ... (2nd installment of €14,138.29 – payable by July 2014), 2014 ... (3rd installment of €14,138.29 – payable by November 2014) generating a total collection of €42,414.87 - (documents No. 10, 11 and 12 attached with the request for arbitral decision, the contents of which are hereby reproduced);
d) The Claimant filed administrative review requests regarding the assessments, which were denied - (documents Nos. 13 to 16 attached with the request for arbitral decision, the contents of which are hereby reproduced);
e) The Claimant paid the sums stated in the payment notices notified to it, except for those in the payment notices with document identification Nos. 2014 ... (3rd installment of €42,052.53 – payable by November 2014 and relating to property article ... - ...); document 2014 ... (3rd installment of €35,826.32 – payable by November 2014 – relating to property article ... - ...) and document 2014 ... (3rd installment of €14,138.29 – payable by November 2014 – relating to property article ... - ...) – (As per documents 4 to 12 attached with the request – as to the payment vouchers)
f) On 30-12-2014, the Claimant filed the request for constitution of the arbitral tribunal - (CAAD computer system).
2.2. Facts Deemed Not Proven
It was not proven that the Claimant had paid the sums stated in the payment notices Nos. 2014 ..., 2014 ... and 2014 ..., as per subparagraph e) of the facts deemed proven.
2.3. Justification of the Proven Facts
The facts deemed proven are based on the documents indicated for each point, whose authenticity and correspondence to reality were not questioned.
It was not proven that the sums relating to the assessments Nos. 2014 ... and 2014 ... had been paid, as no supporting document was submitted.
3. LEGAL ANALYSIS
The issue that is the subject of the present action is whether construction land, to which has been attributed, in an assessment process, the classification as "Residential" falls within the scope of item 28.1 of the General Table of Stamp Tax (TGIS), in its original wording.
3.1. Regime of Law No. 55-A/2012, of 29 October
Law No. 55-A/2012, of 29 October, made several amendments to the Stamp Tax Code and added item 28 to the TGIS, with the following wording:
28 – Property, usufruct or right of surface of urban properties whose taxable patrimonial value as recorded in the tax roll, pursuant to the Code of Municipal Property Tax (CIMI), is equal to or exceeding €1,000,000 – on the taxable patrimonial value used for IMI purposes:
28.1 – For property with residential designation – 1%;
28.2 – For property, when the taxpayers who are not natural persons are residents in a country, territory or region subject to a clearly more favorable tax regime, as listed in the order approved by the Minister of Finance – 7.5%.
In the transitional provisions contained in article 6.º of Law No. 55-A/2012, the following rules concerning the assessment of the tax provided for in such item were established:
1 – In 2012, the following rules shall be observed with reference to the assessment of stamp tax provided for in item No. 28 of the respective General Table:
a) The taxable event occurs on 31 October 2012;
b) The taxpayer is as mentioned in paragraph 4 of article 2.º of the Stamp Tax Code on the date referred to in the previous subparagraph;
c) The taxable patrimonial value to be used in the assessment of the tax corresponds to that resulting from the rules provided for in the Code of Municipal Property Tax with reference to the year 2011;
d) The assessment of the tax by the Tax and Customs Authority shall be made by the end of November 2012;
e) The tax shall be paid, in a single installment, by the taxpayers by 20 December 2012;
f) The applicable rates are as follows:
i) Properties with residential designation assessed under the Municipal Property Tax Code: 0.5%;
ii) Properties with residential designation not yet assessed under the Municipal Property Tax Code: 0.8%;
iii) Urban properties when the taxpayers who are not natural persons are residents in a country, territory or region subject to a clearly more favorable tax regime, as listed in the order approved by the Minister of Finance: 7.5%.
2 – In 2013, the assessment of stamp tax provided for in item No. 28 of the respective General Table shall be based on the same taxable patrimonial value used for purposes of assessing municipal property tax to be effected in that year.
3 – Failure to deliver, in whole or in part, within the timeframe indicated, of the sums assessed as stamp tax constitutes a tax offense, punished in accordance with law.
The term "designation" as used in item 28.1 and in sub-items i) and ii) of subparagraph f) of paragraph 1 of article 6.º of Law No. 55-A/2012 is a concept not used in any other tax legislation in these precise terms, which is "property with residential designation."
Namely, in the CIMI, which in several provisions of the Stamp Tax Code introduced by such Law is indicated as legislation of subsidiary application relating to the tax provided for in such item No. 28 [articles 2.º, paragraph 4, 3.º, paragraph 3, subparagraph u), 5.º, subparagraph u), 23.º, paragraph 7, and 46.º and 67.º of the CIS], such a concept is not used.
