IMI Exemption for National Monuments Under Article 44(1)(n) EBF – CAAD Case 77/2019-T

ARBITRAL DECISION

I – REPORT

1. A..., S.A., legal entity no. ..., with tax domicile at ..., nos. ...-..., ..., ...–... ..., hereinafter referred to as "Claimant", came, pursuant to and for the purposes of the provision of subparagraph a) of paragraph 1 of Article 2 and Articles 10 et seq., all of the Legal Regime for Arbitration in Tax Matters ("RJAT"), in conjunction with the provision of Article 99 and subparagraph e) of paragraph 1 of Article 102 of the Code of Tax Procedure and Process ("CPPT"), applicable by virtue of the provision of subparagraph a) of paragraph 1 of Article 10 of the RJAT, to submit a request for an arbitral pronouncement with a view to annulling the Order issued by the Director of Finance of ..., on 8 November 2018, which dismissed the Administrative Complaint filed against the act of assessment of Municipal Property Tax ("IMI"), dated 7 March 2018, referring to the year 2017, in the amount of € 32,972.99 (thirty-two thousand, nine hundred and seventy-two euros and ninety-nine cents), embodied in Documents nos. 2017..., 2017... and 2017..., relating to the three instalments of the tax, and, likewise, against the aforementioned act of assessment of IMI.

2. The AUTHORITY FOR TAX AND CUSTOMS (hereinafter referred to only as "Respondent" or "AT") is respondent.

3. The request for constitution of the arbitral tribunal was accepted by His Excellency the President of CAAD on 06-02-2019.

4. The Respondent was notified of the submission of the request for constitution of the arbitral tribunal on 12-02-2019.

5. Given that the Claimant did not proceed to nominate an arbitrator, pursuant to the provision of Article 6, paragraph 2, subparagraph a) of the RJAT, the signatory was appointed as arbitrator by the President of the Deontological Board of CAAD, with the appointment being accepted within the legally prescribed timeframe and terms.

6. On 27-03-2019 the Parties were duly notified of this appointment and did not manifest a desire to refuse the appointment of the arbitrator, pursuant to the provision of Article 11, paragraph 1, subparagraphs a) and b) of the RJAT, in conjunction with Articles 6 and 7 of the Deontological Code.

7. In accordance with the provision of subparagraph c) of paragraph 1 of Article 11 of the RJAT, the Arbitral Tribunal was constituted on 16-04-2019.

8. The Claimant grounded the request for arbitral pronouncement in the following terms:

a) The Claimant is the owner of five urban properties (better identified below), where it conducts its business within the hotel industry;

b) These properties are located in the ensemble designated as the Historic Centre of Évora – considered as a whole for the purposes of recognition of protected heritage – which is included in the UNESCO World Heritage list;

c) It results from the provision of subparagraph n) of paragraph 1 of Article 44 of the Tax Benefits Statute ("EBF") that the following are exempt from IMI: properties classified as "national monuments" and properties individually classified as of public interest or municipal interest, an exemption of an automatic nature, without the need for any subsequent recognition act, as expressly results from the applicable legislation, namely from paragraph 5 of Article 44 and paragraph 1 of Article 5, both of the EBF;

d) Pursuant to the provision of paragraph 5 of the aforementioned Article 44 of the EBF (in the wording in force at the time of the facts), the exemption from IMI is of an automatic nature and operates through notification of the classification as "national monuments" or of the individual classification as properties of public interest or municipal interest, to be effected by the Institute for Management of Architectural and Archaeological Heritage, I.P., or by municipal councils, remaining in force while the properties are classified, even if they come to be transferred;

e) The classification of the properties as "national monuments" results from Law no. 107/2001, of 8 September, which established the Legal Framework for Cultural Heritage;

f) From the articulation of the aforementioned provisions and from the entry into force of the Legal Framework for Cultural Heritage (which occurred in 2001), it follows that the inclusion of properties in the World Heritage list has as an immediate consequence their classification as properties of national interest and, therefore, as "national monuments", without the need, therefore, for any other classification act;

g) The IMI exemption begins in the very year in which the classification as "national monument" – the (sole) constitutive fact of the exemption – occurs and remains in force while the properties benefit from such classification, even if they come to be transferred (cf. paragraph 2, subparagraph d) and paragraph 5 of Article 44 and paragraphs 2 and 3 of Article 3, both of the EBF);

h) Even though the law provides for the "notification of the classification as national monuments (…), to be effected by the Institute for Management of Architectural and Archaeological Heritage, I.P., or by municipal councils" (cf. paragraph 5 of Article 44 of the EBF), such notification has a merely instrumental, declaratory character and has no constitutive effect on the exemption – since the same is automatic and results directly from the law itself, that is, in this case from the classification as a national monument (see subparagraph n) of paragraph 1 of Article 44 of the EBF);

i) In the present case, it is verified that, by Notice, dated 20 January 1988, of the Directorate of Cultural Services, published in the Official Journal no. 39/1988, Series I, of 17 February 1988, it became public that the Historic Centre of Évora – which, it should be noted, is considered as an ensemble, being a whole for purposes of recognition of protected heritage – among others, was included in the UNESCO World Heritage list, and such fact is public knowledge and, consequently, of the knowledge of the tax administration;

j) Therefore, the properties in question, which are included in that ensemble designated as the Historic Centre of Évora, constitute UNESCO World Heritage, so that, from the date of publication of the aforementioned Notice, they are classified as "national monuments", in accordance with and for the purposes of Article 15 of the Legal Framework for Cultural Heritage;

k) In this sequence, there are no doubts that the properties in question are exempt from IMI, from the date of the Notice identified above, in accordance with the provision of subparagraph n) of paragraph 1 of Article 44 of the EBF and, as well, in paragraph 3 of Article 15 of the Legal Framework for Cultural Heritage – an exemption that, currently, is maintained;

l) The Claimant also invokes two Judgments of the Central Administrative Court of the North and one Judgment of the Central Administrative Court of the South, as well as arbitral jurisprudence, which, in its view, support its position, to the effect that the properties in question, object of the act of assessment of IMI now at issue, have been, since the date of publication of the aforementioned Notice, classified as being of national interest, falling within the category of "national monuments", and therefore benefit, consequently, from the exemption enshrined in Article 44, paragraph 1, subparagraph n) of the EBF;

m) The Claimant concludes, thus, on the illegality and the consequent necessity of annulment of the act of assessment of IMI and, as well, of the Order issued on 8 November 2018, by His Excellency the Director of Finance of ..., which dismissed the Administrative Complaint filed against the act of assessment of IMI, referring to the year 2017;

n) Having the Claimant proceeded to payment of the tax, the annulment of the act of assessment of IMI implies the right of the Claimant to be reimbursed of the amount unduly paid, accrued with indemnification interest, calculated at the legal rate in force, pursuant to the combined provision of paragraph 5 of Article 24 of the RJAT and paragraph 1 of Article 43 of the LGT.

