Summary
Full Decision
ARBITRAL DECISION
I. - REPORT
A - PARTIES
A..., SA, legal entity no. ..., with registered office at ..., Avenue ..., Plot ..., 2nd floor - Lisbon, hereinafter designated as "Claimant", submitted a request for constitution of an arbitral tribunal, pursuant to the provisions of no. 2 of article 10 of Decree-Law no. 10/2011, of 20 January (Legal Regime for Arbitration in Tax Matters, hereinafter designated as "RJAT"), with a view to examining the following claim against the Tax and Customs Authority (which succeeded, among others, the Directorate-General of Taxation) hereinafter designated as "Respondent" or "AT".
B - CLAIM
1 - The request for constitution of the arbitral tribunal was accepted by the Illustrious President of CAAD on 23 February 2015 and, on the same date, notified to the AT.
2 - The Claimant did not appoint an arbitrator, wherefore, pursuant to the provisions of no. 1 of article 6 of the RJAT, the undersigned was designated on 15-04-2015 by the Ethics Council of the Administrative Arbitration Centre as arbitrator of a Single Arbitral Tribunal, having accepted in the manner legally provided.
3 - The Parties were, on 15-04-2015, duly notified of this designation and did not manifest any intention to challenge it, pursuant to the combined provisions of sub-paragraphs a) and b) of no. 1, of article 11 and articles 6 and 7 of the Deontological Code.
4 - In these circumstances, in accordance with the provisions of sub-paragraph c) of no. 1 of article 11 of Decree-Law no. 10/2011, of 20 January, as amended by article 228 of Law no. 66-B/2012, of 31 December, the arbitral tribunal was regularly constituted on 05-05-2015.
5 - On 21 September 2015, the Arbitral Tribunal deemed it unnecessary to hold the meeting provided for in article 18 of the RJAT, taking into account both the orders issued on this matter in the SGP system and the circumstance that the dispute concerned, fundamentally, matters of law, as well as the parties' intention to waive said meeting.
6 - The Claimant now requests that this Arbitral Tribunal:
a) - Declare the illegality and consequent annulment of both the assessment acts relating to the Single Vehicle Circulation Tax (hereinafter designated as IUC) and the assessment acts of the compensatory interest (JC) associated therewith, embodied in the assessments of which it was notified, which are referenced in the case file, relating to the years 2013 and 2014 and concerning the vehicles identified in the record, which are hereby deemed fully reproduced herein.
b) - Condemn the Tax and Customs Authority to reimburse the amount of € 7,423.35, which it indicates as the value of the claim.
c) - Condemn the Tax and Customs Authority to pay indemnification interest for the payment of amounts illegally assessed and paid.
C - CAUSE OF ACTION
7 - The Claimant, in substantiating its request for arbitral determination, states, in summary, the following:
8 - That it is a credit financial institution that pursues its activity in the automotive financing sector, namely under the modality of granting loans for the acquisition of vehicles or the conclusion of financial lease contracts.
9 - That it received various assessment notices for IUC, as identified in the case file, relating to the years 2013 and 2014, concerning the vehicles identified in the record, against which it filed a gracious complaint under no. ..., a complaint that was dismissed.
10 - That it proceeded to pay all amounts relating to the IUC assessments identified in the present case.
11 - That it is not the taxpayer for the IUC relating to the vehicles identified in the case file, on which the assessments of which it was notified were levied.
12 - That in all cases referenced in the present case, the assessed tax concerns vehicles sold at a date prior to the date of exigibility of the IUC, or vehicles whose leasing contract was still in force on the date to which this tax relates.
13 - That the sale of vehicles at a date prior to the date of exigibility of the tax constitutes a reason for exclusion of subjective incidence.
14 - That the tax is exigible on the first day of the taxation period for the vehicle, which occurs on the date when registration is granted.
15 - That on the date of exigibility of the tax it was no longer the owner of the vehicles identified in the record, wherefore the taxpayer should be the new owner of each of these vehicles.
16 - That the ownership of the vehicles was not registered in favour of the new owners, however, even if the transfers of ownership of the vehicles in question were not publicised, this does not prevent the IUC from applying to the actual owners of these vehicles, once the respective transfer is demonstrated.
17 - That the expression "shall be considered" inserted in article 3, no. 1 of the CIUC enshrines a rebuttable legal presumption, and any contrary interpretation would directly conflict with the principle of equivalence, by enabling the new owner and consequent generator of environmental and road costs to be exempted from payment of IUC, while the owner who sold the vehicle continued to be burdened with this tax.
