Stamp Tax on Construction Land Under Verba 28.1 TGIS: CAAD Arbitration 673/2014-T

ARBITRAL DECISION

I – REPORT

Subject Matter of the Dispute:

1. A..., taxable person with Tax Number ..., resident at ..., ... Road, lot ..., ..., Coimbra (hereinafter referred to as Petitioner), filed a request for constitution of a singular arbitral tribunal with the Administrative Arbitration Centre (CAAD), pursuant to the combined provisions of Articles 2, No. 1, paragraph a) and 10, No. 2, paragraph c), of the Legal Regime for Arbitration in Tax Matters (RJAT) and Article 99 of the Code of Tax Procedure and Process (CPPT), wherein the Tax and Customs Authority (AT) is the respondent, for declaration of illegality and consequent annulment or declaration of nullity of the Stamp Duty assessment effected under item 28.1 of the General Stamp Duty Table (TGIS), in the amount of €12,375.34, relating to the year 2013 and to the urban property registered in the property matrix of the parish of ..., municipality of Lisbon (area of the Lisbon Tax Office ...), under article number ...;

2. The request for arbitral ruling was filed with CAAD on 9 September 2014, was accepted by the Excellent President of CAAD and automatically notified to the Tax and Customs Authority on 11 September 2014;

3. The Petitioner opted not to designate an arbitrator, wherefore, pursuant to Article 6, No. 1 and Article 11, No. 1, paragraph a), of RJAT, the undersigned was designated by the Excellent President of the CAAD Deontological Council to serve on the present arbitral tribunal, an appointment which I accepted in accordance with the legally established terms;

4. In a request submitted to the case file by electronic mail on 13 January 2015, the Petitioner proceeded to expand the request, with respect to the restitution of the sum of €4,252.01, paid by him on 16 October 2014, corresponding to the value of the first instalment of the assessment previously identified and the accrual from the fiscal execution process No. ... 2014 ..., of the Coimbra Tax Office ..., as well as the payment of indemnificatory interest that shall be shown to be due on the said sum.

Factual Matters:

In summary, the Petitioner bases his claim on the following factual matters:

a) The Petitioner is owner of the urban property registered under article number ..., of the parish of ..., municipality of Lisbon;

b) The said property is classified, in accordance with the property record certificate issued by Lisbon Tax Office ..., as land for construction, to which was assigned, in 2012, a tax property value (VPT) of €1,237,533.51;

c) At the time of the request, the Petitioner had been notified to pay stamp duty collection notes No. 2014 ..., relating to the first instalment, in the amount of €4,125.12 and No. 2014 ..., relating to the second instalment, in the amount of €4,125.11, the total of the 2013 assessment being €12,375.34;

d) On 30 April 2014, the Petitioner filed a gracious objection, aimed at the annulment of the assessment in question (gracious objection file No. .. 2014 ...);

e) The gracious objection was denied, as confirmed by the notification contained in official letter No. ..., from the Lisbon Finance Directorate, of 25 August 2014;

f) On 5 August 2014, the Petitioner was notified of the result of the appraisal of the property to which the contested assessment relates, concluding that the current tax property value is €770,260.00 (...), there being a reduction of the tax property value of €1,237,533.51, determined in 2012 (...), and it is certain that Stamp Duty relates to the current calendar year such that there should be corresponding updating in the amounts to be assessed by the Tax Administration;

g) The failure to pay the first instalment of the assessment object of the request for arbitral ruling gave rise to the institution of fiscal execution process No. ... 2014 ..., terminated by payment of the sum of €4,252.01, on 16 October 2014.

Proven Facts: The tribunal's conviction regarding the facts stated above, which are considered proven, derives from analysis of the arbitral request and the documents annexed thereto (copies of the collection notes relating to the first and second instalments of the identified assessment; copy of the property record and property registration certificate; copies of information, orders and notifications issued in the course of the gracious objection process No. ... 2014 ...; copy of the notification relating to the appraisal of the property in 2014) and copy of the payment receipt issued in fiscal execution process No. ... 2014 ..., submitted to the case file on 13 January 2015, which are hereby reproduced.

