Summary
Full Decision
ARBITRAL DECISION (consult full version in PDF)
The arbitrators Advisor Jorge Lopes de Sousa (arbitrator-president), Dr. Mariana Vargas and Dr. Adelaide Moura (arbitrator members), appointed by the Ethics Council of the Centre for Administrative Arbitration to form the Arbitral Tribunal, constituted on 06-03-2019, agree as follows:
1. Report
A... - REAL ESTATE INVESTMENT FUND MANAGEMENT COMPANY, hereinafter abbreviated as "Claimant", with the tax identification number ... and registered office at Rua ... no. ..., ...-... Lisbon, in this act in representation of B... - REAL ESTATE INVESTMENT FUND, hereinafter abbreviated as "Fund", with the tax identification number ..., came, under Decree-Law no. 10/2011, of 20 January (Legal Regime for Arbitration in Tax Matters or "RJAT"), to present a request for an arbitral ruling aimed at the partial annulment of the following Stamp Duty assessments, in the amount of € 883,546.26:
The Claimant further requests that the illegality of the tacit dismissal of the official review request it presented be declared and seeks reimbursement of the sum of € 883,546.26 and indemnity interest.
The respondent is the TAX AND CUSTOMS AUTHORITY.
The request for constitution of the arbitral tribunal was accepted by the President of CAAD and automatically notified to the Tax and Customs Authority on 26-12-2018.
Pursuant to the provisions of article 6, paragraph 2, letter a) and article 11, paragraph 1, letter b) of the RJAT, as amended by article 228 of Law no. 66-B/2012, of 31 December, the Ethics Council appointed as arbitrators of the collective arbitral tribunal the signatories, who communicated their acceptance of the assignment within the applicable time limit.
On 14-02-2019, the parties were duly notified of such appointment and manifested no intention to refuse the appointment of the arbitrators, in accordance with article 11, paragraph 1, letters a) and b) of the RJAT and articles 6 and 7 of the Code of Ethics.
Thus, in compliance with the provisions of article 11, paragraph 1, letter c) of the RJAT, as amended by article 228 of Law no. 66-B/2012, of 31 December, the collective arbitral tribunal was constituted on 06-03-2019.
The Tax and Customs Authority responded arguing that the request should be judged unfounded.
On 23-04-2019, the Claimant presented documentary evidence, which was admitted by order of 24-04-2019.
The Tax and Customs Authority issued its opinion on this request.
In that same order, a hearing and oral submissions were dispensed with.
The arbitral tribunal was duly constituted, in accordance with the provisions of articles 2, paragraph 1, letter a), and 10, paragraph 1, of Decree-Law no. 10/2011, of 20 January, and is competent.
The parties are duly represented and enjoy legal standing and capacity and are represented (articles 4 and 10, paragraph 2, of the same statute and article 1 of Ordinance no. 112-A/2011, of 22 March).
The proceedings are free from defects of form.
The legitimacy of the Fund is defended by the Claimant in articles 80 to 95 of the request for arbitral ruling and is a matter of ex officio knowledge.
As the question of legitimacy is related to the alleged tax pass-through, it will be examined after the establishment of the factual basis.
