Stamp Tax on Real Estate Investment Fund: CAAD Ruling on Verba 17 TGIS and Article 7(1)(e) CIS Exemption

ARBITRAL DECISION

The arbitrators, Fernanda Maçãs (Chairperson), Ricardo Marques Candeias and Vera Figueiredo, appointed by the Ethics Council of the Centre for Administrative Arbitration, to form the Arbitral Tribunal decide as follows:

I. REPORT

1. CLOSED SPECIAL REAL ESTATE INVESTMENT FUND A..., with tax identification number ..., represented by B... – REAL ESTATE INVESTMENT FUND MANAGEMENT COMPANY, with tax identification number ... and registered office at Rua ... no. ..., ...-... Lisbon, ..., hereinafter referred to as the "Claimant", hereby requests, pursuant to Articles 2 and 10 of Decree-Law no. 10/2011, of 20 January (hereinafter "RJAT"), the constitution of an arbitral tribunal and submits a request for arbitral decision, in which the Tax and Customs Authority (hereinafter referred to as the "Respondent" or "TA") is the respondent party, and which concerns the express dismissal decision of the Gracious Complaint filed with a view to annulling the Stamp Duty assessment acts better identified below, in the total amount of €206,486.75.

2. The request for constitution of an arbitral tribunal was submitted by the Claimant on 21-12-2018 and was accepted by the President of CAAD and notified to the Respondent on 26-12-2018.

3. The Claimant chose not to appoint an arbitrator, and, pursuant to Article 6, paragraph 1 and Article 11, paragraph 1 of the RJAT, the Ethics Council appointed the arbitrators of the Collective Arbitral Tribunal, who communicated acceptance of the appointment within the legally established period.

4. The parties were duly notified of the appointment on 8 February 2019 and did not express any intention to challenge it.

5. In accordance with Article 11, paragraph 1, subparagraph c) of the RJAT, the Collective Arbitral Tribunal was constituted on 28-02-2019.

6. On 04-03-2019, the Respondent was notified of the order issued by the arbitral tribunal, pursuant to Article 17, paragraph 1 of the RJAT, to submit a response, request the production of additional evidence and remit the administrative file.

7. On 05-04-2019, the Respondent filed its response, in which it argued for the dismissal of the request for arbitral decision, given the lack of proof that the stamp duty now contested concerns the amounts entered in the stamp duty payment slips delivered, corresponding to those from 2016 to 2018, and, consequently, the Respondent is absolved of all claims.

8. The Respondent filed the administrative process with the case on 05-04-2019.

9. As there was no occasion for the production of constitutive evidence, nor were any procedural objections raised, by order dated 06-04-2019, notified to the parties on 08-04-2019, the Tribunal dispensed with the holding of the meeting provided for in Article 18 of the RJAT, which it did pursuant to the principles of the Tribunal's autonomy in conducting the proceedings and in order to promote expedition, simplification and informality thereof (Articles 19, paragraph 2 and 29, paragraph 2 of the RJAT). The Tribunal ordered the parties to be notified to submit written submissions within a period of fifteen days from notification of the order, and the Respondent was granted the option to submit submissions with a successive character in relation to those produced by the taxpayer. In the same order, the date of 28-08-2019 was set as the deadline for pronouncing the arbitral decision.

10. Following the Response submitted by the Respondent and the arbitral order issued on 08-04-2019, the Claimant submitted on 16-04-2019 a request for the addition of additional evidence: i) Financing Contract and ii) Invoices-receipts.

11. The Collective Arbitral Tribunal notified the Respondent to state its position, if so wished, within a period of ten days, on the Claimant's request, by order dated 19-04-2019 notified to the parties on 22-04-2019.

12. The Respondent stated its position on 06-05-2019, arguing for the dismissal of the request, considering that the documents added to the case continue not to allow identification of which specific act/transaction the payment mentioned relates to, and, subsidiarily, if the evidence added is considered relevant and the request for arbitral decision is upheld, for the Claimant to be condemned to pay costs on the grounds that it was the party that gave rise to the action.

13. The Collective Arbitral Tribunal issued a new order on 12-05-2019, notified to the parties on 16-05-2019, pursuant to which, in the name of the principle of investigation and the search for material truth, it granted the Claimant's request for the addition of documents to the case, given that the latter made such request before the deadline for submissions was exhausted, on the one hand, and given that, on the other hand, there was no opposition from the Respondent when it exercised its right of reply.