Unproven Facts: There are no facts of interest for the resolution of the case that should be considered unproven.

II – SANITATION:

The parties have legal personality and capacity, are legitimate and are duly represented (Articles 4 and 10, No. 2, of RJAT and Article 1 of Ministerial Order No. 112-A/2011, of 22 March).

The Singular Arbitral Tribunal was regularly constituted at CAAD on 13 November 2014, and is materially competent to assess and decide the dispute object of the present case.

The request is timely, having been submitted within the period referred to in Article 10, No. 1, paragraph a), of RJAT.

Pursuant to the order of 13 November 2014, the highest official of AT's services was notified for the purposes provided in Article 17 of RJAT. Having timely response been provided by AT, it requested waiver of the meeting referred to in Article 18 of RJAT, of production of additional evidence as well as of production of oral or written arguments, as no exceptions were invoked and the question raised in the case is considered to be purely legal in nature, such that the tribunal could immediately rule on the request.

Having been notified of AT's response and request, as well as of the arbitral order dated 19 December 2014, which are hereby reproduced, the Petitioner also dispensed with the meeting provided for in Article 18 of RJAT, as well as with the production of arguments, whether oral or written.

Having been notified of AT of the content of the request submitted by the taxpayer on 13 January 2015, it did not pronounce itself on the respective content.

III – REASONING:

Questions to be Decided:

A – The principal question brought before the tribunal by the Petitioner is whether the rule of incidence of item No. 28.1 of the General Stamp Duty Table (TGIS), in its original wording, given by Law No. 55-A/2012, of 29 October, extends to land for construction with tax property value equal to or greater than €1,000,000.00 or whether these can be included in the concept of urban properties "with residential use", the condition for applicability of the said item.

The Petitioner further invokes the current tax property value of the property, lower than that provided for in item No. 28 of TGIS, according to the notification sent to him by Lisbon Tax Office ... and received by him on 5 August 2014, considering that the reduction of VPT in relation to that previously fixed and which served as the basis for the contested assessment would determine the corresponding updating of the assessed value, with respect to the current year.

Regarding these questions, the reasoning advanced by the Petitioner is, in summary, as follows:

· From the stamp duty collection notes for the year 2013 there is reference to "Item 28.1 of TGIS (...) as the basis for application of the rate of 1% to the tax property value of the property, of €1,237,533.51;

· Item 28 TGIS, approved by Law No. 55-A/2012, of 29 October, establishes the mandatory payment of this tax only – and solely, in the following cases:

"28. Ownership, usufruct or right of superficies of urban properties whose tax property value recorded in the matrix, in accordance with the Municipal Property Tax Code (IMI), is equal to or greater than €1,000,000.00 – on the tax property value used for IMI purposes:

28.1. For property with residential use (...)" (bold and underlined in original);

· Now, as is confirmed in the urban property record (...) this is "land for construction" and not a property with residential use as the law states (bold and underlined in original);

· On 5 August 2014, the Respondent was notified of the appraisal performed on the property in question, concluding that the current tax property value is €770,260.00 (...) there being a reduction of the tax property value of €1,237,533.51, determined in 2012 (...), and it is certain that Stamp Duty relates to the current calendar year such that there should be corresponding updating in the amounts to be assessed to the Tax Administration;

· It is added that the Respondent proceeded to acquire the property in question within his professional activity of purchase for resale of properties, having not proceeded with any construction thereon;

· (...) the criterion of residential use only applies to constructed properties as it depends on the type of use thereof in accordance with what is provided in Article 41 of CIMI;

· (...) given what is provided in Article 6 of CIMI, which clearly divides urban properties into four categories, autonomizing them! – land for construction is a property legally distinct from residential properties;

· (...) In these terms, the stamp duty assessment in question can only be understood as a mere oversight of the Tax Authority, being the same affected by illegality as it is not even admissible in accordance with the law;

· (...) the stamp duty assessment now in question, in the name of the principle of legality and the typicity of taxes, could only have been made on the basis of what is provided in the General Table of Stamp Duty and in accordance with what is therein provided by the legislator, which occurred;

