Process: 700/2014-T

Date: March 31, 2015

Tax Type: Selo

Source: Original CAAD Decision

Summary

This CAAD arbitration case (700/2014-T) addresses the application of Stamp Tax under Verba 28.1 of the TGIS to building land (terreno para construção). The claimant, a company owning urban building land in Lisbon, challenged multiple Stamp Tax assessments totaling €45,656.55. The dispute involved two separate assessments: one issued in 2012 for €15,218.85 (at 0.5% transitional rate) and another in 2013 for €30,437.70 (at 1% rate), both referencing the 2012 tax year. The claimant raised three principal legal arguments: (1) double taxation (duplicação de colecta) because the same property was assessed twice for the same reference year; (2) procedural illegality due to lack of identification of the author of the tax act; and (3) substantive illegality arguing that building land does not fall within the legal scope of Verba 28.1's incidence rule, constituting an error as to prerequisites under Article 99 of CPPT. The Tax Authority raised preliminary objections regarding CAAD's jurisdiction and the timeliness of the administrative complaint that preceded the arbitration request. The tribunal, constituted under the RJAT framework (Decree-Law 10/2011), valued the economic interest at €45,656.55, heard witness testimony regarding electronic notification procedures, and examined the administrative file. The case illustrates critical issues in Portuguese Stamp Tax law: the scope of Verba 28/28.1 application to different property types, the prohibition against double collection for the same tax period, procedural requirements for challenging tax assessments, and the arbitral tribunal's competence to review both substantive tax law questions and procedural defects in high-value property taxation disputes.

Full Decision

ARBITRAL DECISION

Case 700/2014-T

THE PARTIES

Claimant: A... –, Lda., NIPC PT ..., with registered office at Rua …, Lisbon.

Respondent: Tax and Customs Authority (AT).

DECISION

REPORT

a) On 01-10-2014, the company A... –, Lda., NIPC PT ..., submitted an application for the constitution of a singular arbitral tribunal (TAS), pursuant to the combined provisions of articles 2 and 10 of Decree-Law No. 10/2011, of 20 January (Legal Framework for Arbitration in Tax Matters), hereinafter referred to only as RJAT.

b) The application was submitted by counsel, whose power of attorney was attached.

THE APPLICATION

c) The Claimant petitions for the annulment of the assessment of Stamp Tax (IS) from item 28.1 of TGIS, with reference to the year 2012, with the identification of documents 2013 ..., 2013 ... and 2013 ..., corresponding to the 1st, 2nd and 3rd instalments, all with assessment date of 2013.03.21, generating a total collection in the amount of 30,437.70 euros, relating to the urban property of which it is the sole owner, of the type "building land", registered in the urban property register of the Lumiar Parish, municipality and district of Lisbon, under article ...º.

d) It further invokes "double taxation" insofar as it was assessed, with reference to the same immovable property, in addition to the tax mentioned in the previous subsection, Stamp Tax (IS) also from item 28.1 of TGIS, with reference to "article 6 - no. 1 - paragraph f) and sub-paragraph i)" of "Law 55-A/2012, of 29.10", document identification 2012 ..., with assessment date of 2012.11.07, generating a collection in the amount of 15,218.85 euros.

e) It further invokes the illegality of the stamp tax assessments from item 28 of TGIS indicated in c) and d), firstly by arguing that there is "double collection" as regards the year 2012, then by arguing that there is the defect of lack of "identification of the author of the act", and finally it invokes that the contested acts suffer from "manifest illegality for not being included in the legal provision" of the incidence rule, that is, it practically invokes the defect of error as to the prerequisites, pursuant to article 99 of CPPT.

f) It concludes by requesting the declaration of illegality of the tax acts (the assessments), for not being covered by the incidence rule of item 28.1 of TGIS, carried out in 2012 and in 2013.

OF THE SINGULAR ARBITRAL TRIBUNAL (TAS)

g) The request for arbitral decision was accepted by the President of CAAD and immediately notified to AT on 03.10.2014.

h) By the Ethics Board of CAAD, the signatory of this decision was appointed as arbitrator, and the parties were notified thereof on 18.11.2014.

i) Therefore, the Singular Arbitral Tribunal (TAS) has been duly constituted, as of 04.12.2014, to examine and decide the subject matter of this dispute.

j) All these acts are documented in the communication of constitution of TAS dated 04.12.2014, which is hereby reproduced.

k) AT was notified to respond on 05.12.2014. It responded on 20.01.2015. On 30.01.2015 it submitted the PA consisting of 80 pages/leaves.

l) Since the Claimant had indicated in the final part of the request for decision 2 witnesses, the TAS by order of 04.12.2014 decided not to proceed with their examination, considering it to be a useless measure, if AT did not invoke exceptions and the Claimant did not come to identify the witnesses to this specific factual matter.

