Stamp Tax Exemption for Real Estate Investment Funds: CAAD Case 665/2018-T on Financial Operations

ARBITRAL DECISION

Report

1. The collective entity A... - Real Estate Investment Fund Management Company with the collective entity identification number ... (hereinafter referred to as "Claimant"), with registered office at ... Street no. ..., ...-... Lisbon, in its capacity as manager and representative of B... – Closed Real Estate Investment Fund (hereinafter referred to as "Fund"), submitted, pursuant to and for the purposes of the provisions of paragraph a) of section 1 of article 2 and article 10, both of Decree-Law no. 10/2011, of 20 January, i.e., the Legal Regime for Arbitration in Tax Matters ("RJAT"), the request for constitution of an Arbitral Tribunal, with a view to declaring the illegality of the act of tacit rejection of an ex officio review request submitted regarding the Stamp Duty assessments levied on the credit and interest charged to the Fund between October 2015 and May 2016, in the total amount of € 21,819.65, with the Tax Authority and Customs Authority ("Respondent" or "AT") being the defendant.

Constitution of the Arbitral Tribunal

1. Pursuant to the provisions of section 1 of article 6 and paragraph b) of section 1 of article 11 of the RJAT, the Ethics Council of the Centre for Administrative Arbitration ("CAAD") appointed the undersigned as arbitrator of the sole arbitrator tribunal, who communicated acceptance of the assignment within the applicable period, and notified the parties of that appointment on 8 February 2019.

2. Thus, in accordance with the provisions of paragraph c) of section 1 of article 11 of the RJAT, and through communication from the President of the Ethics Council of CAAD, the Sole Arbitral Tribunal was constituted on 28 February 2019.

Procedural History

1. In the request for arbitral pronouncement, the Claimant came to challenge the act of tacit rejection of the ex officio review request submitted against the tax acts assessing Stamp Duty levied on the credit and interest charged to the Fund between October 2015 and May 2016, namely, through the Stamp Duty payment slips no. ..., no. ..., no. ..., no. ..., no. ..., no. ..., no. ..., no. ..., together with the annulment of these assessment acts.

2. The Claimant further requests reimbursement of the amount of € 21,819.65 and compensatory interest.

3. The AT submitted a Response, requesting, in turn, dismissal of the request for arbitral pronouncement, as there is no evidence of any defect of violation of law, requesting that the tax act under analysis, as it does not violate any legal or constitutional provision, be maintained in the legal order.

4. On 15 April 2019, the Claimant came, by means of a motion, to submit additional documentary evidence, admitted by order.

5. The AT made a pronouncement on this motion.

6. By order of 1 July 2019, the Sole Arbitral Tribunal, pursuant to the provisions of paragraph c) of article 16 of the RJAT, decided, without opposition from the parties, that it was not necessary to hold the meeting referred to in article 18 of the RJAT, as a result of the simplicity of the issues in question, as well as considering that it had at its disposal all the necessary elements to make a clear and impartial decision.

7. This Arbitral Tribunal decided to invite the parties, if they wished, to submit final arguments, within a period of 10 days, and in accordance with section 2 of article 18 of the RJAT, set as the deadline for the arbitral decision 15 July 2019.

8. Following the order of 1 July 2019, the Claimant came to inform the case file that it did not intend to make oral or written arguments, reiterating the arguments already presented in the proceedings.

9. The Respondent, in turn, came to the case file to state that it fully reproduced what was already alleged in the Response.

10. The Arbitral Tribunal was regularly constituted and is competent to appreciate the issues indicated (article 2, section 1, paragraph a) of the RJAT), the parties have legal personality and capacity and have full legitimacy (articles 4 and 10, section 2 of the RJAT and article 1 of Ordinance no. 112-A/2011, of 22 March). No nullities have occurred and no exceptions have been raised, so there is nothing preventing judgment on the merits.

11. The legitimacy of the Fund is defended by the Claimant in articles 80 to 95 of the request for arbitral pronouncement and it is a matter of official knowledge. As the issue of legitimacy is related to the claimed incidence of the tax, it will be appreciated after the determination of the factual matter.