2. Factual Matters
2.1. Established Facts
Based on the evidence contained in the proceedings and in the administrative process attached to the record, the following facts are considered established:
a) The Fund represented herein by the Claimant, under the terms of its Management Regulation, is an open-ended real estate investment fund of an accumulation type, with its activity now regulated by the General Regime of Collective Investment Undertakings, approved by Law no. 16/2015, of 24 February (document no. 3 attached with the request for arbitral ruling, the content of which is reproduced herein);
b) The Fund has been obtaining financing from C..., having entered into a contract for opening of credit in the form of an overdraft on current account associated with the demand deposit account no. ... (document no. 1 attached with the request for submission of evidence of 23-04-2019, the content of which is reproduced herein);
c) C..., in its capacity as the taxpayer, upon collection of the value of the credit extended 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 ("TGIS"), which it did through the tax payment slips indicated in document no. 2 attached with the request for submission of evidence of 23-04-2019, the content of which is reproduced herein;
d) C... passed on the assessed Stamp Duty to the Fund (as the user of the credits in question), and the Fund bore the entirety thereof (bank statements contained in documents nos. 4 and 5 attached with the request for arbitral ruling, the contents of which are reproduced herein);
e) Within the scope of the aforementioned contract, the Fund bore Stamp Duty assessed by C... as follows:
f) On 20-06-2018, the Claimant, in representation of the Fund, presented a request for official review of the said Stamp Duty assessments, in the terms contained in the administrative process, the content of which is reproduced herein;
g) The official review request was not examined until 21-12-2018, the date on which the Claimant presented the request for arbitral ruling that gave rise to the present proceedings.
2.2. Unproven Facts and Reasoning of the Factual Decision
The established facts are based on the documents submitted by the Claimant and those contained in the administrative process.
The Tax and Customs Authority argues that, as regards the following assessments, it is not shown that the Stamp Duty was passed on to the Fund:
- Tax period: Nov/14 // Stamp Duty value (interest): € 8,590.45
- Tax period: Dec/15 // Stamp Duty value (interest): € 7,311.43
- Tax period: Jan/16 // Stamp Duty value (interest): € 6,028.80
- Tax period: Feb/16 // Stamp Duty value (interest): € 5,128.73
- Tax period: Mar/16 // Stamp Duty value (interest): € 5,402.72
- Tax period: Apr/16 // Stamp Duty value (interest): € 5,059.35
- Tax period: May/16 // Stamp Duty value (interest): € 5,083.08
The Tax and Customs Authority is correct on this point, as in the bank statements attached as documents nos. 4 and 5, there is no evidence of any movement of the aforementioned amounts, in particular on the dates indicated in document no. 2 attached with the subsequent request.
Moreover, when the Claimant issued its opinion on the Tax and Customs Authority's Response, it made no reference to this matter, merely alleging that "the Claimant attached - as Document 4, together with the Request - the bank statements for the periods in question ('Balances and Movements') and, similarly, the documents relating to interest charges ('Interest Notice')".
However, in none of the documents is there any reference to movements of the aforementioned amounts, in particular on the dates indicated as 'Statement Date' in document no. 2 attached with the request of 23-04-2019.
Thus, as regards these alleged Stamp Duty assessments on interest, it is not proven that the assessed tax was passed on to the Fund.
3. Legitimacy of the Fund
The Claimant asserts the active legitimacy of the Fund in articles 80 to 95 of the request for arbitral ruling.
Active legitimacy is a matter of ex officio knowledge, as provided for in paragraphs 2 and 4, letter e) of article 89 of the CPTA, applicable to tax arbitration proceedings by virtue of the provisions of article 29, paragraph 1, letter c), of the RJAT.
In accordance with the provisions of article 2 of the CIS, the credit user is not a taxpayer subject to Stamp Duty, although it is the bearer of the economic interest, as results from letter E) of paragraph 3 of article 3 of the same Code.
The Claimant argues that the Fund has legitimacy to challenge the assessments by virtue of being a "pass-on third party" (articles 80 to 95 of the request for arbitral ruling), a status that derives, as the Claimant states, from the circumstance that the assessment "will have negative economic consequences for it".
Along these lines, the Claimant argues that the Fund has legitimacy under the assumption that "the taxpayer - lending credit institution - (self-)assessed and paid the contested Stamp Duty, but passed it on to the entity with 'economic interest in the taxable reality', i.e., to the Fund represented herein by the Claimant" (article 89 of the request for arbitral ruling).
As provided in article 18, paragraph 4, letter a) of the LGT, as amended by Law no. 55-A/2010, of 31 December, whoever bears the burden through legal pass-on is not a taxpayer, but has legitimacy as a pass-on party to present a request for arbitral ruling.
