AIMI Exemption for Tourist Apartments: Probative Force of Property Matrix (CAAD 666/2017-T)

ARBITRAL DECISION

I – Report

1. On 21.12.2017, the Claimant, A..., taxpayer identification number..., domiciled at Rua..., no...., office..., Lisbon, requested the CAAD to constitute an arbitral tribunal, pursuant to Article 10 of Decree-Law No. 10/2011, of 20 January (Legal Framework for Arbitration in Tax Matters, hereinafter referred to as RJAT), in which the Tax and Customs Authority is the Respondent, with a view to annulling the assessment of the additional municipal property tax (AIMI) in the amount of €36,957.32, relating to the year 2017.

The Claimant further petitions for restitution of the amount of the assessment which it alleges to have paid, together with compensatory interest accruing until the date of full and effective reimbursement of the tax.

1. The request to constitute the arbitral tribunal was accepted by His Excellency the President of the CAAD and notified to the Tax and Customs Authority.

Pursuant to Article 6, No. 1, of the RJAT, by decision of the President of the Ethics Council, duly communicated to the parties within the legally applicable periods, the undersigned was appointed as arbitrator, and notified the Ethics Council and the Administrative Arbitration Centre of acceptance of the appointment within the regularly applicable period.

The Arbitral Tribunal was constituted on 5.03.2018.

1. The grounds presented by the Claimant in support of its claim were, in summary, as follows:

• The assessment in question was issued on the sum of the taxable patrimonial values of the floors or independent units of urban properties located in..., parish of..., municipality of..., which correspond to lot..., which form part of the tourist enterprise "B..." registered in the respective matrix under the articles mentioned in the said assessment and of which the claimant is the full owner.

• All these floors and independent units have been allocated, since the opening in the late 1980s, to tourist accommodation services and classified as "tourist apartments", recognised by Tourism of Portugal, I.P., as 3-star tourist apartments.

• Since these are floors or units forming part of a tourist establishment dedicated to accommodation services, they are not subject to the additional municipal property tax, pursuant to Article 135-B, No. 2 of the Property Tax Code (IMI Code).

• On the sum of the taxable patrimonial values of the tourist apartments, the additional property tax provided for in Articles 135-A et seq. of the IMI Code, as amended by Article 219 of Law No. 42/2016 of 28 December, was assessed at the rate of 0.4%, as if they were residential dwellings.

• However, the matrix classification of the floors or units composing the establishment cannot prevail over its purpose and aptitude exclusively for tourism, and the incorrect classification constitutes a defect that can be invoked in the context of arbitral challenge of the resulting tax assessment.

• The fact that the act of registration in the matrix as floors or units intended for habitation appears to be immediately reviewable does not prevent it from being reviewed, having not been so, in the context of judicial or arbitral challenge of the resulting tax assessment.

• The incorrect matrix registration of the floors or units of "B..." as intended for habitation constitutes a defect capable of being invoked and examined in the present proceedings, under penalty of unconstitutionality of the norm on which a contrary understanding might be based, by violation of the principle of effective judicial protection and the principle of justice.

• Hotel establishments – such as the tourist enterprise of the claimant – which are intended to provide, for remuneration, accommodation services and other ancillary or supporting services, with or without provision of meals, and are not manifestly intended for permanent habitation of their owners or clients, are excluded from the scope of application of AIMI.

1. The ATA – Tax and Customs Administration, called upon to respond, contested the Claimant's claim, defending itself by way of objection, in summary, with the following grounds:

• In accordance with the express intent of the legislator, in Article 2, No. 1, of the RJAT, the matters on which the arbitral tribunal may rule are determined through the exhaustive enumeration of the jurisdiction of this court, and in this list of competencies there is no room for examination of acts of denial of an administrative-tax nature relating to correction of cadastral matrices.

• Article 129 of the IMI Code does not permit taxpayers to ignore material errors in the matrices during the procedural phase, allowing them to await the final assessment and there, in the contentious phase, invoke for the first time – as in the present case – the said material errors which, in its view, fundamentally undermine the contested assessment acts.