· (...) in accordance with the principle of legality and typicity, the Tax Administration should only proceed with assessment (...) in case of verification of each and every one of the typical elements provided for in the law as generators of the State's right to the tax;

· It being furthermore certain that, in accordance with what is provided in Article 9 of the Civil Code, the interpreter cannot consider the legislative intent that does not have in the letter of the law a minimum of verbal correspondence, albeit imperfectly expressed;

· (...) since in this case the verification of the assumptions on which the exigibility of the tax in question depends was not proven, it is manifest that no tax fact was constituted, such that the payment required from the now Respondent is illegal and non-exigible;

· (...) the assessment act in this case constitutes the creation of a true tax or special contribution not permitted by law (Article 103, No. 2 of CRP and Articles 4, No. 2 and 8 of LGT) – (underlined in original);

· The act in question is thus null and void for lack of authority and for having created taxes or special contributions not permitted by law (Article 133, No. 2, paragraphs a) and d) of CPA and Articles 103, No. 2 and 165, No. 1, paragraph i) of CRP);

· (...) the act in question does not indicate and there is no legal provision applicable that reasonably legitimizes the quantification of the amount determined and the assessment of the tax in question, nor were any justifying reasons indicated;

· The stamp duty assessment act thus suffers from manifest lack of factual and legal reasoning, or, at least, this is insufficient, obscure and incongruent, such that Article 268, No. 3 of CRP, Articles 124 and 125 of CPA and Article 77 of LGT were frontally violated;

· The assessment act (...) is (...) null and void, as the amount required has no legal or factual basis (Article 77 of LGT and Article 99, paragraph c) of CPPT; cf. Article 133 of CPA);

· The quantification of the tax fact in question raises well-founded doubts, such that the stamp duty assessment act in this case should in any case be annulled, by virtue of Articles 99, No. 1, paragraph a) and 100 of CPPT;

· Citing the decisions rendered in the process heard by CAAD under No. 49/2013-T and in the Superior Administrative Court (STA) Decision, in process No. 0676/2014, the Petitioner concludes by formulating the request that his claim be judged to be well-founded and proven and, in consequence, the stamp duty assessment that is the object thereof be annulled or declared null, with the legal consequences.

In its response, contending for the dismissal of the request for arbitral ruling, AT came to argue, in summary, that:

· It believes that the assessment in question is illegal by violation of Article 1 of the Stamp Duty Code (CIS) and item 28.1 of the General Stamp Duty Table (TGIS), thus requesting its annulment by the Arbitral Tribunal;

· It further alleges that the interpretation underlying the contested assessment, according to which land for construction are properties with residential use, suffers from unconstitutionality by violation of principles contained in the Constitution of the Portuguese Republic;

· It considers that the Petitioner believes that the concept of land for construction, for tax purposes, cannot be considered property devoted to housing, pursuant to what is provided in Article 1, No. 1, of CIS and the same item 28;

· (...) It is the understanding of AT that the property on which the contested assessment falls has the legal nature of property with residential use, such that the assessment act object of the present request for arbitral ruling should be maintained, as it constitutes correct interpretation of item 28 of the General Table, added by Law No. 55-A/2012, of 29/10/2012;

· (...) Law No. 55-A/2012, of 29/10/2012, came to amend Article 1 CIS, and add to TGIS item 28 (...) With this legislative amendment, Stamp Duty would also apply to ownership, usufruct or right of superficies of urban properties whose tax property value recorded in the matrix, in accordance with the Municipal Property Tax Code (CIMI) is equal to or greater than €1,000,000.00;

· Stamp Duty would thus apply to all acts, contracts, documents, titles, papers and other facts or legal situations provided for in the general table, including gratuitous transfers of property (bold and underlined in original);

· In the absence of any definition on the concepts of urban property, land for construction and residential use, within Stamp Duty, one must resort to CIMI, in search of a definition that permits determination of possible subject matter to Stamp Duty, in accordance with what is provided in Article 67, No. 2 of CIS in the wording given by Law No. 55-A/2012, of 29/10;