18 - That, in light of what is established in article 3, no. 2 of the CIUC, if the vehicle was subject to leasing, the taxpayer of the IUC is the financial lessor, and the owner of that vehicle cannot be held as subsidiary responsible for payment of said tax, a situation which would violate the principle of equivalence.
19 - That the vehicles in question were, in some cases, sold prior to the occurrence of the taxable event and consequent exigibility of the tax, and in other cases were subject to a leasing contract in force on the date to which the IUC refers, wherefore, pursuant to the provisions of nos. 1 and 2, of article 3 of the CIUC, it was not the taxpayer for the tax in question.
20 - That with respect to the vehicle with registration plate ...-...-... it does not have an invoice demonstrating its sale, it being apparent, however, from the respective leasing contract that, on the date of exigibility of the tax, it was no longer the owner of said vehicle.
D - RESPONSE OF THE RESPONDENT
21 - The Respondent, Tax and Customs Authority, (hereinafter designated as AT), submitted, on 16-06-2015, its Response.
22 - In the said Response, the AT considers, with respect to the vehicles subject to financial leasing, namely those identified with registration plates ...-...-..., ...-...-..., ...-...-... and ...-...-..., that for the purposes of article 3 of the CIUC, it is necessary that the financial lessors, as is the case with the Claimant, comply with the obligation established in article 19 of said Code, so that they may be exempted from the obligation to pay the tax, wherefore, having failed to comply with such obligation, it must be concluded that the Claimant is the taxpayer for the tax.
23 - It emphasises that for the vehicles with registration plates ...-...-..., ...-...-... and ...-...-... no documents whatsoever were presented, namely invoices relating to their alleged sales, wherefore the 33 situations (assessments) to which the Claimant alludes in its claim are reduced to 27, also noting that for the vehicle with registration plate ...-...-..., invoices were presented relating to the sale of said vehicle to the same person, by two different amounts. (See articles 26, 125 and 126 of the Response)
24 - In its Response, the AT considers that the allegations of the Claimant cannot, in any way, proceed, in that they make an interpretation and application of the legal norms applicable to the case which is notoriously incorrect, in so far as
25 - They reveal an understanding which incurs not only a skewed reading of the letter of the law, but also an interpretation that does not take into account the systematic element, violating the unity of the regime established throughout the CIUC and, more broadly, throughout the entire legal-tax system, further resulting from an interpretation that ignores the ratio of the regime established in the CIUC. (See articles 27 and 28 of the Response)
26 - It states that the tax legislator, in establishing in article 3, no. 1 of the CIUC who are the taxpayers of the IUC, established expressly and intentionally that these are the owners (or in the situations provided for in no. 2 the persons mentioned therein), being considered as such the persons in whose names the same are registered. (See article 50 of the Response)
27 - It emphasises that the legislator did not use the expression "it is presumed" as it could have done, for example, in the following terms: "the taxpayers of the tax are the owners of the vehicles, it being presumed as such the natural or legal persons, of public or private law, in whose names the same are registered". (See article 51 of the Response)
28 - It considers that the wording of article 3 of the CIUC corresponds to a clear choice of legislative policy adopted by the legislator, whose intention, within its freedom of legislative configuration, was that for the purposes of IUC, those who appear as such in the register should be considered owners. (See article 62 of the Response)
29 - It refers that the aforementioned understanding has already been adopted by the jurisprudence of our courts, transcribing for this purpose part of the judgment of the Administrative and Tax Court of Penafiel, issued in Case no. .../13.OBEPNF. (See articles 63 and 64 of the Response)
30 - On the systematic element of interpretation, it considers that the solution advocated by the Claimant is intolerable, finding the understanding supported by this no legal support whatsoever. (See article 66 of the Response)
31 - On the "ratio" of the regime, the AT considers that, in light of a teleological interpretation of the regime established throughout the IUC Code, the interpretation advocated by the Claimant, to the effect that the taxpayer of the IUC is the effective owner regardless of whether or not the registration of that quality appears in the vehicle register, is manifestly incorrect, in so far as it is the very ratio of the regime established in the CIUC that constitutes clear proof that what the tax legislator intended was to create a tax based on the taxation of the owner of the vehicle, as it appears in the vehicle register. (See articles 89 and 90 of the Response)
32 - It adds that the CIUC carried out a reform of the regime for taxation of vehicles in Portugal, substantially altering the regime for automobile taxation, with the taxpayers of the tax now being the owners appearing in the property register, regardless of the circulation of the vehicles on the public highway. (See article 96 of the Response)
33 - In this sense, it refers that this is the understanding set forth, in particular, in recommendation no. 6-B/2012 of 22-06-2012, from the Ombudsman addressed to the Secretary of State for Public Works, Transport and Communications.