m) Also by order of 04.12.2014 the TAS fixed the value of economic interest at 45,656.55 euros, in view of the content of the Claimant's request, since it contests the assessment of stamp tax from item 28 of TGIS, made in 2012 at the rate of 0.5% (transitional regime) and the assessment of tax, made in 2013 at the rate of 1% (collections of 15,218.85 euros + 30,347.70 euros = 45,656.55 euros).

n) Since in its response AT invoked exceptions (facts preventing, modifying or extinguishing the right invoked by the Claimant) the TAS scheduled for 02.02.2015 the meeting of parties provided for in article 18 of RJAT.

o) At the meeting of parties on 02.02.2015 and since the Claimant considered the matter of articles 8 to 20 of the request for decision to be contested (regarding notification/receipt by electronic notification of the collection notes which it attached as documents 2 to 4 – regarding the IS assessed in 2013) a witness examination was scheduled for 12.02.2015, at 10.00 hours, on the matter indicated.

p) At this same meeting the Claimant delivered a pleading in which it refers that in the PA, the content of the complaint relating to the tax here contested (of the year 2012 and assessed in 2013) was not attached, further clarifying that it intends to contest both assessments (indicated in subsections c) and d) above), and having further attached the content of the complaint which it filed on 13.12.2012 in the SF of Lisbon-1 against the assessment indicated in subsection d) above.

q) On 12.02.2015, at 10.00 hours, the examination of witness B..., who was sworn in and declared to be an employee of the Claimant entity, took place. She answered regarding the matter of articles 8 to 20 of the request for decision. Her testimony was recorded in audio format.

r) In response to the content of the pleading referred to in p), AT responded on 09.03.2015, clarifying the issues raised. The Claimant further, by pleading of 16.03.2015, reiterated the defect of double collection between the two assessments indicated in subsections c) and d) above.

s) On 23.03.2015 the TAS issued the following order: "... the themes that could be addressed and resolved at the meeting referred to in article 18 of RJAT and in the arguments have already been sufficiently dealt with in the record, whereby the TAS dispenses with the holding of the meeting of parties of article 18 of RJAT and the scheduling of a period for written arguments, unless within 5 days either party objects to this understanding, indicating the concrete facts to be resolved that support the need for the procedural acts mentioned above". This order was notified to the parties on that same date.

t) The parties having not expressed disagreement with the above-mentioned order, it is verified that the Claimant and AT gave their express or tacit assent to the non-holding of the meeting of parties referred to in article 18 of RJAT and likewise regarding the unnecessariness of producing arguments.

u) Accordingly, the meeting of parties provided for in article 18 of RJAT was not held, nor were arguments produced.

PROCEDURAL REQUIREMENTS

v) Capacity, legitimacy and representation - the parties enjoy legal personality and capacity, are legitimate and are duly represented.

w) Contradiction - AT on 20.01.2015 submitted to the record its response. And on 30.01.2015 it submitted the PA consisting of 80 pages/leaves. All orders of the TAS and all pleadings and documents submitted by the parties were regularly notified to their respective counterparty.

x) Exceptions – AT adduces facts that may be considered to be dilatory exceptions (no. 1 of article 576 of CPC), namely:

  1. It invokes that the TAS is incompetent because it understands that what is at issue in this proceeding is directly the examination of the act of preliminary rejection of an administrative complaint;

  2. Insofar as, because the administrative complaint may have been submitted beyond the legal period, it argues that the present request for decision filed by the Claimant should be dismissed, alleging the implicit untimeliness of its submission to CAAD.

That is, what is essentially at issue is to determine whether the submission of the request for arbitral decision is timely given that (under AT's implicit thesis) it was not submitted within the prescribed period in paragraph a) of no. 1 of article 10 of RJAT, taking into account that the administrative complaint that preceded it was not submitted to it within the legal period (article 70 of CPPT), a matter that will be grounded in the determination of the date on which the Claimant was or must be considered to have been notified of the assessment of the taxes contested (subsection c) of the Report).