Law No. 83-C/2013, of 31 December, amended item No. 28.1, giving it the following wording:
28.1 - For residential property or for construction land whose authorized or planned building is for residential purposes, as provided in the Municipal Property Tax Code – 1%
3.2. Concepts of Properties Used in the CIMI
In the IMI, the types of properties are enumerated in articles 3.º to 6.º as follows:
Article 2.º
Concept of Property
1 – For purposes of this Code, property is every parcel of land, comprising water, plantations, buildings and constructions of any kind incorporated therein or constructed thereon, with a permanent character, provided that it forms part of the patrimony of a natural or legal person and, under normal circumstances, has economic value, as well as water, plantations, buildings or constructions, in the circumstances above, endowed with economic autonomy in relation to the land on which they are implanted, although situated in a parcel of land that constitutes an integral part of a different patrimony or does not have a patrimonial nature.
2 – Buildings or constructions, although movable by nature, are deemed to have a permanent character when dedicated to non-transitory purposes.
3 – The permanent character is presumed when buildings or constructions are situated in the same location for a period exceeding one year.
4 – For purposes of this tax, each autonomous unit, under the horizontal property regime, is deemed to constitute a property.
Article 3.º
Rural Properties
1 – Rural properties are land situated outside an urban area that are not to be classified as construction land, as provided in paragraph 3 of article 6.º, provided that:
a) They are dedicated or, in the absence of concrete dedication, have as their normal purpose a use generating agricultural income, such as those considered for purposes of income tax for natural persons (IRS);
b) Not having the dedication indicated in the previous subparagraph, they are not constructed or have only buildings or constructions of an accessory character, without economic autonomy and of reduced value.
2 – Also considered rural properties are land situated within an urban area, provided that, by virtue of legally approved provisions, they cannot have any income-generating use or can only have a use generating agricultural income and are in fact having this dedication.
3 – Also considered rural properties are:
a) Buildings and constructions directly dedicated to the production of agricultural income, when situated on the land referred to in the preceding paragraphs;
b) Water and plantations in the situations referred to in paragraph 1 of article 2.º
4 – For purposes of this Code, urban areas are considered, beyond those situated within legally fixed perimeters, nuclei with a minimum of 10 dwellings served by public use streets, with their perimeter delimited by points distanced 50 m from the axis of the streets, in the transversal direction, and 20 m from the last building, in the direction of the streets.
Article 4.º
Urban Properties
Urban properties are all those that should not be classified as rural, without prejudice to the provisions of the following article.
Article 5.º
Mixed Properties
1 – Whenever a property has rural and urban parts, it is classified in its entirety according to the main part.
2 – If neither part can be classified as main, the property is deemed mixed.
Article 6.º
Types of Urban Properties
1 – Urban properties are divided into:
a) Residential;
b) Commercial, industrial or for services;
c) Construction land;
d) Others.
2 – Residential, commercial, industrial or for services are buildings or constructions licensed for such purposes or, in the absence of a license, that have as their normal purpose each of these uses.
3 – Construction land is considered to be land situated within or outside an urban area, for which a license or authorization has been granted, prior notification admitted, or a favorable preliminary information issued for a subdivision or construction operation, and also those that have been declared as such in the acquisition deed, except land on which the competent entities prohibit any of such operations, namely those located in green areas, protected areas or that, according to municipal spatial planning plans, are dedicated to spaces, infrastructure or public facilities. (Wording of Law No. 64-A/08, of 31-12)
4 – Included in the provision of subparagraph d) of paragraph 1 are land situated within an urban area that are not construction land nor are covered by the provision of paragraph 2 of article 3.º and also buildings and constructions licensed or, in the absence of a license, that have as their normal purpose uses other than those referred to in paragraph 2 and also those excepted in paragraph 3.
3.3. Rules on Interpretation of Laws
Article 11.º of the General Tax Law establishes the essential rules for interpreting tax laws as follows:
Article 11.º
Interpretation
-
In determining the meaning of tax norms and in qualifying the facts to which they apply, the general rules and principles of interpretation and application of laws are observed.
-
Whenever tax norms use terms peculiar to other branches of law, they shall be interpreted in the same sense as that which they have there, unless otherwise directly derived from the law.
-
If doubt persists as to the meaning of the applicable tax norms regarding taxable events, consideration shall be given to the economic substance of the tax facts.
-
Gaps resulting from tax norms covered by the reserve of law of the Assembly of the Republic are not susceptible to analogical integration.