14. Pursuant to the same order, the Collective Arbitral Tribunal determined that the deadline for submissions set by the order of 6-04-2019 would begin to run from notification of the present order, remaining unchanged in all other respects.

15. Neither the Claimant nor the Respondent submitted written submissions within the deadline given by the aforementioned order.

II. CASE MANAGEMENT

1. This Arbitral Tribunal considers itself properly constituted to appreciate the dispute (Article 5, paragraphs 1 and 2, Article 6, paragraph 1 and Article 11 of the RJAT).

2. The parties have standing and procedural capacity, are legitimate and are legally represented (Articles 3, 6 and 15 of the Code of Tax Procedure and Process, pursuant to Article 29, paragraph 1, subparagraph a) of the RJAT).

3. No preliminary questions that would bar the decision on the merits were raised.

III. MATTERS OF FACT

A. Facts deemed proven

1. With relevance to the decision of the case, the following facts are deemed proven.

a) The Fund represented by the Claimant is an open accumulation real estate investment fund, governed by the General Regime of Collective Investment Undertakings, approved by Law no. 16/2015, of 24 February.

b) The constitution of the Fund was authorized by a resolution of the Executive Board of the Securities Market on 12-07-2001, and the Fund commenced its activities on 19-07-2001.

c) The Fund is constituted "by a set of securities belonging to a plurality of individuals or legal entities and constitutes an autonomous asset that is not liable for the debts of the participants or of the managing entity".

d) In accordance with the Management Regulation in force, the economic and social purpose of the Fund "shall be pursued through the mobilization and application of the savings of savers, whether individuals or collective (...) thereby contributing to the diversification of the capital market, to the growth of real estate activity and to the economic development of the country"

e) In pursuit of its objectives and in the context of its activities, the Fund has resorted to financing from Bank C..., SA, a company with collective person number ... and registered office at Rua ... no. ..., ...-... Lisbon.

f) The Fund entered into the following loan agreements with Bank C..., SA:

i) Current account credit facility contract, entered into on 17-07-2015, and with an amendment dated 20-07-2016 – Contract no. ...;

ii) Current account credit facility contract, entered into on 28-03-2017 and with an amendment dated 28-11-2017 – Contract no. ... .

g) Bank C..., SA, the taxpayer liable for stamp duty, assessed and paid Stamp Duty due with reference to those contracts, pursuant to Item 17 of the General Table of Stamp Duty ("GTSD"), through the corresponding stamp duty payment slips, as shown in the declarations it issued and which were filed with the case as document no. 2.

h) As appears from the invoices-receipts, interest notice and account statements and transactions, issued by Bank C... to the Claimant, filed with the case as documents no. 4 and no. 5, the Bank debited Stamp Duty with respect to Contract no. ... in the following amounts:

i) As appears from the invoices-receipts and account statements and transactions issued by Bank C..., SA to the Claimant, filed with the case as documents no. 4 and no. 5, the Bank debited Stamp Duty with respect to Contract no. ... in the following amounts:

j) The Claimant filed a Gracious Complaint on 20-06-2018, with the Finance Department of Lisbon, to which was assigned the number ...2018..., concerning the Stamp Duty assessments it incurred, on the grounds that the financing operations underlying the tax acts sub judice benefited from the exemption enshrined in Article 7, paragraph 1, subparagraph e) of the Stamp Duty Code.

k) The Respondent did not expressly decide the complaint filed by the Claimant up to the date of filing of the present request for arbitral decision.

l) On 21-12-2018, the Claimant filed the present request for constitution of the arbitral tribunal with the CAAD.

B. Facts not proven

There are no facts with relevance to the decision that have not been deemed proven.

C. Reasoning regarding the proven and unproven matters of fact

With respect to the matters of fact, the Tribunal does not need to pronounce on everything alleged by the parties, but rather has the duty to select the facts that matter for the decision and to discriminate between the proven and unproven matters (see Article 123, paragraph 2 of the CPPT and Article 607, paragraph 3 of the CPC, applicable pursuant to Article 29, paragraph 1, subparagraphs a) and e) of the RJAT).