Therefore, the legitimacy of the Fund only exists insofar as it demonstrates that pass-on of the assessed tax occurred.
As stated in the reasoning of the factual decision, no proof was provided that the amounts of Stamp Duty assessed with respect to interest in the following periods were passed on to the Fund:
- Tax period: Nov/14 // Stamp Duty value (interest): € 8,590.45
- Tax period: Dec/15 // Stamp Duty value (interest): € 7,311.43
- Tax period: Jan/16 // Stamp Duty value (interest): € 6,028.80
- Tax period: Feb/16 // Stamp Duty value (interest): € 5,128.73
- Tax period: Mar/16 // Stamp Duty value (interest): € 5,402.72
- Tax period: Apr/16 // Stamp Duty value (interest): € 5,059.35
- Tax period: May/16 // Stamp Duty value (interest): € 5,083.08
Thus, as regards these assessments, it is not proven that the tax in question was passed on to the Fund, therefore the legitimacy of the Fund is not demonstrated.
4. Legal Matters
Pursuant to article 1 of the Code of Stamp Duty (CIS), Stamp Duty applies, among other things, to the acts, contracts, documents, securities, papers and other facts provided for in the General Table.
Item 17 of the General Table of Stamp Duty (TGIS) provides for the incidence 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 assimilated to them and any other financial institutions" (item 17.3).
Article 7, paragraph 1, letter e), of the CIS establishes, as amended by Law no. 107-B/2003, of 31 December, the following:
1 – The following are also exempt from tax:
(...)
e) Interest and commissions charged, guarantees provided and, as well, the use of credit extended by credit institutions, financial companies and financial institutions to venture capital companies, as well as to companies or entities whose form and object fulfil the types of credit institutions, financial companies and financial institutions provided for in Community legislation, all of them domiciled in the 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 ordinance of the Minister of Finance;
Item 17.1.4 of the TGIS refers to "credit used in the form of a current account, bank overdraft or any other form in which the period of use is not determined or determinable, calculated on the monthly average obtained by the sum of the amounts owed established daily during the month, divided by 30", establishing a rate of 0.04%.
The Claimant alleges, in summary, that the credit to which the Stamp Duty payment slips refer was extended to the Fund by a credit institution/financial institution and that the Fund is also a financial institution, therefore this exemption applies.
4.1 Qualification of the Fund as a Financial Institution
There is no controversy over this qualification of the Fund as a financial institution, as the Tax and Customs Authority recognizes that real estate investment funds are "Financial Institutions" for purposes of letter e) of article 7 of the CIS.
In fact, the Tax and Customs Authority accepts the understanding of the Claimant, which it has already adopted in Binding Information, specifically 2017000303 - IVE no. 11733, with agreeing order of 07-07-2017, from the Director-General of the Tax and Customs Authority, cited by the Claimant. ( )
In this Binding Information, the following is stated, among others:
In letters u) and aa) of article 2 of the General Regime of Collective Investment Undertakings - Law no. 16/2015, of 24 February (which revised the legal regime of collective investment undertakings – Decree-Law no. 63-A/2013 - and amended the General Regime of Credit Institutions and Financial Companies and the Securities Code; partially transposed Directives nos. 2011/61/EU and 2013/14/EU) - are defined, respectively, "investment fund", the autonomous assets, without legal personality, belonging to the participants in the general regime of community regulated in this General Regime and "collective investment undertakings" as being institutions, with or without legal personality, that have the purpose of collective investment of capital obtained from investors, whose operation is subject to a principle of risk distribution and the pursuit of the exclusive interest of the participants. The latter are subdivided into different types of undertakings, among which are found:
"ii) 'Alternative investment undertakings', which are the others, namely those provided for in letter a) of paragraph 2 of the previous article and also:
1st) Open or closed undertakings, the purpose of which is collective investment in securities or other financial assets, designated 'alternative investment undertakings in securities';
2nd) Open or closed undertakings, the purpose of which is investment in real estate assets, designated 'real estate investment undertakings'".