34 - The interpretation put forward by the Claimant also appears, besides what has already been mentioned, to be contrary to the Constitution, in particular because, among others, it violates the principle of efficiency of the tax system, which has constitutional dignity, a violation that would result in an obstruction and increased costs of the competencies attributed to the Respondent, with obvious prejudice to the interests of the Portuguese State, of which both the Claimant and the Respondent form part. (See article 144 of the Response)
35 - It adds that the invoices attached to the case file do not constitute sufficient proof to "undermine the (supposed) legal presumption established in article 3 of the CIUC", in so far as they lack the reciprocal character, a lack that "[…] could be remedied by proof of receipt of the price […]" that appears therein, by the Claimant. (See articles 106 and 118 of the Response)
36 - With respect to the invoices presented by the Claimant, it considers that they present, in their description, different mentions, in that in some cases reference is made to residual value and in other cases to rescission or total loss.
37 - It further states that it was not the Respondent who gave rise to the deduction of the request for arbitral determination, but rather the Claimant, wherefore consequently the Claimant should be condemned to pay the arbitration costs "pursuant to article 527/1 of the New Code of Civil Procedure ex vi of article 29/1-e) of the RJAT", also referring that the legal requirements conferring the right to compensatory interest are not met.
38 - With respect to indemnification interest, it adds that the Claimant's claim cannot be understood when, with the exception of the vehicle with registration plate ...-...-..., it does not prove payment of the tax from which the aforementioned interest would derive.
39 - It considers, to conclude, that in light of all the arguments set forth, the tax acts in question are valid and legal, because they comply with the legal regime in force at the date of the facts, the services having committed no error, all the more so as the "[…] Claimant never submitted any gracious complaint or statement which would have allowed the Respondent to pronounce upon the assessments now impugned and their respective documents."
E - ISSUES TO BE DECIDED
40 - It is therefore necessary to examine and decide.
41 - In light of the foregoing, regarding the positions of the Parties and the arguments presented, the issues to be decided are, in particular, the following:
a) Whether the norm of subjective incidence contained in article 3, no. 1 of the CIUC establishes or does not establish a presumption.
b) What is the legal value of the vehicle register in the economy of the CIUC, particularly for the purposes of the subjective incidence of this tax.
c) If, on the date of exigibility of the tax, a financial leasing contract is in force which has as its object an automobile, is the taxpayer of the IUC, for the purposes of article 3, nos. 1 and 2 of the CIUC, the lessee or the leasing entity, the owner of the vehicle, in whose name the property right is registered.
d) If, in the event it is concluded that a presumption is established in no. 1 of article 3 of the CIUC, the documents presented (invoices and financial leasing contracts) as proof of the right invoked, are suitable means for rebutting the aforementioned presumption.
F - PROCEDURAL REQUIREMENTS
42 - The Arbitral Tribunal is regularly constituted and is materially competent, pursuant to sub-paragraph a) of no. 1 of article 2 of Decree-Law no. 10/2011, of 20 January.
43 - The Parties have legal personality and capacity, are properly represented (see article 4 and no. 2 of article 10 of Decree-Law no. 10/2011 and article 1 of Ordinance no. 112/2011, of 22 March).
44 - The proceedings do not suffer from vices that render it invalid.
45 - Having regard to the administrative tax proceedings, a copy of which was attached to the case file by the AT, and the documentary evidence forming part of the case file, it is now necessary to present the material facts relevant to understanding the decision, as established in the terms mentioned below.
II - REASONS
G - FACTUAL FINDINGS
46 - In terms of relevant facts, this tribunal considers the following facts to be established:
47 - The Claimant is a credit financial institution that pursues its activity in the automotive financing sector, namely under the modality of granting loans for the acquisition of vehicles or the conclusion of financial lease contracts.
48 - The Claimant received various assessment notices for IUC, as identified in the case file, relating to the years 2013 and 2014, concerning the vehicles identified in the record, against which it filed a gracious complaint under no. ... 2015 ..., a complaint that was dismissed.
49 - The Claimant proceeded to pay all amounts relating to the IUC assessments identified in the present case.
50 - The Claimant is not the taxpayer for the IUC with respect to four of the vehicles identified in the case file, with respect to which there were leasing contracts.