In this manner, the facts pertinent to the decision of the case are selected and tailored according to their legal relevance, which is established in light of the various plausible solutions to the question(s) of law (see Article 596, applicable pursuant to Article 29, paragraph 1, subparagraph e) of the RJAT).

Therefore, taking into account the positions taken by the parties and the documentary evidence filed with the case, the facts listed above, which were not contested by the parties, were deemed proven as having relevance to the decision.

IV. MATTERS OF LAW

Once the case was reviewed, it is clear that the case is somewhat simple in legal terms, as it reduces, in fact, to the assessment of the evidence regarding the payments made by the Claimant (FUND) in the total amount of €206,486.75. If it is concluded that these payments were made as Stamp Duty assessments, by reference to interest and credit utilization that find their basis in two loan contracts entered into with Bank C... (the BANK), no. ..., of 17 July 2015, amended on 20 July 2016, and no. ..., of 28 March 2017, amended on 28 November 2017, then everything will point to the application of the exemption regime, by applying the provision of Article 7, 1, e), CIS. If the answer is negative, then the FUND should not benefit from this exemption regime.

The answer to the matter of fact, namely that transcribed in points f) to i), is enlightening.

Let us examine this.

IV. i) The position of the parties

To demonstrate that it should benefit from the exemption provided for in Article 7, 1, e), CIS, the FUND came to argue that it is an open accumulation real estate investment fund, governed by the General Regime of Collective Investment Undertakings, approved by Law no. 16/2015, of 24 February. To carry out its activities, it entered into the aforementioned loan agreements with the BANK, as the lending entity.

The BANK, in its capacity as the taxpayer liable for Stamp Duty, by virtue of Article 2, paragraph 1, subparagraph b) of the Stamp Duty Code (CIS), assessed and paid the Stamp Duty due pursuant to Item 17 of the General Table of Stamp Duty (GTSD), which it did through the corresponding stamp duty payment slips. In turn, the BANK passed on the assessed Stamp Duty to the FUND, which bore, between June 2016 and November 2016 and between April 2017 and May 2018, the total amount of €206,486.75.

However, the FUND considers that it should benefit from the exemption regime by applying the provision of Article 7, 1, e), CIS, because (i) the financial operations in question are operations associated with "granting of credit" –, (ii) the lending entity is qualified as a "credit institution" under the law, and (iii) the Fund, in its capacity as the borrower, constitutes a "financial institution" as provided for "in community legislation". Furthermore, as if this were not sufficient ground for exemption, it also invokes Opinion no. 25/2013, of 28 June 2013, authored by the Centre for Fiscal and Customs Studies (CEF), which stated that funds (Venture Capital Funds) fall within the qualification of financial institution, considering that these are included in the list of entities described in Article 3, paragraph 2 of Directive no. 2005/60/EC. It further adds to its argumentative framework, to support its thesis, the conclusions of the binding information drawn up in the context of Proc. 2017... - VAT No. 11733, with concurring order from the Director General of the Tax and Customs Authority, dated 07 July 2017.

For these reasons, the FUND asks for the annulment of the Stamp Duty assessment acts better identified above, in the amount of €206,486.75.

In turn, the TA came to respond by stating that the FUND had not presented adequate proof to factually support what it alleged or, at least, that the documentary support provided was insufficient to allow the subsumption of the exemption norm to the case. On the one hand, because the loan contracts referenced by the FUND were not filed, the bank declaration was filed without any documentary support and the bank statements were not conclusive. On the other hand, that even if the stamp duty payment slips were filed, they would be insufficient because they mention a global amount, which prevents identification of the operations/taxpayers bearing the tax burden.

The TA, notwithstanding it critically reviewing the evidence presented and what results from it regarding whether the FUND should benefit from the Stamp Duty exemption, does not, however, call into question the legal framework that results from the Stamp Duty exemption regime for the present case and its respective interpretation, on the assumption that such proof were positively conclusive.

Indeed, it goes even further, having stated that:

Therefore, the defense presented by the TA regarding the FUND's claim concerns exclusively the proof that the Stamp Duty assessments fall within the aforementioned Article 7, 1, e), CIS.