12. The present proceeding is thus in conditions for the final decision to be rendered therein.

Question to be Decided

1. The central question to be appreciated and decided, concerning the merits of the case, as it emerges from the procedural documents presented by the parties, relates to whether the above-mentioned Stamp Duty assessments suffer from the defect of illegality that the Claimant attributes to them, that is, whether the operations/entity in question are or are not covered by the exemption provided for in paragraph e) of section 1 of article 7 of the Stamp Duty Code.

Decision on the Factual Matter and its Reasoning

A) Documentary Evidence

1. Having examined the documentary evidence produced by the parties, this tribunal considers the following facts as proven, with relevance to the decision of the case:

• The Fund here represented by the Claimant, pursuant to its Management Regulations (document no. 3 attached with the request for arbitral pronouncement, the contents of which are fully reproduced), is an open accumulation real estate investment fund, with its activity now regulated by the General Regime of Collective Investment Undertakings, approved by Law no. 16/2015, of 24 February;

• The Fund has resorted to financing from Bank C..., S.A., having concluded with it the loan contract no. ... (document no. 1 attached with the proof motion of 15 April 2019, the contents of which are fully reproduced);

• Bank C..., S.A., in its capacity as the passive subject of the tax, upon collection of the value of the credit granted and interest, assessed and paid the Stamp Duty owed with reference to that contract, under Item 17.1.4 of the General Table of Stamp Duty, through the tax payment slips indicated in the request for review of the tax act and also in the request for arbitral pronouncement;

• Bank C..., S.A. passed on the Stamp Duty assessed in the sphere of the Fund (as the user of the credits in question), with the latter fully bearing it (bank statements, which form part of document no. 4 attached with the request for arbitral pronouncement, the contents of which are fully reproduced), as follows:

[Table with stamp duty details by month from October 2015 to May 2016]

• On 20-06-2018, the Claimant, in representation of the Fund, submitted a request for ex officio review of the aforementioned Stamp Duty assessment acts, in the terms set out in the administrative proceeding, the contents of which are reproduced;

• The ex officio review request submitted by the Claimant was tacitly rejected, and the Claimant came to submit a request for arbitral pronouncement precisely aimed at declaring the illegality of the said tacit rejection.

B) Facts Not Proven and Reasoning of the Factual Matter

1. The proven facts are based on the documents attached by the Claimant and those contained in the administrative proceeding.

2. The Respondent alleges that, regarding the assessments contested by the Claimant, it does not appear that the Stamp Duty was passed on in the sphere of the Fund.

3. At the outset, the Tribunal disagrees with the AT's arguments on this point, as in the bank statements attached as document no. 4 of the request for review of the tax act, it is possible to see the movement of the amounts referring to the Stamp Duty assessments.

4. Therefore, there is no relevant factuality for the decision of the case given as not proven.

On the Law

Legal Framework

1. Pursuant to article 1 of the Stamp Duty Code, Stamp Duty is levied on the acts, contracts, documents, titles, papers and other facts provided for in the General Table.

2. Item 17 of the General Table of Stamp Duty provides for the levy of the tax on "financial operations", which include "operations carried out by or with the intermediation of credit institutions, financial companies or other entities legally equivalent to them and any other financial institutions" (item 17.3).

3. Paragraph e) of section 1 of article 7 of the Stamp Duty Code establishes, in the wording of Law no. 107-B/2003, of 31 December, the following:

"1 – Also exempt from the tax are:

(...)

e) The interest and commissions charged, the 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 law, all of them 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;"

1. Item 17.1.4 of the TGIS refers to "credit used in the form of current account, bank overdraft or any other form in which the period of use is not determined or determinable, on the monthly average obtained through the sum of the outstanding balances ascertained daily, during the month, divided by 30", establishing the rate of 0.04%.

2. Keeping this legislative framework in mind, we shall now turn to the question of whether the Fund enjoys, or does not enjoy, standing to sue in the present case.