1. In its Response, the Respondent presented a defence by exception and by objection.

2. The Respondent raises the exception of prejudiciality and requests the suspension of the present arbitral proceedings, by holding, in summary, that:

a) The Claimant filed two Administrative Actions with the Administrative and Fiscal Court of ... – with the case numbers .../19...B... and .../19...B... – where it comes to discuss the right to enjoy the exemption provided for in Article 44/1-n) of the EBF, with respect to the properties that are the basis for the assessment of IMI contested in the present request for arbitral pronouncement;

b) The aforementioned and undecided Administrative Actions, because they aim to challenge the act in tax matters that is precisely the basis for the assessment of IMI here challenged in the request for arbitral pronouncement and because they meet the prerequisites of dependence and necessity, constitute a true preliminary issue;

c) The discussion of the (il)legality of the decision that dismissed the IMI exemption (i.e. an act in tax matters) constitutes an issue that represents a logical-legal antecedent of the assessment (i.e., a tax act) contested in the present arbitral proceedings;

d) In other words, according to the Respondent, the discussion of the legality of the IMI assessments sub judice constitutes an issue that depends on the understanding that, upstream, comes to be established regarding the decision to dismiss the IMI exemption that are being considered in the Administrative Actions in the Administrative and Fiscal Court of ...;

e) The Respondent understands that although the request for arbitral pronouncement has as its object IMI assessments, it is certain that it is structured exactly in the same discussion around Article 44/1-n) of the EBF that embody the Administrative Actions distributed under the nos. .../19...B... and ...19...B...;

f) In the understanding of the Respondent, if the here Claimant were to obtain a winning judgment in the aforementioned administrative actions, the annulment of the act in tax matters practised upstream by the here Respondent (i.e., the non-attribution of the IMI exemption) generates the annulment of the tax acts practised downstream by the Respondent (i.e., the IMI assessments sub judice);

g) For these reasons, the Respondent requests this Tribunal to suspend the present arbitral proceedings, with all legal effects, staying in the decision until the aforementioned Administrative Actions are decided and consolidated in the legal order;

h) The Respondent further contends that the suspension of the proceedings is incumbent on this Tribunal, and the principles of celerity and free conduct of the process cannot be invoked, along with invocation of the discretion of not suspending the proceedings provided for in Article 272 of the Code of Civil Procedure (CPC), on pain of violation of the constitutional principles of effective judicial protection, proportionality and equality.

1. By Order of 28-05-2019, this Tribunal granted the Claimant a period of ten days to respond, if it so wished, to the matter of the exception raised by the Respondent, which it did in the terms summarized below:

a) The Claimant filed, with the Administrative and Fiscal Court of ..., on 26 March 2019, two administrative actions, aimed at reacting against two distinct acts, practised by the Respondent, of dismissal of two requests for IMI exemption, relating to the properties object of the present Request for Arbitral Pronouncement;

b) The administrative action to which the case number .../19...B... was assigned has as its object the Order issued, on 21 December 2018, by His Excellency the Deputy Finance Chief, pursuant to delegation of competence, which dismissed the request for IMI exemption, with reference to the urban property registered in the respective property register under Article ..., of the Union of Civil Parishes of ... (..., ..., ... and ...), filed pursuant to the provision of subparagraph n) of paragraph 1 of Article 44 of the Tax Benefits Statute (EBF);

c) The administrative action to which the case number .../19...B... was assigned, has as its object the Order issued, on 21 December 2018, by His Excellency the Deputy Finance Chief, pursuant to delegation of competence, which dismissed the request for IMI exemption, with reference to the urban properties registered in the respective property register under Articles ..., ..., ... and ..., of the Union of Civil Parishes of ... (..., ..., ... and ...), filed pursuant to the provision of subparagraph n) of paragraph 1 of Article 44 of the EBF;

d) The requests for IMI exemption that were the subject of dismissal by the now Respondent – and which prompted the filing of the competent administrative actions – were submitted by the Claimant during the year 2018;

e) In this way, such requests for exemption – even if they were to be granted by the Respondent – would only have the capacity to produce effects for the future, with respect to any eventual IMI assessments that might be issued in forthcoming years, and could never have the effect of annulling IMI assessments issued in previous years, as is the case with the IMI assessment for the year 2017, which constitutes the object of the present Request for Arbitral Pronouncement;

f) By a fortiori reasoning, the same applies to judicial decisions that may be issued within the scope of the administrative actions brought by the Claimant;

g) Even if favourable Judgments are issued to the pretension of the now Claimant, such Decisions can never have the effect of annulling IMI assessments prior to 2018, since the requests for IMI exemption that are the subject thereof were only submitted in 2018;

h) In the case at hand, the Administrative Actions in question were filed with the Administrative and Fiscal Court of ... on 26 March 2019, whereas the Request for Arbitral Pronouncement entered the CAAD on 5 February 2019, which means that the decision to be given to the present case is not dependent on another action already filed;

i) Thus, the request for suspension of the present arbitral proceedings, motivated by the alleged prejudiciality of the Administrative Actions pending before the Administrative and Fiscal Court of ..., under the numbers .../19...B... and .../19...B..., should be dismissed;

j) But even if it were to be considered that a preliminary action exists – which the Claimant does not admit and, merely out of duty, considers – paragraph 2 of Article 272 of the CPC, requires that the court not order the suspension (i) if there are well-founded reasons to believe that it was filed solely to obtain the suspension or (ii) if the dependent action is so advanced that the prejudices of the suspension exceed the advantages;

k) Therefore, in the case in question, the Tribunal should weigh whether the procedural inconveniences arising from the suspension of the proceedings are not greater than those that could result from the continuation thereof, which seems appropriate to the Claimant, bearing in mind the short deadline that the Tribunal has to deliver a decision, associated with the principles of celerity and free conduct of the process, which are structural to tax arbitral proceedings;

l) The Claimant understands, in light of the foregoing, that the requested suspension of the present proceedings should be dismissed, until the final judgment of the decisions that may be issued within the scope of the administrative actions pending before the Administrative and Fiscal Court of ..., under the case numbers .../19...B... and .../19...B..., for the reason that there is no nexus of prejudiciality legally required for such effect, with the present proceedings continuing their terms to their conclusion.