The general principles of interpretation of laws, to which paragraph 1 of article 11.º of the LGT refers, are established in article 9.º of the Civil Code, which provides as follows:
Article 9.º
Interpretation of Law
-
Interpretation should not be limited to the letter of the law, but should reconstruct from the texts the legislative thought, taking especially into account the unity of the legal system, the circumstances under which the law was enacted and the specific conditions of the time in which it is applied.
-
However, the interpreter cannot consider legislative thought that does not have in the letter of the law a minimum of verbal correspondence, albeit imperfectly expressed.
-
In establishing the meaning and scope of the law, the interpreter shall presume that the legislator adopted the most correct solutions and knew how to express its thought in appropriate terms.
3.4. Interpretive Hypotheses of the Concept of "Property with Residential Designation"
As appears from the CIMI provisions transcribed, the concept of "property with residential designation" is not used in the classification of properties.
This concept with this terminology is also not found in any other legislation.
Thus, in the absence of exact terminological correspondence of the concept of "property with residential designation" with any other used in other legislation, several interpretive hypotheses may be advanced.
The starting point for interpretation of that expression "properties with residential designation" is naturally the text of the law, being on the basis thereof that "legislative thought" must be reconstructed, as required by paragraph 1 of article 9.º of the Civil Code, applicable by virtue of the provisions of article 11.º, paragraph 1, of the LGT.
3.5. Concept of "Property with Residential Designation" as Referring to Residential Properties
The concept closest to the literal meaning of this expression used is manifestly that of "residential properties," defined in paragraph 2 of article 6.º of the CIMI as encompassing "buildings or constructions" licensed for residential purposes or, in the absence of a license, that have as their normal purpose residential purposes.
If one were to understand that the expression "property with residential designation" coincides with that of "residential properties," it is manifest that the assessments would be defective due to error regarding factual and legal presuppositions, since all properties in relation to which Stamp Tax was assessed under the aforementioned item No. 28.1 are construction land, without any building or construction, required by that paragraph 2 of article 6.º to fulfill that concept of "residential properties."
Therefore, if one adopts the interpretation that "property with residential designation" means "residential property," the assessments whose declaration of illegality is sought would be illegal, as there is no building or construction on any of the land.
However, the non-correspondence of the terms of the expression used in item No. 28.1 of the TGIS with that which may be extracted from paragraph 2 of article 6.º of the CIMI suggests that it was not intended to use the same concept.
3.6. Concept of "Property with Residential Designation" as a Concept Distinct from "Residential Properties"
The word "designation," in this context of use of a property, has the meaning of "action of designating something for a determined use."
"When, as is the rule, norms (legislative formulas) permit more than one meaning, then the positive function of the text translates into giving stronger support to or more strongly suggesting one of the possible meanings. For among possible meanings, some will correspond to the more natural and direct meaning of the expressions used, while others would only fit within the verbal framework of the norm in a forced, artificial manner. Now, in the absence of other elements inducing the election of the less immediate meaning of the text, the interpreter should in principle opt for that meaning which better and more immediately corresponds to the natural meaning of the verbal expressions used, and namely to their legal-technical meaning, in the assumption (not always accurate) that the legislator knew how to express its thought correctly."
The relevance of the text of the law is especially emphasized in the matter of interpretation of the tax rules on Stamp Tax, which are reduced to an amalgam, under a common denomination, of an incongruous set of taxes of completely distinct natures (on income, on expenditure, on property, on acts, etc.), which does not leave appreciable room for application of the principal interpretive criterion, which is the unity of the legal system, which requires its global coherence.
The recognized lack of coherence of Stamp Tax is particularly exuberant in the case of this item No. 28.1, hastily included on the margin of the General State Budget, by a tax legislator without perceptible global fiscal orientation, which successively implements fiscal aggravation norms in the measure of budgetary setbacks, impositions of international institutional creditors (represented by the "troika") and oversight of the Constitutional Court.
In fact, although in the "Explanatory Memorandum" of the Bill No. 96/XII/2.ª, on which Law No. 55-A/2012 was based, reference is made to the commendable concern of the Government to "reinforce the principle of social equity in austerity, ensuring an effective distribution of the sacrifices necessary for compliance with the adjustment program" and its commitment "to ensure that the distribution of such sacrifices will be made by all and not only by those who live from the income of their work," it is manifest, on one hand, that such reasons of equity, certainly existing, did not begin to prevail in mid-2012, already existing at the beginning of the year, when the General State Budget came into force, and on the other hand, that the scope of item No. 28.1, in taxing additionally properties with residential designation and not also properties that do not have it, reveals that social equity concerns and the proclaimed intention of distributing sacrifices by all affects much more some than actually all.