· Pursuant to the said legal provision, to matters not regulated in the Code, regarding item No. 28 of TGIS the provisions of CIMI apply subsidiarily;

· (...) Article 6, No. 1 of CIMI provides regarding the types of urban properties existing, integrating in this concept land for construction (...);

· The notion of dedication of the urban property is found in the part relating to appraisal of properties, which is well understood as the appraisal of the property (purpose) incorporates value to the property, constituting a distinguishing fact determinative (coefficient) for purposes of appraisal;

· As results from the expression "... value of authorized buildings", contained in Article 45, No. 2 of CIMI the legislator opted to determine the application of the methodology of appraisal of properties in general to the appraisal of land for construction, being, therefore, applicable to them the coefficient of use provided for in Article 41 of CIMI (...) In this sense see Decision No. 04950/11, of 14/02/2012, of the Southern Administrative Court (TCA Sul) (...);

· Contrary to what is argued by the Petitioner, AT believes that the concept of "properties with residential use", for purposes of what is provided in item 28 of TGIS, comprises both constructed properties and land for construction, precisely given the literal element of the norm;

· (...) the legislator does not refer to "properties intended for housing", having opted for the notion of "residential use" - a different and broader expression whose meaning must be found in the need to integrate other realities beyond those identified in Article 6, No. 1, paragraph a) of CIMI;

· The mere constitution of a right of potential construction immediately increases the value of the property in question, hence the rule resulting from Article 45 of CIMI (...). On one hand, the part of the land where the building to be constructed will be placed is considered, and on the other the area of free land. Once the amount of the first part is determined, the value determined is reduced to a percentage between 15% and 45% as provided in No. 2 of the said rule, by virtue of construction not yet being effected. As to the value of the land adjacent to the area of placement, this is determined in the same terms as one determines the value of the area of free land and the area of excess land for purposes of any urban property;

· With respect to the legal regime of urbanization and construction, it should be noted that the same has as its prerequisite buildings already constructed (...) the permit for carrying out urbanization operations should contain (...) the number of lots and the indication of the area location, purpose, area of placement, construction area, number of floors and number of units in each of the lots, with specification of units intended for housing at controlled costs (...). And furthermore Article 77 of RJUE contains mandatory specifications (...);

· Also Municipal Directors' Plans establish the strategy for municipal development, the municipal policy for territorial planning and urbanism (...). In these terms, well before actual construction of the property, it is possible to determine and define the dedication of land for construction;

· With respect to the alleged violation of constitutional principles, AT cannot fail to emphasize that the Constitution of the Portuguese Republic requires that what is necessarily equal be treated equally and what is essentially different be treated as different (...) AT believes that the provision of item 28 of TGIS does not constitute a violation of any constitutional command. (...) It is a general and abstract rule, applicable uniformly to all cases in which the assumptions of fact and law are verified;

· The different fitness of properties (housing/services/commerce) supports different treatment, having been a choice of the legislator, for political and economic reasons, to exclude from the incidence of Stamp Duty properties intended for purposes other than residential;

· It is also important to note that taxation under Stamp Duty obeys criteria of adequacy, applying uniformly to all holders of properties with residential use of value superior to €1,000,000.00, affecting the wealth embodied and manifested in the value of properties (...);

· For all the foregoing, the assessment in question constitutes a correct interpretation and application of law to facts, suffering from no defect of violation of law, whether of CRP or CIS, and, in consequence, the claim advanced should be judged to be without merit and the Respondent Entity should be absolved from the request.

Order of Examination of Defects

In accordance with the provisions of No. 1 of Article 124 of CPPT, subsidiarily applicable to the tax arbitral process by virtue of what is provided in Article 29, No. 1, paragraph a), of RJAT, the tribunal shall examine as a priority the defects that lead to the declaration of non-existence or nullity of the contested act and, thereafter, the defects argued that lead to its annulment, according to the order established by No. 2, paragraphs a) and b) thereof.