1. In its objection defence, the Respondent contends for the improceeding of the request for arbitral pronouncement, based on the following arguments:

a) The Claimant uses indifferently completely distinct legal-patrimonial concepts, such as Category, Classification and Designation;

b) The Claimant starts from an erroneous legal premise, namely the existence of a "UNESCO classification";

c) There is no UNESCO classification denominated "Heritage of Humanity", "UNESCO Heritage", "World Heritage" or any equivalent expression;

d) The "World Heritage List" to which Article 11/2 of the 1972 UNESCO Convention refers and, therefore, the list to which Article 15/7 of the Legal Framework for Cultural Heritage (LBPC) refers is only and simply that: a list, which is the responsibility of the World Heritage Committee;

e) By inscribing a cultural asset in the "World Heritage List", the UNESCO World Heritage Committee is not classifying an asset;

f) The classification of a cultural asset always depends on a prior administrative Classification procedure;

g) By inscribing the Historic Centre of Évora in the "World Heritage List", the UNESCO World Heritage Committee never proceeded to any prior administrative classification procedure;

h) The so-called Historic Centre of Évora belongs to the category of Ensemble (since it is a group of properties), is included in the list of assets classified as of National Interest (Article 15/7 of the LBPC), and is designated as a National Monument (Article 15, paragraphs 3 and 7, of the LBPC), it being certain that this designation is not confused with nor equivalent to the concept of classification denominated as National Monument contained in Decree 20,985 of 1932;

i) The so-called Historic Centre of Évora is, at most, classified as property of National Interest, being designated as a National Monument;

j) The EBF is very clear, in the 2nd and 3rd segments of Article 44/1-n), by requiring the individual classification of each one of the properties that make up that Ensemble, so that they can benefit from the IMI exemption;

k) The 1st segment of Article 44/1-n) of the EBF refers to properties classified as National Monuments under the "Estado Novo" laws that preceded the LBPC;

l) Even if, purely hypothetically, it were considered that the inscription of the Historic Centre of Évora in the "UNESCO World Heritage List" constitutes a classification and that this corresponds to the graduation of National Monument, it is certain that it constitutes an abusive interpretation to conclude that the properties in question here, merely by being inserted in that Ensemble, are equally classified as National Monument;

m) Therefore, given that the Claimant has not demonstrated that its properties are individually classified as National Monument, it must be concluded that it does not meet the requirements to benefit from the tax benefit provided for in Article 44/1-n) of the EBF and, consequently, the tax acts sub judice are in conformity with the law;

n) Additionally, the exemption provided for in Article 44/1-n) of the EBF, because it can only be directed at fiscal properties (Article 2 of CIMI), requires the individual classification of the properties, regardless of the Property Category in which they are inserted;

o) This is the only plausible interpretation and in accordance with the unity of the legal system;

p) The "certificates" (Documents 11 and 12 of the request for arbitral pronouncement) obtained by the Claimant are not valid (Article 44, paragraphs 5 and 6 of the EBF), since the entity that issued them – the Municipality of ... – does not have legal competence for such effect, so that, since such "certificates" have no legal value, such documentary evidence is entirely inadmissible;

q) The Claimant did not attach the certificates that should be: issued by the competent entity – the Directorate-General for Cultural Heritage – and respect the official model (Doc. 6 of the Response);

r) Having reviewed the "UNESCO World Heritage List", it is verified that it does not include the properties of the Claimant in question here, but only the "Historic Centre of Évora" (Doc. 8 of the Response);

s) Therefore, the Respondent understands that for this reason as well the pretension of the Claimant is condemned to failure, since it has provided no evidence as to the alleged classification of the properties and/or their location in the "Historic Centre of Évora";

t) According to the Respondent, the jurisprudence already produced on this question is not relevant in the case sub judice, since jurisprudence is not an immediate source of law, and the list of questions raised by the Respondent goes beyond what occurred in the cases already decided;

u) The Respondent further contends that Article 44/1-n) of the EBF, in conjunction with Article 15, paragraphs 3 and 7, of the LBPC, and Article 3/3 of Decree-Law 309/2009, shows itself to be contrary to the Constitution of the Portuguese Republic (CRP), insofar as it violates the constitutional principles: (i) of tax equality; (ii) of tax justice; (iii) of contributive capacity; (iv) of proportionality; (v) of local autonomy; and (vi) of participation in decision-making, (vii) in addition to suffering from organic unconstitutionality;

v) The Claimant did not present to the Respondent the "certificates" that it now presents, with the IMI having been assessed in accordance with the information existing at the time, so that the Claimant can only complain about itself as regards the assessment now challenged;

w) Therefore, it was not the Respondent who gave rise to the filing of the request for arbitral pronouncement, but the Claimant itself;

x) Consequently, the Claimant should be condemned to payment of the arbitral costs resulting from the present request for arbitral pronouncement, pursuant to Article 527/1 of the CPC ex vi of Article 29/1-e) of the RJAT;

y) The same reasoning is applicable to the request for condemnation to payment of indemnification interest filed by the Claimant;

z) Given that no error attributable to the services occurred in this case, the legal prerequisites that confer the right to indemnification interest are not met.

1. By order of 11-06-2019, this Tribunal, pursuant to the principles of autonomy in the conduct of the process, celerity and procedural simplification and informality (Articles 19, paragraph 2, and 29, paragraph 2, of the RJAT), with the right of reply exercised on the matter of exception and with no place for the production of testimonial evidence, decided to dispense with the holding of the meeting provided for in Article 18 of the RJAT, and determined that the process proceed with optional written submissions, to be presented by the Parties within the simultaneous period of 20 days, as provided for in Articles 91, paragraph 5, and 91-A, both of the CPTA, applicable by virtue of the provision of Article 29, paragraph 1, subparagraph c), of the RJAT.

2. The Respondent, notified of the order fixing the period for the optional production of final written submissions, came to request that the submissions be produced in successive form.

3. By order of 18-06-2019, this Tribunal decided to dismiss the request for the production of submissions in successive form, with the legal grounds expressed in the arbitral order issued on 11-06-2019 for the production of simultaneous submissions, thus maintaining its tenor.

4. The Parties presented submissions.

5. In its submissions, the Claimant reproduces, in essence, the arguments expounded in the request for arbitral pronouncement, adding the reference to the Judgment of the Supreme Administrative Court, of 12 December 2018, through which, according to the Claimant, the jurisprudence of the Central Administrative Court was consolidated, in a definitive manner, already mentioned in the request for arbitral pronouncement.

6. The Respondent, in its submissions, maintains entirely the arguments set out in its Response, having adduced doctrinal and jurisprudential contributions that, in its view, support the arguments to the effect of the improceeding of the request for arbitral pronouncement, and reinforcing the understanding that the evidence presented by the Claimant is legally null.