IV. ii) The evidence

The TA specifically refers to the fact that "notwithstanding the reference in the explanatory statement to the loan contracts entered into between the Claimant and the banking institution, such documents are not filed by the Claimant", adding further that there was "only filed a declaration from the banking entity, but without any documentary support, whether the stamp duty payment slips mentioned therein, or any other document supporting the operations alleged therein" as well as "the bank statements filed with the explanatory statement do not allow identification of which act/operation the payment mentioned relates to".

It even goes so far as to state that "the stamp duty payment slips, even if they had been filed, would prove insufficient, as they only mention a global amount, not identifying operations/taxpayers bearing the tax burden".

As already stated, the FUND filed on 16.04.2019 additional evidence elements, which consisted of the financing contracts and invoices-receipts related to the payments in question, which were added to the documents already filed with the case, and the TA reiterated, notwithstanding this, its position regarding the insufficiency of the evidence.

As resulted from the evidence produced, it was confirmed that the FUND entered into the already better identified current account credit facility contracts with the BANK.

The payment slips are identified by the FUND through their numbers. Being documents delivered to the TA, the burden of proof of the facts contained therein "is deemed satisfied" pursuant to Article 74, paragraph 2, LGT, as the interested party correctly identified those documents, and it has not been mentioned that the numbers indicated are incorrect or that the corresponding payments were not made.

It results from the invoices-receipts and account statements and transactions that we are dealing with the payment of Stamp Duty with respect to the current account credit facility contracts already identified.

The existence of a current account credit facility contract between the FUND and the BANK leads to the presumption, in light of the rules of common experience and normality, that the assessed Stamp Duty relates to the use of current account credit, which is the situation provided for in Items 17.3.1 and 17.1.4.

In fact, the economic purpose of the contracts referred to is to allow the use of current account credit by the FUND and, therefore, given that the Stamp Duty assessment is based on the norm that provides for the taxation of the use of credit in that manner, it is to be presumed that it was that use that was taxed, when it is not apparent, nor is it even alleged, that the assessments relate to any other type of fact.

One could, moreover, argue that this is indeed the case from the outset because this was the understanding of the TA when it received the amounts assessed, without making any correction or requesting any clarifications from the BANK or the FUND.

In any case, the TA does not even suggest that the taxes do not relate to the use of current account credit. If there were hypothetical doubts, they would be founded on what was referred to, and therefore they would have to be assessed in favor of the taxpayer, pursuant to Article 100, paragraph 1, CPPT, pursuant to Article 29, paragraph 1, subparagraph c), RJAT, which leads procedurally to deeming the FUND's allegation proven.

Given this, the critical assessment of the contracts referred to, the stamp duty payment slips, the invoices-receipts as well as the account statements and transactions allowed it to be demonstrated, before the case, beyond a reasonable doubt, that the total amount paid as Stamp Duty assessment, by reference to interest and use of credit that find their basis in two loan contracts entered into with the BANK, already identified, amount to a total of €174,542.43 — see the aforementioned subparagraphs f) to i) of the matters deemed proven. However, the FUND failed to demonstrate the reason for which it paid the remainder in relation to the amount claimed, that is, €31,944.32.

In fact, in accordance with the matters deemed proven, and as regards the loan contract no. ..., of 17 July 2015, amended on 20 July 2016, the FUND failed to demonstrate the reason for which it paid the amount of €37.65, from the period of November 2016, (Item 17.3.1.), and, as regards the loan contract no. ..., of 28 March 2017, amended on 28 November 2017, the FUND failed to demonstrate the reason for which it paid the amounts of €17,160.00, from the period of August 2017 (Item 17.1.4.) and €14,746.67, from the period of January 2018 (Item 17.1.4.)

IV. iii) The exemption regime provided for in Article 7, CIS

Article 1 of the CIS provides that Stamp Duty applies to "all acts, contracts, documents, titles, papers and other facts provided for in the General Table, including gratuitous transfers of assets".

In turn, the GTSD — Item 17, provides that the aforementioned application covers "Financial Operations", namely those concerning "the use of credit, in the form of funds, goods and other assets, by virtue of the granting of credit in any capacity" (17.1), as well as "Operations carried out by or with the intermediation of credit institutions, financial companies or other entities legally equated to them and any other financial institutions" (17.3).