• It is clear that matrix corrections cannot be reviewed in arbitral jurisdiction, simply because, neither in the RJAT nor in the Binding Notice (Ordinance No. 112-A/2011) did the legislator include the examination of the legality of acts of that nature.

• Accordingly, in the present case, there is a dilatory exception resulting in material incompetence of the arbitral tribunal, which prejudices examination of the merits of the case, and the Respondent Entity should be absolved of the instance, having regard to Articles 576, No. 1 and 577, paragraph a) of the CPC, applicable by virtue of Article 29, No. 1, paragraph e) of the RJAT.

• Thus, if the law has not conferred on the Administrative Arbitration Centre competence to examine administrative-tax acts, as is the case with matrix rectifications, and if in the decision the constituted Arbitral Tribunal were to understand, notwithstanding this, that it has jurisdiction, there would clearly be a manifest violation of Article 212, No. 3 of the CRP, since it decides on matters that go beyond what the legislator, the law and the parties that adhered to arbitration, intended from the outset: to submit the examination of assessment acts to the Arbitration Centre, this as an alternative to the Administrative and Tax Courts, but to preserve another type of acts for the exclusive scrutiny of those same Administrative and Tax Courts.

• It should also be noted that, pursuant to Article 54 of the CPPT, all acts that are detrimental to the legal sphere of taxpayers are judicially challengeable, and all those that are intended to produce external legal effects in individual and concrete situations are challengeable.

• Having existed an opportunity to challenge available to the Claimant who could, if it had wished, lodge an administrative complaint regarding the matrix and, subsequently, in the event of denial, resort to the competent administrative action, it is no longer possible to discuss a matter that has been settled long ago, horizontally and definitively in the legal order, at least as regards assessment acts of past years.

• Accordingly, such acts should be attacked autonomously and cannot subsequently be attacked when the corresponding tax assessment is made.

• Should the arbitral decision accept the Claimant's thesis, by thus rejecting the application of Article 54, first part of the CPPT, it will violate the principles of effective judicial protection and justice, in particular in the normative dimension that the challenge of an immediately harmful act presents itself as a true burden and not as a mere faculty, which, if omitted, precludes the challenge of the corresponding assessment based on that precise defect.

• On 01-01-2017, the date of the taxable event for AIMI purposes, the allocation was, as declared from the beginning by the now Claimant, residential.

• The Respondent, in strict compliance with its attributions and duties, correctly subsumed the taxable facts to the fiscal norm in force since the Claimant was the owner of urban properties on the date of the taxable event and, therefore, subject to AIMI, since the properties were not excepted by Article 135-B, No. 2.

• Accordingly, in summary and concluding, as the contested assessment deserves no censure, the arbitral claim should be judged unfounded, with the further legal consequences.

1. By arbitral order of 30.05.2018, the dilatory exception of incompetence of the Arbitral Tribunal raised by the Respondent was judged unfounded.

Finding the absence of any situation provided for in Article 18, No. 1, of the RJAT, which would make necessary the arbitral meeting provided therein, the holding of the same was dispensed with, on the grounds of the prohibition of performing useless acts.

1. The tribunal is materially competent and is regularly constituted pursuant to the RJAT.

The parties have legal personality and capacity, are legitimately interested and are legally represented.

The proceedings do not suffer from defects that would invalidate it.

1. It is necessary to resolve the following issues:

2. Illegality of the contested assessment act.

3. The Claimant's right to restitution of the tax paid.

4. The Claimant's right to compensatory interest.

II – The Relevant Facts

1. The following facts are considered proven:

2. The assessment object of the present proceedings was issued on the sum of the taxable patrimonial values of the floors or independent units of urban properties located in..., parish of..., municipality of..., which correspond to Lot..., to the north of Rua..., ..., registered in the respective property matrix under the articles identified in the notification of the assessment object of the present proceedings, attached by the Claimant as document number 1, which is hereby reproduced. (Document number 1 attached by the Claimant).

3. These floors or independent units form part of the tourist enterprise "B..." (Documents numbers 2 and 3 attached by the Claimant).

