Summary
Full Decision
CAAD: Tax Arbitration
Case No. 1/2014 – T
Subject Matter: SCT – Subjective Scope; Annulment of Assessment Act
Arbitral Award
I. REPORT
A, S.A., a company with registered office at …, No., holder of the single registration and identification number for legal persons …, hereinafter referred to as the Claimant, filed a request for the establishment of a tax arbitration tribunal and a request for an arbitral award, pursuant to the provisions of Articles 2 No. 1 a) and 10 No. 1 a), both of Decree-Law No. 10/2011, of January 20 (Legal Framework for Tax Arbitration, hereinafter abbreviated as LFJTA), requesting the annulment of 684 tax assessment acts for Single Circulation Tax (SCT) relating to the 2009 fiscal year, in the amount of €38,352.67, and the corresponding compensatory interest in the amount of €6,771.55.
To support its request, it argues, in summary:
a) The Claimant incorporated the following companies through merger:
(i) B, S.A., on 01/10/2003;
(ii) C, L.DA, on 30/11/2004;
(iii) D, L.DA, on 30/11/2004.
b) By virtue of the merger, the incorporated companies executed a total transfer of their assets to the acquiring company, herein the Claimant;
c) The incorporated companies were dissolved on the date of the merger;
d) The Claimant and the incorporated companies were notified, as taxpayers of SCT, of the assessments now in dispute;
e) The Claimant is a financial credit institution that, in the course of its business, grants its clients financing intended for the purchase of motor vehicles;
f) The financing is documented either through the execution of loan agreements in which, as security for the repayment of the loaned capital, the borrower grants in favor of the lender a retention of ownership of the motor vehicle acquired, or through financial leasing contracts;
g) The Claimant was notified to exercise the right of prior hearing, for allegedly being the taxpayer of SCT due in the 2009 fiscal year and not yet assessed;
h) The Claimant is not a taxpayer either because it was not the owner of the vehicles on the date of the occurrence of the taxable event, or because these were leased on that same date;
i) Of the 684 assessments, 602 relate to vehicles sold on a date prior to the occurrence of the taxable event, and 82 relate to vehicles that were leased during the 2009 fiscal year;
j) Pursuant to Article 3 of the IUC Code, the taxpayers of SCT are the owners of the vehicles, being equated with owners the financial lessees, purchasers with retention of title, as well as other holders of purchase option rights by virtue of a lease contract;
k) The presumption established in Article 3 No. 1 of the IUC Code is a rebuttable presumption;
l) Thus, the taxpayer of SCT is the owner, even if not appearing in the vehicle register, provided that sufficient proof is made to rebut the legal presumption resulting from the register, or the lessee;
m) The Tax Authority cannot be considered a third party for purposes of registration, since sales contracts and financial leasing contracts would be unenforceable against it;
n) Both the sales contract and the lease are contracts with real effect that imply the transfer of ownership and possession by mere effect of the contract;
o) In the case of the 684 disputed assessments, the Claimant is not a taxpayer of SCT;
p) The failure to comply with the reporting obligation arising from Article 19 of the IUC Code does not result in the defaulting party becoming the taxpayer of the tax, and may only result in an administrative violation sanction.
The Claimant filed 10 documents and did not list witnesses.
After the submission of the request for establishment of the arbitration tribunal, the Claimant filed the draft decision of a gracious appeal submitted regarding SCT for the 2008 fiscal year, which, despite the opposition of the Respondent, was admitted in the name of the principle of free determination of the necessary evidence procedures and the desired achievement of true substantive justice.
In the request for an arbitral award, the Claimant chose not to appoint an arbitrator, wherefore, pursuant to the provisions of Article 6 No. 2 a) of the LFJTA, the undersigned was appointed by the Ethical Committee of the Administrative Arbitration Center, and the appointment was accepted in accordance with legal provisions.
The collective arbitration tribunal was constituted on March 4, 2014.