Item 17.3 includes: "17.3.1 - Interest on, in particular, the discounting of bills and treasury bills, on loans, on credit accounts and on credit without disbursement; 17.3.2 - Premiums and interest on accepted bills, on bills to be received on account of others, on drafts drawn on domestic venues or on any transfers; 17.3.3 - Commissions for guarantees provided; 17.3.4 - Other commissions and consideration for financial services, including fees relating to payment operations based on cards".

However, Article 7, paragraph 1, subparagraph e), CIS, provides that the following are exempt from the tax: "Interest and commissions charged, guarantees provided and, likewise, the use of credit granted by credit institutions, financial companies and financial institutions to venture capital companies, as well as to companies or entities whose form and object fulfill the types of credit institutions, financial companies and financial institutions provided for in community legislation, either domiciled in Member States of the European Union or in any State, with the exception of those domiciled in territories with privileged tax regimes, to be defined by order of the Minister of Finance".

And paragraph 7 of the aforementioned norm provides that "the provision of subparagraph e) of paragraph 1 applies only to guarantees and financial operations directly intended for the granting of credit, within the scope of the activity carried out by the institutions and entities referred to in that subparagraph."

According to António Santos Rocha and Eduardo José Martins Brás, Taxation of assets, IMI-IMT and Stamp Duty (Annotated and commented), 2nd Edition, Almedina, 2018, p. 679, "the present norm aims to exempt financial operations stricto sensu promoted within the framework of banking and financial intermediation activities by credit institutions and financial companies.

As already written through the learned Decision of this Tribunal, no. 348/2016, "the exemption provided for in subparagraph e) of Article 7 of the CIS assumes a mixed nature, partly objective and partly subjective. It is objective in that it covers all operations provided for therein "the interest and commissions charged, the guarantees provided and, likewise, the use of credit granted by a credit institution". It is, on the other hand, subjective in that the exemption of such operations is restricted to those carried out between certain entities: credit institutions, financial companies and financial institutions to venture capital companies, as well as to companies or entities whose form and object fulfill the types of credit institutions, financial companies and financial institutions."

As to its objective scope, we have no doubts that the operations discussed in the case fall within it.

Similarly, we have no doubts in considering that a real estate investment fund is also, subjectively, covered by the hypothesis of the norm now being analyzed. The TA itself considers this, notably following the conclusions of the binding information drawn up in the context of Proc. 2017... - VAT No. 11733, with concurring order from the Director General of the Tax and Customs Authority, dated 07 July 2017.

See, among all, the most recent decision of the CAAD, no. 670/2017-T, which goes precisely in this direction, and which, in this argumentative part, is hereby deemed fully reproduced.

In light of the foregoing, and without further development, as they seem to us absolutely unnecessary, the TA is not right in not considering the Stamp Duty exemption to which the FUND is entitled to benefit, in the total amount of €174,542.43.

Having reached this point, we are left only to conclude by granting the request for declaration of illegality of the following Stamp Duty assessments, due to error regarding the material facts, and consequent annulment thereof: as regards Contract no. ..., the payment slips nos. ..., in the amount of €1,300.58, ..., in the amount of €998.27, ..., in the amount of €926.50, ..., in the amount of €545.66, ..., in the amount of €280.73, and ..., this latter only in the amount of €89.01, which totals €4,140.75; as regards Contract no. ..., the payment slips nos. ..., in the amount of €5,866.67, ..., in the amount of €20,533.34, ..., in the amount of €15,880.00, ..., in the amount of €27,089.00, ..., but only in the amount of €4,030.00, ..., in the amount of €18,978.33, ..., in the amount of €20,276.76, ..., in the amount of €19,190.01, ..., in the amount of €16,610.00, ..., but only in the amount of €3,706.66, ..., in the amount of €15,253.34, and ..., in the amount of €2,986.67, which totals €170,401.68. In all other respects, the request for illegality and consequent annulment is dismissed, due to manifest lack of proof.

IV. iv) Compensatory interest

The FUND requests that it be paid, pursuant to Articles 43 and 100, both of the LGT, the respective compensatory interest for unduly paid tax liability.

In accordance with Article 24, paragraph 1, subparagraph b), RJAT, "[t]he arbitral decision on the merits of the claim for which no appeal or challenge is available binds the tax administration from the expiration of the period provided for appeal or challenge, and the latter must, in the exact terms of the granting of the arbitral decision in favor of the taxpayer and until the expiration of the period provided for the voluntary execution of sentences of tax judicial tribunals, alternatively or cumulatively, as the case may be (...) b) Restore the situation that would exist if the tax act that is the subject of the arbitral decision had not been performed, by adopting the necessary acts and operations for that purpose.

