Process: 70/2016-T

Date: June 23, 2016

Tax Type: Selo

Source: Original CAAD Decision

Summary

Process 70/2016-T involved a challenge to a 2014 Stamp Tax (Imposto de Selo) assessment of €13,746.80 levied by the Portuguese Tax Authority (AT) on building land under Verba 28.1 of the General Stamp Duty Table (TGIS). The taxpayer, A... LDA, contested the 1% tax rate applied to property valued at €1,374,680, arguing that while the land was classified as 'land for construction,' no building license or approved construction project existed, and no residential construction was foreseen. The company maintained that the tax assessment violated the principle of tax legality and specificity, lacked proper factual and legal foundation, and failed to meet the legal prerequisites under Verba 28.1, which specifically targets building land designated for residential purposes. The Tax Authority countered that the land's residential designation was evident from multiple planning documents, including the Municipal Masterplan, the Detailed Plan for the area, the Subdivision License amendments, and Provisional Proof documents that explicitly identified projected residential building areas with construction costs and estimated apartment sale values. The AT argued that pursuant to Article 67(2) of the Stamp Duty Code, provisions from the Municipal Property Tax Code (CIMI) apply subsidiarily to matters not regulated concerning Verba 28.1. The arbitral tribunal at CAAD (Centro de Arbitragem Administrativa) was constituted under Decree-Law 10/2011 with sole arbitrator Paulo Ferreira Alves. The central legal question was whether Stamp Tax under Verba 28.1 TGIS can be levied on building land based on urban planning designations and subdivision licenses indicating residential purpose, even absent a current building license or approved construction project. This case illustrates the tension between formal planning classifications and actual development status in determining Stamp Tax liability on building land.

Full Decision

ARBITRAL DECISION

I - REPORT

A - PARTIES

A..., LDA, with registered office at Rua..., no...., Ground Floor, ...-..., ..., bearing the collective tax identification number ..., hereinafter designated as Claimant or taxpayer.

TAX AND CUSTOMS AUTHORITY (which succeeded the General Directorate of Taxes, by means of Decree-Law No. 118/2011, of 15 December), hereinafter designated as Respondent or AT.

The request for constitution of the arbitral tribunal was accepted by the President of CAAD, and the Arbitral Tribunal was duly constituted on 28-10-2015, to examine and decide the subject matter of this proceeding, and was automatically notified to the Tax and Customs Authority on 29-04-2016.

The Claimant failed to appoint an arbitrator, whereby, in accordance with the provisions of No. 1 of Article 6 and subparagraph b) of No. 1 of Article 11 of Decree-Law No. 10/2011, of 20 January, as amended by Article 228 of Law No. 66-B/2012, of 31 December, the Deontological Council designated Paulo Ferreira Alves, with such appointment being accepted in accordance with the law.

On 12-04-2016 both parties were duly notified of this appointment and did not express any intention to challenge the appointment of the arbitrator, in accordance with Article 11 No. 1, subparagraphs a) and b), of the RJAT and Articles 6 and 7 of the Deontological Code.

In accordance with the provisions of subparagraph c) of No. 1 of Article 11 of Decree-Law No. 10/2011, of 20 January, as amended by Article 228 of Law No. 66-B/2012, of 31 December, the sole arbitral tribunal is duly constituted on 29-04-2016.

Both parties agree with the dispensation of the meeting provided for in Article 18 of the RJAT, but submitted written pleadings.

The arbitral tribunal is duly constituted. It is materially competent, in accordance with Articles 2, No. 1, subparagraph a), and 30, No. 1, of Decree-Law No. 10/2011, of 20 January.

The parties have legal capacity and standing, are properly represented (Articles 4 and 10, No. 2, of the same statute and Article 1 of Ordinance No. 112-A/2011, of 22 March).

The proceedings are not vitiated by any defects that would invalidate them.

B - CLAIM

The Claimant seeks a declaration of illegality of the Stamp Duty Assessment (item 28.1 of TGIS) for the year 2014, which set a total tax due of €13,746.80 (thirteen thousand seven hundred and forty-six euros and eighty cents), concerning deeds nos. 2015…, 2015….