Notified in accordance with and for the purposes of Article 17 of the LFJTA, the Respondent filed a response, alleging, in summary, the following:
a) Article 3 of the IUC Code does not establish any presumption of ownership, but a true fiction of ownership – the legislator does not say that they are presumed to be owners but that they are deemed to be owners;
b) The failure to register changes in ownership or lease situations results in the obligation to pay SCT falling on the registered owner, and the Tax Authority cannot assess the tax based on elements that do not appear in the register;
c) SCT is owed by the persons appearing in the register as owners of the vehicles;
d) The invoices filed by the Claimant as proof of the execution of the sales contract are not suitable to provide such proof;
e) With respect to various registration plates, the Claimant does not file any element of proof of their sale;
f) Given that several of the invoices are irregularly issued, they cannot be accepted as means of proof;
g) As for financial leasing contracts, the failure to comply with the obligation provided for in Article 19 of the IUC Code makes it incumbent on the Claimant to pay the tax.
The Respondent filed 20 documents and a copy of the administrative file, without listing any witnesses.
On 05/08/2014, the first meeting of the Arbitration Tribunal took place, in accordance with and for the purposes of Article 18 of the LFJTA, and the Respondent was notified to, within 10 days, submit all contracts and invoices relating to the vehicles sold and clarify the disputed assessments, as well as to submit document No. 5 filed with the initial request in editable format, which the Claimant did within the fixed time period.
The Respondent was notified of the clarifications provided and documents filed by the Claimant and made no comment on them.
The parties dispensed with oral arguments, referring to the allegations in their respective pleadings, and no written arguments were presented.
II. PROCEDURAL MATTERS:
The Arbitration Tribunal was properly constituted and has substantive jurisdiction.
There are no procedural defects that invalidate the proceedings.
The parties have standing and legal capacity and are properly interested, with no defects in representation.
There are no procedural defects, exceptions, or preliminary matters that prevent consideration of the merits and which it is incumbent to address ex officio.
III. ISSUES TO BE DECIDED:
The issues to be decided are as follows:
(i) To determine whether the rule of subjective scope provided for in Article 3 No. 1 of the IUC Code provides for a rebuttable presumption or, instead, a legal fiction, incapable, therefore, of being rebutted by contrary evidence;
(ii) To determine what is the consequence of the non-performance of the obligation arising from Article 19 of the IUC Code;
(iii) To determine what is the legal value of the motor vehicle register;
(iv) To determine what is the evidential value of the invoices filed by the Claimant;
(v) To determine what is the evidential value of the financial leasing contracts filed by the Claimant.
IV) FACTUAL MATTERS:
a. PROVEN FACTS:
With relevance for the decision on the merits, the following facts were proven:
a) The Claimant is a financial credit institution whose corporate purpose is the conduct of operations permitted to banks, with the exception of the receipt of deposits;
b) In the course of its activity, the Claimant grants its clients financing intended for the purchase of motor vehicles;
c) The financing of motor vehicles is documented through the execution of loan agreements, with the lender retaining ownership of the vehicle, or through the execution of financial leasing contracts;
d) By public deed executed on 01/10/2003, the Claimant incorporated, through merger, the company B, S.A.;
e) By public deed executed on 30/11/2004, the Claimant incorporated, through merger, the company C, L.DA;
f) By public deed executed on 30/11/2004, the Claimant incorporated, through merger, the company D, L.DA;
g) The incorporated companies transferred in their entirety to the acquiring company all their assets, including all assets and liabilities;
h) The incorporated companies were dissolved upon the mergers taking effect;
i) The Claimant and the incorporated companies were notified of 684 SCT assessments relating to the 2009 fiscal year, in the total amount of €38,352.67, and the corresponding compensatory interest in the total amount of €6,771.55;
j) Prior to the assessments, the Claimant was notified to exercise the right of prior hearing, for allegedly being the taxpayer of SCT due in the 2009 fiscal year and not yet assessed;
k) The Claimant did not exercise the right of prior hearing;
l) The Claimant is registered in the vehicle register as the owner of the 684 vehicles with respect to which the disputed assessments were issued, with no notation of any financial leasing contract;
m) None of the 684 vehicles belongs to categories F or G referred to in Article 4 of the IUC Code;
n) Of the 684 assessments notified, 602 relate to vehicles with respect to which, on the date of the occurrence of the taxable event, an invoice for sale to a third party had been issued by the Claimant (or, previously, by the incorporated companies), with the numbers, dates of issue, and amounts set forth in document 7 filed with the initial request as well as in the documents filed after the holding of the meeting referred to in Article 18 of the LFJTA, which are hereby deemed to be fully reproduced;
o) Of the 684 assessments notified, 82 relate to vehicles which, on the date of the occurrence of the taxable event, were leased to third parties, in accordance with the contracts filed with the initial request under number 8, which is hereby deemed to be fully reproduced.