Investment funds are considered a species within the genus of collective investment undertakings [Article 5 of Law no. 16/2015 clarifies that CIUs assume the contractual form of an investment fund or the corporate form (which comprises securities investment companies and real estate investment companies)], being that, as provided in paragraph 2 of article 6, the expression "investment fund" is reserved for the investment fund, adding the expression "real estate" in the case of real estate investment funds, which must be part of its denomination.
CIUs are not, therefore, qualified as being "financial institutions" (the same occurs in the General Regime of Credit Institutions and Financial Companies, approved by Decree-Law no. 298/92, of 31 December); only in letter d) of article 30 of the Securities Code (Decree-Law no. 486/99, of 13 November), combined with letter f) of the same code, does the legislator appear to qualify them as "other financial institutions".
However, the exemption rule requires that its application depend on the legal nature that is recognized in Community law to the subject on whom the tax burden falls.
Are real estate investment funds/CIUs qualified in Community legislation as "Financial Institutions"?
1.2.2.1. Directive 2005/60/EC - "Prevention of the Use of the Financial System for the Purpose of Money Laundering and Terrorist Financing" - (Article 66 of Directive no. 2015/849/EU, of 20 May 2015, provides that Directives 2005/60/EC and 2006/70/EC are repealed effective 26 June 2017).
Paragraph 2 of article 3 of Directive 2005/60/EC - definition of "financial institution"
In the provision of letter a) of this paragraph 2, which refers us to items 2) to 12) and 14) of Annex I of Directive 2000/12/EC, real estate investment funds do not fall within the scope.
In letter d), undertakings for collective investment that market their units of participation or shares are further qualified as "financial institutions".
1.2.2.2. It should be noted that paragraph 2 of article 3 of Directive no. 2015/849/EU, of 20 May 2015, reproduces paragraph 2 of article 3 of Directive 2005/60/EC, qualifying "ipsis verbis" as 'financial institution', under letter d), "a collective investment undertaking that markets its shares or units of participation", with no distinction being made as to the legal form that CIUs may take or the composition of their investment portfolio.
We therefore have that in letter d) of both statutes the legislator qualifies collective investment undertakings that market their units of participation or shares as a financial institution. Will the real estate investment fund also be provided for here?
1.2.2.3. It is also important to note Directive 2011/61/EU (on the managers of alternative investment funds) which in its article 4, paragraph 1, letter a), defines Alternative Investment Fund (AIF) as a collective investment undertaking that "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 "does not require authorization under article 5 of Directive 2009/65/EC". With respect to this second requirement, it should be understood that the present investment fund also meets it, since it is not a collective investment undertaking in securities (UCITS) and this directive "coordinates the legislative, regulatory and administrative provisions relating to certain collective investment undertakings in securities". It follows from the foregoing that the RIF is thus qualified as a subspecies of AIF, which in turn is a subspecies of "collective investment undertakings".
1.2.2.4. On the matter relating to the qualification of securities investment funds and real estate investment funds, already subject of study, it is considered that:
There is a great coincidence between the activities carried out by venture capital companies and the activities that, under Directive 2006/48/EC and Directive 2013/36/EU, enable an entity to qualify as a "financial institution", insofar as such definition covers an institution "which, not being a credit institution, has as its main activity the acquisition of holdings or the exercise of one or more of the activities listed in Annex I, items 2 to 12 and 15", of the said directives, which include, namely, participation in the issuance of securities and provision of services related to that issuance, advising undertakings on matters of capital structure, industrial strategy and related matters, and advice and services relating to mergers and acquisitions of undertakings, portfolio management, custody and administration of securities.