C - CAUSE OF ACTION

To support its request for arbitral pronouncement, the Claimant alleged, with a view to obtaining a declaration of illegality of the tax assessment acts concerning Stamp Duty already described in point 1 of this Award, in summary, the following:

It was notified of the assessment for voluntary payment in installments of stamp duty for the year 2014, in which appears as "TGIS Item" the "28.1, as the basis for application of the rate of 1% to the property value of the real estate in the amount of 1,374,680.00 (one million three hundred and seventy-four thousand six hundred and eighty euros).

The assessment in question concerns the year 2014, therefore the wording of item 28.1 of the TGIS in force on that date applies.

The Claimant alleges that as is evidenced in the urban property record concerning the land in question, it is "land for construction."

However, there is currently no constructive capacity foreseen for the property in question, with there being no approved project or building license for the same.

It maintains that it is evident that for the land in question no construction is foreseen, and thus it is certain that no construction for residential purposes is foreseen.

Thus, the stamp duty assessment in question, in accordance with the principle of legality and specificity 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 the facts foreseen therein by the legislator, which did not occur.

The Respondent argues that taxation results from the concrete verification of all tax requirements, as such foreseen and described, in the abstract, in the tax law, which does not occur in the case in question since it concerns land for construction for which no construction is foreseen and neither a residential construction, as demonstrated above.

Furthermore, since in this case the verification of the prerequisites on which the enforceability of the tax in question depends was not proven, it is evident that no tax fact was constituted, whereby the payment required from the company now Claimant is illegal and unenforceable.

The stamp duty assessment acts thus suffer from manifest lack of factual and legal foundation, or at least it is insufficient, unclear and incongruous, whereby Articles 268/3 of the CRP, Articles 124 and 125 of the CPA and Article 77 of the LGT were directly violated.

The assessment acts in question are thus null and void, as the amounts required have no legal or factual basis whatsoever (see Article 77 of the LGT and Article 99/c of the CPPT; cf. Article 133 of the CPA).

The Claimant concludes by alleging the voidability of the tax assessment act concerning Stamp Duty due to violation of law, in the qualification of the tax fact, having wrongly applied item 28.1 of the General Table of Stamp Duty in the wording in force in the year 2014.

D - RESPONDENT'S REPLY

The Respondent, duly notified to this effect, timely submitted its reply in which, in abbreviated summary, alleged as follows:

It does not seem that it can raise doubts that the land identified as Lot... of..., in..., is intended for the construction of residential buildings.

The Respondent alleges that this can be derived, in the first place, from the Detailed Plan for..., which constitutes an Operational Planning and Management Unit (UOPG) as appears in the Municipal Masterplan of..., with the Amendments to the Regulation to the Regional Land Use Plan for the Algarve (PROT-Algarve), published in DR 2nd Series, No. 248, of 26 December 2007.

The same results from the... Amendment to the Subdivision License No.../2001, dated 06/02/2006, for the development located in..., together with the PA, in which appear the amendments to the specifications of Subdivision License No.../2001.

The Respondent argues that the building license for the conduct of urban operations contains, among other elements, the number of lots and the indication of the location area, purpose, development area, building area, number of floors and number of units of each of the lots, with specification of units intended for housing at controlled costs, when foreseen, in accordance with subparagraph a) of Article 77 of the Legal Regime for Urban Development and Building (RJUE).

The assignment for residential purposes of the buildings to be constructed also results from the Provisional Proof of the 2nd Assessment – Sheet No.... of Lot 9.4.

The Respondent alleges that the elements contained in the said Provisional Proof already appeared in the Provisional Proof of the 1st Assessment – Sheet No.... of the same Lot, which is part of the PA, and were then only attached to the Location Plan/Sketch, Annex I and Constructive Feasibility Project.

The Respondent alleges that the aforementioned Report specifically identified the projected building areas allocated for residential use, their respective construction costs, architectural design costs, marketing costs, estimated sale value of the apartments considering the real estate market price practiced with reference to properties for residential use.

Whereby it does not seem that it can raise doubts regarding the assignment for residential purposes of the buildings foreseen in Lot 9.4.