In this context, there being no sure interpretive elements that allow detecting legislative coherence in the solution adopted in the aforementioned item No. 28.1 or the correctness or incorrectness of the solution adopted (relevant for interpretive purposes in view of paragraph 3 of article 9.º of the Civil Code), the content of the legal text must be the primary element of interpretation, in accordance with the presumption imposed by that same paragraph 3 of article 9.º, that the legislator knew how to express its thought in appropriate terms.
Given those meanings of the words "designation" and "designate," which are "to give purpose" or "to apply," the formula used in that item No. 28.1 of the TGIS manifestly encompasses properties that have already been given the purpose of residential use, properties that are already applied to residential purposes, so it is necessary to inquire whether it will also encompass properties that, although not yet applied to residential purposes, are designated for these purposes.
To that end, it will be necessary to clarify when a property may be understood to be designated for residential purpose, namely whether it is when such purpose is fixed for it in a subdivision authorization or licensing act or similar, or only when the effective attribution of such purpose is materialized.
From the outset, the comparison of item No. 28.1 of the TGIS with paragraph 2 of article 6.º of the CIMI, which defines the concept of residential properties, points toward the need for an effective designation.
In fact, a building or construction licensed for residential purposes or, even without a license, but that has as its normal purpose residential purposes, is, in view of paragraph 2 of that article 6.º, a residential property, since such classification is given therein to "buildings or constructions licensed for such purposes or, in the absence of a license, that have as their normal purpose each of these purposes."
Therefore, on the assumption that the legislator of Law No. 55-A/2012 knew how to express its thought in appropriate terms (as required by article 9.º, paragraph 3, of the Civil Code that is presumed), if it intended to refer to those properties already licensed for residential purposes or that have residential purposes as their normal purpose, it would certainly have used the concept of "residential properties," which would express perfectly and clearly its thought, in view of the definition given by that paragraph 2 of article 6.º of the CIMI.
Consequently, it must be presumed that the use of a different expression is intended to refer to a different reality, so that, in proper interpretation, "property with residential designation" cannot be merely a property licensed for residential purposes or intended for that purpose (i.e., it will not be sufficient that it be a "residential property"), having to be a property that already has effective designation for that purpose.
That this is the meaning of the expression "designation," in the same context of property classification that the CIMI makes, is confirmed by article 3.º in which, regarding rural properties, reference is made to those "that are dedicated or, in the absence of concrete dedication, have as their normal purpose a use generating agricultural income," which shows that dedication is concrete, effective. In fact, as appears from the final part of this text, a property may have a determined use as its purpose and be or not be dedicated to it, which shows that dedication is, at the level of the connection of a property to a determined use, something more intense than mere purpose and may or may not occur downstream from this and not upstream from it.
Moreover, the text of the law, in adopting the formula "property with residential designation," rather than "urban properties of residential designation," which appears in the referred "Explanatory Memorandum," strongly points to the requirement that residential designation already be materialized, since only thus will the property have such designation.
In the case at hand, one is faced with a reality even more distant in relation to residential designation, which is that there is no building or construction whatsoever and, therefore, one cannot consider existing a designation that presupposes its existence.
On the other hand, the legislative intention not to extend the scope of taxation to construction land was expressly stated by the Government when presenting to the Plenary of the Assembly of the Republic the Bill 96-XII, saying, through the voice of the State Secretary for Fiscal Affairs:
"First of all, the Government proposes the creation of a special tax to tax high-value urban residential properties. It is the first time in Portugal that a special taxation on high-value properties intended for residential purposes has been created. This tax will be 0.5% to 0.8% in 2012, and 1% in 2013, and will apply to houses valued at equal to or greater than 1 million euros. With the creation of this additional tax, the fiscal effort required of these owners will be significantly increased in 2012 and in 2013."
The express reference to "houses" as the target of taxation of the new tax leaves no room for doubt about the legislative intention.
Moreover, there is no reference in the discussion of the said Bill to "construction land."
Regarding article 45.º of the CIMI, it has no relation to the classification of properties, only indicating the factors to be considered in the valuation of construction land. What is weighed there, when referring to the "building to be constructed," is the weighing of the purpose of the land, which, as has been seen, is something that, in the context of the CIMI, does not imply designation and occurs before this.
Law No. 83-C/2013, of 31 December, contrary to what the Tax and Customs Authority contends, did not aim to clarify the logical element underlying the original wording of item No. 28.1, but instead came to indirectly confirm the interpretation that it did not encompass construction land.