Venture capital funds, although qualified as collective investment undertakings [The recent publication of Regulation (EU) no. 345/2013 of the European Parliament and of the Council of 17 April 2013 on European venture capital funds responded to the need to define a common framework of rules relating to the use of the designation 'EuVECA' to qualify European venture capital funds, in particular with regard to the composition of the portfolio of the funds operating under this designation, their eligible investment objectives, the investment instruments they may use and the categories of investors eligible to invest in them, according to uniform rules throughout the Union." (cf., Recital 2)], do not fall within the category of collective investment undertakings in securities (UCITS) as they are not covered by Directive 2009/65/EC of the European Parliament and of the Council, of 13 July, being included in the category of "Alternative Investment Funds" (AIF) [In accordance with article 4, paragraph 1, letter a) of Directive 2011/61/EU of the European Parliament and of the Council, of 8 June, on the managers of alternative investment funds, an AIF is defined as: a collective investment undertaking, including its investment compartments, which (i) 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 (ii) does not require authorization under article 5 of Directive 2009/65/EC.].
In any case, as to whether venture capital funds may fall within the qualification of financial institution, in our view it is possible to include them in the list of entities contained in paragraph 2 of article 3 of Directive 2005/60/EC, but to dispel any doubt, it will suffice to refer to the proposed directive applying enhanced cooperation in the field of financial transaction tax [COM(2013)71 final, of 14.02.2013.], whose article 2 (8), letter g) qualifies as a financial institution "An alternative investment fund (AIF) and a manager of alternative investment funds (AIFM), as defined in article 4 of Directive 2011/61/EU, of the European Parliament and of the Council", of 8 June 2011, on the managers of alternative investment funds.
From the foregoing, within the framework of the relevant Community legislation, it may be considered that both venture capital companies and venture capital funds themselves may be inserted in the category of "Financial Institutions".
1.3. From the foregoing, it is clear that, just as a venture capital fund should be qualified as an AIF, and as such is a "Financial Institution", so too should the real estate investment fund under analysis be similarly qualified.
CONCLUSION
The real estate investment fund … is qualified as a financial institution, under the terms of Community legislation, and as such will be exempt from stamp duty under letter e) of paragraph 1 of article 7 of the CIS with respect to commissions charged when directly intended for the granting of credit within the scope of the activity carried out by the institutions and entities referred to therein.
Thus, for the reasons stated, it is to be understood that the Fund constitutes a financial institution, for purposes of letter e) of paragraph 1 of article 7 of the CIS.
4.2. Question of Lack of Proof that the Assessments Relate to Stamp Duty Assessed Under Item 17.1.4 of the TGIS
The essential obstacles raised by the Tax and Customs Authority in its Response to the Claimant's claim relate to proving that the Stamp Duty assessments made by C..., S.A., fall within the aforementioned letter e) of paragraph 1 of article 7 of the CIS.
Specifically, the Tax and Customs Authority holds 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 presented, but without any documentary support (whether the Stamp Duty payment slips mentioned therein or any other document supporting the operations alleged therein) and that the bank statements attached to the request for arbitral ruling do not make it possible to identify what act/operation the payment refers to, nor even being it possible to make such identification with the Stamp Duty payment slips.
The Tax and Customs Authority adds that "even if the Stamp Duty payment slips had been attached, they would also always be insufficient to prove that they relate to Stamp Duty for those operations/entity bearing the tax burden, since they only mention a global value, with no document being attached that allows determining which specific individual values are contained therein".
Following the Response, the Claimant submitted new documents, on which the Tax and Customs Authority issued its opinion, reaffirming its position and stating that "there are no complementary statements submitted to the Tax Authority that allow concluding with certainty that the tax now contested even relates to the values recorded in the stamp duty payment slips delivered, corresponding to the periods in question - 2015 and 2016".
As results from the evidence produced, it was confirmed that the Claimant entered into the credit opening contract for account overdraft that it invoked and a copy of which was attached to the record.