SUMMARY OF THE CLAIMANT'S POSITION

y) The Claimant argues that the stamp tax assessments referred to in subsections c) and d) should be annulled.

z) It alleges that it filed an administrative complaint of the assessment indicated in subsection c) above, which was rejected for untimeliness, as notified by office 059590 of 18.09.2014, challenging this decision by arguing that there is no untimeliness for the reason that it was not notified by electronic means of the assessment notes.

aa) It alleges the lack of notification of the assessment notes referred to in subsection c) above, attributing to the Respondent the fact that it did not send it any message warning that an electronic notification had been sent to it, concluding that the manner of notification of warning messages of notification is not defined, nor was any received in the company's email or its TOC's, arguing that this factuality constitutes an incurable nullity, whereby it concludes the timeliness of the submission of the administrative complaint and the request for arbitral decision, petitioning the "nullity of the acts carried out and of the record and subsidiarily annulability".

bb) It states that it only received the assessment note indicated in subsection d) above by postal mail, regarding which it filed an administrative complaint on 13.12.2012

cc) It further invokes the illegality of the stamp tax assessments from item 28 of TGIS indicated in subsections c) and d) above. Firstly by arguing that there is "double collection" because both assessments refer to the year 2012, then because there is the defect of lack of identification of the author of the act, and lastly it invokes that the contested acts suffer from "manifest illegality for not being included in the legal provision" the possibility of such taxation, that is, it practically invokes the defect of error as to the prerequisites, pursuant to article 99 of CPPT.

dd) In the pleading submitted on 12.02.2015 it requests the removal from the record of the administrative complaint submitted by AT and which constitutes the PA. In this same pleading it argues that the value of economic interest should be that fixed by the TAS, as per subsection m) above, that is, it is 15,218.85 euros + 30,347.70 euros = 45,656.55 euros, since both IS assessments are at issue.

ee) It further invokes the non-conformity of the tax acts, in the implicit reading carried out by AT, with the constitutional principle of no. 3 of article 103 of CRP and the principles of equality, proportionality and good faith.

SUMMARY OF THE TAX AND CUSTOMS AUTHORITY'S POSITION

ff) AT in its response to the request for decision argues that the value of the case should be 30,437.00 euros and not 45,656.55 euros, disagreeing with the order of the TAS referred to in subsection m).

gg) It argues for the incompetence of the TAS since the immediate object of the request for arbitral decision aims to attack the act of preliminary rejection of the administrative complaint of the assessment referred to in c) for untimeliness, since it did not contain any examination of the legality of the assessment act, taking into account the jurisdiction of arbitral tribunals (article 2 - 1 of RJAT).

hh) It concludes by stating that the notifications of the IS collection notes referred to in subsection c) above "are considered validly notified to the taxpayer by electronic means" "on the 25th day following transmission (which is documented in the instructional record)". Whereby "the Claimant not having demonstrated ... either in administrative proceedings or in these proceedings, that the notification only occurred at a later moment by reason not attributable to it ... it should be concluded ... by the untimeliness of the administrative request and consequent consolidation of the assessment in the legal order".

ii) It concludes that the Claimant's requests are unfounded.

jj) AT, in the pleading referred to in the first part of subsection r) above, states that the administrative complaint which it attached in the PA was the one the Claimant identified in the request for decision, whereby it does not make sense to petition now for its removal from the record.

kk) It invokes that the IS assessment referred to in subsection d) above (tax event occurring on 31.10.2012 and assessment made on 07.11.2012) was subject to rejection but is still subject to hierarchical review "with no litigation review period being in progress for it".

ll) It further states that the IS assessment of the year 2013, which occurred through the tax event verified on 31.12.2013, assessed in 2014, gave rise to CAAD case 765/2014-T.

II - QUESTIONS FOR THE TRIBUNAL TO RESOLVE

The questions that arise for the Tribunal relate only to the interpretation and application of rules of law.

On this specific matter, CAAD has already ruled in several decisions in which the substantive question is the same and likewise the STA itself, that is, there is discussion of the scope of the provision of the incidence rule of items 28 and 28-1 of TGIS.

The limit of interpretation is the letter, the text of the rule. What follows is then the "task of interconnection and assessment that escapes the literal domain".

Starting from the principle that every rule has a provision and a statement, the question that arises here is to determine, by delimitating, whether the incidence rule, as it is drafted – in its provision - (urban properties … with residential use), encompasses or not the legal-tax reality defined in law as "building land".

Accordingly, the substantive question that the TAS should resolve will be the following:

ü Do the tax acts of IS assessment now contested suffer from any non-conformity with law, namely "error in the qualification of the tax event" (or error in the factual prerequisites) that affects their maintenance in the tax legal order?

However, in this proceeding, prior questions arise to be resolved, which are the following:

Raised by the TAS and with the agreement of the Claimant

Ø Value of the case: 30,437.00 euros or 45,656.55 euros?

Raised by the Claimant

Ø Removal from the record of the administrative complaint submitted by AT in the PA for having no connection with the proceeding.

Ø "Double collection" between the assessments referred to in subsections c) and d) of the Report.

Ø Lack of signature/author of the act on the assessment notes.

Ø Lack of notification of the assessment notes referred to in subsection c) of the Report.

Raised by the Respondent

Ø Regarding the assessment referred to in subsection c) of the Report - incompetence of the TAS because it understands that what is at issue in this proceeding is the examination of the act of preliminary rejection of the administrative complaint which did not examine the legality of the contested act (article 2 - 1 of RJAT).