II – SANATION ORDER

Deciding the Exception

1. It is necessary to appreciate and decide the exception of prejudiciality raised by the Respondent and the consequent request for suspension of the present arbitral proceedings.

2. The two Actions filed by the now Claimant with the Administrative and Fiscal Court of ... – with case numbers .../19...B... and .../19...B... – aim to contest the dismissal, by the now Respondent, of the requests for IMI exemption presented by the now Claimant, which concern the same properties that are the object of the request for arbitral pronouncement in the present case.

3. The Respondent understands that "the aforementioned and undecided Administrative Actions, because they aim to challenge the act in tax matters that is precisely the basis for the assessment of IMI here challenged in the request for arbitral pronouncement and because they meet the prerequisites of dependence and necessity, constitute a true preliminary issue within the scope of Article 15 of the Code of Procedure in the Administrative Courts ("CPTA"), ex vi Article 29/1-b) of the RJAT".

4. Article 15, paragraph 1 of the CPTA provides that "[w]hen the knowledge of the object of the action depends, in whole or in part, on the decision of one or more issues within the competence of a court belonging to another jurisdiction, the judge may stay the decision until the competent court pronounces itself".

5. On this provision, Mário Aroso de Almeida and Carlos Alberto Fernandes Cadilha elucidate that "[a]rticle 15, paragraph 1 enshrines the principle of optional devolution. When, in order to know the object of the action before him, within the competence of the administrative courts, the administrative judge is faced with the need for one or more issues within the competence of a court belonging to another jurisdiction to be previously decided, the law grants him the discretion to adopt one of two attitudes: either stay the decision until the competent court pronounces itself, or decide the preliminary issue based on the elements available in the administrative process, in which case the effects of the decision on the preliminary issue are restricted to the scope of the administrative contentious process" (Commentary to the Code of Procedure in the Administrative Courts, 3rd ed., Coimbra, Almedina, 2017, p. 156).

6. In other words, based on the provision of Article 15, paragraph 1, of the CPTA, the judge may stay the decision and determine the devolution of the parties to the competent jurisdiction (Mário Aroso de Almeida and Carlos Alberto Fernandes Cadilha, op. cit., p. 156).

7. However, in the case in question, what happens is that two actions are pending in another court which, in the understanding of the Respondent, "because they aim to challenge the act in tax matters that is precisely the basis for the assessment of IMI here challenged in the request for arbitral pronouncement and because they meet the prerequisites of dependence and necessity, constitute a true preliminary issue within the scope of Article 15 of the Code of Procedure in the Administrative Courts ("CPTA"), ex vi Article 29/1-b) of the RJAT".

8. In this sense, Mário Aroso de Almeida and Carlos Alberto Fernandes Cadilha clarify that "[d]istinct is the situation when, pursuant to Article 272, paragraph 1, of the CPC, the judge deems it appropriate to suspend the proceedings because the decision of the action is found to be dependent on the judgment of another action already filed. In this case, the preliminary action is already pending in the same or another court and the suspension of the proceedings in the subordinate action is justified by the fact that the judgment of one proceeding (already pending) may influence the decision on the merits to be issued in another. In the hypothesis considered in this Article 15 [of the CPTA], it is the judge who remits the parties to a court of different jurisdiction to settle a preliminary issue that is not his competence, suspending the proceedings for that purpose" (Mário Aroso de Almeida and Carlos Alberto Fernandes Cadilha, op. cit., p. 157).

9. Therefore, it is in light of the provision of Article 272 of the CPC that this tribunal must decide whether or not to suspend the arbitral proceedings.

10. Article 272 of the CPC provides as follows:

"1 - The court may order suspension when the decision of the action is dependent on the judgment of another already filed or when another justified reason occurs.

2 - Notwithstanding the pendency of a preliminary action, suspension should not be ordered if there are well-founded reasons to believe that it was filed solely to obtain the suspension or if the dependent action is so advanced that the prejudices of the suspension exceed the advantages".

1. In the case in question, the order dismissing the aforementioned request for recognition of tax benefits was issued on 21/12/2018, whereas the assessment act now challenged is dated 07/03/2018.

2. In other words, the assessment act challenged is prior to the act in tax matters that dismisses the recognition of the tax benefit.

3. Therefore, it is not correct to state, in the case in question, that the decision on the act that dismisses the recognition of the tax benefit influences the legality of the assessment act, since this is not subsequent to that.

4. Therefore, it must certainly have been through oversight that the Respondent, in Article 18 of the Response, states that "if the here Claimant were to obtain a winning judgment in the aforementioned administrative actions, the annulment of the act in tax matters practised upstream by the here Respondent (i.e., the non-attribution of the IMI exemption) generates the annulment of the tax acts practised downstream by the Respondent (i.e., the IMI assessments sub judice)".

5. Thus, it is concluded that the present action is not dependent on the judgment of another already filed (272, paragraph 1, of the CPC).

6. Nor is there any other reason that would justify the suspension of the arbitral proceedings (272, paragraph 1, of the CPC).

7. There is no, therefore, among the administrative actions and the present arbitral process the nexus of prejudiciality that could constitute grounds for the suspension of the arbitral proceedings.

8. In other words, the knowledge of the merits of the present request for arbitral pronouncement is not dependent on the prior decision of the aforementioned administrative actions.

9. But even if the pendency of a preliminary action were to be verified, the judge has the discretion to decide whether or not to determine the suspension of the proceedings.

10. In fact, we are faced with a discretion that the law commits to the judge, and not an imposition on him, as results both from the letter of Article 15, paragraph 1, of the CPTA, invoked by the Respondent, which states that "… the judge may stay the decision…", and from paragraph 1 of Article 272 of the CPC, which provides that "[t]he court may order the suspension…".

11. In other words, even if the pendency of a preliminary action were verified, which is not the case in question, it would be incumbent upon this tribunal, pursuant to paragraph 1 of Article 272 of the CPC, to decide for or against the suspension of the arbitral proceedings, for which it should weigh the advantages and disadvantages of the suspension.

12. And for such it would not even be necessary to invoke the provision of paragraph 2 of Article 272 of the CPC, which, according to the Respondent, would be unconstitutional.

13. In any case, it is not evident in what way a decision of non-suspension of the proceedings based on paragraph 2 of Article 272 of the CPC would violate the constitutional principles of effective judicial protection, proportionality and equality.

14. It is precisely in the name of effective judicial protection that the legislator, constitutionally empowered for such effect, approved the RJAT, with the specificities appropriate, necessary and proportionate to the pursuit of the objectives defined by the legislator – such as the enshrining of the principle of autonomy of the arbitral tribunal in the conduct of the process – and with the provision of subsidiary law applicable (Article 29 of the RJAT), which leads, at times, to the application of norms of the Code of Civil Procedure, as happens in the case sub judice.