b. UNPROVEN FACTS:
With relevance to the case, no other facts were proven.
c. GROUNDS FOR THE FINDINGS OF FACT:
The conviction regarding the facts deemed proven was based on the documentary evidence indicated with respect to each point, filed by the Claimant, whose authenticity and correspondence to reality were not contested by the Respondent.
V. LAW:
a. Interpretation of Article 3 No. 1 of the IUC Code:
The Claimant argues that, with respect to the 684 disputed SCT assessments, the prerequisites of subjective scope provided for in Article 3 of the IUC Code are not met, and it is therefore not a taxpayer of SCT.
To this end, it argues, in summary, that Article 3 of the IUC Code establishes an implicit presumption of ownership of vehicles in favor of the person in whose name they are registered, and that this presumption, by virtue of the application of the general rule provided for in Article 73 of the General Tax Law, is rebuttable by contrary evidence.
For its part, the Respondent contends that Article 3 of the IUC Code does not establish any implicit presumption, but a true legal fiction, and is therefore irrebuttable by contrary evidence.
Given the positions of the parties, let us examine what should be, in accordance with the rules of legal interpretation enshrined, the interpretation of Article 3 No. 1 of the IUC Code.
Article 3 No. 1 of the IUC Code provides:
"The taxpayers of the tax are the owners of the vehicles, and are deemed as such the natural or legal persons, of public or private law, in whose name they are registered."
From a simple reading of the aforementioned provision, it is clear, without much difficulty, that the cornerstone lies in the expression "deemed" used by the legislator.
Given the terminology used, should it be understood that the legislator intended to establish an implicit presumption or a true legal fiction?
For the assessment of this issue, it is important, first of all, to bring forward some legal concepts and legal definitions.
Thus,
Pursuant to the provisions of Article 349 of the Civil Code, presumptions are inferences that the law or the judge draws from a known fact to establish an unknown fact.
As regards legal presumptions, Article 350 No. 2 of the same Code provides that these may be rebutted by contrary evidence, except in cases where the law prohibits it.
As for, specifically, presumptions of tax scope, Article 73 of the General Tax Law provides that these always admit contrary evidence.
In addition to presumptions, the legislator also resorts to so-called "legal fictions," which translate into "a legal process that considers a situation or a fact as distinct from reality to attribute legal consequences to it."
According to the thesis advanced by the Respondent, the fact that Article 3 No. 1 of the IUC Code provides that they are "deemed" as owners, instead of "presumed" as owners, reveals that the legislator, within its legislative freedom, expressly intended to provide that the persons in whose name the vehicles are registered are deemed, without admissibility of any contrary evidence, to be owners of the same.
Still according to the Respondent, if the legislator intended to create a presumption and not a legal fiction, it would have written, as it does in various other instruments, that they are presumed to be owners and not that they are deemed to be owners.
We can state right away that this tribunal does not support the understanding advocated by the Respondent.
This is because, through the analysis of the historical and teleological elements, in addition, naturally, to the literal element of legislative interpretation, we will inevitably reach the conclusion that the legislator did not intend to establish any legal fiction but only and exclusively a presumption, rebuttable by contrary evidence in accordance with and for the purposes of Article 73 of the General Tax Law.
Let us see:
As for the historical element, it is important to note that the current SCT had its genesis in the creation, through Decree-Law 599/72, of December 30, of the tax on vehicles.
