IUC Subjective Incidence: Vehicle Owner Tax Liability in CAAD Arbitration 128/2015-T

ARBITRAL DECISION

CLAIMANT: A... SA

RESPONDENT: TAX AND CUSTOMS AUTHORITY

Arbitral Decision

I – REPORT

A) The Parties and Constitution of the Arbitral Tribunal

A…, SA, Legal Entity No. …, with headquarters at …, Avenue …, Plot 1….., 2nd floor - Lisbon, hereinafter referred to as "Claimant", requested the constitution of a Singular Arbitral Tribunal, under the provisions of article 2, no. 1, paragraph a) and 10, nos. 1 and 2 of Decree-Law No. 10/2011, of 20 January, hereinafter referred to as "RJAT" and of Ordinance No. 112 – A/2011, of 22 March, seeking the declaration of illegality of the assessments of Single Vehicle Tax (IUC) described in the List Attached to the present arbitral petition, all referring to the tax periods from 2009 to 2012, described in the Table Attached to the arbitral petition, which appear in the Administrative Proceeding in the records by the ATA, and which are hereby incorporated in full for all due legal effects, in the total amount payable of €22,816.48.

The petition for constitution of the Arbitral Tribunal was presented by the Claimant on 24-02-2015, was accepted by the Honorable President of CAAD on 26-02-2015 and notified to the Tax and Customs Authority on 2-03-2015.

The Claimant chose not to appoint an arbitrator, therefore, under the provisions of no. 1 of article 6 of the RJAT, the undersigned was appointed, on 15-04-2015, by the Deontological Council of the Administrative Arbitration Center as sole arbitrator. The appointment was accepted and the parties notified of the arbitrator's designation, and have not manifested any intention to refuse the appointment.

Thus, in accordance with the provisions of 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 (RJAT), the Singular Arbitral Tribunal was constituted on 30-04-2015. The ATA was notified on the same date to present its response within the legal deadline, in accordance with and for the purposes of the provisions of nos. 1 and 2 of article 17 of the RJAT.

The ATA presented its response on 02-06-2015, which is incorporated in full herein. Having consulted the parties involved in the proceeding, an arbitral order was issued dispensing with the holding of the meeting provided for in article 18 of the RJAT. By arbitral order of 02-07-2015 the holding of the meeting was dispensed with and a deadline was fixed for issuing the arbitral decision until 15-10-2015 and the Claimant was cautioned to, until that date, proceed with payment of the subsequent arbitration fee.

B) THE REQUEST FORMULATED BY THE CLAIMANT

The Claimant formulates the present petition for arbitral pronouncement seeking the declaration of illegality, with the consequent annulment, of the assessments of Single Vehicle Tax, referring to the periods between the years 2009 to 2012, itemized in the Table Attached to the Arbitral Petition, in a total of 116 assessments, in the global value of €22,816.48.

All these assessments are duly identified and itemized in the table attached to the arbitral petition, with identification of the vehicle registration number to which they relate and of the legal situation in which they find themselves, so the content of the Table/Map attached is hereby incorporated in full. The assessments at issue are further confirmed by the analysis of the Administrative Proceeding in the records, namely of all elements contained in the Amicable Complaint procedure filed by the Claimant, with no. … 2014 …, which was deemed inadmissible, so all documents contained in the Administrative Proceeding submitted by the ATA are hereby incorporated in full.

In summary, it bases its petition, alleging the following:

a) The Claimant is a credit institution subject to the supervision of the Bank of Portugal, which carries out its activity in the field of vehicle financing, namely under the modality of granting loans for the acquisition of vehicles or the celebration of financial lease contracts;

b) The Claimant disagrees with all the disputed assessment acts because it is not the tax subject liable for IUC relating to the registrations in question, in none of the years on which the assessments subject to the petition for arbitral pronouncement were charged;

c) The Claimant paid all the amounts assessed by the ATA relating to the disputed assessments;

d) In all cases covered by the present arbitral petition, for various reasons, the Claimant is not the tax subject liable for the tax, because different reasons for exclusion of subjective tax incidence occur, so the disputed acts suffer from error concerning the assumptions of the tax fact, which constitutes a defect of violation of law;

e) The first 87 situations identified in the Table Attached to the Arbitral Petition share the cause of action which consists in the tax fact that the vehicle associated with the assessment was sold by the Claimant prior to the date of the IUC maturity date;

f) The following 43 situations, identified in the attached Table, are reconducted to the same cause of action, which consists in the fact that the vehicle was subject to a leasing contract that was in effect on the date when the taxable fact occurred and the corresponding obligation to pay was created;

g) The last situation identified in the attached table is manifestly invalid because it had already been subject to assessment and paid previously.

h) The Claimant was notified for payment of all ex officio assessments of IUC relating to the vehicles identified in the Table Attached to the petition for arbitral pronouncement, with reference to the tax periods 2009, 2010, 2011 and 2012;

i) Filed an Amicable Complaint, which was deemed inadmissible;

j) As to the substantive reasoning of the petition presented, the Claimant alleges that under the provisions of article 3, no. 1 and article 6 of the CIUC, the legal regime in force, using the elements contained in the vehicle register, the legislator established, simultaneously, it enshrines a rule of subjective incidence that establishes, merely, a legal presumption, especially since in the tax legal system we can find the verb "consider" used with a presumptive meaning; Already no. 2 of the same article adds that those equivalent to owners are financial lessees, acquirers with reservation of title, as well as other holders of purchase option rights by virtue of the leasing contract;

k) In fact, whenever vehicles are sold in leasing, there is a true transmission of the economic ownership of the vehicle, while the legal ownership of it is preserved by the credit institution with a mere guarantee function;

l) As to the last two situations indicated in the attached Table, the Claimant alleges that there is duplication of collection because they had already been subject to assessment and payment by the Claimant, as can be verified by accessing the Claimant's tax records.

m) Concludes by petitioning for the annulment of these IUC assessments, in the global amount of €22,816.48, corresponding to €20,556.51 of improperly paid tax and €2,259.97 euros of improper compensatory interest, as well as the payment of indemnifying interest for the deprivation of the said amount, under the terms of article 43 of the LGT.