The Respondent argues that in accordance with No. 2 of Article 67 of the Stamp Duty Code in the wording given by Law No. 55-A/2012, of 29 October, to matters not regulated in the Code, concerning item 28.1 of the TGIS, the provisions of the CIMI apply subsidiarily.

Thus, in the absence of any definition of the concepts of urban property, land for construction and residential purpose under Stamp Duty, Article 6 No. 1 of the CIMI must be considered, which provides that urban properties are divided into residential, commercial, industrial or service properties, land for construction and others.

The Respondent alleges that in light of this rule, it must be concluded that the documents described above conclusively demonstrate that Article... of the urban property register of the parish of..., municipality of..., corresponding to Lot... of the subdivision of...–..., is land for construction for purposes of the scope of application of item 28.1 of the TGIS.

The Respondent argues that the incidence of Stamp Duty on land for construction implies, in the concrete case, the effective potential for construction on the land in question.

The Respondent maintains that in the present case, it cannot fail to emphasize the relevance, for purposes of application of item 28.1 of the TGIS, of the data contained in the Provisional Proofs of the 1st and 2nd Assessments, because the determination of the taxable property value (VPT) of land for construction has as its premise the determination of the value of the authorized or foreseen buildings, for which, in accordance with the provisions of Article 38 of the CIMI, attention should be paid to the purpose of these same buildings.

The Respondent further alleges that in the assessment of land for construction, account is necessarily taken of the authorized building area and of the use to be given to that construction, that is, of the characteristics of the urban property to be constructed on it.

The Respondent maintains as to the lack of basis of the contested acts, in the sense that the tax assessment act for item 28.1 of the TGIS has a periodic character, its assessment is made annually, based on elements pre-established in the property register, and the assessments, notifications and payment deadlines of the respective collection documents follow, with necessary adaptations, the rules provided for IMI.

The Respondent concludes by supporting its position in the sense that the assessment in question in no way infringed the content of the rule of item 28.1 of the TGIS in the wording of Law 83-C/2013, or violated the constitutional principle of tax legality and the principle of specificity, and should therefore be found to be without merit and the Respondent Entity should be absolved of the claim.

E - FACTUAL FINDINGS

Before proceeding to an examination of these matters, it is necessary to present the factual matter relevant to its understanding and decision, which was carried out on the basis of documentary evidence, and taking into account the facts alleged.

As regards the relevant factual matter, this tribunal finds the following facts to be established:

The Claimant is the owner of the land for construction located in Development..., ...-..., ... of the parish of..., municipality of..., district of Faro, registered in the respective urban property register under Article..., with the property value of 1,374,680.00€ (one million three hundred and seventy-four thousand six hundred and eighty euros) for purposes of Stamp Duty taxation.

The Claimant was notified of the Stamp Duty assessment act, which set a total tax (collection) due of €13,746.80 (thirteen thousand seven hundred and forty-six euros and eighty cents).

The Claimant notified of the assessment of stamp duty No. 2015..., concerning the first installment, in the amount of €4,582.28 (four thousand five hundred and eighty-two euros and twenty-eight cents), stamp duty No. 2015..., concerning the second installment, in the amount of €4,582.26 (four thousand five hundred and eighty-two euros and twenty-six cents).

An evaluation report of the Development... was prepared.

The land has a Subdivision License .../2001, issued by the Municipal Chamber of..., which licensed the subdivision and urbanization works.

F - UNPROVEN FACTS

Of the facts with interest for the decision of the case, contained in the contestation, all those that are objects of concrete analysis, those that do not appear in the factual description above were not proven.

G - QUESTIONS TO BE DECIDED

In light of the positions assumed by the parties in the arguments presented, the central question to be resolved is the following, which must therefore be examined and decided:

The alleged declaration of illegality of the tax assessment acts for additional Stamp Duty No. 2015…, 2015…, which set a tax collection due of €13,746.80 (thirteen thousand seven hundred and forty-six euros and eighty cents).

For the payment of compensatory interest, for the overpayment of tax.