15. And it is also by weighing the advantages and disadvantages of the suspension of the proceedings, in the case of existence of a preliminary action (which, in the case in question, does not occur) that the principle of proportionality would be concretized.

16. In addition, the discretion that the judge has to suspend or not suspend the proceedings is not exclusive to arbitral jurisdiction, contrary to what, apparently, the Respondent contends, despite invoking the general norm of Article 15 of the CPTA, whose provision contains an unequivocal literal expression – "… the judge may stay the decision…".

17. In summary, this tribunal understands that there is no, in the case in question, the pendency of any preliminary action that would justify the suspension of the arbitral proceedings, in virtue of the fact that there is no, among the administrative actions filed by the Claimant and the present arbitral process, the nexus of prejudiciality that could constitute grounds for the suspension of the arbitral proceedings.

18. Therefore, this tribunal decides to find the exception of prejudiciality and the request for suspension of the present arbitral proceedings to be ungrounded.

19. The submission of the request for arbitral pronouncement was timely.

20. The Parties have legal personality and capacity, are legitimate as to the request for arbitral pronouncement and are duly represented, pursuant to the provisions of Articles 4 and 10 of the RJAT and Article 1 of Ordinance no. 112-A/2011, of 22 March.

21. No nullities are verified, so it is incumbent to consider the merits.

III. MERITS

III. 1. MATTER OF FACT

§1. Proven Facts

1. The following facts are considered proven:

a) The Claimant is a limited company based in Portugal, operating in the hotel industry, and is the owner of the following urban properties, object of the act of assessment of IMI now at issue:

(i) Land for construction, identified with the land register item no. ..., of the Union of Civil Parishes of ..., located at ..., no. ..., ... – ... Évora (in the historic centre of Évora), with the Tax Property Value of € 728,878.90 (documents nos. 2 to 5 attached with the request for arbitral pronouncement, whose content is hereby reproduced);

(ii) Property in horizontal ownership regime, identified with the land register item no. ..., independent fraction ..., of the Union of Civil Parishes of ..., located at ..., no. ...-..., ...-... Évora, with the Tax Property Value of € 947,612.16 (documents nos. 2 to 4 and 6 attached with the request for arbitral pronouncement, whose content is hereby reproduced);

(iii) Property in horizontal ownership regime, identified with the land register item no. ..., independent fraction ..., of the Union of Civil Parishes of ..., located at ..., no. ... ..., ... - ... Évora, with the Tax Property Value of € 57,280.00 (documents nos. 2 to 4 and 7 attached with the request for arbitral pronouncement, whose content is hereby reproduced);

(iv) Property in horizontal ownership regime, identified with the land register item no. ..., independent fraction ..., of the Union of Civil Parishes of ..., located at ..., no. ..., ...-... Évora, with the Tax Property Value of € 77,840.00 (documents nos. 2 to 4 and 8 attached with the request for arbitral pronouncement, whose content is hereby reproduced); and

(v) Property in full ownership without storeys or divisions capable of independent use, identified with the land register item no. ..., of the Union of Civil Parishes of ..., located at Street ..., nos. ... to ..., ... – ... Évora, with the Tax Property Value of € 5,515,719.71 (documents nos. 2 to 4 and 9 attached with the request for arbitral pronouncement, whose content is hereby reproduced);

b) The urban properties identified above in points (i) to (iv) relate to B..., property of the Claimant, whose activity is carried out in an urban property in horizontal ownership regime, composed of 4 independent, distinct and isolated fractions;

c) The urban property identified above in point (v) relates to the property, also property of the Claimant, in which C... is located;

d) The properties described above are located in the Historic Centre of Évora (documents nos. 11 and 12 attached with the request for arbitral pronouncement, whose content is hereby reproduced);

e) The Historic Centre of Évora is included in the UNESCO World Heritage list, as published in a Notice, dated 20 January 1988, of the Directorate of Cultural Services, published in the Official Journal, no. 39/1988, Series I, of 17 February 1988 (document no. 10 attached with the request for arbitral pronouncement, whose content is hereby reproduced);

f) The Claimant was notified of the act of assessment of IMI, dated 7 March 2018, referring to the year 2017, which establishes a total amount payable of € 32,972.99 (thirty-two thousand, nine hundred and seventy-two euros and ninety-nine cents), embodied in Documents nos. 2017..., 2017... and 2017..., relating to the first, second and third instalments, respectively (documents nos. 2 to 4 attached with the request for arbitral pronouncement, whose content is hereby reproduced);

g) The Claimant proceeded to payment of the first, second and third instalments of the act of assessment of IMI here challenged, respectively, on 26 April 2018, on 27 July 2018 and on 28 November 2018 (documents no. 13 to 15 attached with the request for arbitral pronouncement, whose content is hereby reproduced);

h) The Claimant filed an Administrative Complaint against the act of assessment of Municipal Property Tax described above, having been notified, by Office of the Directorate of Finance of ..., dated 9 November 2018, of the Order issued, on 8 November 2018, by His Excellency the Director of Finance of ..., of its dismissal (document no. 1 attached with the request for arbitral pronouncement, whose content is hereby reproduced);

i) On 06-02-2019, the Claimant submitted the request for constitution of the arbitral tribunal that gave rise to the present case.

§2. Facts Not Proven

1. With relevance to the decision, there are no essential facts not proven.

§3. Reasoning as to the Matter of Fact

1. In accordance with the provision of Article 115, paragraph 1, of the CPPT, applicable to tax arbitral proceedings by virtue of the provision of Article 29, paragraph 1, subparagraph c), of the RJAT, the general means of evidence are admitted in the arbitral proceedings.

2. The location of properties is not a fact for whose proof any special means of evidence is required, so all means of proof admitted in law are admitted.

3. The proven facts are based on the documents attached by the Claimant, whose authenticity was not disputed by the Respondent.

4. The Respondent specifically disputed documents 11 and 12 attached by the Claimant with the request for arbitral pronouncement, by holding that the Municipality of ... does not have legal competence to certify the patrimonial classification of properties classified as National Monument.

5. This tribunal understands, however, that the aforementioned documents do not aim to carry out the classification to which the Respondent refers, but solely to provide evidence that the properties in question are located within the perimeter of the Historic Centre of Évora.

6. Having that documentary evidence been brought to the proceedings, and being issued by entities of a public nature with competencies in urban development matters (municipal councils), there is no reason to doubt the veracity of the information provided.