Legitimacy of the Fund

1. The Claimant asserts the active standing of the Fund in articles 80 to 95 of the request for arbitral pronouncement.

2. Active standing is a matter of official knowledge, as results from the provisions of section 2 and paragraph e) of section 4 of article 89 of the Code of Procedure in the Administrative Courts, applicable to tax arbitral proceedings by virtue of the provisions of paragraph c) of section 1 of article 29 of the RJAT.

3. In accordance with the provisions of article 2 of the Stamp Duty Code, the user of credit is not a passive subject of that tax, although it is the bearer of the economic interest, as results from paragraph e) of section 3 of article 3 of the same Code.

4. The Claimant argues that the Fund has standing to challenge the assessments by virtue of having the quality of "third party passed on" (article 84 of the request for arbitral pronouncement), since it is the "entity that bears the tax burden through legal pass-on".

5. Along these lines, the Claimant argues that the Fund has standing on the premise that "the passive subject - lending credit institution - (self-)assessed and paid the contested Stamp Duty, but passed it on to the entity with 'economic interest in the tax reality', i.e., to the Fund here represented by the Claimant" (article 89 of the request for arbitral pronouncement).

6. As results from the provisions of paragraph a) of section 4 of article 18 of the General Tax Law ("LGT"), in the wording of Law no. 55-A/2010, of 31 December, whoever bears the burden through legal pass-on is not a passive subject, but has standing, in the quality of one upon whom the tax is passed on, to submit a request for arbitral pronouncement.

7. Being so, the standing of the Fund only exists insofar as it demonstrates that the tax was passed on.

8. As mentioned in the reasoning of the decision on the factual matter, the pass-on to the Fund of the amounts of Stamp Duty assessed regarding interest was proven in the following periods:

• Tax period: October 2015; Stamp Duty amount: € 766.33 (interest) and € 3,780.00 (credit use).

• Tax period: November 2015; Stamp Duty amount: € 680.76 (interest) and € 3,253.33 (credit use).

• Tax period: December 2015; Stamp Duty amount: € 620.73 (interest) and € 3,306.67 (credit use).

• Tax period: January 2016; Stamp Duty amount: € 505.78 (interest) and € 2,320.00 (credit use).

• Tax period: February 2016; Stamp Duty amount: € 437.09 (interest) and € 2,146.67 (credit use).

• Tax period: March 2016; Stamp Duty amount: € 379.38 (interest);

• Tax period: April 2016; Stamp Duty amount: € 336.29 (interest) and € 1,566.00 (credit use).

• Tax period: May 2016; Stamp Duty amount: € 281.29 (interest) and € 1,439.33 (credit use).

1. Thus, as regards these assessments, the pass-on to the Fund of the tax in question was proven, so no illegitimacy of the Fund is demonstrated.

Arguments of the Parties

1. The Claimant alleges, in summary, that the credit to which the Stamp Duty payment slips refer was granted to the Fund by a credit institution/financial institution and that the Fund is also a financial institution, so the exemption of paragraph e) of section 1 of article 7 of the Stamp Duty Code cannot fail to be applicable.

2. Indeed, the Claimant begins its exposition with the following arguments, derived essentially from the concept of "financial institutions" provided for in Community law:

• The financing operations underlying the tax acts sub judice benefit from the exemption norm enshrined in paragraph e) of section 1 of article 7 of the Stamp Duty Code.

• Said exemption includes, in particular, the interest charged, the commissions charged, the use of credit and the guarantees provided.

• In applying that exemption, the legal nature of the subject upon whom the tax burden falls, that is, of the third party passed on, should not be disregarded.

• In this way, in order to conclude on the classification that "real estate investment funds" assume in Community law, that is, whether they should be configured as "financial institutions", the Claimant resorts to various Community law that provides on the subject.