4. The claimant is the registered full owner in the matrix of all these floors with independent use, as well as of the entire tourist enterprise in which they are integrated, which corresponds to Lot..., to the north of Rua..., ..., registered in the respective property matrix under the articles identified in the assessment notification (Documents numbers 1 and 2, attached by the Claimant).

5. All these floors and independent units on which the assessment was based are licensed by the Municipal Council of... for tourist use, as "tourist apartments" (Document No. 3, attached by the Claimant).

6. These are accommodation units recognised by Tourism of Portugal, I.P., as 3-star tourist apartments, which form part of a tourist enterprise that also includes a bar, gymnasium, spa and indoor and outdoor swimming pools (Doc. No. 4 attached by the Claimant).

7. The independent floors or units on which the assessment in the present proceedings was based have been, since registration in the matrix, noted as having residential allocation in accordance with the tax statements for matrix registration submitted by the Claimant (Document No. 2 attached by the Claimant and model 129 declarations contained in Administrative Process 2).

8. The tourist enterprise "B..." opened to the public in 1988 (Document No. 4 attached by the Claimant).

9. In the information provided by the Finance Service of... in the context of the administrative proceeding associated with the present proceedings it appears, in particular, the following:

"(...) by consultation of the property matrix it appears that the properties on which the AIMI assessment is based, although forming part of a tourist enterprise intended for tourist accommodation, are allocated to habitation".

(...)

"Considering that these are tourist accommodation units recognised by Tourism of Portugal, IP, the claimant should have requested an assessment of the floors or independent units composing the tourist enterprise, with allocation for 'services'." (Administrative Process 1)

1. The Claimant paid the amount of the assessment on 29.09.2017 (Document No. 1 attached by the Claimant).

With relevance to the decision of the case, there are no unproven facts.

1. The Tribunal's conviction regarding the decision on the facts was based on the documents contained in the process indicated above, attached by the Claimant and contained in the administrative proceeding attached by the Respondent, which were not contested by either party, and it should be noted that there is complete agreement between the parties as to the facts, with the disagreement limited to the law.

III – The Applicable Law

1. Article 135-B of the IMI Code, added by Law No. 42/2016 of 28 December, has the following wording:

"1 – The additional municipal property tax applies to the sum of the taxable patrimonial values of urban properties situated in Portuguese territory of which the taxpayer is the owner.

2 – Excluded from the additional municipal property tax are urban properties classified as 'commercial, industrial or for services' and 'others' in accordance with paragraphs b) and d) of No. 1 of Article 6 of this Code."

For its part, Nos. 1 and 2 of Article 6 of the same Code have the following wording:

"1 – Urban properties are divided into:

a) residential;

b) commercial, industrial or for services;

c) land for construction;

d) others.

2 – Residential, commercial, industrial or for services are buildings or constructions licensed for such purposes or, in the absence of a license, which have such purposes as their normal destination."

The properties on which the assessments object of the present proceedings were based are, as shown by the license of use issued by the Municipal Council of..., tourist apartments inserted in a tourist enterprise.

It is, therefore, beyond doubt that we are dealing with properties licensed for services.

The Respondent itself acknowledges this in stating, in the information provided by the Finance Service of... in the context of the administrative proceeding associated with the present proceedings, that "the properties on which the AIMI assessment is based, although forming part of a tourist enterprise intended for tourist accommodation, are allocated to habitation".

And it understands that "(...) the claimant should have requested an assessment of the floors or independent units composing the tourist enterprise, with allocation for 'services'."

In this vein, in response, the Respondent alleges that the Claimant should have requested correction of the matrix registration pursuant to Article 130 of the IMI Code and, in case of denial, challenged such decision judicially. And having not done so, the Respondent understands that the Claimant cannot invoke in the challenge to the assessment the true species or nature of the properties in question, by virtue of Article 54, first part of the CPPT, under penalty of violating the principles of effective judicial protection and justice, in particular in the normative dimension that the challenge of an immediately harmful act presents itself as a true burden and not as a mere faculty, which, if omitted, precludes the challenge of the corresponding assessment based on that precise defect.