With regard to the payment slips, these are identified by the Claimant through their numbers and, being documents delivered to the Tax and Customs Authority, the burden of proof of the facts contained therein "shall be considered satisfied" under article 74, paragraph 2, of the LGT, as the interested party properly identified those documents and it is not even suggested that the numbers indicated are wrong or that the payments were not made.
On the other hand, the bank statements attached to the request for arbitral ruling contain indication of the debit to the Claimant of the amounts referred to, with indication of "SD-Item 17.1.4. TGIS/S/COM", which indicates that it is Stamp Duty on the use of credit provided therein, which includes use in the form of bank overdraft, which is provided for in the Contract.
Given that there is a contract for opening of credit by way of bank overdraft between the Fund and the Bank, it is to be presumed, in light of the rules of common experience and normality, that the Stamp Duty assessed with indication that the assessments are based on item 17.1.4 relate to the use of credit by way of bank overdraft, which is the situation provided for therein.
In truth, the purpose of the contract is precisely to permit the use of credit by way of bank overdraft and, therefore, if Stamp Duty is assessed on the basis of the rule that provides for the taxation of the use of credit in that form, it is to be presumed that such use was taxed, when there is no indication, nor is it even suggested, that the assessments relate to any fact of another type.
After all, the proof that the assessments relate to the use of credit falling within item 17.1.4 was implicitly considered sufficient by the Tax and Customs Authority, upon receiving the assessed amounts, without making any correction or requesting any clarifications from the Bank or the Fund.
Thus, it is to be considered proven that the amounts in question were debited to the Claimant (with the exception of those indicated in the unproven facts) and were delivered to the Tax and Customs Authority through the payment slips identified in the record and that relate to Stamp Duty assessments made in compliance with item 17.1.4 of the TGIS.
In any event, the Tax and Customs Authority does not even suggest that the taxes do not relate to use of credit by way of overdraft and, if there were hypothetical doubts, they would be based on what was referred to, and would therefore have to be assessed in favor of the taxpayer, as provided for in article 100, paragraph 1, of the CPPT applicable to tax arbitration proceedings by virtue of the provision of article 29, paragraph 1, letter c), of the RJAT, which is procedurally reduced to considering the Claimant's allegation proven.
From the foregoing, the assessments referred to, insofar as proof was provided that they were passed on to the Fund, fall within the exemption provided for in letter e) of paragraph 1 of article 7 of the CIS, and therefore, being unlawful, must be annulled, article 163, paragraph 1, of the Code of Administrative Procedure subsidiarily applicable under article 2, letter c), of the LGT, as well as the tacit dismissal of the official review request, in the respective part.
5. Reimbursement of Amounts Paid and Indemnity Interest
As a consequence of the annulment of the assessments, the Fund is entitled to reimbursement of the amounts wrongfully paid (article 100 of the LGT).
The Claimant further requests indemnity interest.
Paragraph 1 of article 43 of the LGT only recognizes the right to indemnity interest when it is determined in a gracious claim or judicial challenge proceedings that there was error attributable to the authorities.
The request for review of the tax act is comparable to a gracious claim when presented within the time limit for administrative claim, as referred to in paragraph 1 of article 78 of the LGT, as stated in the ruling of the Supreme Administrative Court of 12-7-2006, issued in case no. 402/06.
As also stated in the same ruling, "in cases of official review of the assessment (when not made at the request of the taxpayer, within the time limit for administrative claim, a situation that is comparable to that of a gracious claim) (...) there is only a right to indemnity interest under the terms of art. 43, paragraph 3, of the LGT".
This regime is justified by the taxpayer's lack of diligence in presenting a gracious claim or request for review within the two-year period provided for in article 131, paragraph 1, of the CPPT.
In these cases of review of the tax act, the taxpayer has no right to indemnity interest from the date of wrongful payment, but only from the date on which one year has elapsed since the filing of the request for review of the tax act, under the terms of the aforementioned letter c) of paragraph 3 of article 43 of the LGT.