Ø Regarding the assessment referred to in subsection d) of the Report – a decision capable of litigation review has not yet been formed because the hierarchical review procedure is in progress.

It appears to the TAS that, in essence, what is at issue in the questions raised by the Respondent is to determine whether the submission of the request for arbitral decision is timely given that (under AT's implicit thesis) it was not submitted within the prescribed period in paragraph a) of no. 1 of article 10 of RJAT, taking into account that the administrative complaint was not submitted to it within the legal period (article 70 of CPPT), a matter that will be grounded in the determination of the date on which the Claimant was or must be considered to have been notified of the assessment of the tax contested.

That is, concluding that the Claimant was or must be considered legally notified of the assessment referred to in subsection c) above, on a certain date, which leads the TAS to conclude that the administrative complaint was not submitted within the legal period (as AT argues) naturally the request for arbitral decision will be dismissed for untimeliness, taking into account paragraph a) of no. 1 of article 10 of RJAT and paragraph a) of no. 1 of article 102 of CPPT.

It should be noted that, even if the TAS concludes that the requests for annulment of the assessments are dismissed, pursuant to the above-mentioned grounds (untimeliness in the case of the assessment in subsection c) of the Report), the Claimant will not be prevented from using the legal mechanisms still at its disposal, aimed at obtaining material justice, e.g., by virtue of article 78 of LGT, since tax acts are only truly consolidated in the tax legal order after 4 years from assessment. Regarding the assessment referred to in subsection d) of the Report, AT has not yet ruled on the merits of the hierarchical review that is pending.

III. PROVEN AND UNPROVEN FACTS. REASONING

Taking into account the official nature of obtaining property records, it is noted that the TAS obtained on 17.03.2015, via the internet, the property record relating to the immovable property subject to this proceeding and which is attached to this decision.

With relevance to the decision to be adopted, these are the facts that are considered proven, indicating the respective documents and/or the articles of the Claimant's request (or pleadings) and of AT's response (or pleading) as to the facts admitted by agreement, as reasoning:

Proven Facts

  1. The Claimant appears as the holder of the sole ownership of the urban property, of the type "building land", registered in the urban property register of Lumiar Parish, municipality and district of Lisbon, under article ...º - According to the urban property record attached to this decision.

  2. The description of the urban property is as follows: "Type of property: building land". – According to the urban property record attached to this decision.

  3. In the urban property record, in "assessment data" it refers to: "type of location coefficient: residential" and contains a box indicating: "Ca – 1.00".

  4. The urban property at issue had on 31.12.2011 and on 31.12.2012 a patrimonial value under CIMI of 3,043,770.00 euros – According to documents nos. 2 to 5 attached with the request for decision – IS assessment notes.

  5. The Claimant appears as an entity that, for purposes of relations with AT, joined the CTT Mail system on 18-03-2002, receiving, at least in 2010, several notifications through this electronic mechanism – According to page 56 of PA and document no. 6 attached with the request for decision.

  6. The Respondent sent and delivered to the electronic mail box of the Claimant, ViaCTT, respectively on 28.03.2013, 02.07.2013 and 30.10.2013 the stamp tax assessment notes with reference to the year 2012, with the identification of documents 2013 ..., 2013 ... and 2013 ..., corresponding to the 1st, 2nd and 3rd instalments, all with assessment date of 2013.03.21, generating a total collection in the amount of 30,437.70 euros – According to pages 57, 58 and 59 of PA submitted by the Respondent.

  7. The Claimant received, by postal mail, the stamp tax assessment note identified in subsection d) of the Report, on an undetermined date (having reference to "article 6 - no. 1 - paragraph f) and sub-paragraph i)" of "Law 55-A/2012, of 29.10", document identification 2012 ..., with assessment date of 2012.11.07, generating a collection in the amount of 15,218.85 euros) – Article 12 of the request for decision and document no. 5 attached with the request for decision.

  8. The Claimant obtained the stamp tax assessment notes of 2012, assessed in 2013 referred to in 6), on the Tax Authority Portal when confronted with the postal citation of an enforcement action – article 8 and 23 of the request for decision.

  9. Tax assessed only on the basis of item 28.1 of TGIS, with the wording introduced thereto by Law 55-A/2012, of 29 October - According to documents nos. 2 to 5 attached with the request for decision – IS assessment notes.

  10. The deadline for payment of the 3rd instalment of the assessment referred to in 6) occurred on 30.11.2013 – as per page 60 of PA and Document no. 4 attached with the request for decision.