This thesis is not, however, accepted, and it is understood that the interpretation sustained by the Respondent of Article 54 of the CPPT, which would prevent the Claimant from discussing and demonstrating the true nature of the properties in question for purposes of subsumption to the norm of negative delimitation of the tax base, is what would, on the contrary, violate the principles of effective judicial protection and justice.

In fact, as the Constitutional Court decided in Decision No. 410/2015, Process No. 92/14, cited by the Claimant[1]:

"In the present case, the position sustained by the AGT has as a consequence, as has already been pointed out, that the taxpayer who did not autonomously challenge the act of cessation of the tax benefit, as it could have done, is no longer able to challenge the tax assessment based on defects of that act.

It cannot be denied that this is a very burdensome consequence for the taxpayer, allowing the consolidation in the legal order of acts that seriously prejudice it, as occurred in the case, with the impossibility of challenging the act of cessation of the tax benefit, in the context of the proceedings for challenging the act of tax assessment.

This prejudice caused to the taxpayer occurred in a legal context in which the principle of unified challenge is unquestionably in force and in which autonomous challenge of harmful or interlocutory acts committed in the context of the tax administrative procedure is configured by law as a faculty of the taxpayer, only justified in the context of reinforcing its guarantees.

The taxpayer could have autonomously challenged the cessation of the tax benefit. Its choice not to do so, however, was, in that legal framework, perfectly legitimate: not only is there no legal norm that has operated the transformation of the faculty to challenge into a burden to challenge, but, given that it was a harmful act, the existence of such a norm would not even be admissible.

The conclusion to be drawn can only be one: by preventing the challenge of the act of tax assessment from being based on defects of the act of cessation of the tax benefit, the interpretation that the appealed decision made of Article 54 of the CPPT seriously unprotects the taxpayer's rights, thus violating the principle of effective judicial protection and the principle of justice, registered in Articles 20 and 268, No. 4, of the CRP.

(...)

On the grounds and basis set out, it is decided:

a) To declare unconstitutional the interpretation of Article 54 of the Code of Tax Procedure and Process which, qualifying as a burden and not as a faculty of the taxpayer the judicial challenge of interlocutory acts immediately harmful to its rights, prevents the judicial challenge of final decisions on tax assessment on the basis of defects of such acts, by violation of the principle of effective judicial protection and the principle of justice, registered in Articles 20 and 268, No. 4, of the Constitution of the Portuguese Republic;[2]

Moreover, the correction of the matrix could occur at the initiative of the Claimant, the Respondent, or even the Municipal Council or the Parish Assembly, and the thesis of the Respondent regarding an alleged preclusive effect arising from failure to challenge the matrix registration is further incompatible with Article 130 of the IMI Code, the numbers 3 and 5 of which provide as follows:

"(...)

3 – The taxpayer, the municipal council and the parish assembly may, at any time, lodge a claim regarding any incorrect entries in the matrix, in particular on the following grounds:

(...)

5 – The chief of the competent finance service may, at any time, promote the rectification of any incorrect entry in the matrix, except those that involve an alteration of the taxable patrimonial value resulting from direct assessment with the ground provided for in paragraph a) of No. 3, in which case such rectification can only be effected after the period referred to in the preceding number.

(...)".

From this it follows, first and foremost, that, as matrix errors can be corrected at any time[3], there is no intended preclusion[4]. We go further and understand that the word "may" in No. 5 of the said Article 130 should be understood, in cases such as the one we are dealing with, in which there are no doubts about the incorrectness, as a "power-duty" of the Chief of the Finance Service and not as a faculty, having regard to the principles of justice, equality and legality to which the tax administration is bound in the totality of its activity.[5]

In consequence, acknowledging the Tax Administration that the properties in question are allocated to tourist activity, it should have proceeded officially to promote their respective correction (regardless of whether the Claimant, the Municipal Council and the Parish Assembly also have legitimacy to lodge a complaint about it).

It should also be noted that, regardless of the sense of the decision to be rendered in the present proceedings, it will not, in itself, as is evident, imply any alteration in the property matrix.