H - LEGAL GROUNDS

Given the positions assumed by the parties in the pleadings submitted, the central question to be decided by this arbitral tribunal is whether the stamp duty assessment act No. 2015… and 2015…, which set a collection in the amount of €13,746.80, relating to a parcel of land for construction located in Development..., ...-..., ... of the parish of..., municipality of..., district of Faro, registered in the respective urban property register under Article..., with the taxable property value of €1,374,680.00, suffers from formal defects, specifically that raised by the Respondent regarding lack of foundation and violation of law, due to erroneous interpretation and application of item 28.1 of the TGIS.

The factual matter is fixed and proven, therefore we now proceed to determine the law applicable to the disputed facts.

Regarding the question raised regarding defects of law due to error in the requirements of the right of assessment, concerning the question of the classification of land for construction within the scope of application of Article 28 No. 1 of the TGIS, introduced by the Scheme of Law No. 55-A/2012, of 29 October, as amended by Law No. 83-C/2013 of 31 December, let us consider the following:

The recent amendment to item 28 of the General Table of Stamp Duty, made by Article 4 of Law 55-A/2012, of 29/10, and amended by Law No. 83-C/2013 of 31 December, which now typifies the following tax facts, through the following wording:

"28 – Ownership, usufruct or surface right of urban properties whose taxable property value contained in the property register, in accordance with the Code of Municipal Property Tax (CIMI), is equal to or exceeding €1,000,000 – on the taxable property value used for purposes of IMI:

28.1 – Per residential property or per land for construction whose authorized or foreseen construction is for residential purposes, in accordance with what is provided in the Code of IMI – 1%;

28.2 – Per property, when the taxpayers who are not natural persons are resident in a country, territory or region subject to a clearly more favorable tax scheme, contained in the list approved by order of the Minister of Finance – 7.5%."

With the legislative amendment imposed by Law No. 83-C/2013 of 31 December, item 28.1 now clearly applies to "land for construction whose authorized or foreseen construction is for residential purposes."

In these terms it falls to this tribunal to decide whether the property on which the assessments now contested fall is covered by the said legal rule.

It results from the very wording of item 28.1 of the TGIS, the necessity of resorting to the concepts used in the CIMI regarding the concept of "properties" and "land for construction."

The CIMI enumerates the species of properties in its Articles 2 to 6, which is transcribed as follows:

Article 2

Concept of Property

  1. For purposes of this Code, a property is any fraction of territory, encompassing waters, plantations, buildings and constructions of any nature incorporated in or situated on it, with the character of permanence, provided that it forms part of the patrimony of a natural or legal person and, in normal circumstances, has economic value, as well as waters, plantations, buildings or constructions, in the circumstances above, endowed with economic autonomy in relation to the land on which they are situated, although situated on a fraction of territory that constitutes an integral part of a patrimony other than itself or is not of a patrimonial nature.

  2. Buildings or constructions, even if movable in nature, are deemed to have the character of permanence when devoted to non-transitory purposes.

  3. The character of permanence is presumed when the buildings or constructions are situated on the same site for a period exceeding one year.

  4. For purposes of this tax, each autonomous fraction, in the regime of horizontal property, is deemed to constitute a property.

Article 3

Rustic Properties

1 – Rustic properties are lands situated outside an urban agglomeration that are not to be classified as land for construction, in accordance with No. 3 of Article 6, provided that:

They are devoted to or, in the absence of concrete assignment, have as their normal destination a use generating agricultural income, such as are considered for purposes of personal income tax (IRS);

Not having the assignment indicated in the preceding subparagraph, they are not constructed or have only buildings or constructions of an accessory character, without economic autonomy and of reduced value.

2 – Rustic properties are also lands situated within an urban agglomeration, provided that, by virtue of legally approved provision, they cannot have use generating any income or can only have use generating agricultural income and are actually having this assignment.

3 – Rustic properties are further:

Buildings and constructions directly devoted to the production of agricultural income, when situated on the lands referred to in the preceding numbers;

Waters and plantations in the situations to which No. 1 of Article 2 refers.

4 – For purposes of this Code, urban agglomerations are deemed to include, in addition to those situated within legally fixed perimeters, nuclei with a minimum of 10 units served by roadways of public use, with their perimeter delimited by points spaced 50 m from the axis of the roadways, in the transversal sense, and 20 m from the last building, in the direction of the roadways.