In fact, if the original wording of such item No. 28.1, when speaking of "property with residential designation," already intended to encompass buildings and constructions that constituted "residential properties" (as provided in article 6.º, paragraph 2, of the CIMI), and construction land for which residential building was authorized or planned, it would be natural to assign to the new wording an interpretive nature, similar to what Law No. 83-C/2013 does in other provisions [article 177.º, paragraph 7, regarding subparagraphs a) and b) of paragraph 3 of article 17.º-A of the Personal Income Tax Code, and article 185.º, paragraph 1, regarding article 3.º-A of the Value Added Tax Code] and is customary to do in budget laws, when it is intended that new wordings apply to situations potentially encompassed by previous wordings.
Therefore, the fact that an interpretive nature was not assigned to the new wording points to the intention to have altered the scope of taxation of the aforementioned item No. 28.1 of the TGIS and not to have maintained it, clarifying it.
For the foregoing, the assessments contested are defective due to error regarding the legal presuppositions, embodied in violation of item No. 28.1 of the TGIS, which justifies their annulment (article 135.º of the Administrative Procedure Code).
4. REFUND OF SUMS PAID AND COMPENSATORY INTEREST
The Claimant requests refund of the sums paid and compensatory interest, it being proven that it paid the contested assessments except for Nos. 2014 ..., 2014 ... and 2014 ....
Article 43.º, paragraph 1, of the LGT establishes that "compensatory interest is due when it is determined, in administrative review or judicial challenge, that there was error attributable to the services from which resulted payment of the tax debt in an amount greater than legally due."
In the case at hand, the error affecting the assessments is attributable to the Tax and Customs Authority that carried out the assessment acts on its own initiative, so the Claimant is entitled to compensatory interest from the date of payment of each of the sums until refund, at the legal supplementary rate, pursuant to articles 43.º, paragraphs 1 and 4, and 35.º, paragraph 10, of the LGT, article 559.º of the Civil Code and Decree No. 291/2003, of 8 April.
As results from the express content of article 43.º, paragraph 1, the right to compensatory interest depends on payment of a tax debt in an excessive amount.
It not being proven that the Claimant paid the sums relating to the assessments Nos. 2014 ..., 2014 ... and 2014 ..., the requests for refund and compensatory interest regarding the sums referred to therein are without merit.
Regarding the remaining assessments, refund of the sums paid and compensatory interest at the legal rate is justified, from the date of each payment until respective refund of the sum paid.
5. DECISION
Accordingly, this Arbitral Tribunal agrees to:
a) Judge as well-founded the request for arbitral decision regarding the request for declaration of illegality of the Stamp Tax assessments Nos. 2014 ..., 2014 ..., 2014 ..., 2014 ..., 2014 ..., 2014 ..., 2014 ..., 2014 ... and 2014 ... and annul these assessments;
b) Judge as well-founded the request for refund of sums paid and compensatory interest regarding the sums paid relating to assessments Nos. 2014 ..., 2014 ..., 2014 ..., 2014 ..., 2014 ... and 2014 ... and condemn the Tax and Customs Authority to effect the respective refunds and payment of compensatory interest, at the legal rate, from the date of each payment until respective refund of the sum paid.
6. CASE VALUE
In accordance with the provisions of articles 299.º and 306.º, paragraph 2, of the Code of Civil Procedure, 97.º-A, paragraph 1, subparagraph a), of the Code of Tax and Customs Procedure and 3.º, paragraph 2, of the Regulation of Costs in Tax Arbitration Proceedings, the case is valued at €276,051.45.
7. COSTS
Pursuant to article 22.º, paragraph 4, of the RJAT, the amount of costs is set at €5,202.00, pursuant to Table I attached to the Regulation of Costs in Tax Arbitration Proceedings, to be borne by the Tax and Customs Authority, in view of having been defeated and being responsible for the consequential uselessness of the partial dispute (articles 528.º, paragraph 1, and 536.º, paragraph 3, of the Code of Civil Procedure, applicable by virtue of the provisions of article 6.º, subparagraph b), of the Regulation of Costs in Tax Arbitration Proceedings).
Lisbon, 12 May 2015
The Arbitrators
(Jorge Manuel Lopes de Sousa)
(Augusto Vieira)
(Suzana Fernandes da Costa)
(Text prepared by computer in accordance with the provisions of article 131.º, paragraph 5, of the Code of Civil Procedure, applicable by referral of article 29.º of the RJAT. The wording of this decision is governed by the orthography prior to the Orthographic Agreement of 1990)
Footnotes omitted for brevity of translation.
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