7. In addition, the boundaries of the historic centre of Évora are advertised by UNESCO at https://whc.unesco.org/en/list/361/multiple=1&unique_number=414, and it is possible to confirm through the location accessible at https://www.google.com/maps/ that the properties in question are located within the classified areas.

8. Thus, in the exercise of this Arbitral Tribunal's powers for judgment on the matter of fact, it is considered proven that the properties described above [§50, a)] are located in the Historic Centre of Évora, as reported in documents nos. 11 and 12 attached with the request for arbitral pronouncement, issued by the Municipal Council of ..., which are legally valid and credible, and whose correspondence to reality is not contradicted by any element of evidence brought to the proceedings by the Respondent.

III.2. MATTER OF LAW

§1. Questions to be Decided

1. Article 44, paragraph 1, subparagraph n) of the Tax Benefits Statute (EBF) provides that the following are exempt from IMI: "[p]roperties classified as national monuments and properties individually classified as of public interest or municipal interest, pursuant to the applicable legislation".

2. Paragraph 5 of the same article of the EBF, in the wording of Law no. 3-B/2010, of 28 April, in force during the year 2017, provides that "[t]he exemption to which subparagraph n) of paragraph 1 refers is of an automatic nature, operating through notification of the classification as national monuments or of the individual classification as properties of public interest or municipal interest, to be effected by the Institute for Management of Architectural and Archaeological Heritage, I.P., or by municipal councils, remaining in force while the properties are classified, even if they come to be transferred".

3. Law no. 107/2001, of 8 September, established "the bases of the policy and regime for protection and appreciation of cultural heritage".

4. Article 15 of Law no. 107/2001, of 8 September, provides as follows:

"1 - Immovable assets may belong to the categories of monument, ensemble or site, as such categories are defined in international law, and movable assets, among others, to the categories indicated in Title VII.

2 - Movable and immovable assets may be classified as of national interest, public interest or municipal interest.

3 - For immovable assets classified as of national interest, whether they are monuments, ensembles or sites, the designation 'national monument' shall be adopted and for movable assets classified as of national interest the designation 'national treasure' is created.

4 - An asset is considered of national interest when its respective protection and appreciation, in whole or in part, represents a cultural value of significance to the Nation.

[…]

7 - Immovable cultural assets included in the World Heritage list integrate, for all purposes and in their respective category, the list of assets classified as of national interest.

[…]".

1. Decree-Law no. 309/2009, of 23 October, established "the procedure for classification of immovable assets of cultural interest, as well as the legal regime of protection zones and detailed safeguard plans".

2. Paragraph 1 of Article 2 of Decree-Law no. 309/2009, of 23 October, provides that "[a]n immovable asset is classified in the categories of monument, ensemble or site, as such categories are defined in international law".

3. And Article 3 of the same Decree-Law establishes that:

"1 - An immovable asset may be classified as of national interest, public interest or municipal interest.

2 - The graduation of cultural interest, for purposes of the preceding paragraph, follows the criteria provided for in paragraphs 4, 5 and 6 of Article 15 of Law no. 107/2001, of 8 September.

3 - The designation of 'national monument' is attributed to immovable assets classified as of national interest, whether they are monuments, ensembles or sites".

1. The Claimant contends that the properties in question, by being inserted in a Historic Centre classified as UNESCO World Heritage, fall within the category of "national monuments" and, consequently, should automatically benefit from the exemption of IMI.

2. The Respondent opposes such understanding, with the arguments already set out.

3. Thus, the essential question to be decided in the present case is that which relates to whether the properties in question, of which the Claimant is the owner, by being inserted in a Historic Centre included in the UNESCO World Heritage list – in this case, the Historic Centre of Évora – are to be considered classified as national monuments and, consequently, should automatically benefit from the exemption of IMI provided for in Article 44, paragraph 1, subparagraph n) of the EBF.

4. In the event of the proceeding of the request for arbitral pronouncement, it must also be decided whether the Claimants have the right to reimbursement of the tax paid accrued with indemnification interest.

§2. Application of Law to the Case Sub Judice

1. The Historic Centre of Évora, by virtue of being included in the UNESCO World Heritage List, integrates, for all purposes and in its respective category, the list of assets classified as of national interest, as results from paragraph 7 of Article 15 of Law no. 107/2001, of 8 September.

2. In accordance with the provision of paragraph 3 of Article 3 of Decree-Law no. 309/2009, of 23 October, "the designation of 'national monument' is attributed to immovable assets classified as of national interest, whether they are monuments, ensembles or sites", from which it follows that the Historic Centre of Évora constitutes a "national monument".

3. Thus, the immovable assets that make up the "ensemble", or that are integrated in the "site", are covered by the classification of "national monument", so that the immovable assets situated within the geographical perimeter of the Historic Centre of Évora benefit from that classification.

4. From this it follows that the properties of which the Claimant is the owner, and which are in question in the present case, by virtue of benefitting from the classification of "national monument" of the Historic Centre of Évora, are automatically exempt from IMI, as results from Article 44, paragraph 1, subparagraph n), of the EBF, in conjunction with paragraph 5 of the same article.

5. See, in this sense, the Judgment of the Central Administrative Court of the North, of 07-12-2016, issued in case 00134/14.4BEPRT, in which it is stated that "[f]rom the articulation of these provisions it results that immovable assets situated in Historic Centres included in the UNESCO World Heritage List are classified as being of national interest, falling within the category of 'national monuments' and, consequently, benefit from the exemption enshrined in subparagraph n) of paragraph 1 of Article 44 of the Tax Benefits Statute".

6. Consequently, the individual classification of each property integrated in the Historic Centre of Évora is not required so that it may benefit from the exemption of IMI provided for in subparagraph n) of paragraph 1 of Article 44 of the EBF.

7. In this sense the Supreme Administrative Court pronounced itself, in its Judgment of 12-12-2018, by stating that the law (following the changes introduced by the State Budget Law for 2007) "only came to require this individual classification for immovable assets that should be integrated in the categories of public interest, municipal value or cultural heritage, not making the same requirement for immovable assets that should be integrated in the category of national monument (in the EBF the legislator makes reference to national monument when he intends to refer to immovable assets of national interest because that is how, pursuant to the provision of Article 15, paragraph 3 of Law no. 107/2001, of 08 September, they should be designated)".

8. The STA continues, in the same Judgment, stating the following:

"And this distinction results clearly from the expressed intention of the legislator when enacting the norm in question, that is, the legislator did not intend to require, for immovable assets that should be included in the category of national monument (national interest) and for purposes of this tax exemption, that they be subject to individual classification, thereby maintaining, as to them, the regime that had previously been established. In fact, the 'new' wording of the provision maintains unchanged the first part of the article in question – Properties classified as national monuments are exempt from municipal property tax – which refers to national monuments.