  11. On 24.04.2014, by request of the Claimant which it did not attach to the record, submitted to AT on an undetermined date, administrative complaint no. ... was initiated against the assessment indicated in subsection c) of the Report, which was rejected for preliminary rejection for untimeliness, by order of 16.09.2014 of DF of Lisbon – According to document no. 1 attached with the request for decision, print of the detail of the administrative complaint submitted by AT in the pleading of 09.03.2015 and final part of no. 1 of the Claimant's pleading submitted on 16.03.2015.

  12. The Claimant submitted to AT on 13.12.2012 an administrative complaint against the assessment referred to in subsection d) of the Report, which took the number ... which was rejected on 25.06.2013 and against whose decision a hierarchical review was filed on 04.09.2013, which took the number ... which is still pending final decision – article 12 of the request for decision, document submitted by the Claimant on 12.02.2015 and print of the detail of the administrative complaint submitted by the Respondent with the pleading of 09.03.2015.

  13. The electronic address that appeared in "Tax Authority Portal data", at least until 29.09.2014, was … and belonged to the Claimant's TOC – as per document no. 6 attached with the request for decision and testimony of witness B....

Unproven Facts

The witness B... gave her testimony regarding the matter of articles 8 to 20 of the request for decision. However, on the critical question that supports the Claimant's thesis that it was not notified of the assessment notes – with the allegation that AT did not send it a warning message to the email indicating that these documents had been deposited in the electronic mail box – she ended up referring that what she knew was only what the TOC had told her, that is, she did not demonstrate direct and personal knowledge of the facts. From what the witness stated, the TAS only considers relevant the matter contained in subsection 12) of the established facts.

The TAS did not establish as proven the alleged non-sending of a warning to the email of the Claimant's TOC, at the time of deposit of the collection notes in the electronic mail box referred to in subsection c) of the Report.

Furthermore, from the content of page 56 of PA submitted by the Respondent, it is apparent that the Claimant receives annually a significant number of ViaCTT notifications, particularly regarding IMI exemptions, making it implausible to claim that it did not receive them in the case under discussion in this proceeding or that this fact originated from an alleged failure to send a deposit warning in the electronic mail box of notifications to the email indicated in "Tax Authority Portal data".

In the final part of the Claimant's pleading submitted on 16.03.2015 it contests the details of the administrative proceedings that the Respondent attached to the pleading of 09.03.2015, but such general contestation does not respect the burden of specific contestation. In fact, the Claimant, by the content of no. 1 of its pleading, ends up corroborating the numbers of the administrative proceedings at issue in this proceeding, whereby, in a certain way it demonstrates having understood and even used the content of these details. The TAS accepted the probative value of the content of these documents (details of administrative complaints) for having no reason to conclude that they do not correspond to material truth.

There is no other factuality alleged that is relevant to the proper resolution of the procedural dispute.

IV. EXAMINATION OF THE QUESTIONS FOR THE TAS TO RESOLVE

Let us then examine the questions raised to which the TAS should respond.

Value of the case: 30,437.00 euros or 45,656.55 euros?

The TAS is bound to decide "in accordance with established law" (no. 2 of article 2 of RJAT).

What should be relevant for purposes of fixing the "value of the case" is, in this case, the "amount whose annulment is sought" (paragraph a) of no. 1 of article 97-A of CPPT).

And the Claimant in paragraphs b) and c) of the final part of the request clearly petitions for the annulment of the assessments made in 2012 and in 2013, although assigning different defects (violation of the incidence rule of item 28.1 of TGIS and double collection). It is in the Claimant's request that its scope must be obtained at the level of economic relevance.

Now, the amount whose annulment the Claimant petitions is 15,218.85 euros + 30,347.70 euros = 45,656.55 euros, whereby this can only be the value of the economic interest of the request pursuant to paragraph e) of no. 2 of article 10 of RJAT and paragraph a) of no. 1 of article 97A of CPPT.

Whereby the TAS decides to maintain the value of economic interest fixed in this proceeding, at 45,656.55 euros, reiterating the order of 04.12.2014.

Removal from the record of the administrative complaint submitted by AT in the PA for having no connection with the proceeding.

Although the complaint does not directly relate to the present arbitral proceeding, but rather to the arbitral proceeding running in CAAD with the number 765/2014-T, the truth is that its submission by AT is due in some way to the fact that in its opening statement the Claimant made an error, by placing an incorrect document number.

In CAAD the documents that make up the proceedings are submitted in digitised form and not in physical form of paper, whereby it will not be possible to return them to the presenter. At most they could be removed from the procedural management system.

However, the retention in this proceeding of the document in question does not affect in any way either the decision or the position of the parties. In fact it makes it possible to clarify the subject matter of the request being discussed in another proceeding, no. 765/2014-T of CAAD, excluding it from this proceeding.

Following this line of reasoning, the request for removal from the record requested is dismissed.