Article 4

Urban Properties

Urban properties are all those that should not be classified as rustic, without prejudice to the provisions of the following article.

Article 5

Mixed Properties

1 – Whenever a property has rustic and urban parts it is classified, in its entirety, in accordance with the main part.

2 – If neither of the parts can be classified as main, the property is deemed to be mixed.

Article 6

Species of Urban Properties

1 – Urban properties are divided into:

Residential;

Commercial, industrial or for services;

Land for construction;

Others.

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

3 – Lands for construction are deemed to be lands situated within or outside an urban agglomeration, for which a license or authorization for subdivision or construction operations has been granted, admitted prior communication or issued favorable prior information, and also those that have been as declared in the acquisition deed, with the exception of lands where the competent entities forbid any such operations, namely those located in green areas, protected areas or which, in accordance with municipal land use plans, are devoted to public spaces, infrastructure or facilities. (Wording of Law No. 64-A/08, of 31-12)

4 – Lands situated within an urban agglomeration that are not land for construction nor are covered by the provisions of No. 2 of Article 3 fall within the provision of subparagraph d) of No. 1, as well as buildings and constructions licensed or, in the absence of license, that have as their normal destination other purposes than those referred to in No. 2 and also those of the exception in No. 3.

In accordance with the legal regime, Article 6 No. 3 expressly tells us what is to be considered as land for construction.

In accordance with the documentation attached to the proceedings, specifically the Urban Property Record and in particular the Subdivision License .../2001, issued by the Municipal Chamber of..., which licensed the subdivision and urbanization works, it clearly results that the property in question is land for construction, in accordance with Article 6 No. 3.

It is concluded that the property falls within the scope of the concept provided in item 28.1 of the TGIS, provided that its respective VPT is equal to or exceeding €1,000,000.

It now falls to determine whether the property meets the requirement of item 28.1, concerning the value of 1,000,000.00€ so as to fall within its scope.

Considering the scope of application of the rule to land for construction of buildings, taxation falls on values corresponding to properties to be built which, according to their respective authorization or foreseen use, are intended to have an assignment for residential purposes, even if this is found present conjointly with others.

In accordance with Article 45 of the CIMI, the taxable property value of land for construction is calculated as follows:

"1 - The taxable property value of land for construction is the sum of the value of the building area to be constructed, which is that situated within the perimeter of the building's foundation on the ground, measured by the exterior part, added to the value of the land adjacent to the foundation.

2 - The value of the building area varies between 15% and 45% of the value of the authorized or foreseen buildings.

3 - In fixing the percentage of the value of the land of foundation, the characteristics referred to in No. 3 of Article 42 are taken into consideration.

4 - The value of the area adjacent to the construction is calculated in accordance with No. 4 of Article 40.

5 - When the document proving constructive feasibility referred to in Article 37 makes reference only to the PDM indices, the evaluating experts shall estimate, with foundation, the respective building area, taking into consideration, in particular, the average building areas of the surrounding area."

Complementarily, in the assessment of land for construction, the area adjustment coefficient provided for in Article 40-A of the same Code is applied.

From the assessment rules referred to it results, for the situation in question, that the VPT is determined as a function of the building area devoted to each of them, and treating itself with land for construction whose authorized or foreseen construction has various uses the respective total VPT is, therefore, the resulting one from the sum of the values attributed to the different areas, without prejudice to the value rounding rule established in Article 38, No. 2, of the CIMI.

As is proven by the elements attached to the proceedings, the construction authorized on the identified land is intended for residential use, considered in the assessment made to the land and assigned the total VPT of €1,374,680.00€, resulting from the sum of the value attributed to the areas of the various uses: €1,374,680.00.

The assessment in question in the present proceeding was issued in the period of validity of Item 28.1, of the General Table of Stamp Duty, in the wording given by Law No. 83-C/2013, its application in consonance with the above-cited rules is unequivocal, the scope of application of the rule extends to land for construction "whose authorized or foreseen construction is for residential purposes", and its respective VPT is superior to €1,000,000.00.

In light of the foregoing, it is clear that the property here in question falls within item No. 28.1 of the TGIS.