This interpretation results, also, expressly from the parliamentary debate and voting that took place regarding this legal provision".

1. From what has been said it also results the unnecessariness of the practice of any classification act, the inclusion of the Historic Centre of Évora in the UNESCO World Heritage List being sufficient for it to be considered a "national monument" (Article 15, paragraph 7, of Law no. 107/2001, of 8 September, and Article 3, paragraph 3, of Decree-Law no. 309/2009, of 23 October).

2. On this point, we concur with the reasoning contained in the Arbitral Judgment issued in case no. 362/2018-T, in which the following is stated:

"In this context, the opening of a classification procedure that entails the inclusion of an immovable asset in the indicative list of World Heritage, pursuant to paragraph 1 of Article 72 of Decree-Law no. 309/2009, of 23 October, does not aim to examine whether the conditions for classification are met, nor the pronouncement of a final decision by the Government, pursuant to Article 30, paragraph 1, of the same statute (since the classification has already been made 'for all purposes' by virtue of paragraph 7 of Article 15 of Law no. 107/2001), but only to identify which immovable assets have been included in that list, namely through a location plan, and to establish the respective special protection zone.

It is in this context that, with respect to immovable assets entered in the World Heritage list prior to the entry into force of Decree-Law no. 309/2009, paragraph 3 of its Article 72 only provides for the publication in the form of a notice in the Official Journal of the location and siting plan of the immovable asset entered in the World Heritage list, including the respective protection zone and not a decision by the Government in the form of a decree, as provided for in Article 30, paragraph 1 thereof, for final decisions of asset classification procedures as of national interest.

Thus, with respect to immovable assets entered in the World Heritage list prior to the entry into force of Decree-Law no. 309/2009, there is no place for any classification act, and they are integrated 'for all purposes and in their respective category, in the list of assets classified as of national interest', by virtue of paragraph 7 of Article 15 of Law no. 107/2001.

For this reason, with respect to these immovable assets entered in the World Heritage list, there is no place for the 'notification of the classification as national monuments (...) to be effected by the Institute for Management of Architectural and Archaeological Heritage, I.P.' [currently, the competencies of the Institute for Management of Architectural and Archaeological Heritage, I.P., are exercised by the Directorate-General for Cultural Heritage, pursuant to Article 13, subparagraph a), of Decree-Law no. 115/2012, of 25 May] that is referred to in paragraph 5 of Article 44 of the EBF, since there is no classification act to notify.

Thus, in these cases, the exemption operates automatically, following the publication of the notice provided for in Article 72, paragraph 3, of Decree-Law no. 309/2009".

1. In the case in question, the exemption operated automatically with the publication of the Notice, dated 20 January 1988, of the Directorate of Cultural Services, in the Official Journal, no. 39/1988, Series I, of 17 February 1988.

2. According to the understanding of the Respondent, "the exemption provided for in Article 44/1-n) of the EBF, because it can only be directed at fiscal properties (Article 2 of CIMI), requires the individual classification of the properties, regardless of the Property Category in which they are inserted".

3. However, if, as has now been made clear, the letter of Article 44/1-n) of the EBF provides for the exemption of IMI of "properties classified as national monuments", and if these may consist of ensembles of immovable assets, then the immovable assets belonging to that ensemble benefit from the aforementioned exemption.

4. That is, the exemption is directed at fiscal properties, which, in this case, are all the properties integrated in the ensemble designated as the Historic Centre of Évora, which, as has been seen, is considered a "national monument".

5. Which means that, contrary to what the Respondent contends, the requirement that the exemption be directed at fiscal properties does not necessarily presuppose the individual classification of the properties.

6. The Respondent further raises the unconstitutionality "that Article 44/1-n) of the EBF, in conjunction with Article 15, paragraphs 3 and 7, of the LBPC, and Article 3/3 of Decree-Law 309/2009, shows itself to be contrary to the Constitution of the Portuguese Republic ("CRP"), insofar as it violates the constitutional principles: (i) of tax equality; (ii) of tax justice; (iii) of contributive capacity; (iv) of proportionality; (v) of local autonomy; and (vi) of participation in decision-making, (vii) in addition to suffering from organic unconstitutionality".

7. With respect to the principle of tax equality, it is important to note that the holders of real rights over immovable assets are subject to special obligations, pursuant to Article 21 of Law no. 107/2001, which, under the heading "[s]pecial duties of holders", provides as follows:

"1 - The owners, possessors and other holders of real rights over assets that have been classified or inventoried are specifically bound by the following duties:

a) Facilitate the administration of cultural heritage the information that may be necessary for the implementation of this law;

b) Conserve, care for and properly protect the asset, so as to ensure its integrity and avoid its loss, destruction or deterioration;

c) Adapt the destination, use and utilization of the asset to ensure its respective conservation.

2 - The owners, possessors and other holders of real rights over assets that have been classified are further subject to the following duties:

a) Observe the legal regime established on access and public visit, from which they may, however, exempt themselves by proving its incompatibility, in the concrete case, with personal rights, freedoms and guarantees or other constitutional values;

b) Execute the work or works that the competent service, after due procedure, considers necessary to ensure the safeguarding of the asset".

1. All holders of real rights over classified properties are subject to these special duties, whether they are individually classified properties or properties integrated in an ensemble that is considered a "national monument", pursuant to law.

2. There is, therefore, an objective reason for the different treatment between owners of classified properties – subject to special duties – and owners of unclassified properties – not subject to such duties – which justifies the tax benefit provided for in subparagraph n) of paragraph 1 of Article 44 of the EBF.

3. This exemption is not, therefore, incompatible with the principles of equality and justice.

4. Having in mind the aforementioned special duties that bear on the owners of classified immovable assets (individually or integrated in classified ensembles) and the purposes with which they are associated, notably that of preservation of heritage, the exemption of IMI provided for in subparagraph n) of paragraph 1 of Article 44 of the EBF does not prove excessive.

5. That is, the exemption of IMI provided for in subparagraph n) of paragraph 1 of Article 44 of the EBF is not incompatible with the principle of proportionality.

6. As to the other alleged unconstitutionalities, we subscribe to the understanding expressed in the Arbitral Judgment issued in case no. 362/2018-T, of 15-01-2019, where the exemption of IMI of immovable assets situated in the historic centres of Évora and Porto was in question, in the following terms:

"Regarding the principle of contributive capacity, it does not arise in the context of tax benefits, since they presuppose an exception to that principle, justified by special reasons: in this case the exception is justified to ensure the principles of equality and justice, in addition to the pursuit of the extra-fiscal objective of encouraging holders of immovable assets to adopt behaviours that permit the preservation of heritage, necessary to maintain the classification and be able to continue to benefit from the exemption.