"Double collection" between the assessments referred to in subsections c) and d) of the Report.

"The figure of double taxation occurs when there are two (or more) taxes that apply to the same tax event. It is not a matter of situations in which the same tax is illegally collected twice (figure of double collection), but rather of circumstances in which the legislature intended that the same tax event should be the basis of incidence of different taxes" (judgment of 22.05.2012 of TCASul, case 5232/11, CT – 2nd Court, Rapporteur Joaquim Condesso, at www.dgsi.pt).

The legal definition of double collection is contained in no. 1 of article 205 of CPPT.

Now, in the case, between the assessments identified in c) and d) of the Report, neither double taxation nor double collection occurs. And to reach this conclusion, it is sufficient to make a simple reading of the literal element of the collection notes.

In the documents of the assessment referred to in subsection c) of the Report - having reference to the year 2012, the assessment was made on 2013.03.21 (birth of the tax obligation on 31.12.2012 – paragraph u) of no. 1 of article 65 of CIS and no. 1 of article 8 of CIMI), at the rate of 1%, according to the incidence rule of item 28.1 of TGIS.

In the document of the assessment referred to subsection d) of the Report – the elements indicating the application of the transitional regime of article 6 of Law 55-A/2012, of 29.10 are indicated – tax event occurring on 31.10.2012 and application of the rate of 0.5%, the assessment occurring on 07.11.2012 (that is, a taxation implicitly measured by the year 2011).

There does not proceed, therefore, the alleged defect of double collection, nor of double taxation.

Lack of signature/author of the act on the assessment notes

The Claimant would apparently intend to mean that because no signature of the Director-General of AT appears on the collection notes, this would entail the nullity of the notification pursuant to no. 2 of article 36 and no. 12 of article 39, both of CPPT.

But this position is not well-founded. In fact, these are tax acts designated as "mass acts" in which it will suffice for there to be clear identification of the entity that carried out the act if the manner in which that performance occurred does not result in any reduction of the taxpayer's guarantees (see among others the judgment of STA of 31.05.2006, appeal no. 1029/05).

Furthermore, the collection notes indicate who carried out the act – AT through the respective SF – and in addition they indicate the other elements that made it possible for the Claimant to use the administrative and litigation means at its disposal, as it came to use.

This alleged defect of invalidity of the notifications of the collection notes does not proceed on this ground.

Lack of notification of the assessment notes referred to in subsection c) of the Report

It follows from the established factuality, as per subsection 6 of part III of this decision that: "the Respondent sent and delivered to the electronic mail box of the Claimant, ViaCTT, respectively on 28.03.2013, 02.07.2013 and 30.10.2013 the stamp tax assessment notes with reference to the year 2012, with the identification of documents 2013 ..., 2013 ... and 2013 ..., corresponding to the 1st, 2nd and 3rd instalments, all with assessment date of 2013.03.21, generating a total collection in the amount of 30,437.70 euros". That is, AT met the burden of proving the sending and delivery/deposit of the documents in question in the electronic mail box (EMB) of the Claimant.

There is no doubt that the Claimant is subject to the regime of no. 9 of article 19 of LGT – the obligation to have an electronic mail box.

In fact, as results from subsection 5) of the established factual matter, the Claimant itself joined the regime of electronic notifications on 18-03-2002.

What, in essence, the Claimant alleges in the request for decision is that some of the procedures that made it possible to receive alerts in the email indicated in its registration in the Tax Authority Portal, at the time of deposit of notifications or documents in the electronic mail box (EMB), were not activated by it.

But from this fact should not be inferred that responsibility lies with AT, taking into account what article 221 of Law 66-B/2012, of 31.12 (General Budget Law 2013) states: "Taxpayers who on 31.12.2012 met the requirements referred to in no. 9 of article 19 of LGT must complete the procedures for creating the electronic mail box and communicate it to the tax administration, by the end of January 2013".

It appears to us that it follows from this legal provision that as of 01.02.2013, any malfunction relating to non-receipt of alerts by taxpayers covered by the rule, at the time of deposit in the EMB of notifications or other documents, can only be attributed to the passive subjects holding the EMB and no longer to AT which only has to prove the date on which it deposited the documents there.

Accordingly, regardless of the proven matter contained in subsection 8) of part III of this decision, the TAS considers that the notifications of the collection notes indicated in subsection c) of the Report are considered notified – by force of law and the TAS is bound to decide according to established law - to the Claimant, pursuant to no. 10 of article 39 of CPPT:

  • The one relating to the first instalment on 22.04.2013;

  • The one relating to the second instalment on 27.07.2013;

  • The one relating to the third instalment on 24.11.2013.

The alleged lack of notification of the collection notes does not proceed accordingly.