Although the Petitioner invokes the nullity of the Stamp Duty assessment impugned, on the basis of the provisions of paragraphs a) "Acts affected by usurpation of authority" and d) "Acts that violate the essential content of a fundamental right", of No. 2, of Article 133 of the Code of Administrative Procedure (CPA), as a rule, the defects of the tax act are grounds for its voidability.

With respect to the first of the grounds invoked, there will be usurpation of authority whenever the Administration practices an act that is within the competence of another power of the State (judicial, legislative or political), even though materially it is activity of that other administrative power[1].

Now, pursuant to Article 2 of Decree-Law No. 118/2011, of 15 December, the functions of AT include, among others, "To ensure the assessment and collection of taxes on income, on property and on consumption, of customs duties and other taxes it is responsible for administering, as well as to collect and receive other income of the State or of legal persons of public law", such that the defect of usurpation of authority cannot be considered verified.

As to the second, that is, the violation of "the essential content of a fundamental right", such as the right to private property, enshrined in Article 62 of CRP, it is considered by doctrine that "A violation of this type will only occur when faced with it the fundamental right affected is left without appreciable practical expression, which is not the case of an illegal assessment, which only limitedly affects the property right of its recipients"[2].

On the other hand, it may be said that the sanction expressly provided by law for an illegal assessment is "the sanction of voidability, as is apparent from the fact that it provides for a period within which to challenge it"[3], as established by Article 102 of CPPT and, in the tax arbitral process, by Article 10, No. 1, paragraphs a) and b) of RJAT.

In this way, the order of examination of the defects that may determine the annulment of the contested assessment should be the one which, according to the prudent discretion of the tribunal, assures more stable or effective protection of the offended interests.

In the case in question, the defect attributed by the Petitioner to the tax act object of the request for arbitral ruling, which provides more stable and effective protection of his interests, is that which concerns error regarding the assumptions in the emission of the Stamp Duty assessment for the year 2013, which, if verified, will definitively exclude the possibility of renewal of the contested tax act.

Such error will derive from the interpretation given by AT to the expression "property with residential use", to which item 28.1 of TGIS refers and not from the VPT on which the rate of 1% provided therein was applied, given nothing indicates that the appraisal notified to the Petitioner on 5 August 2014, by which the property was assigned a VPT lower than €1,000,000.00, retroacts its effects to 31 December 2013, the year to which the assessment in question relates.

Effectively, regarding the non-inclusion of land for construction in the category of urban properties of "residential use" the Supreme Administrative Court (STA) has pronounced itself successively (cf., the recent STA Decision, of 29 October 2014, process No. 0864/14, available at http://www.dgsi.pt/), in deciding that "The fact that it can be considered that in the determination of the tax property value of urban properties classified as land for construction one should take into account the use that the building authorized or provided for it will have for determination of the respective value of the area of placement (cf. Nos. 1 and 2 of Article 45 of CIMI), does not determine that land for construction can be classified as 'properties with residential use', because 'residential use' is always referred to in the IMI Code with reference to 'buildings' or 'constructions', existing, authorized or provided for, because only these can be inhabited, which is not the case with land for construction, which do not have, in themselves, conditions for such, not being susceptible to being used for housing unless and when the construction authorized and provided for it is built thereon (but in that case they would no longer be 'land for construction' but another species of urban properties – 'residential', 'commercial, industrial or for services' or 'other' – Article 6 of CIMI).

It would be strange, moreover, if the determination of the scope of the rule of incidence of the tax item No. 28 of the General Stamp Duty Table was found, after all, in the rules for determining the tax property value of the Municipal Property Tax Code, and that the terminological imprecision of the legislator in the wording of that rule was, in effect, clarified and ultimately elucidated by way of an indirect and equivocal reference to the coefficient of use established by the legislator with respect to constructed properties (Article 41 of the Municipal Property Tax Code).

Thus, given that a land for construction – whatever the type and purpose of the building to be erected thereon – does not satisfy, by itself, any condition to be so licensed or to have housing defined as its normal destination, and the rule of incidence of stamp duty refers to urban properties with "residential use", without any specific concept being established for this purpose, one cannot extract therefrom that it contains a future potential, inherent to a distinct property that may possibly be built on the land."