This tax on vehicles, which remained in force until the creation of the current IUC Code, expressly provided that the tax is owed by the owners of the vehicles, being presumed as such the persons in whose name they are registered or recorded – see Article 3 of the Regulation of the Tax on Vehicles, attached to the aforementioned Decree-Law 599/72, of December 30.
When the new IUC Code was approved, the legislator replaced the expression "being presumed as such" with the expression "being deemed as such," but this does not allow one to argue that such alteration means a true substitution of a presumption (rebuttable) by a legal fiction (irrebuttable).
It is that, as teaches us JORGE LOPES DE SOUSA, in matters of tax scope, presumptions may be revealed by the expression "is presumed" or by a similar expression. By way of example, the author advances that in Article 40 No. 1 of the Income Tax Code the expression "is presumed" is used, whereas in Article 46 No. 2 of the same Code the expression "is deemed" is used, with no difference between one and the other expression, both ultimately meaning the same: a legal presumption.
The same occurred with the IUC Code, in which, despite the expression "is presumed" having been altered in relation to the original wording by the expression "is deemed," no fundamental change was made, the different expressions having exactly the same meaning.
We arrive at the very same conclusion through analysis of the teleological element.
In fact, it is important to keep in mind the explanatory memorandum of Bill No. 118/X of March 7, 2007, underlying Law No. 22-A/2007 of June 29.
Having analyzed this explanatory memorandum, it is verified that what was intended was to undertake a "comprehensive and coherent reform of taxes linked to the acquisition and ownership of motor vehicles," which results from "the imperative need to bring clarity and coherence to this area of the tax system and from the more imperative need still to subordinate it to the principles and concerns of an environmental and energy nature that today mark the discussion of motor vehicle taxation."
Continuing, the aforementioned explanatory memorandum explains that "the two new taxes that are now created, the tax on vehicles and the single circulation tax, constitute far more than the technical prolongation of the figures created in the 70s and 80s that preceded them, focused predominantly on the raising of revenue, indifferent to the social cost resulting from motor vehicle circulation. They constitute something different, figures already of the century in which we live, with which it is intended, certainly, to raise public revenue, but to raise it in the measure of the cost that each individual causes to the community."
This led, moreover, to the establishment of the principle of equivalence set forth in Article 1 of the IUC Code, "making it thus clear that the tax, taken as a whole, is subordinated to the idea that taxpayers should be burdened in the measure of the cost that they cause to the environment and the road network, this being the raison d'être of this tax figure. It is this principle that dictates the burdening of vehicles according to their respective ownership and until the moment of scrapping."
The SCT, as a true environmental tax, has, therefore, as its taxpayer the polluter, being nothing more, after all, than the establishment of the polluter-pays principle.
From this it appears that the guiding principle of the reform of motor vehicle taxation is precisely the application of taxation to the true user of the vehicle, this principle not being consistent with a "blind" reading of the letter of the law, which could lead, after all, to tax someone who is not an owner and, in that way, who is not the subject causing the "environmental and road cost" caused by the vehicle, referred to in Article 1 of the IUC Code.
From everything set forth above it follows that the literal, historical, and teleological elements of legal interpretation necessarily lead to the conclusion that the expression "being deemed" has exactly the same meaning as the expression "being presumed," and should, in this manner, be understood, that Article 3 No. 1 of the IUC Code establishes a true presumption of ownership and not any fiction, and is, therefore, such presumption rebuttable.
Pursuant to the provisions of Article 3 No. 1 of the IUC Code, the taxpayer of the tax is, in principle, the owner, since the law presumes that it is this person who uses the property. But if it is proven that, after all, it is not the owner who makes use of the vehicle, but a third party, then it will be this person, necessarily, the taxpayer of the tax.
This is, saving better, the interpretation that is in harmony, on one hand, with the principle set forth in Article 11 No. 3 of the General Tax Law, that, in cases of doubt about the interpretation of tax rules, "attention should be paid to the economic substance of the tax facts," and, on the other hand, with the principle of equality in the distribution of public burdens, which requires that the taxation of the generality of taxpayers, whenever possible, be based on economic reality underlying the tax facts.