Assessment referred to in subsection c) of the Report - incompetence of the TAS because it is understood that what is at issue in this proceeding is the examination of the act of preliminary rejection of the administrative complaint which did not examine the legality of the contested act (article 2 - 1 of RJAT).

The position, in general terms, of the Claimant, knowing certainly of the unanimity at the level of CAAD regarding decisions on the substantive question (non-conformity of these assessments with the incidence rule of item 28.1 of TGIS) consists in attacking the two IS assessments referred to in subsections c) and d), proceeding from the defense of a point of view – plausible in general terms – that the administrative complaint which was rejected to it, regarding the assessment in subsection c) of the Report, was not submitted outside the legal period. And regarding the assessment in subsection d) of the Report it further invokes, in view of the subsequent one of 2013, the defect of double collection.

That is, the request for arbitral decision is not, formally, directly directed at the act of rejection of the administrative complaint, but rather at the annulment of the assessments, invoking the timeliness of the submission of the AC in order to demonstrate that the request for arbitral decision is timely.

It appears to us, in this way, that this is not a matter of incompetence of the TAS, but of a question of timeliness or not of submission of the request for arbitral decision that is grounded in the prior and instrumental analysis of whether the administrative complaint was or was not submitted within the legal period.

It follows from what was stated in the previous point that the third instalment of IS was considered notified on 24.11.2013.

It follows from subsections 10) and 11) of the established facts that

  • The deadline for payment of the 3rd instalment of the assessment referred to in subsection c) of the Report occurred on 30.11.2013.

  • And that on 24.04.2014 administrative complaint no. ... against the assessment indicated in subsection c) of the Report was initiated, which was rejected for preliminary rejection for untimeliness, by order of 16.09.2014 of DF of Lisbon.

The Claimant did not prove the concrete date of submission of the complaint, did not attempt to deliver its content with a received stamp, a burden that pertained to it, nor did it come in this proceeding to allege that the initiation recorded in AT's records (on 24.04.2014) was not close to or coincident with the date of its submission.

Accordingly, the TAS cannot fail to conclude that the AC was submitted to AT beyond the period prescribed in the final part of no. 1 of article 70 of CPPT.

The AC having been submitted outside the legal period, the 90-day period for submitting the present request for arbitral decision - paragraph a) of no. 1 of article 10 of RJAT - must be calculated from 30.11.2013, by force of paragraph a) of no. 1 of article 102 of CPPT.

This request for decision was only submitted to CAAD on 01.10.2014, therefore, far beyond the legally prescribed period.

The Claimant, at the prior hearing stage, could have converted the untimely proceeding to that provided for in article 78 of LGT, but did not, since it alleges in article 1 of the request for decision that it did not receive that notification, by return.

The TAS cannot, in view of its subordination to established law, fail to uphold the exception of untimeliness of submission of the request for decision in CAAD, which is moreover of official knowledge, with the legal consequences.

Assessment referred to in subsection d) of the Report – a decision capable of litigation review has not yet been formed because the hierarchical review procedure is in progress

Regarding this assessment and as results from the body of facts proven in subsection 12) of part III of this decision:

  • The Claimant submitted to AT on 13.12.2012 an administrative complaint against the assessment referred to in subsection d) of the Report, which took the number ... which was rejected on 25.06.2013;

  • and against whose decision a hierarchical review was filed on 04.09.2013, which took the number ...

  • this proceeding being still pending final decision.

Accordingly, since the presumption of tacit rejection is not invoked (paragraph d) of no. 1 of article 102 of CPPT) and the notification of the decision rendered on the hierarchical review procedure has not yet occurred (which may even be granted), it is not configured as capable of litigation review the contested act of assessment, whereby the TAS cannot examine the requests submitted by the Claimant regarding this assessment.

Proceeding with the exception of untimeliness of submission of the request for arbitral decision as to the assessment referred to in c) of the Report and proceeding with the invoked non-reviewability for litigation of the assessment act referred to in d) of the Report, it ceases to make sense to examine the merits of the request for annulment of the Stamp Tax assessments, either by possible non-conformity with the incidence rule of item 28.1 of TGIS, or by possible non-conformity with the constitutional principles referred to in subsection ee) of the Report.

In any case, as mentioned above, for examination of the substantive matter of material justice (possible illegality of the assessments with regard to the provision of the rule contained in item 28.1 of TGIS and their annulment, at least "ex nunc"), having exhausted the periods for administrative and common litigation means, there still appears to be the procedure of article 78 of LGT and the possible and subsequent litigation review of the decision rendered on it, if it is non-conforming to what the passive subject intends.

Pursuant to the above stated and on the grounds exposed above, the exceptions of untimeliness of submission of the request for arbitral decision (as to the assessment in subsection c) of the Report) and of non-reviewability for litigation of the assessment in subsection d) of the Report for being pending hierarchical review must be upheld.