"Since the legislator did not define the concept of urban properties with residential use, and because Article 6 of CIMI, subsidiarily applicable to Stamp Duty provided for in the new item No. 28 of the General Table, results in a clear distinction between residential urban properties and land for construction, these cannot be considered, for purposes of incidence of Stamp Duty (item 28.1 of TGIS, in the wording of Law No. 55-A/2012, of 29 October), as urban properties with residential use" (underlined by us).

Adhering fully to this consolidated jurisprudence of the STA, we find verified the error in the assumptions for emission of the Stamp Duty assessment impugned, which justifies the declaration of its illegality and consequent annulment.

B – Restitution of Sums Paid. Indemnificatory Interest

The payment of the first instalment of the contested assessment, on 16 October 2014, constitutes a subsequent fact with respect to the request for annulment of the tax act, with filing at CAAD on 9 September 2014.

Thus, the request submitted by the Petitioner on 13 January 2015, in which he requests restitution of the sums paid, accrued with indemnificatory interest, constitutes expansion of the request, as it is development or consequence of the original request, and should be presented until the closure of the discussion of the case at first instance (cf. No. 2 of Article 265 of the Code of Civil Procedure (CPC), applicable subsidiarily, by virtue of what is provided in Article 29, No. 1, paragraph e), of RJAT).

The moment of closure of the discussion of the case in the judicial challenge process coincides with the end of the period for arguments[4]. Given the content of the arbitral order of 19 December 2014, which is hereby reproduced, and the suspension of periods, motivated by the running of judicial holidays between 22 December 2014 and 3 January 2015 (cf. Article 17-A of RJAT), the expansion of the request should be considered timely.

The sums paid by the Petitioner on 16 October 2014 include, in addition to the value of the first instalment of the Stamp Duty assessment object of the present case, the costs of process and the default interest liquidated in the fiscal execution process.

Anticipating the decision, it will be said that, once the assessment object of the present request for arbitral ruling is annulled, the act of institution of the fiscal execution process is null, as a consequent act of the annulled tax act (cf. Article 133, No. 2, paragraph i), of CPA, applicable by virtue of what is provided in Article 29, No. 1, paragraph d), of RJAT), which justifies, in addition to restitution of the amount paid as tax (amount to be executed), the restitution of the costs and default interest paid therein together with the first instalment of that assessment.

With respect to the request for indemnificatory interest, having the tax arbitral process been conceived as an alternative means to the judicial challenge process (cf. the legislative authorization given to the Government by Article 124, No. 2 (first part) of Law No. 3-B/2010, of 28 April (State Budget Law for 2010) and, notwithstanding Article 2, No. 1, paragraph a), of RJAT, use the expression "declaration of illegality" to define the competence of the arbitral tribunals operating at CAAD, should be understood that the competencies comprise the powers which in judicial challenge process are attributed to tax tribunals.

Among these powers, there is that of assessment of the error attributable to the services, as well as that of condemnation of AT in the payment of indemnificatory interest that shall be shown to be due.

Paragraph b) of Article 24 of RJAT determines that the arbitral decision on the merit of the claim regarding which no appeal or challenge is available binds the tax administration from the end of the period provided for appeal or challenge, and the latter must, in the exact terms of the success of the arbitral decision in favor of the taxpayer and until the end of the period provided for spontaneous execution of sentences of tax judicial tribunals, "restore the situation that would have existed if the tax act object of the arbitral decision had not been practiced, adopting the acts and operations necessary for this purpose".

In like manner, Article 100 of LGT, applicable to the tax arbitral process by virtue of what is provided in paragraph a) of No. 1 of Article 29 of RJAT, establishes that "The tax administration is obligated, in case of complete or partial success of complaints or administrative appeals, or of judicial process in favor of the taxpayer, to the immediate and complete restoration of the situation that would have existed if the illegality had not been committed, comprising the payment of indemnificatory interest, in the terms and conditions provided for by law."