51 - With respect to the four vehicles referred to in the previous paragraph, whose leasing contract was in force on the date to which the tax refers, the respective assessments amount to a total amount of tax of € 673.69.
52 - With respect to vehicles with registration plates ...-...-..., ...-...-..., ...-...-... and ...-...-... no invoices were presented, while for the vehicle with registration plate ...-...-... two invoices were presented relating to its sale on different dates to the same person for two different amounts, and for the remaining sixteen vehicles invoices were attached relating to their alleged sales.
53 - The invoices presented by the Claimant present, in their description, different mentions, in that in some cases reference is made to residual value and in other cases to rescission or total loss.
REASONS FOR THE PROVEN FACTS
54 - The facts proven are based on the documents mentioned, with respect to each of them, in so far as their correspondence with reality was not contested.
FACTS NOT PROVEN
55 - In terms of fact, with relevance to the decision, this tribunal considers as not proven the sale, prior to the exigibility of the tax, of the twenty-one vehicles referenced in no. 52.
H - LEGAL REASONING
56 - The factual situation is established, and it is now necessary to proceed to its legal classification and determine the law applicable to the underlying facts, in accordance with the issues to be decided set forth in no. 41.
57 - The essential and decisive issue in the present case, with respect to which there are absolutely opposing views between the Claimant and the AT, is to ascertain whether the norm of subjective incidence contained in no. 1 of article 3 of the CIUC establishes or does not establish a rebuttable presumption.
58 - The positions of the parties are known. Indeed, for the Claimant, the expression "shall be considered" inserted in article 3, no. 1 of the CIUC enshrines a rebuttable legal presumption.
59 - The Respondent, for its part, considers that the wording of article 3 of the CIUC corresponds to a clear choice of legislative policy adopted by the legislator, whose intention, within its freedom of legislative configuration, was that for the purposes of IUC, those who appear as such in the register should be considered owners.
I - INTERPRETATION OF THE NORM OF SUBJECTIVE INCIDENCE CONTAINED IN NO. 1 OF ARTICLE 3 OF THE CIUC
60 - On this matter, namely whether the norm of subjective incidence contained in no. 1 of article 3 of the CIUC establishes a presumption, it should be noted that the jurisprudence established in the CAAD points to the effect that the said norm establishes a legal presumption. Indeed, from the first Decisions issued on this matter in the year 2013, among which may be mentioned in particular those issued in the context of Cases nos. 14/2013-T, 26/2013-T and 27/2013-T, to the most recent ones that may be indicated the Decision issued in the context of Case no. 69/2015-T, passing through numerous Decisions issued in the year 2014, of which mention is made, by way of mere example, the Decisions issued in Cases nos. 34/2014-T, 120/2014-T and 456/2014 - T, all point to the understanding that no. 1 of article 3 of the CIUC establishes a rebuttable legal presumption.
In this regard, consideration should also be given to the understanding set forth in the Judgment of the Central Administrative Court of the South, issued on 19-03-2015, Case 08300/14, available at: www.dgsi.pt, when it expressly states therein that article 3, no. 1 of the CIUC "[…] establishes a legal presumption that the holder of the vehicle registration is its owner, and such presumption is rebuttable by virtue of article 73 of the LGT".
This is an understanding that is fully endorsed and which is given, without further ado, as valid and applicable in the present case, it not being considered necessary, consequently, any further arguments, in light of the abundant reasoning set out in the aforementioned Decisions and in the said Judgment.
J - ON THE ACQUISITION OF OWNERSHIP OF THE VEHICLE AND THE VALUE OF REGISTRATION
61 - First and foremost, it should be added, in light of what will be explicitly stated below regarding the value of registration, that the purchasers of vehicles become owners of those same vehicles through the celebration of the corresponding purchase and sale contracts, whether or not registered.
62 - There are three articles of the Civil Code that are important to consider with respect to the acquisition of ownership of an automobile. These are, first of all, article 874, which establishes the notion of purchase and sale contract, as being "[…] the contract by which the ownership of a thing, or another right, is transferred for a price"; article 879, in whose sub-paragraph a) it is provided, as the essential effects of the purchase and sale contract, "the transfer of the ownership of the thing or the holding of the right" and article 408, which is headed "Contracts with real effect" and establishes in its no. 1 that "the creation or transfer of real rights over a determined thing takes place by mere effect of the contract, except for the exceptions provided by law". (emphasis ours)
We are, in effect, in the domain of contracts with real effect, which means that their conclusion brings about the transfer of real rights, in this case, automobiles, determined by mere effect of the contract, as expressly follows from the norm previously mentioned.