Moreover, any other interpretation would violate, from the outset, the already mentioned principle of equivalence established in Article 1 of the IUC Code, pursuant to which it is established that the SCT seeks to "burden taxpayers in the measure of the environmental and road cost that they cause, in the implementation of a general rule of tax equality."
b. On the Non-Performance of the Obligation Provided for in Article 19 of the IUC Code:
Article 19 of the IUC Code provides:
"For the purposes of the provisions of Article 3 of this code (…) entities that engage in financial leasing, operational leasing, or long-term rental of vehicles are obliged to provide to the General Tax Authority the data relating to the tax identification of the users of the leased vehicles."
According to the Claimant, the non-performance of this obligation does not result in the taxpayer of the tax becoming, without more, the owner, and may only result in administrative violation liability of the wrongdoer.
For its part, the Respondent contends precisely the opposite, imposing on the subject to tax the non-performance of this obligation.
The merit of the position defended by the Claimant is evident from the outset from the systematic placement of the aforementioned Article 19, which is contained in Chapter III of the IUC Code, relating to ancillary obligations, inspection, and administrative violation regime.
The obligation contained in Article 19 of the IUC Code is, therefore, a purely reporting obligation, having no capacity to alter the rules of subjective scope of the tax provided for in Chapter I under the heading "Principles and General Rules."
And that this is so results, also, from the fact that Article 19 itself does not provide that sanction for its non-performance.
From which it follows, without any room for doubt, that the non-performance of this obligation does not determine, without more, that the taxpayer of the tax becomes the lessor.
Thus, the expression "for the purposes of Article 3 of this code" contained in the aforementioned Article 19 of the IUC Code has only and exclusively the meaning that, with a view to the application of the presumption provided for in Article 3 No. 2, that financial lessees are deemed to be owners, the leasing entities will have to comply with this article.
A different matter is to know whether the inverse is true, that is, whether, if not performed, this reporting obligation the lessor becomes unable to enjoy the presumption of ownership in favor of the lessee provided for in Article 3 No. 2 of the IUC Code.
Let us see:
Article 3 No. 2 of the IUC Code provides:
"Financial lessees, purchasers with retention of title, as well as other holders of purchase option rights by virtue of the lease contract, are equated with owners."
In the present case, we are, once again, faced with a presumption, which, by virtue of the application of the provisions of Article 73 of the General Tax Law, and similarly to that provided for in Article 3 No. 1 to which reference is being made, may be rebutted by contrary evidence.
Wherefore, if the obligation provided for in Article 19 of the IUC Code is not performed, the leasing entities can still resort to any means to prove that the lessee is a third party and thus resurrect the presumption of the aforementioned provision.
c. The Legal Value of the Motor Vehicle Register:
Pursuant to the provisions of Article 1 No. 1 of Decree-Law 54/75, of February 12, which established the Motor Vehicle Property Register, "the registration of vehicles has as its essential purpose to give publicity to the legal situation of motor vehicles and their respective trailers, with a view to the security of legal transactions."
For its part, Article 7 of the Property Register Code, supplementary legislation of the motor vehicle register, prescribes that "definitive registration constitutes a presumption that the right exists and belongs to the registered holder, in the precise terms in which the register defines it."
As is known, the property register does not have a constitutive nature, but merely a declarative nature, permitting only that registration in the register presumes the existence of the right and its ownership. Note, presume, and not fictionally define, which means that the presumption resulting from the register can be rebutted by contrary evidence.
And this is so precisely because, pursuant to the provisions of Article 408 of the Civil Code, save the exceptions provided for in the law, the creation or transfer of real rights over a determined thing takes place by mere effect of the contract, with its validity not depending on registration in the register.
In the case of a sales contract of a motor vehicle, the law providing no exception for it, the contract has real effect, the purchaser becoming its owner, independently of the register.
Now, in the same way as the purchaser becomes the owner independently of the register, the registered holder also ceases to be the owner, although still appearing in the register as such.