And, pursuant to No. 1 of Article 43 of LGT, "Indemnificatory interest is due when it is determined, in gracious objection or judicial challenge, that there was error attributable to the services resulting in payment of the tax debt in an amount superior to that legally due."

The error attributable to the services, from which the duty to indemnify results, may consist of error regarding the factual assumptions, which occurs whenever there is "a divergence between reality and the factual matter used as an assumption in the practice of the act"[5], or in error regarding the legal assumptions, when "in the practice of the act there has been erroneous interpretation or application of legal norms, such as the rules of objective and subjective incidence (...)"[6] and "is demonstrated when gracious objection or judicial challenge of that same assessment proceed and the error is not attributable to the taxpayer"[7].

In the case in question, it appears manifest that, once the illegality of the Stamp Duty assessment act is declared, for having been demonstrated the erroneous application of the rule of objective incidence contained in item 28.1 of TGIS, which justifies the annulment of the contested assessment, the Petitioner's right to indemnificatory interest on the amounts indebtedly paid must be recognized, from the date of their respective payment, in accordance with what is provided in No. 5 of Article 61 of CPPT, as such illegality is exclusively attributable to the Tax Administration, which practiced that tax act without legal support.

Questions Precluded from Knowledge

Given the order of examination of defects, pursuant to Article 124 of CPPT, and the solution given to the previous questions, the knowledge of the question relating to the defect of reasoning is precluded, as well as of the unconstitutionality of the norm contained in item 28 of TGIS, once this does not permit the interpretation that the AT gave thereof, in this case, when issuing the assessment object of the request for arbitral ruling.

IV – DECISION

Based on the grounds stated above and, pursuant to Article 2 of RJAT, it is decided:

− To declare the illegality of the Stamp Duty assessment impugned, by error regarding the legal assumptions, determining its annulment;

− To condemn the Tax and Customs Authority to restitution to the Petitioner of the sums indebtedly paid by him, including the accrual from the fiscal execution process;

− To condemn the Tax and Customs Authority in the payment of indemnificatory interest to the Petitioner, from the date of the indebtedly paid amount.

VALUE OF THE CASE: In accordance with what is provided in Article 306, No. 2, of CPC and Article 97-A, No. 1, paragraph a), of CPPT and Article 3, No. 2, of the Regulation of Costs in Tax Arbitration Processes, the case is assigned a value of €12,375.34.

COSTS: Pursuant to Article 12, No. 2, of RJAT, the costs are calculated in accordance with Article 4 of the Regulation of Costs in Tax Arbitration Processes and Table I annexed thereto, in the amount of €918.00, charged to the Tax and Customs Authority.

Lisbon, 30 January 2015.

The Arbitrator,

Mariana Vargas

Text prepared by computer, in accordance with No. 5 of Article 131 of CPC, applicable by reference of paragraph e) of No. 1 of Article 29 of Decree-Law 10/2011, of 20 January.

The wording of this decision is governed by the spelling agreement of 1990.

[1] Cf., in this sense, OLIVEIRA, Mário Esteves de, GONÇALVES, Pedro Costa and AMORIM, J. Pacheco de, "Code of Administrative Procedure – Annotated", Vol. II, Almedina, Coimbra, 1995, page 151.

[2] SOUSA, Jorge Lopes de, "Code of Tax Procedure and Process, annotated and commented" – 5th Edition, Volume I, Lisbon, Áreas Editores, 2006, pages 881 et seq.

[3] Cf. the Author and Work cited in the previous note, idem.

[4] SOUSA, Jorge Lopes de, "Code of Tax Procedure and Process – annotated and commented", Volume I, Áreas Editora, 5th Edition, 2006, page 784.

[5] SOUSA, Jorge Lopes de, "Code of Tax Procedure and Process – annotated and commented", Volume I, Áreas Editora, 5th Edition, 2006, page 714.

[6] Idem, ibidem.

[7] CAMPOS, Diogo Leite de, RODRIGUES, Benjamim Silva, SOUSA, Jorge Lopes de, "General Tax Law – Annotated and Commented", Encontro da Escrita, 4th Edition, page 342.