63 - With respect to the aforementioned contracts with real effect, it is relevant to note the teachings of Pires de Lima and Antunes Varela, when, in annotations to article 408 of the CC, they tell us that "From these contracts called real (quoad effectum), because they have as their immediate effect the creation, modification or extinction of a real right (and not merely the obligations tending to that result) must be distinguished the so-called real contracts (quoad constitutionem), which require the delivery of the thing as an element of their formation (see articles 1129, 1142 and 1185)".
We are thus facing contracts in which the ownership of the thing sold is transferred, without more, from the seller to the buyer, having, as its cause, the contract itself.
64 - Also from jurisprudence, in particular from the Judgment of the Supreme Court of Justice no. 03B4369 of 19/02/2004, available at: www.dgsi.pt, it is clear that, in light of the provisions of article 408, no. 1, of the Civil Code, "the creation or transfer of real rights over a determined thing takes place by mere effect of the contract, except for the exceptions provided by law". This is the case of the purchase and sale contract of an automobile (articles 874 and 879 sub-paragraph a) of the Civil Code), which does not depend on any special formality, being valid even when concluded in verbal form - according to Judgment of the Supreme Court of Justice of 3-3-98, in CJSTJ, 1998, year VI, Volume I, page 117". (emphasis ours)
65 - Given that the purchase and sale contract, in light of what is stated above, has a real nature, with the aforementioned consequences, consideration must also be given to the legal value of the vehicle register as the object of that contract, in so far as the transaction of said asset is subject to public registration.
66 - It is established, in effect, in no. 1 of article 1 of DL no. 54/75, of 12 February, relating to the registration of automobiles, that "The registration of vehicles has as its essential purpose to publicise the legal situation of motor vehicles and their trailers, with a view to the security of legal transactions". (emphasis ours)
67 - While it is clear, in light of said norm, what the purpose of registration is, there is, however, no clarity within the said Decree-Law regarding the legal value of that registration, making it necessary to consider article 29 of the said legal instrument, relating to the registration of automobile ownership, when it is provided therein that "The provisions relating to land registration shall apply, with the necessary adaptations, to the registration of automobiles, […]". (emphasis ours)
68 - In this context, in order to achieve the desired understanding of the legal value of the registration of automobile ownership, it is necessary to take into account what is established in the Land Register Code, approved by Decree-Law no. 224/84, of 6 July, when it provides in its article 7 that "the definitive registration constitutes a presumption that the right exists and belongs to the holder registered in the precise terms in which the registration defines it". (emphasis ours)
69 - The combination of the provisions in the articles mentioned above, particularly what is established in no. 1 of article 1 of DL no. 54/75, of 12 February and in article 7 of the Land Register Code, allows us to consider, on the one hand, that the fundamental function of registration is to publicise the legal situation of the vehicles, allowing, on the other hand, to presume that the right exists and that such right belongs to the holder in whose name it is registered, in the precise terms in which it is defined in the register.
70 - Thus, the definitive registration constitutes nothing more than a presumption that the right exists and belongs to the holder registered, in the exact terms of the registration, but a rebuttable presumption, admitting therefore counterevidence, as follows from the law and jurisprudence has been pointing out, and with respect to this, reference may be made, among others, to the Judgments of the Supreme Court of Justice nos. 03B4369 and 07B4528, respectively of 19/02/2004 and 29/01/2008, available at: www.dgsi.pt.
71 - The function legally reserved to registration is thus, on the one hand, to publicise the legal situation of the assets, in this case the vehicles and, on the other, to allow us to presume that the right exists over those vehicles and that it belongs to the holder as such registered in the register, which means that the register does not have a constitutive nature with respect to the property right, but merely a declarative one, hence the register does not constitute a condition of validity of the transfer of the vehicle from the seller to the buyer.
72 - Thus, if the buyers of vehicles, as their "new" owners, do not immediately promote the proper registration of their right, it is presumed, for the purposes of article 7 of the Land Register Code and no. 1 of article 3 of the CIUC, that the vehicles continue to be the property of the person who sold them and who remains registered as their owner in the register, and that person is the taxpayer for the tax, with the certainty, however, that such presumptions are rebuttable, whether by force of what is established in no. 2 of article 350 of the CC, or in light of the provisions of article 73 of the LGT. Hence, from the moment when the presumptions in question are set aside, by way of proof of the aforementioned sales, the AT cannot persist in considering as the taxpayer of the IUC the seller of the vehicle who continues to appear in the register as its owner.