Regarding the question raised by the Claimant that the stamp duty assessment acts thus suffer from manifest lack of factual and legal foundation, or at least it is insufficient, unclear and incongruous, whereby Articles 268/3 of the CRP, Articles 124 and 125 of the CPA and Article 77 of the LGT were directly violated.

Regarding the foundation of the act, jurisprudence holds, and we refer to the Judgment of the Supreme Administrative Court of 23/04/2014, rendered in the context of proceeding No. 01690/13 and in which the reporter was Justice ASCENSÃO LOPES, assessment that: "The act will be sufficiently founded when the taxpayer, placed in the position of a normal recipient – the bonus pater familias of which Article 487, No. 2 of the Civil Code speaks – may come to know the factual and legal reasons that are at its genesis, so as to allow him to choose, in an informed manner, between the acceptance of the act or the invocation of the legal means of challenge, and such that, in this latter circumstance, the court may also exercise effective control of the legality of the act, measuring its legal correctness in light of its contextual foundation".

The foundation must contain the elements of law and fact that allow the taxpayer to understand the reason for the assessment.

In the present case, in both of the assessment acts contested, it is verified with clarity in the assessment, the reference to the property identification in the register of inscribed property, its property value, the year of the tax, the date of assessment, the legal rule applied, in concrete the item of the TGIS, the rate used to determine the amount of tax and the value of the collection.

In these terms, this tribunal considers that the act is sufficiently founded, as it contains the minimal references to the factual and legal matter used by the AT for its adoption.

In these terms, the provisions of item No. 28.1 of the TGIS are applicable to the urban land in question, whereby the tax assessment acts here contested do not suffer from defect, and it is decided that the request for arbitral pronouncement should be found to be without merit, and the AT should be absolved of the claim.

N - DECISION

Therefore, in light of all the foregoing, this Arbitral Tribunal decides:

  1. To find without merit the request for a declaration of illegality of the tax assessment acts concerning Stamp Duty nos. 2015…, 2015…, which set a collection due of €13,746.80 (thirteen thousand seven hundred and forty-six euros and eighty cents), and the consequent absolution of the AT from the claim.

The value of the proceeding is set at €13,746.80 (thirteen thousand seven hundred and forty-six euros and eighty cents), of the value of the assessment taking into account the economic value of the proceeding measured by the value of the tax assessments contested, and in accordance therewith the costs are set, in the respective amount of 918.00€ (nine hundred and eighteen euros), to be borne by the Claimant in accordance with Article 12, No. 2 of the Tax Arbitration Scheme, Article 4 of the RCPAT and Table I attached to the latter. – No. 10 of Article 35, and Nos. 1, 4 and 5 of Article 43 of the LGT, Articles 5, No. 1, subparagraph a) of the RCPT, 97-A, No. 1, subparagraph a) of the CPPT and 559 of the CPC).

Notify.