In the same direction, the provision of Article 100, LGT, goes when it provides that "[t]he tax administration is obliged, in case of total or partial acceptance of gracious complaints or administrative appeals, or of judicial proceedings in favor of the taxpayer, to the immediate and full restoration of the situation that would exist if the illegality had not been committed, including the payment of compensatory interest, in the terms and conditions provided for by law".

As argued by Nuno de Villa-Lobos and Tânia Carvalho Pereira (Coord.), Guide to Tax Arbitration, Revised and Updated, Almedina, 2017, p. 231, "In tax arbitration proceedings there is occasion for the payment of compensatory interest, in case of acceptance of the taxpayer's claim, pursuant to Articles 43, paragraphs 1 and 2, and 100 of the LGT, when it is determined that there was error attributable to the services resulting in payment of the tax debt in an amount higher than that legally due, it also being considered that there is error attributable to the services in cases where, despite the assessment being effected on the basis of the taxpayer's declaration, the latter complied, in its completion, with generic guidance from the Tax Administration, duly published."

Indeed, both doctrine and case law have held that the competence of arbitral tribunals, with the fixing of the effects of their decisions, covers the same terms provided for judicial challenge, namely, regarding the condemnation to compensatory interest.

In the same sense follows decision 348/2016-T of the CAAD, which we transcribe: "although Article 2, paragraph 1, subparagraphs a) and b), of the RJAT uses the expression "declaration of illegality" to define the competence of tax arbitral tribunals, making no express reference to constitutive (annulling) decisions and condemning decisions, it should be understood, in harmony with the legislative authorization transcribed above and, likewise, with the effects assigned to arbitral decisions provided for in Article 24 of the RJAT, that the competence of tax arbitral tribunals includes the powers that, in judicial challenge proceedings, are attributed to tax judicial tribunals in relation to acts whose appreciation of (i)legality falls within their competence."

It further states that "In this manner, if, despite judicial challenge proceedings being essentially proceedings for mere annulment – as provided for in Articles 99 and 124 of the CPPT – condemnation of the tax administration to the payment of compensatory interest and compensation for undue guarantee can be delivered therein, the same conclusion should result within the scope of tax arbitration proceedings.

As regards compensatory interest, Article 43, paragraph 1 of the LGT provides that "compensatory interest is due when it is determined, in a gracious complaint or judicial challenge, that there was error attributable to the services resulting in payment of the tax debt in an amount higher than that legally due".

Therefore, this provision only recognizes the right to compensatory interest when it is determined in a gracious complaint or judicial challenge proceeding that there was error attributable to the services.

In accordance with the matters deemed proven, the FUND filed a Gracious Complaint on 20-06-2018, with the Finance Department of Lisbon, to which was assigned the number ...2018..., concerning the Stamp Duty assessments it incurred, on the grounds that the financing operations underlying the tax acts sub judice benefited from the exemption enshrined in Article 7, paragraph 1, subparagraph e) of the CIS.

As can be read in Arbitral Decision 748/2016-T: "(…) as regards the self-assessment act, there was no error attributable to the services, and therefore there is no right to compensatory interest arising from its performance.

However, the same does not hold true with the decision of the gracious complaint, as the Claimant's claim concerning the illegality of the self-assessment should have been upheld and the non-acceptance of the claims is attributable to the Tax and Customs Authority.

This case of the Tax and Customs Authority maintaining a situation of illegality, when it should have restored it, should be framed, by mere declarative interpretation, in paragraph 1 of Article 43 of the LGT, as it is a situation in which there is an adequate causal connection between an error attributable to the services and the maintenance of an unduly paid liability and the omission to restore legality when the action that would restore it should be taken must be equated to the action ( )".

Accordingly, it should be understood that, from the moment the period for decision of the gracious complaint was completed, compensatory interest began to accrue.

Compensatory interest shall be calculated at the legal rate and paid pursuant to Articles 43, paragraph 1, and 35, paragraph 10 of the LGT, Article 24, paragraph 1, of the RJAT, Articles 61, paragraphs 3 and 4, of the CPPT, Article 559 of the Civil Code and Order no. 291/2003, of 8 April (or any other order(s) amending the legal rate).