• In this sense, Directive (EU) 2015/849 of the European Parliament and of the Council ("Directive 2015/849"), of 20 May 2015, relating to the prevention of the use of the financial system for the purposes of money laundering or financing of terrorism, densifies the concept of "financial institution" by providing, in section 2 of its article 3, the different realities that integrate the same, designating, in paragraph d) of this provision, as a financial institution "a collective investment undertaking that markets its shares or units of participation."

• The Claimant argues that the wording of this norm gives the concept a broad scope, not providing for any limitation as to the legal form that those collective investment undertakings may take, or even as to the nature of the shares or units of participation that make up their respective portfolios.

• Therefore, pursuant to the aforementioned Directive, real estate investment funds should be qualified as "financial institutions".

• Additionally, the Claimant also invokes Directive 2011/61/EU of the European Parliament and of the Council, of 8 June 2011, relating to managers of alternative investment funds, which defines alternative investment fund ("AIF") as being "a collective investment undertaking (...) that, on the one hand, pools capital from a number of investors, with a view to investing it in accordance with a defined investment policy for the benefit of those investors" and that, on the other hand, "does not require authorization under article 5 of Directive 2009/65/EC", as per the wording of paragraph a) of section 1 of article 4 of that Community instrument.

• In view of the provisions of the Community norms invoked, the Claimant concludes that the Fund it represents should be considered as falling within the concept of "alternative investment fund."

• Indeed, with regard to the fulfillment of the requirement that the undertaking in question "pools capital from a number of investors, with a view to investing it in accordance with a defined investment policy for the benefit of those investors", the Claimant states that "the Fund is constituted by capital from its participants, with its objective being to maximize the value of its net assets through the making of investments, predominantly real estate, for the benefit of those (...)"

• With regard to the requirement that the collective investment undertaking "does not require authorization under article 5 of Directive 2009/65/EC", the Claimant states that the same was not requested in the case in question, nor is it even applicable to the Fund it represents.

• The Claimant further adds that the content of the Proposal for a Directive implementing an enhanced cooperation in the field of financial transaction tax qualifies, in its article 2, section 8, paragraph g), AIFs and managers of alternative investment funds ("AIFM"), within the meaning of article 4 of Directive 2011/61/EU, as being financial institutions.

• Now, the combination of the provisions of the Community laws invoked leads the Claimant to conclude that the Fund it represents, under analysis in the present case, constitutes a subspecies of alternative investment funds and, as such, should be considered as a "financial institution".

• In view of the above, the Claimant understands that, if the Fund is a "financial institution" within the meaning of the Community law mobilized, and if the other applicable requirements are met in the case sub judice, it should benefit from the Stamp Duty exemption provided for in paragraph e) of section 1 of article 7 of the Code of that tax.

• In this sense, the Claimant considers that "the financial operations in question fall within the objective provision of the norm", by reason of being, essentially, credit granting operations, an argument that it reinforces by saying that the lending entity is qualified as a "credit institution" under law, and that the Fund, as the borrower, constitutes a "financial institution" within the terms provided in Community law.

• Thus, there are no doubts for the Claimant that the acts assessing Stamp Duty in question in the present case, initiated by the Respondent, are illegal and, as such, the same should be partially annulled, claiming the complete reimbursement of the Fund for the total amount of Stamp Duty borne in this case.

• Additionally, the Claimant refers that the classification of real estate investment funds in the concept of "financial institutions", as well as the applicability of the exemption enshrined in paragraph e) of section 1 of article 7 of the Stamp Duty Code have already been the subject of appreciation and decision by the AT, through the Centre for Tax and Customs Studies ("CEF"), with this body pronouncing, through opinion no. 25/2013, of 28 June, to the effect that venture capital funds should be considered as financial institutions, by being included in the list of entities described in section 2 of article 3 of Directive no. 2005/60/EC.

• The Claimant further adds that the AT also pronounced on this matter in the context of responses to binding information requests submitted by companies which, like the Fund represented by the Claimant in the present case, have the nature of real estate investment funds.