Note that, in the present case, although there is a lack of registration in the register, the transfers effected are enforceable against the Claimant, despite the provisions of Article 5 No. 1 of the Property Register Code, which provides that facts subject to registration produce effects against third parties only when registered.
This is because the Respondent is not, for the purposes of the provisions of this article, considered a third party for purposes of registration.
The notion of third parties for purposes of registration is established in Article 5 No. 4: third parties, for purposes of registration, are those who have acquired from a common author rights incompatible with each other, which, manifestly, is not the case in the present proceedings.
The same reasoning will naturally have to be applied to the cases of financial leasing, in relation to which the register also has no constitutive effect, being nothing more than a presumption that the right exists, rebuttable, in the same way, by contrary evidence.
And, in the same way, the lack of registration in the register of the financial leasing contract does not mean that it does not exist.
In the present case, the Claimant appears in the register as the owner of the vehicles subject of the disputed assessments, although, with respect to 602 of the vehicles, it claims not to be, on the date of the occurrence of the taxable event, its owner, because it had already transferred them, and, with respect to the remaining 82 vehicles, despite being the owner, not to have its use and enjoyment, because the vehicles are given in financial leasing, although not registered.
Since the presumption resulting from the register is, as we have seen, rebuttable, let us examine whether the documents filed by the Claimant are suitable to rebut such presumption.
d. On the Evidential Value of the Invoices Filed by the Claimant:
With a view to proving that 602 of the vehicles whose assessments are at issue in the present proceedings were transferred by it on a date prior to the occurrence of the taxable event, the Claimant filed the respective sales invoices.
Note that the Respondent alleged that with respect to several vehicles the Claimant did not file any sales invoice, and some of the invoices filed are not properly issued and therefore cannot be accepted.
As to the first issue – lack of filing of invoices – having compared all the documents filed in the proceedings, it is verified that the Claimant filed, for each of the registration plates/numbers in question, either a sales invoice in the cases where it claims that the vehicles were sold, or a financial leasing contract in the cases where it claims that the vehicles are given in financial leasing.
Wherefore, there appears to be no missing elements.
As for the second issue – invoices issued irregularly – the truth is that the Claimant, after the holding of the meeting referred to in Article 18 of the LFJTA, came to file copies of these invoices, the Respondent not having contested these new documents, and therefore it must be considered as satisfied the invoked irregularity.
This being stated,
As appears from the proven facts, none of the 684 vehicles in question in the present proceedings belong to categories F or G referred to in Article 4 of the IUC Code, and therefore the taxable event occurs on the date of the respective registration or on each of its anniversaries.
It further appears from the proven facts that, on the date of the occurrence of the taxable event, an invoice for sale to a third party had been issued by the Claimant with respect to each of these 602 vehicles.
Without prejudice to the registration plates/numbers with respect to which the Respondent alleges that no invoice has been filed by the Claimant (having in these cases, as already seen, proceeded to the filing of the financial leasing contracts) and those for which, having been filed an invoice, the Respondent invokes that it is irregularly issued (situation which, as we have seen, was overcome by the subsequent filing of new invoices), the Respondent contends that the invoice is not a suitable document to prove the sale of the vehicle, being nothing more than a document unilaterally issued by the Claimant, alleging that "as is public knowledge, there is no shortage of cases of issuance of invoices relating to transfers of goods and/or provision of services that never took place."
It is true, as the Respondent argues, that there are many situations in which invoices do not evidence any legal transaction.
In the present case, however, no element allows us to conclude that the filed invoices do not evidence any transaction, it being certain that their falsity was not even alleged by the Respondent, which merely invoked that several such situations exist, without specifically stating that the situation in the present proceedings fell within such.
Wherefore, in the absence of any elements or grounds that would allow us to conclude otherwise, we must, naturally, accept the truthfulness of the filed documents.
All the more so because, as is known, the declarations of taxpayers submitted in accordance with the law and the data and determinations recorded in their accounting or records enjoy a presumption of truthfulness and good faith, pursuant to the provisions of Article 75 of the General Tax Law.