As results from the factual matters established, the official review request was presented on 20-06-2018 and was not decided, with more than one year not having elapsed since the filing of the request.
Thus, the Claimant has no right to indemnity interest.
6. Decision
In these terms, this Arbitral Tribunal agrees on:
a) To declare the Fund without legal standing and to absolve the Tax and Customs Authority from the proceedings as to the parts of the assessments, in the following amounts, which were assessed on interest, to which the following Stamp Duty Slips refer:
– November 2014 – Slip no. ..., in the amount of € 8,590.45;
– December 2015 – Slip no. ..., in the amount of € 7,311.43
– January 2016 – Slip no. ..., in the amount of € 6,028.80;
– February 2016 – Slip no. ..., in the amount of € 5,128.73;
– March 2016 – Slip no. ..., in the amount of € 5,402.72;
– April 2016 – Slip no. ..., in the amount of € 5,059.35;
– May 2016 – Slip no. ..., in the amount of € 5,083.08;
b) To declare the request for arbitral ruling founded as to the assessments and remaining parts of the assessments, in the following amounts, to which the following Stamp Duty Slips refer:
– Slip no. ..., in the amounts of € 13,292.34 + € 38,453.99;
– Slip no. ..., in the amounts of € 13,431.12 + € 43,930.56;
– Slip no. ..., in the amounts of € 13,360.76 + € 38,975.81;
– Slip no. ..., in the amounts of € 12,378.07 + € 41,515.70;
– Slip no. ..., in the amounts of € 11,228.79 + € 35,893.30;
– Slip no. ..., in the amount of € 31,647.60;
– Slip no. ..., in the amounts of € 9,508.83 + € 37,284.55;
– Slip no. ..., in the amounts of € 9,546.39 + € 33,870.98;
– Slip no. ..., in the amounts of € 8,449.04 + € 31,174.61;
– Slip no. ..., in the amounts of € 9,337.14 + € 35,590.69;
– Slip no. ..., in the amounts of € 9,335.93 + € 34,407.86;
– Slip no. ..., in the amounts of € 9,526.41 + € 33,051.82;
– Slip no. ..., in the amounts of € 8,824.44 + € 34,801.32;
– Slip no. ..., in the amounts of € 8,651.28 + € 31,913.68;
– Slip no. ..., in the amounts of € 7,374.34 + € 31,134.98;
– Slip no. ..., in the amount of € 34,148.89;
– Slip no. ..., in the amount of € 26,669.74;
– Slip no. ..., in the amount of € 24,389.54;
– Slip no. ..., in the amount of € 27,572.79;
– Slip no. ..., in the amount of € 24,028.00;
– Slip no. ..., in the amount of € 26,240.41;
c) To annul the assessments and parts of the assessments referred to in the preceding letter, as well as the tacit dismissal of the official review request, in the respective part;
d) To order the Tax and Customs Authority to reimburse the Claimant in the amount of € 840,941.70;
e) To declare the request for arbitral ruling unfounded as to the request for indemnity interest and to absolve the Tax and Customs Authority from this request.
7. Value of the Proceedings
In accordance with the provisions of article 306, paragraph 2, of the CPC and article 97-A, paragraph 1, letter a), of the CPPT and article 3, paragraph 2, of the Regulation of Costs in Tax Arbitration Proceedings, the value of the proceedings is fixed at € 883,546.26.
8. Costs
Under article 22, paragraph 4, of the RJAT, the amount of costs is fixed at € 12,546.00, under the terms of Table I attached to the Regulation of Costs in Tax Arbitration Proceedings, to be borne by the Claimant in the percentage of 4.82% and by the Tax and Customs Authority in the percentage of 95.18%.
Lisbon, 13-05-2019
The Arbitrators
(Jorge Lopes de Sousa)
(Mariana Vargas)
(Adelaide Moura)
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