• In this sense, the Claimant attached to the case file the Binding Information issued by the AT in the context of Process no. 2017... – BIE no. ..., in the context of which it understood that, since a venture capital fund should be qualified as AIF, and, as such, a "Financial Institution", a real estate investment fund should also be qualified as such.

1. By reason of all the arguments set out, the Claimant concludes that, under the understanding of the AT itself, the tax acts that are the subject of the present case "should not have generated the assessment of any tax, under the exemption provided for in paragraph e) of section 1 of article 7 of the Stamp Duty Code", and therefore the tax acts in question should be annulled and the amount assessed should be returned to the Fund, in full, within the scope of the same, in the quality of a third party passed on.

2. In a divergent sense, the arguments developed by the Respondent, in submitting a Response, were based essentially on the alleged lack of evidence presented by the Claimant to argue its position, understanding that:

• Notwithstanding the reference in the request for arbitral pronouncement to a loan contract concluded between the Claimant and the banking entity, such document was not attached by the Claimant, and that the statement of the banking entity was attached without any documentary support, such as the Stamp Duty payment slips mentioned therein or any other document that would support the operations alleged therein.

• With regard to the payment slips, even if these had been attached, they would be insufficient because they only mention an overall value, not identifying the operations or the holders of the tax burden.

• As for the bank statements attached with the request for arbitral pronouncement, these do not permit the identification of the act or operation to which the payment mentioned therein relates, and no additional statements were presented to the AT that would permit concluding with certainty that the tax assessments contested by the Claimant relate to the values recorded on the Stamp Duty slips submitted, by reference to the periods in question.

• Nevertheless, the Claimant is correct in stating "that the AT has understood that real estate investment funds are qualified as a financial institution, under Community law, and as such will be exempt from Stamp Duty", in accordance with paragraph e) of section 1 of article 7 of the Stamp Duty Code, "with respect to commissions charged when directly intended for credit granting within the scope of the activity exercised by the credit institutions mentioned therein".

• However, the Respondent alleges that it has not been proven that we are facing Stamp Duty assessed under the said exemption provision and that, pursuant to article 74 of the Code of Tax Procedure and Process ("CPPT"), it was incumbent on the Claimant to prove the facts alleged by it.

• Along these lines, the Respondent cites the judgment of the Supreme Administrative Court of 27 June 2012, issued in the context of case no. 0982/11, where it is stated that "as far as the distribution of the burden of proof between the Tax Administration and the taxpayer is concerned", article 74, section 1 of the General Tax Law provides that "the burden of proof of the facts constitutive of the rights of the tax administration or taxpayers rests on whoever invokes them", and that "being a matter of self-assessment, it is the taxpayer who comes to disagree with their own statement, impugning its truthfulness and even its authenticity", so it is incumbent on the applicant to demonstrate the fact alleged by it.

1. In view of the above, the Respondent concludes that the request for arbitral pronouncement should be judged as unfounded.

Qualification of the Fund as a Financial Institution

1. There is no controversy over the qualification of the Fund as a financial institution, as the AT recognizes real estate investment funds as financial institutions, within the meaning of paragraph e) of section 1 of article 7 of the Stamp Duty Code.

2. In fact, the AT accepts the understanding of the Claimant, which it has already adopted in Binding Information, namely 2017... - BIE no. ..., with an order of concurrence of 07 July 2017, from the Director-General of the AT, invoked by the Claimant.

3. In the aforementioned Binding Information, the AT concludes that real estate investment funds are classified "as a financial institution, under Community law, and as such will be exempt from stamp duty under paragraph e) of section 1 of article 7 of the CIS with respect to commissions charged when directly intended for credit granting within the scope of the activity exercised by the institutions and entities mentioned therein."

4. In the same sense, the Binding Information issued by the AT in the context of process 2018... - BIE no. ..., with an order of concurrence of 01 November 2018, from the Director-General of the AT.

5. Within this, the AT establishes its understanding that real estate investment funds qualify, "in light of Community law, as financial institutions, so that the subjective condition of the exemption in the destination is met (paragraph e) of section 1 of article 7 of the Stamp Duty Code)."