L - ON THE TAXPAYER OF THE IUC IN THE COURSE OF A FINANCIAL LEASING CONTRACT
73 - It is necessary, first of all, to note that the Legal Regime of the Financial Leasing Contract, approved by Decree-Law no. 149/95, of 24 June, with the last amendment introduced by Decree-Law no. 30/2008, of 25 January, provides in its article 9 that the obligations of the lessor include, in particular, the granting of the enjoyment of the asset for the purposes for which it is intended and the sale of the asset to the lessee, should the latter so wish, at the end of the contract, as respectively stated in sub-paragraphs b) and c) of its no. 1.
74 - On the other hand, in light of what is established in article 10 of the said legal instrument, namely in sub-paragraphs a) of its nos. 1 and 2, we come to understand that the obligations of the lessee include paying the rent and using and enjoying the leased asset, which means that during the course of a financial leasing contract which has as its object a vehicle, only the lessee has its exclusive enjoyment.
75 - The lessee's obligations, in light of the aforementioned norms, clearly point to the effect that it is this contractual party that has the exclusive enjoyment of the vehicle which is the object of the financial leasing contract, and it is the one who uses it as if it were the true owner of that asset.
76 - The lessor is the formal owner of the vehicle and consequently has no potential polluter role, which means that the harm that accrues to the community, arising from the use of automobiles, must be borne by their actual users, as costs that only they should bear. The lessee, being equated to an owner in the sense of being the taxpayer for the tax (article 3, nos. 1 and 2 of the CIUC), has the full use and enjoyment of the vehicle, as legally established, wherefore it is the true user and effective generator of environmental damage, and should thus be responsible for the corresponding tax, and this is the understanding that should be derived from the provisions of no. 2 of article 3 of the CIUC, which in our view makes full sense. This concerns realizing and giving useful meaning to the principle of equivalence which informs and shapes the current CIEC, a principle which embodies the idea, underlying the polluter-pays principle, that whoever pollutes must therefore pay.
77 - Thus, the interpretation of no. 2 of article 3 of the CIUC will only allow the lessee to be seen as responsible for the payment of the IUC, and it is important to note in this regard the provisions of article 19 of the CIUC, when it precisely, for the purposes of article 3 of said Code, that is, for the purposes of subjective incidence, comes to impose on entities that proceed with financial leasing the obligation to provide the AT with data relating to the tax identification of the users of the leased vehicles, which reveals, in particular, that for the purposes of the aforementioned subjective incidence, it was intended to know who are, after all, the actual users of the leased vehicles, so that they, and not others, are the ones to bear the unique vehicle circulation tax.
78 - In light of what has just been stated, it is our understanding that if a financial leasing contract is in force on the date of exigibility of the tax which has as its object an automobile, the taxpayer of that tax is, in light of the provisions of no. 2 of article 3 of the CIUC, the lessee, and not the lessor.
79 - Having reached this point, the following should be emphasised: for the vehicles with registration plates ...-...-...; ...-...-...; ...-...-... and ...-...-... financial leasing contracts were presented; for the vehicles with registration plates ...-...-...; ...-...-...; ...-...-... and ...-...-... no invoices were presented; for the vehicle with registration plate ...-...-... a double sale to the same person for two different amounts was carried out, which gives rise to an insuperable doubt as to the truth of the transaction, and for the remaining vehicles, numbering sixteen, invoices were presented relating to their alleged sales.
80 - As for the four vehicles referred to in the previous paragraph, namely the vehicles with registration plates ...-...-...; ...-...-...; ...-...-... and ...-...-..., it should be emphasised that the date of exigibility of the corresponding tax occurred during the course of the respective financial leasing contracts, in that for the vehicle with registration plate ...-...-... the course of the contract began on 01-08-2010 and ended on 01-08-2014, with the exigibility of the IUC being in July 2013 and 2014; for the vehicle ...-...-... the course of the contract began on 01-09-2010 and ended on 01-09-2015, with the exigibility of the IUC being in July 2013 and 2014; for the vehicle with registration plate ...-...-... the course of the contract began on 24-01-2009 and ended on 24-01-2014, with the exigibility of the IUC being in July 2013; and for the vehicle with registration plate ...-...-... the course of the contract began on 24-07-2009 and ended on 24-08-2015, with the exigibility of the IUC being in July 2013.