Accordingly, the FUND is entitled to compensatory interest, but only from the date on which the period for decision of the gracious complaint filed was completed, as only from that moment onwards can it be concluded that there was error attributable to the TA.

V. DECISION

Whereupon this Arbitral Tribunal decides:

a) To judge as well-founded, by violation of Article 7, paragraph 1, subparagraph e) of the Stamp Duty Code, the request for declaration of illegality of the assessment acts that fell upon interest and credit utilization, to which the following Stamp Duty payment slips refer:

Contract ...:

Jun/16 – slip ... - €216.58 + €1,084.00;

Jul/16 – slip no. ... - €178.27 + €820.00;

Aug/16 – slip no. … - €73.17 + €853.33;

Sep/16 – slip no. … - €145.66 + €400.00;

Oct/16 – slip no. ... - €74.06 + €206.67;

Nov/16 – slip no. ... – only in the amount of €12.34 + €76.67;

Contract no. ...:

Apr/17 – slip no. ... - €0 + €5,866.67;

May/17 – slip no. ... - €2,933.34 + €17,600.00;

Jun/17 – slip no. ... - €0 + €15,880.00;

Jul/17 – slip no. ... - €12,009.99 + €15,080.00;

Aug/17 – slip no. ... - €4,030.00;

Sep/17 – slip no. ... - €4,005.00 + €14,973.33;

Oct/17 – slip no. ... - €3,850.00 + €16,426.67;

Nov/17 – slip no. ... - €3,943.34 + €15,246.67;

Dec/17 – slip no. ... - €2,143.33 + €14,466.67;

Jan/18 – slip no. ... - €3,706.66;

Feb/18 – slip no. ... – €3,306.67 + €11,946.67;

Mar/18 – slip no. ... – €2,986.67 + €0.

b) To judge as not well-founded and to absolve the Tax and Customs Authority of the request concerning the portions of the assessments in the following amounts, which fell upon interest and credit utilization, to which the following Stamp Duty payment slips refer:

Nov/16 – slip no. ... – in the portion corresponding to interest, in the amount of €37.65;

Aug/17 – slip no. ... – in the portion corresponding to credit utilization, in the amount of €17,160.00;

Jan/18 – slip no. ... - in the portion corresponding to credit utilization, in the amount of €14,746.67.

c) To annul the assessments and portions of assessments referred to in subparagraph a) as well as the implied dismissal of the gracious complaint in the exact terms now declared as illegal.

d) To condemn the Tax and Customs Authority to reimburse the Claimant the amount of €174,542.43;

e) To condemn the Respondent to the payment of compensatory interest from the date on which the period for decision of the gracious complaint filed was completed, pursuant to Article 43, paragraph 3, subparagraph c) of the LGT.

VI. VALUE OF THE CASE

In accordance with Article 306, paragraph 2 of the CPC and Article 97-A, paragraph 1, subparagraph a) of the CPPT, applicable by virtue of Article 29, paragraph 1, subparagraphs a) and b) of the RJAT and paragraph 2 of Article 3 of the Regulation of Costs in Tax Arbitration Proceedings (RCPTA), the value of the case is set at €206,486.75 (two hundred and six thousand four hundred and eighty-six euros and seventy-five cents).

VII. COSTS

Pursuant to Article 12, paragraph 2 and Article 22, paragraph 4, both of the RJAT, and Article 4, paragraph 4, of the aforementioned Regulation, the amount of costs is set at €4,284.00, pursuant to Table I of the RCPTA, apportioned in proportion to the parties' default, respectively at 15% for the Claimant and 85% for the Respondent.

Let notification be made.

Lisbon, 18 July 2019

The Arbitrators,

Maria Fernanda dos Santos Maçãs (Chairperson)

Ricardo Marques Candeias

Vera Figueiredo

Text prepared by computer, pursuant to Article 131, paragraph 5 of the Code of Civil Procedure, applicable by referral from Article 29, paragraph 1, subparagraph e) of the RJAT, drafted according to the spelling of the Portuguese Language Orthographic Agreement, approved by Resolution of the Assembly of the Republic no. 26/91 and ratified by Presidential Decree no. 43/91, both of 23 August.