6. Thus, for the reasons stated, it is to be understood that the Fund constitutes a financial institution, for the purpose of paragraph e) of section 1 of article 7 of the CIS.

Issue of Lack of Proof that the Assessments Refer to Stamp Duty Assessed under Item 17.1.4 of the General Table

1. As already mentioned, the essential obstacles posed by the AT, in its Response to the Claimant's claim, are related to the alleged lack of proof that the Stamp Duty assessments made by Bank C..., S.A, are covered by the said paragraph e) of section 1 of article 7 of the CIS.

2. In particular, the Respondent understands that it is not proven that the Stamp Duty assessments result from a loan contract concluded between the Claimant and the banking institution, that a statement from the banking entity was submitted without any documentary support (whether the Stamp Duty payment slips mentioned therein or other document supporting the operations alleged therein) and that the bank statements attached with the request for arbitral pronouncement do not permit identifying what act or operation the payment mentioned therein relates to, nor is it even possible to make such identification with the Stamp Duty payment slips, should the same have been attached to the case.

3. The AT adds, in article 28 of the Response, that "the Stamp Duty payment slips, even if they had been attached, would not be sufficient to prove that they relate to Stamp Duty for those operations/entity holder of the tax burden, since they only mention an overall value".

4. Following the Response, the Claimant presented new documents, on which the AT pronounced itself, reaffirming its position and saying that "there are no additional statements presented to the AT that would permit concluding with certainty that the tax now contested pertains to the values recorded on the Stamp Duty slips submitted, corresponding to the periods in question - 2015 and 2016".

5. As results from the evidence produced, it was confirmed that the Claimant concluded the current account credit opening contract that it invoked and whose copy was attached to the case.

6. With regard to the payment slips, they are identified by the Claimant through their numbers and, being documents submitted to the AT, the burden of proof of the facts stated therein "is considered satisfied" pursuant to article 74, section 2, of the General Tax Law, as the interested party proceeded to correctly identify those documents, with no evidence that the numbers indicated are wrong or that the payments were not made.

7. On the other hand, the bank statements attached with the request for arbitral pronouncement contain an indication of the debit to the Fund of the amounts it mentions, with an indication of "SD-ITEM 17.1.4 TGIS/S/COM", which indicates that this is Stamp Duty on the use of credit provided therein, which includes the use in the form of current account opening, which is provided for in the contract.

8. Given the existence of a current account credit opening contract between the Fund and the Bank, it is to be presumed, in light of the rules of common experience, that the Stamp Duty assessed, under the mention that the assessments are based on Item 17.1.4 of the TGIS, actually pertains to the use of credit through current account, which is the situation provided therein.

9. Indeed, the objective of the contract is precisely to permit the use of current account credit and, therefore, if Stamp Duty is assessed on the basis of the norm that provides for the taxation of the use of credit in that form, it is to be presumed that that use was taxed, where it is not apparent that the assessments relate to any fact of another type.

10. After all, the proof that the assessments pertain to the use of credit falling within item 17.1.4 was implicitly considered sufficient by the AT when it received the assessed amounts, without making any correction or requesting any clarifications from Bank C..., S.A. or from the Fund.

11. Thus, it is to be considered demonstrated that the amounts in question were debited to the Claimant, submitted to the AT through the slips identified in the case and that pertain to Stamp Duty assessments made in compliance with item 17.1.4 of the TGIS.

12. In any case, the AT does not even contest that the taxes do not pertain to the use of current account credit and, even if doubts were to subsist, they would have to be valued in favor of the taxpayer, by virtue of the provisions of section 1 of article 100 of the CPPT, applicable to tax arbitral proceedings by virtue of the provisions of paragraph c) of section 1 of article 29 of the RJAT – which leads to considering as proven what was alleged by the Claimant.

13. Based on the above, the assessments referred to are covered by the exemption provided for in paragraph e) of section 1 of article 7 of the CIS, so it must be considered illegal the act of tacit rejection of the ex officio review request submitted on 20 June 2018 regarding the Stamp Duty assessment acts sub judice.