81 - In this context, it is important to note, on the one hand, that the contracts relating to the four aforementioned vehicles were in force on the dates of exigibility of the IUC and their payment was not the responsibility of the Claimant, given that, in light of what has already been stated, it was not then the taxpayer for the tax, and on the other, that the corresponding tax levied and paid, whether in the form of IUC or JC, totals the amount of € 673.73.
M - ON THE MEANS OF PROOF PRESENTED
ON THE FINANCIAL LEASING CONTRACTS
82 - With respect to the financial leasing contracts in force on the date of exigibility of the tax, numbering four, it should be understood that such contracts are suitable means and with sufficient force to prove the quality of the lessees, for the purposes of the provisions of no. 2 of article 3 of the CIUC, that is, for the purposes of their liability to pay the tax in question. There are in fact no elements that would suggest that the data set forth in such contracts do not correspond to the contractual truth, and it is also certain that the law, in this case no. 1 of article 75 of the LGT, attributes a presumption of truthfulness to such documents.
ON THE INVOICES
83 - Having always in mind the verbal nature that purchase and sale contracts for automobiles may take, proof of the sale of that asset may be made by any means, namely by way of invoices-receipts relating to the sales of the vehicles.
84 - With respect to the aforementioned invoices-receipts, it is important to consider the understanding set forth in the Judgment of the Central Administrative Court of the South, issued on 19-03-2015, Case 08300/14, available at: www.dgsi.pt, when it states that "[…] The invoice should be viewed as the accounting document through which the seller sends to the buyer the general conditions of the transaction carried out (appearing) in the phase of settlement of the amount to be paid by the buyer [ ] not constituting proof of payment of the price by the same buyer and consequently proof that the purchase and sale was concluded (only the issue of an invoice/receipt or a receipt constitutes proof of payment and discharge) [ ]".
85 - The Claimant, with the exception of the vehicles with registration plates ...-...-...; ...-...-...; ...-...-... and ...-...-..., in respect of which copies of the financial leasing contracts were presented and vehicles with registration plates ...-...-...; ...-...-...; ...-...-... and ...-...-... for which no invoices were presented, as well as for the vehicle with registration plate ...-...-... in which a double sale to the same person for two different amounts is verified, presented for all other vehicles, numbering sixteen, invoices relating to their alleged sales.
86 - Taking into account, in particular, what is referred to in the previous no. 84, the tribunal, considering in particular the provisions of no. 1 of article 99 of the LGT and aiming to ascertain the truth regarding the alleged facts, took steps to ensure that such invoices, presented as proof of the sales in question, were supplemented with further information, having in particular aimed at verifying the actual receipt of the amounts relating to the sales of the sixteen vehicles in question.
87 - The Claimant, however, did not succeed, within the time allowed for that purpose, in supplementing the content of said invoices with further evidence, namely with the corresponding accounting statements, capable of revealing that the amounts of the sales of the said vehicles were actually received by it, and the Tribunal cannot consider that, by merely attaching the invoices relating to the alleged sale of the vehicles in question, the actual transfer of their ownership was demonstrated.
88 - In these circumstances, with respect to the assessments relating to the vehicles subject to the financial leasing contracts and having regard, on the one hand, to the provisions of article 3, no. 2 of the CIUC and, on the other, to the duration of the aforementioned contracts, relating to the four vehicles identified above, on the date of exigibility of the tax, that is, at the moment when the Tax Administration may demand the tax performance, it cannot be overlooked that at the time of exigibility of the corresponding tax, the Claimant was not its taxpayer, but rather the respective lessees.
89 - The AT, when it considers that in this case the Claimant is the taxpayer for the IUC, without duly taking into account the provisions of no. 2 of article 3 of the CIUC, and without taking into account the duration of the financial leasing contract on the date of exigibility of the IUC, is proceeding with an illegal assessment of that tax, based on the incorrect interpretation and application of the aforementioned norm of subjective incidence of the Unique Vehicle Circulation Tax, which constitutes the practice of a tax act that lacks legality due to error on the factual and legal grounds, which leads to the annulment of the corresponding tax acts, by violation of law.
90 - In sum, it may be said, in consonance with what is set forth above, that the assessments relating to the vehicles with registration plates ...-...-...; ...-...-...; ...-...-... and ...-...-..., for which copies of the financial leasing contracts were presented, are not legally made, whereas with respect to the remaining vehicles, numbering twenty-one, as referenced in no. 52, in that no proof capable of demonstrating the actual transfer of their ownership before the date of exigibility of the IUC has been made, the corresponding assessments were legally made and should accordingly be maintained in the legal order.