This does not prevent, however, as results from the above, that the tribunal, for the purpose of examining the occurrence of the taxable event, a prerequisite of the legality of the assessment, should examine the true nature of the properties in question, especially since, in fact, it is not merely a question of an incorrect matrix entry but of the determination of reality indispensable to the verification of the taxable event. In this case, what is at issue is the objective element of the tax base relative to Article 135-B, No. 2, of the IMI Code, and it should be noted that AIMI is a tax with its own internal system distinct from IMI, in whose code it is merely formally inserted.

Moreover, Article 135-B, No. 2, of the IMI Code, in determining that "Excluded from the additional municipal property tax are urban properties classified as 'commercial, industrial or for services' and 'others' in accordance with paragraphs b) and d) of No. 1 of Article 6 of this Code", establishes as a legal criterion for the classification of properties – in the case of AIMI, essential for the verification of the occurrence of the taxable event itself – that of licensing or, failing that, its normal destination, pursuant to Article 6, No. 2, of the IMI Code.[6]

Now, the properties in question are licensed for a hotel establishment in the form of tourist apartments, which unquestionably falls within the destination of services, which meets with the agreement of the Respondent which, in substance, only disagrees with the Claimant's claim on the grounds that Article 54 of the CPPT imposes on it the burden of requesting the alteration of the matrix entry, under penalty of not being able to discuss at the time of assessment the nature of the property, a conclusion which, however, has no legal basis, and the interpretation of that norm to such effect is unconstitutional, as mentioned above.

From the proven facts not contested by either party there emerges, therefore, unquestionably, that the Claimant's properties are excluded from the objective scope of the tax.

As can be read in the arbitral decision rendered in process No.: 205/2013-T, of 7 March 2014:

"In the case at hand, the allocation of the property for habitation appears in the property matrix based on IMI model 1 delivered on 23.10.2008.

On the other hand, it appears from the proven facts that the property in question, resulting from consolidation, was neither nor has ever been suitable for habitation, and has been subject, since December 2008, to various administrative acts aimed at concretising the construction of a hotel unit.

There was thus proved a substantial reality different from that contained in the urban property matrix, and material truth cannot but prevail.

It does not seem, moreover, proper to understand that property matrices have full probative force, when the IMI Code itself provides, for the purposes of this tax, the possibility for the taxpayer to lodge a claim at any time regarding any incorrect entries in the matrix, pursuant to Article 130, No. 3 of this Code, providing, in the same vein, No. 5 of this article that "The chief of the competent Finance Service may, at any time, promote the rectification of any incorrect entry in the matrix, except those that involve an alteration of the taxable patrimonial value resulting from direct assessment on the ground provided for in para. a) of No. 3 (...)".

Writing about official information, Rui Duarte Morais states that "the full probative force that was previously attributed to official information provided by tax administrations has been abolished. They are also subject to free appraisal by the judge (art. 76, No. 1 of the LGT and art. 115, No. 2 of the CPPT), so their evidentiary relevance will depend on their respective basis, and it will be sufficient for the interested party to achieve counter-proof of facts capable of generating reasonable doubt as to the correspondence to the truth of what is stated in such information" (MANUAL DE PROCEDIMENTO E PROCESSO TRIBUTÁRIO, Almedina, 2012, p. 258).

For his part, JORGE LOPES DE SOUSA tells us that "The reason for the omission of reference in the C.P.T. and in this C.P.P.T. to this special probative force, capable only of being contradicted by proof to the contrary, is the fact that these diplomas do not recognise it in some cases, which are classifiable under its Article 121 and 100, respectively.

In fact, in these articles it was established the rule that, in proceedings for judicial challenge, doubts based on factual matters concerning the existence and quantification of the taxable event are assessed in favour of the taxpayer, leading to the annulment of the contested act.

This means that, in judicial challenge proceedings, concerning official information relating to the existence and quantification of the taxable event, it is not necessary to prove the contrary, but merely to raise founded doubts, for the decision on the respective factual matters to have to be procedurally unfavourable to the tax administration (Article 346 of the Civil Code)

(...)

The probative force of official information relates to the facts stated therein, since it is only concerning facts that the issue of producing evidence arises.

