Central Administrative Court | Jurisdiction of Tax Arbitral Tribunals| 27-09-2018 | Case #101
Case nr. 9933/16.1BCLSB
According to the tax arbitration regime, the following claims are covered by the jurisdiction of arbitral tribunals: (a) the declaration of illegality of tax settlements, self-assessments, withholding of tax and payments on account; (b) the declaration of illegality of acts determining the taxable amount and acts setting the equity values; and (c) the assessment of any question, in fact or in law, related to draft settlement decisions, whenever the law does not guarantee the right to request the aforementioned declaration of illegality.
I -The award shall be null and void only when the arbitrator has either omitted to pronounce on any of the questions put to him by the parties, or when he has known of and pronounced on questions that they have not submitted to him.
II -An appeal to the Constitutional Court is always restricted to a question of constitutionality, which consists of knowing whether or not a rule applicable to a case pending before the court is unconstitutional. The constitutionality appeal does not concern the judicial decision itself, but only the part which pertains to the application of an allegedly unconstitutional rule.
III -In the situation under analysis, the decision of the Constitutional Court serves as res judicata only on the question of unconstitutionality or illegality. It was thus necessary to follow the consequences of the provisions of Article 80(2) of the Law of the Constitutional Court according to which “Should the Constitutional Court judge the appeal to be founded, even if only partially, the proceedings drop back to the court from which they came, so that this same court, depending on the case, can change the decision or have it changed in agreement with the judgement on the question of unconstitutionality or illegality”.
IV -The Arbitral Tribunal, following the decision of the Constitutional Court and reformulating its previous decision, necessarily had to become aware of the defects whose assessment had been prejudiced as a result of a judgment of unconstitutionality which has been rejected by the Constitutional Court.
V – In this process of reformulation, the assessment of the issues of compliance with the requirements of article 10 of the CIRS was fully justified, specifically the issue of what date is to be considered as that of the disposal of the shares.
VI – There is no excessive pronunciation here. Indeed, if the Arbitral Tribunal had not become aware of the alleged defects whose knowledge had initially been prejudiced, there would have been a clear omission to pronounce in relation to the questions which the taxpayer raised as the basis of the request for an arbitration award, and on which he based his defence about the illegality of the contested liquidation.
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