V. DECISION

Pursuant to the above stated and on the grounds exposed above, the exceptions of untimeliness of submission of the request for arbitral decision (as to the assessment in subsection c) of the Report) and of non-reviewability for litigation of the assessment in subsection d) of the Report for being pending hierarchical review are upheld, the Respondent being absolved from the instance.

Value of the proceeding: in accordance with the provisions of article 3, no. 2 of the Regulations for Costs in Tax Arbitration Proceedings (and paragraph a) of no. 1 of article 97A of CPPT), the value of the proceeding is fixed at 45,656.55 euros.

Costs: pursuant to the provisions of article 22, no. 4 of RJAT, the amount of costs is fixed at 2,142.00 €, according to Table I attached to the Regulations for Costs in Tax Arbitration Proceedings, to be borne by the Claimant.

Notify.

Lisbon, 31 March 2015

Singular Arbitral Tribunal (TAS)

Augusto Vieira

Document prepared by computer in accordance with the provisions of article 131, no. 5 of CPC, applicable by reference to article 29 of RJAT.

The drafting of this decision is governed by the spelling prior to the Orthographic Agreement of 1990.

Frequently Asked Questions

Automatically Created

Does Stamp Tax (Imposto de Selo) under Verba 28.1 of the TGIS apply to building land (terrenos para construção)?
The application of Stamp Tax under Verba 28.1 of the TGIS to building land (terrenos para construção) is contested in this case. The claimant argued that building land does not fall within the legal incidence rule of Verba 28.1, claiming the assessments were illegal because this property type is not covered by the provision. This represents a fundamental question about whether the Stamp Tax on high-value properties applies to undeveloped land classified for construction purposes, as opposed to completed buildings or other property types expressly enumerated in the legislation.
What constitutes duplicate taxation (duplicação de colecta) in Portuguese Stamp Tax assessments on real estate?
Duplicate taxation (duplicação de colecta) in Portuguese Stamp Tax on real estate occurs when the same property is assessed multiple times for the same reference period. In this case, the claimant identified double collection because the property was assessed twice for the 2012 tax year: first in November 2012 (€15,218.85 at 0.5% transitional rate under Law 55-A/2012), and again in March 2013 (€30,437.70 in three installments at 1% rate). Portuguese tax law prohibits collecting the same tax twice for the same taxable event and period, making this a ground for annulment of one or both assessments.
Can taxpayers challenge Stamp Tax liquidations on high-value properties through CAAD arbitration?
Yes, taxpayers can challenge Stamp Tax liquidations on high-value properties through CAAD (Centro de Arbitragem Administrativa) arbitration. This case demonstrates the process under the RJAT framework (Decree-Law 10/2011). The claimant filed for a singular arbitral tribunal to contest Stamp Tax assessments under Verba 28.1. However, the Tax Authority raised jurisdictional objections regarding CAAD's competence and the timeliness of the prior administrative complaint. The tribunal must first resolve these preliminary questions before addressing the substantive tax issues, showing that while CAAD arbitration is available, taxpayers must comply with procedural requirements including timely filing of administrative complaints.
What are the legal grounds for annulling Stamp Tax assessments under Verba 28 and 28.1 of the TGIS?
The legal grounds for annulling Stamp Tax assessments under Verba 28 and 28.1 of the TGIS include: (1) Error as to prerequisites (vício de erro sobre os pressupostos) under Article 99 of CPPT, arguing the property type does not fall within the legal incidence rule; (2) Double collection (duplicação de colecta) when the same property is assessed multiple times for the same tax period; (3) Procedural defects such as lack of identification of the author of the tax act, violating formal legality requirements; and (4) Substantive illegality when assessments are not covered by the applicable legal provisions. Taxpayers must demonstrate that the assessment either exceeds the legal scope of the tax provision or violates fundamental procedural guarantees.
How does the CAAD arbitral tribunal process disputes involving multiple Stamp Tax assessments on the same property?
The CAAD arbitral tribunal processes disputes involving multiple Stamp Tax assessments on the same property by consolidating all contested assessments into a single proceeding. In this case, the tribunal calculated the total economic interest (€45,656.55) by combining both the 2012 and 2013 assessments. The process included: acceptance and notification to the Tax Authority; constitution of the singular arbitral tribunal; submission of responses and administrative files; examination of preliminary exceptions raised by AT regarding jurisdiction and timeliness; holding meetings under Article 18 of RJAT to address contested factual matters; taking witness testimony on specific procedural issues (electronic notifications); and allowing both parties to submit pleadings addressing the relationship between the multiple assessments before issuing a consolidated decision on all contested tax acts.