Concerning facts, its probative force exists with respect to those stated as being carried out by the tax administration or based on the perception of its organs or agents, or facts determined from that perception based on objective criteria." (CÓDIGO DE PROCEDIMENTO E PROCESSO TRIBUTÁRIO ANOTADO, 4th edition, Vislis, 2003, p. 504)

It should be noted, moreover, that, even under Article 371, No. 1 of the Civil Code "Authentic documents provide full proof of the facts that they state as being carried out by the respective authority or public official, as well as of the facts that are attested therein based on the perceptions of the document-making entity; mere personal judgments of the document makers only serve as elements subject to the free appraisal of the judge".

In an annotation to this norm, Pires de Lima and Antunes Varela tell us that "The probative value full of the authentic document does not relate to everything that is said or contained in the document, but only to the facts that are stated as being carried out by the respective authority or public official (...), and as to the facts that are stated in the document based on the perceptions of the document-making entity" (Código Civil Anotado, Coimbra Editora, 1982, 2nd Ed., p. 326), a position that has long been peacefully accepted by national jurisprudence (See, regarding tax jurisprudence, the decision of the STA of 1.02.2005 in proc. 066/04, at www.dgsi.pt).

Having regard to the above, the Claimant was not prevented from demonstrating, as it demonstrated, that despite appearing in the property matrix as allocated for habitation, this did not correspond to reality on the date of the taxable event.

Accordingly, in the case at hand, the Claimant did not merely limit itself to raising founded doubts about the reality of the habitation allocation of the property, since it proved, in a positive manner, that such allocation did not exist on the date of the hypothetical taxable event. That is, the Claimant proved the contrary of what is mentioned in the property matrix."[7]

Given this, having been demonstrated that, on the date of the taxable event, in reality, the properties subject to the assessment "sub judice" were not allocated to habitation but to services, it is verified that they are covered by the negative delimitation of the tax base provided for in Article 135-B, No. 2, of the IMI Code and, accordingly, the Claimant's claim for annulment cannot but be granted.

1. The Claimant has further requested that the Respondent be condemned to reimburse the amounts incorrectly collected, as well as the payment of compensatory interest that may be due, pursuant to Article 43 of the General Tax Law.

In the case at hand, it is manifest that, as a consequence of the illegality of the assessment acts, the Claimant's claim for restitution is well-founded by virtue of Articles 24, No. 1, paragraph b), of the RJAT and 100 of the LGT, as this is essential to restore the situation that would have existed had the illegality in question not been committed.

As regards compensatory interest, it is necessary to examine this claim in light of Article 43 of the General Tax Law.

Article 43, No. 1 thereof provides that "Compensatory interest is due when it is determined, in a gracious claim or judicial challenge, that there was an error attributable to the services resulting in payment of the tax debt in an amount greater than that legally due".

We endorse the understanding of Diogo Leite de Campos, Benjamim Silva Rodrigues and Jorge Lopes de Sousa who maintain that "The error attributable to the services that carried out the assessment is demonstrated when a gracious claim or judicial challenge of that same assessment is lodged and the error is not attributable to the taxpayer" (Lei Geral Tributária, encontros da escrita, 4th Edition, 2012, p. 342).

However, in the case "sub judice", it cannot be concluded that the error that gave rise to the assessment is not attributable to the taxpayer, since it was the taxpayer that in the declaration to the matrix indicated the residential destination. It is true that during all these years, both the Respondent and the Parish Assembly and the Municipal Council could also have promoted or requested the rectification of the error, and the latter could not be unaware of it given that it itself licensed the properties for tourist activity, but it is also true that the Claimant could equally have done so and that, decisively, it was the Claimant that in model 129 declaration inserted the incorrect mention and, on the other hand, it was not demonstrated that the Respondent had knowledge at a time prior to the assessment of the real allocation and nature of the properties.

Accordingly, having regard to Article 43, No. 1, of the General Tax Law, the Claimant is not entitled to compensatory interest, and the claim cannot but be rejected, in this part.

