Supreme Administrative Court

Judgment of 27 August 2014, published on 22 September 2014

Case No. 0874/14

In this judgment, the Supreme Administrative Court rules on the suitability of guarantees for the purpose of suspending tax enforcement proceedings.

In this context, the Supreme Court concludes that the expectation of acquisition of real estate property under a financial lease cannot be considered to be a suitable guarantee considering that the expectation of acquiring the asset is an event whose accomplish- ment is precarious, since this right may cease, in particular due to breach of contract by the debtor of the financial lease.

Supreme Administrative Court

Judgment 9 July 2014, published on 19 September 2014

Case No. 676/14

In this judgment, the Supreme Administrative Court emphasizes that it may be considered as settled case law the understanding according to which construction plots are not subject to Stamp Duty under item 28.1 of the General Stamp Duty Table, as amended by Law No. 55-A/2012, of 29 October.

In fact, even if the taxpayer declared the intention to allocate the plot to the construction of residential units it cannot be considered “urban dwellings with a residential purpose” as required by the Stamp Duty item mentioned above.

North Central Administrative Court

Judgment of 14 July 2014, published on 09 September 2014

Case No. 00030/05.6BEPNT

In this judgment, the North Central Administrative Court clarifies that, for VAT purposes, it is a requirement of the right to deduction that VAT was borne due to the actual purchase of goods and that the holder of the invoice is the person who acquired them.

In order to consider that a simulation took place – and consequently determine the exclusion of the right to VAT deduction – the tax authorities must prove that the holder of the invoices is involved in the fraudulent scheme, that is, they must gather information that proves the holder of the invoices participated, knew or should have known that the issuer of the invoices was not the real supplier of the goods. To accept the rejection of the costs borne by the user of the invoices without linking him to the fraudulent scheme would be a breach of the principle of justice and would undermine trust in business relations.

South Central Administrative Court

Judgment of 24 July 2014

Case No. 07844/14, published on 08 September 2014

In the judgment under consideration, the South Central Administrative Court clarifies that banking information obtained by the Public Treasury following a decision to derogate bank secrecy, pursuant to the legal regime laid out in Article 63 -B of the General Tax Law, is not intended to be used in criminal proceedings, or even in misdemeanour ones, rather are intended exclusively for administrative purposes, in particular tax proceedings aiming to correctly quantify the taxable amount and tax payable.

Administrative and Tax Arbitration Centre

Tax Arbitration Tribunal

Arbitration Decision of 21 June 2013, published on 03 September 2014

Case No. 14/2014-T

In this  arbitration decision, the Arbitration  Court ruled on the  interpretation of the expression “urban property” mentioned in item 28.1 of the General Stamp Duty Table, with regard to its applicability to urban properties held in full ownership, which are, however, formed by parts that can be independently used, which are individually considered in the tax records and individually valued for the purposes of real estate municipal tax.

In this context, the Arbitration Court stated that, despite being considered individually in the tax records, the parts of a property held in full ownership do not individually qualify as autonomous properties for the purposes of real estate municipal tax, nor, consequently, for the purpose of Stamp Duty. as such, pursuant to the Stamp Duty 

Code, the assessment of Stamp Duty must take into consideration the value of the whole property.

However, the court sustains that the different treatment given by the Stamp Duty Code, regarding item 28.1 of the General Stamp Duty Table, to properties divided into horizontal property and to properties held in full ownership formed by parts that can be used independently – between which there is no substantial difference but merely a formal difference – results in a breach of the ability-to-pay constitutional principle.

In this sense, for the purpose of Stamp Duty assessment the value of each unit of the urban properties held in full ownership, capable of being independently used and registered as such in the tax records must be taken into account.