14. Furthermore, it should be noted that in the same sense this Tribunal has leaned in the context of numerous decisions, namely, those issued in the context of case no. 123/2018-T, of 24 September 2018, and more recently, in case no. 670/2018-T, of 13 May 2019.

Reimbursement of Amounts Paid and Compensatory Interest

1. As a consequence of the annulment of the assessments, the Fund has the right to reimbursement of the amounts unduly paid, pursuant to article 100 of the General Tax Law.

2. The Claimant further requests compensatory interest.

3. Now, section 1 of article 43 of the General Tax Law only recognizes the right to compensatory interest when it is determined, in a process of gracious objection or judicial challenge, that there was error imputable to the services.

4. In this measure, it should be noted that the request for review of the tax act is equivalent to gracious objection when submitted within the period of the administrative objection referred to in section 1 of article 78 of the General Tax Law, as mentioned in the judgment of the Supreme Administrative Court of 12-7-2006, issued in case no. 402/06.

5. As is also mentioned in the same judgment, "in cases of ex officio review of the assessment (when not requested by the taxpayer, within the period of the administrative objection, a situation equivalent to that of gracious objection) (...) there is only a right to compensatory interest pursuant to article 43, section 3, of the General Tax Law".

6. This regime is justified by the lack of diligence of the taxpayer in submitting gracious objection or request for review within the two-year period provided for in article 131, section 1, of the CPPT.

7. In cases of review of the tax act, the taxpayer has no right to compensatory interest from the date of the undue payment, but only from the date that one year has passed after having submitted the request for review of the tax act, pursuant to the said paragraph c) of section 3 of article 43 of the General Tax Law.

8. As results from the factual matter fixed, the ex officio review request was submitted on 20 June 2018 and was not decided, having thus more than one year elapsed after the request was submitted.

9. Thus, the Claimant has the right to compensatory interest accrued from the date of 21 June 2019.

Decision

1. In these terms, this Arbitral Tribunal decides as follows:

• To judge the request for arbitral pronouncement as founded regarding the declaration of illegality of the act of tacit rejection of the ex officio review request submitted on 20 July 2018 against the Stamp Duty assessment acts sub judice, for the following amounts:

  • Stamp Duty Payment Slip no. ...: € 766.33 (interest) + € 3,780.00 (credit use).

  • Stamp Duty Payment Slip no. ...: € 680.76 (interest) + € 3,253.33 (credit use).

  • Stamp Duty Payment Slip no. ...: € 620.73 (interest) + € 3,306.67 (credit use).

  • Stamp Duty Payment Slip no. ...: € 505.78 (interest) + € 2,320.00 (credit use).

  • Stamp Duty Payment Slip no. ...: € 437.09 (interest) + € 2,146.67 (credit use).

  • Stamp Duty Payment Slip no. ...: € 379.38 (interest).

  • Stamp Duty Payment Slip no. ...: € 336.29 (interest) + € 1,566.00 (credit use).

  • Stamp Duty Payment Slip no. ...: € 281.29 (interest) + € 1,439.33 (credit use).

• To condemn the AT to reimburse the Claimant the amount of € 21,819.65, unduly paid to the State.

• To judge the request for arbitral pronouncement as founded regarding the request for compensatory interest, condemning the AT to its payment.

Value of the Case

1. In accordance with the provisions of section 2 of article 306 of the Code of Civil Procedure, paragraph a) of section 1 of article 97-A of the CPPT and section 2 of article 3 of the Costs Regulation in Tax Arbitration Proceedings, the value of the case is fixed at € 21,819.65.

Costs

1. Pursuant to section 4 of article 22 of the RJAT, the amount of costs is fixed at € 1,224.00, pursuant to Table I attached to the Costs Regulation in Tax Arbitration Proceedings, to be borne by the AT.

Notify accordingly.

Lisbon, CAAD, 12 July 2019

The Arbitrator

(Sérgio Santos Pereira)