As regards the invocation of violation of the principle of local autonomy, it is an evident error on the part of the Tax and Customs Authority, since tax exemptions are a matter of the relative reservation of competence of the Assembly of the Republic [Articles 103, paragraph 2, and 165, paragraph 1, subparagraph i), of the CRP], in this case created to satisfy national interests and not municipal ones. On the other hand, as regards the allegation that the Municipalities of Porto and Évora 'had no say in the matter of loss of IMI revenue underlying the area of the Historic Centres of Porto and Évora', regardless of its irrelevance, nothing can be concluded on the basis of the Official Journal, since it is a matter not subject to publication (Article 119 of the CRP). On the other hand, as regards the alleged lack of participation of 'the port and Évora authorities in the formation of the decision to classify', apart from not being demonstrated, will be a matter about which there will certainly be no reason for concern, since it is not even imaginable that the classification of a historic centre was not promoted by its respective authority.

As regards the organic unconstitutionality invoked by the Tax and Customs Authority, this is also a confusion, since the Assembly of the Republic is the constitutionally competent body to legislate on matters of tax exemptions, and it was she who created it through Law no. 109-B/2001, of 27 December, adding a subparagraph n) to paragraph 1 of Article 40 of the EBF (this article which became Article 44 after the republication of Decree-Law no. 108/2008, of 26 June)".

1. None of the unconstitutionalities invoked by the Respondent therefore occur.

2. With the grounds set out, this tribunal concludes on the illegality of the act of assessment of IMI challenged, relating to the immovable assets described in the matter of fact established, included in the Historic Centre of Évora, as well as on the illegality of the Order dismissing the administrative complaint filed against the aforementioned assessment act.

3. The Claimant further requests that this tribunal determine the reimbursement of the amount of tax unduly paid, accrued with indemnification interest, calculated at the legal rate in force.

4. In accordance with the provision of subparagraph b) of paragraph 1 of Article 24 of the RJAT, "[t]he arbitral decision on the merits of the pretension of which no appeal or challenge may be brought binds the tax administration from the end of the period provided for appeal or challenge, the latter must, in the exact terms of the proceeding of the arbitral decision in favour of the passive subject and until the end of the period provided for the voluntary execution of judgments of tax judicial courts […] [r]eestablish the situation that would have existed if the tax act that is the object of the arbitral decision had not been practised, adopting the acts and operations necessary for such effect".

5. This norm of the RJAT is consistent with the provision contained in Article 100 of the General Tax Law, whose text is as follows:

"The tax administration is obliged, in the case of total or partial proceeding of complaints or administrative appeals, or of a judicial process in favour of the passive subject, to the immediate and full reconstitution of the situation that would have existed if the illegality had not been committed, comprising the payment of indemnification interest, pursuant to the terms and conditions provided for in law".

1. As to the possibility of the arbitral tribunal recognizing the right to indemnification interest, paragraph 5 of Article 24 of the RJAT provides that "payment of interest, regardless of its nature, is due, in accordance with the terms provided for in the general tax law and in the Code of Tax Procedure and Process".

2. And, pursuant to paragraph 1 of Article 43 of the LGT, "[i]ndemnification interest is due when it is determined, in administrative complaint or judicial challenge, that there was error attributable to the services which resulted in payment of the tax debt in an amount greater than legally due".

3. In light of the total proceeding of the request for arbitral pronouncement, the right to reimbursement of the amount of tax unduly paid is recognized for the Claimant, since such reimbursement is essential for the reestablishment of the situation that would have existed if the tax act that is the object of the present arbitral decision had not been practised.

4. This tribunal equally recognizes that the illegality of the assessment at issue in the present case resulted from an error attributable to the services of the Tax Administration, which practised the act of assessment of IMI without considering the automatic exemption that the properties included in the Historic Centre of Évora benefitted from, so that the right to indemnification interest is recognized for the Claimant, pursuant to Articles 43, paragraph 1, of the LGT and 61 of the CPPT, on the amount to be reimbursed.

5. For as has been stated, in the case of immovable assets entered in the World Heritage list, there is no classification act to be notified, since the mere inclusion in the World Heritage list has as a consequence 'for all purposes' that the immovable assets come to integrate 'in their respective category, the list of assets classified as of national interest' (paragraph 7 of Article 15 of Law no. 107/2001).

6. Thus, considering that the inclusion of the Historic Centre of Évora in the World Heritage list was published in the Official Journal, the services have the duty to proceed with a view to the application of the automatic exemption of IMI, since they have the elements that permit them to assess the verification of the respective prerequisites for application.

7. Indemnification interest is due from the date of payment until full reimbursement, by application of the supplementary legal rate, pursuant to Articles 43, paragraph 4, and 35, paragraph 10, of the LGT, Article 61 of the CPPT, Article 559 of the Civil Code and Ordinance no. 291/2003, of 8 April.

IV – DECISION

In these terms, and with the grounds set out, this Arbitral Tribunal decides:

a) Find the request for arbitral pronouncement to be totally well-grounded;

b) Declare illegal and annul, with all legal consequences, the act of assessment of IMI dated 7 March 2018, referring to the year 2017, in the amount of € 32,972.99 (thirty-two thousand, nine hundred and seventy-two euros and ninety-nine cents), embodied in Documents nos. 2017..., 2017... and 2017...;

c) Declare illegal and annul the Order dismissing the administrative complaint, dated 8 November 2018;

d) Find the request for reimbursement of the amount of tax paid unduly, accrued with indemnification interest, at the legal rate, counted from the date of payment until full reimbursement, all as shall be ascertained in execution of sentence, condemning the Tax and Customs Authority to effect such reimbursement accrued with interest;

e) Condemn the Respondent to the payment of the costs of the present case.

V - VALUE OF THE CASE

In accordance with the provision of Article 306, paragraph 2, of the CPC and 97-A, paragraph 1, subparagraph a), of the CPPT and 3, paragraph 2, of the Regulation of Costs in Tax Arbitration Proceedings, the value of the case is fixed at € 32,972.99.

VI – COSTS

Pursuant to Article 22, paragraph 4, of the RJAT, the amount of costs is fixed at € 1,836.00, pursuant to Table I attached to the Regulation of Costs in Tax Arbitration Proceedings, to be borne by the Respondent.

As referred to, the error affecting the assessment challenged is attributable to the Tax and Customs Authority, so it is this authority that is responsible for the payment of all costs.

Notify.

Lisbon, 04/10/2019

The Arbitrator

(Paulo Nogueira da Costa)