It should be noted that the amount of IUC and JC levied with reference to the four aforementioned vehicles totals the sum of € 673.69.
N - REIMBURSEMENT OF AMOUNTS PAID AND INDEMNIFICATION INTEREST
91 - Pursuant to the provisions of sub-paragraph b) of no. 1 of article 24 of the RJAT, and in accordance with what is established therein, the arbitral decision on the merits of the claim to which no appeal or challenge is available binds the tax administration from the end of the period established for appeal or challenge, the latter having - in the exact terms of the success of the arbitral decision in favour of the taxpayer and until the end of the period established for voluntary compliance with the decisions of tax court judgments - to "Restore the situation that would have existed if the tax act which is the subject of the arbitral decision had not been performed, by adopting the acts and operations necessary to that effect." (emphasis ours)
92 - These are legal commands that are in complete harmony with the provisions of article 100 of the LGT, applicable to the case by force of article 29, no. 1, sub-paragraph a) of the RJAT, in which it is established that "The tax administration is obliged, in the event of total or partial success of complaints or administrative appeals, or of judicial proceedings in favour of the taxpayer, to immediately and fully restore the situation that would have existed if the illegality had not been committed, including the payment of indemnification interest, in the terms and conditions provided for by law." (emphasis ours)
93 - The case set forth in the present proceedings raises the manifest application of the aforementioned norms, in that as a consequence of the illegality of the assessment acts referenced in this case, and of payment of the sum of € 7,432.35, as appears from the document/map signed by the Head of the Finance Services of Lisbon 6, forming part of the PA - 1st part, there will, by force of these norms, necessarily be a reimbursement of the amounts paid, whether in the form of tax or compensatory interest, as a way of achieving the restoration of the situation that would have existed if the illegality had not been committed, amounts which in the case of the proceedings, taking into account on the one hand the payment of the aforementioned sum and on the other the legality of the assessments totalling € 6,758.66, amount to a total of € 673.69, as is referred to in no. 90.
94 - As for indemnification interest, it is manifest that, in light of what is established in article 61 of the CPPT and the requirements of the right to indemnification interest being met, that is, the existence of error attributable to the services which results in payment of the tax debt in an amount exceeding what is legally due, as provided for in no. 1 of article 43 of the LGT, the Claimant is entitled to indemnification interest at the legal rate, calculated on the sum of € 673.69.
CONCLUSION
95 - In the factual context that has been referred to, the AT, when performing the assessment acts which are the subject of the present case, based on the idea that article 3, no. 2 of the CIUC is not applicable to the facts of the case, makes an incorrect interpretation and application of this norm, committing an error on the legal grounds, which constitutes a violation of law.
96 - On the other hand, because the AT, at the date of occurrence of the tax facts, did not give consideration to the duration of the financial leasing contracts with respect to the four vehicles referred to above, basing itself thus on factual matters divergent from the actual reality, commits an error on the factual grounds, and therefore the vice of violation of law.
III - DECISION
97 - Therefore, having regard to all that has been set forth, this Arbitral Tribunal decides:
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To declare partially successful, as proven, on the ground of a vice of violation of law, the request for arbitral determination with respect to the annulment of the IUC assessment acts relating to the four vehicles referenced, relating to the years 2013 and 2014;
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To annul, consequently, the IUC assessment acts relating to the years 2013 and 2014, relating to such vehicles, as referred to above;
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To condemn the AT to the payment of indemnification interest at the legal rate, calculated from the date of payment of the sum of € 673.69 relating to the assessments associated with those vehicles, until their complete reimbursement.
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To condemn the Claimant and the Respondent to the costs, which are fixed, for each of them, in the proportion of 91% for the Claimant and 9% for the Respondent.
VALUE OF THE CASE
In accordance with the provisions of articles 306, no. 2 of the CPC (ex-315, no. 2) and 97-A, no. 1 of the CPPT and article 3, no. 2 of the Regulation of Costs in Tax Arbitration Proceedings, the value of the case is fixed at € 7,432.35.
COSTS
In accordance with the provisions of article 12, no. 2, at the end, and article 22, no. 4, both of the RJAT, and article 4 of the Regulation of Costs in Tax Arbitration Proceedings and Table I attached thereto, the amount of the total costs is fixed at € 612.00.
Notice is hereby given.
Lisbon, 30 October 2015
The Arbitrator
António Correia Valente
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