Lisbon, 23 June 2016

The Arbitrator

Paulo Ferreira Alves

Frequently Asked Questions

Automatically Created

What is Verba 28.1 of the Tabela Geral do Imposto de Selo (TGIS) and how does it apply to building land (terrenos para construção)?
Verba 28.1 of the Tabela Geral do Imposto de Selo (TGIS) imposes an annual 1% Stamp Tax on the patrimonial value of building land (terrenos para construção) intended for residential construction. It applies to land classified in urban property records as construction land and designated for residential purposes according to applicable urban planning instruments. The tax is calculated on the property's assessed value (valor patrimonial tributário). According to Article 67(2) of the Stamp Duty Code (Código do Imposto de Selo), provisions from the Municipal Property Tax Code (CIMI) apply subsidiarily to matters not specifically regulated. The key criterion is whether the land is designated for residential construction, which can be determined from municipal master plans, detailed plans, subdivision licenses, and other urban planning documents, rather than requiring an active building license or approved project at the time of assessment.
Can the Portuguese Tax Authority (AT) levy Stamp Tax (Imposto de Selo) at 1% on the assessed value of building land under Verba 28?
Yes, the Portuguese Tax Authority (AT) can levy a 1% annual Stamp Tax on the assessed patrimonial value of building land under Verba 28.1 of TGIS when the land is classified as 'terrenos para construção' (land for construction) and designated for residential purposes. The AT's authority to impose this tax does not depend on the existence of an approved building project or active construction license at the moment of assessment. Instead, the tax applies based on the land's classification in urban property records and its designation in urban planning instruments such as municipal master plans (Plano Diretor Municipal), detailed plans (Planos de Pormenor), subdivision licenses (licenças de loteamento), and operational planning and management units (UOPG). The tax assessment can be based on planning documents that identify the land's intended residential use, projected building areas, and construction specifications, even if actual construction has not yet commenced or been licensed.
What is the CAAD arbitration procedure for challenging Stamp Tax (Imposto de Selo) assessments in Portugal?
The CAAD (Centro de Arbitragem Administrativa) arbitration procedure for challenging Stamp Tax assessments in Portugal is governed by Decree-Law 10/2011 of 20 January (RJAT - Regime Jurídico da Arbitragem Tributária). Taxpayers submit a request for constitution of an arbitral tribunal, which the CAAD President reviews for acceptance. The tribunal can be composed of a sole arbitrator or three arbitrators. If the claimant fails to appoint an arbitrator, the Deontological Council designates one. Both parties are notified and may challenge the appointment within legal deadlines according to Articles 6, 7, and 11 of the RJAT and the Deontological Code. The tribunal's material competence is established under Articles 2(1)(a) and 30(1) of Decree-Law 10/2011. Parties must have legal capacity and proper representation (Articles 4 and 10(2) of RJAT and Ordinance 112-A/2011). Both parties submit written pleadings, and the preliminary hearing under Article 18 may be waived by agreement. The process provides an alternative to judicial courts for resolving tax disputes with binding arbitral decisions.
How did the CAAD Arbitral Tribunal rule on the legality of the 2014 Stamp Tax liquidation in Process 70/2016-T?
Based on the record presented in Process 70/2016-T, the case centered on whether the Tax Authority properly applied Verba 28.1 of TGIS to levy 1% Stamp Tax on building land valued at €1,374,680 for the year 2014. The claimant argued the assessment was illegal because no building license or construction project existed, and therefore the legal prerequisites for taxation were not met, violating Articles 268/3 of the Portuguese Constitution, Articles 124-125 of the Administrative Procedure Code, and Article 77 of the General Tax Law (LGT). The Tax Authority demonstrated through extensive planning documentation—including the Municipal Masterplan, Detailed Plan, Subdivision License amendments, and Provisional Proof documents—that the land (Lot 9.4) was designated for residential construction with identified building areas, construction costs, and projected apartment values. The AT argued this designation satisfied the requirements under Verba 28.1 TGIS, with CIMI provisions applying subsidiarily pursuant to Article 67(2) of the Stamp Duty Code. While the full arbitral decision text is not provided, the case illustrates the critical distinction between planning designation versus actual development status in determining Stamp Tax liability.
What legal grounds can taxpayers invoke to contest Stamp Tax charges on building land before the CAAD?
Taxpayers contesting Stamp Tax charges on building land before CAAD can invoke several legal grounds: (1) Violation of the principle of tax legality and specificity (princípio da legalidade e tipicidade fiscal), arguing the concrete facts do not match the abstract legal requirements of Verba 28.1 TGIS; (2) Lack of proper factual and legal foundation (falta de fundamentação) under Articles 268(3) of the Constitution (CRP), Articles 124-125 of the Administrative Procedure Code (CPA), and Article 77 of the General Tax Law (LGT), claiming the assessment is insufficient, unclear, or incongruous; (3) Non-constitution of the taxable event (facto tributário), asserting that legal prerequisites for tax enforceability were not verified, particularly the designation for residential construction; (4) Nullity of the assessment act under Article 77 LGT and Article 99(c) of the Tax Procedure Code (CPPT) and Article 133 CPA, arguing amounts required lack legal or factual basis; (5) Incorrect legal qualification of the tax fact, claiming improper application of Verba 28.1 when land lacks building licenses, approved projects, or concrete construction plans; and (6) Violations of constitutional guarantees and administrative procedure requirements ensuring proper notification and justification of tax assessments.