IV – Decision

Accordingly, the arbitral tribunal decides:

1. To declare the illegality and consequent annulment of the contested tax assessment act.

2. To condemn the Respondent to refund to the Claimant the tax paid.

3. To judge the claim for payment of compensatory interest unfounded.

Value of the action: €36,957.32 (thirty-six thousand nine hundred and fifty-seven euros and thirty-two cents) pursuant to Article 306, No. 2, of the CPC and 97-A, No. 1, paragraph a), of the CPPT and 3, No. 2, of the Arbitration Costs Regulation.

Costs borne by the Respondent in the amount of €1,836.00 (one thousand eight hundred and thirty-six euros), pursuant to No. 4 of Article 22 of the RJAT.

Notify accordingly.

Lisbon, CAAD, 16.07.2018

The Arbitrator

Marcolino Pisão Pedreiro

[1] Available at "http://www.tribunalconstitucional.pt/tc/acordaos/"

[2] In the decision of the STA rendered in process 01685/13, 08-01-2014, (available at "www.dgsi.pt"), it may also be read:

"This Supreme Court has already admitted, and in very recent times, in a Decision subscribed by us – see the Decision of 27 November 2013, rendered in appeal no. 1725/13 – that the act of official registration in the matrix of a certain physical reality as a property constitutes an immediately harmful act given that it causes a significant alteration in the legal sphere of the appellant, hence the admissibility of a request for suspension of its effectiveness, but it was also stated in that Decision that the fact that the immediate harmfulness of such an act permits, if desired, its autonomous challenge, does not prevent it from, not having been so, being still examined in the context of challenging the tax assessment, or – we add, by identity or greater reason –, in the context of challenging the act of determination of taxable patrimonial value resulting from 2nd assessment, since no reason is apparent why it should be necessary to wait for the tax assessment so that the preliminary question concerning the legal qualification of the taxable event can be discussed, when, as we have already seen, No. 2 of Article 77 of the IMI Code expressly admits that the challenge of the result of the second assessment may be based on any illegality, and the erroneous qualification of the taxable event constitutes an illegality expressly provided for in law (see paragraph a) of Article 99 of the CPPT), with no reason whatsoever for it to be necessary to await the challenge of the assessment for such a defect to be invoked.

It follows from the above that, contrary to what was decided, no procedural obstacle exists for the invocation – and examination – in the judicial challenge against the result of the second assessment of possible illegalities arising from the prior act of official registration of the property in the matrix as an urban property of the type 'others', an act which, although capable of being directly examined by way of special administrative action, need not necessarily be so."

[3] The same follows from Article 134, No. 5, of the CPPT.

[4] Since incorrect matrix registration can be rectified at any time, it does not fall within the notion of a severable act, since as Diogo Leite de Campos, Benjamim Silva Rodrigues and Jorge Lopes de Sousa state, in LEI GERAL TRIBUTÁRIA, Anotada, Encontros da escrita, 4th Ed., 2012 p. 611 "If severable acts are not challenged, the decision will be consolidated and what was decided in them will be settled in the tax procedure in which they are inserted or connected, and the final decision of the procedure cannot be challenged based on defects of the severable act", which clearly does not occur in the case at hand.

[5] Interpreting also as "power-duty" the same expression of Article 78, No. 4, of the General Tax Law, see Diogo Leite de Campos, Benjamim Silva Rodrigues and Jorge Lopes de Sousa, op. cit., p. 710.

[6] It is mentioned in the arbitral decision rendered in proc. 664/2017-T that "The scope of objective application, by effect of the remission to that Article 6, was thus defined not only by reference to a certain species of urban properties, but also by reference to the administrative procedure through which the classification was effected or, in the absence of a license, to the normal destination of those properties for commercial, industrial and services purposes or others." (https://caad.org.pt/tributario/decisoes)

[7] In a concordant sense it can be read in process No. 206/2013-T that "It should first be said that we entirely agree with the understanding that property matrices do not have full probative force. On this point, reference is made to the grounds, in particular the doctrinal grounds, contained in the Arbitral Decision rendered in process No. 205/2013-T."

In practical concordance with this understanding see, also, the arbitral decisions rendered in processes 285/2014-T and 113/2016-T.