This presumption which, similarly to the other presumptions analyzed in these proceedings, are rebuttable by contrary evidence, it being certain that the Respondent did not manage to rebut this presumption (nor, properly speaking, tried).
Given the truthfulness of the invoices filed by the Claimant, we must consider, without need for any other considerations, them to be suitable documents to prove the transfer of the vehicles in question.
In effect, the law not providing for any specific form for the execution of a sales contract of a movable asset, it will necessarily have to be accepted as proof of the said contract the invoice issued in accordance with legal provisions.
From which it appears that, on the date of the occurrence of the taxable event (date of the registration or of each of its anniversaries), the Claimant had transferred all 602 vehicles whose assessments were challenged, although the said transfers were not subject to registration in the register.
Thus, in view of the fact that, as already set forth, the presumption resulting from the register is rebuttable by contrary evidence, evidence that is deemed sufficient by the presentation of the sales invoices of the vehicles, it is found that with respect to these 602 vehicles, the Claimant is not its owner, and is therefore not a taxpayer of the assessed SCT.
e. On the Evidential Value of the Financial Leasing Contracts:
To prove that 82 of the vehicles whose assessments are at issue in the present proceedings were given in financial leasing on the date of the occurrence of the taxable event, the Claimant filed the respective contracts.
It is proven in the proceedings that all the contracts were executed on a date prior to the occurrence of the taxable event.
The Respondent does not question the evidential value of these contracts, merely alleging that the non-performance on the part of the Claimant of the provisions of Article 19 of the IUC Code results in this party becoming the taxpayer of the tax in question.
Just as already set forth above, nothing in the law allows us to reach such conclusion, it being certain that the expression "for the purposes of Article 3 of this code" contained in the aforementioned Article 19 of the IUC Code does not have and cannot have this meaning.
Since the lease contract is a contract with real effect, with possession of the asset being transferred by mere effect of the contract, there is no doubt that the users of the vehicle are the lessees and not the lessor.
And if, as already seen, the SCT is a tax that aims to tax the user of the vehicle through the rule of the polluter-pays, then it seems evident that the taxpayer of the tax is the lessee and not the lessor, herein the Claimant.
Wherefore, given the dates of the execution of the financial leasing contracts and the dates of the occurrence of the taxable event, it is necessary to conclude that with respect to these 82 vehicles, the Claimant is not the taxpayer of the assessed SCT.
This, note, although the financial leasing contracts are not registered in the register, since the lack of registration does not determine that, where sufficient evidence to the contrary exists, as is the case, the taxpayer of the tax becomes the registered holder.
In light of everything set forth above, there being no legal basis for the SCT assessments made, their annulment is necessary, as well as the annulment of the acts of assessment of compensatory interest, with all legal consequences.
VI. OPERATIVE PART:
In light of the foregoing, the tribunal decides:
a) To find well-founded the request for a declaration of illegality of the 684 SCT assessment acts relating to the 2009 fiscal year, in the amount of €38,352.67, as well as the compensatory interest in the total amount of €6,771.55, all with all legal consequences;
b) To condemn the Respondent to pay the costs of the proceedings.
The value of the case is fixed at €45,124.22, pursuant to Article 97-A No. 1 a) of the Tax Procedure and Tax Process Code, applicable by virtue of items a) and b) of Article 29 No. 1 of the LFJTA and Article 3 No. 2 of the Regulation of Costs in Tax Arbitration Proceedings.
The arbitration fee is fixed at €1,071.00, pursuant to Table I of the Regulation of Costs of Tax Arbitration Proceedings, in accordance with Articles 12 No. 2 and 22 No. 4, both of the LFJTA, and Article 4 No. 4 of the aforementioned Regulation, to be paid by the Respondent as the losing party.
Register and notify.
Lisbon, July 21, 2014.
The Arbitrator,
Alberto Amorim Pereira
Document prepared by computer, in accordance with Article 131 No. 5 of the Code of Civil Procedure, applicable by reference of item e) of Article 29 No. 1 of Decree-Law 10/2011, of January 20.
This decision is written in the old spelling orthography.
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