C – THE RESPONSE OF THE RESPONDENT

The Respondent ATA, duly notified for this purpose, presented its response in a timely manner in which, by exception and by impugnation, alleged, in summary, the following:

a) As a preliminary issue, it alleges the lack of attachment of the assessments underlying the present arbitral petition, because despite the Amicable Complaint that preceded it, registered with no. … 2014 …, it is certain that there is not even value identity between the two proceedings;

b) Thus, in the Amicable Complaint there were 147 acts of IUC assessment, in the global value of €23,154.87 and in the present arbitral petition only 131 IUC assessments were questioned, in the global value of €22,816.48, so it understands that the requirements of art. 10, no. 2, paragraph b) of the RJAT are not met.

c) Alleges therefore that the Claimant did not comply with the requirement provided in article 10, no. 2, paragraph b) of the RJAT, and the Claimant did not attach to the records the tax acts relating to "the various" IUC assessments, whose legality it intends to scrutinize in this Arbitral Tribunal, which constitutes the exception provided in article 577, paragraph e) of the CPC, with the consequences provided in article 278, no. 1 of the CPC.

d) By impugnation, the ATA alleges that the Claimant's position is not supported, because:

i. As to the assessments relating to vehicles subject to financial leasing, it was the Claimant's burden to demonstrate having breached the accessory obligation imposed by article 19 of the CIUC, to elude the presumption of article 3 of the CIUC; having not demonstrated compliance with such obligation, the Claimant is a tax subject;

ii. Since it did not provide proof of compliance with the obligation, it will also not be able to do so later because all means of proof must be presented with the initial pleading;

iii. As to the vehicles whose sale the Claimant alleges occurred before the tax fact, the Claimant's position is also not supported, whose understanding incurs a skewed reading of the letter of the law, as well as the adoption of an interpretation that does not heed the systemic element, violating the unity of the regime enshrined throughout the CIUC and, more broadly, throughout the entire tax-legal system and also derives from an interpretation that ignores the ratio of the regime enshrined in the article in question, and likewise, throughout the CIUC;

iv. As to the assessments relating to financial leasing contracts, the Claimant does not prove the existence of such contracts, because it did not attach to the records the alleged leasing contracts, which should have been attached with the arbitral petition.

e) The ATA further alleges that the arbitral jurisprudence invoked by the Claimant has been inflated, and beyond not serving as precedent and not corresponding to the current jurisprudence of the Superior Court, it is certain that the most recent arbitral jurisprudence has not followed in all cases the initial jurisprudential current invoked by the Claimant;

f) Develops its argumentative exposition further around the question of subjective incidence of IUC, centering its allegation on the provisions of nos. 1 and 2, of article 3 of the CIUC, stressing that the legislator did not use the expression "are presumed", as it could have done, indeed similar to what occurs in other legislative enactments, exemplifying some situations provided for in law;

g) Understands, therefore, that in cases where the tax legislator uses the expression "is considered", it is not establishing a presumption, but rather a legislative option to consider as owners those who appear as such in the register; to understand that the legislator enshrined a presumption here would be unequivocally to effect an interpretation against the law;

h) Concludes, therefore, that in the case of the present records, the legislator expressly and intentionally established that those in whose name the same are registered are to be considered as such, because it is this interpretation that preserves the unity of the tax legal system and any other interpretation would be to ignore the teleological element of interpretation of the law: the ratio of the regime enshrined in the article in question, and likewise, throughout the CIUC; reinforces this allegation by invoking that this is the understanding followed by the jurisprudence of our courts expressed in the judgment handed down by the Administrative and Fiscal Court of Penafiel, within the scope of Case No. …/13.0BEPNF;

i) Concludes, that article 3 of the CIUC does not contain any legal presumption, and for the improcedence of the arbitral petition, because the tax acts at issue do not suffer from any defect of violation of law, insofar as in light of the provisions of article 3, nos. 1 and 2 of the CIUC and article 6 of the same code, it was the Claimant, in its capacity as owner, the tax subject liable for IUC, as attested by the Information relating to the history of ownership of the vehicles in question, issued by the Motor Vehicle Registry Conservatory;

j) From the AT's perspective, under the provisions of article 3 of the CIUC, the tax became due by the persons appearing in the register as owners of the vehicles;

k) Any other interpretation would be to ignore the teleological element of interpretation of the law, the systemic element, violating the unity of the regime and would also be an interpretation not in conformity with the Constitution;

l) The AT alleges that, should this not be understood, it would still have to be considered that the probative documents joined by the Claimant (second copies of invoices) are not capable of eluding the presumption of the register, given the unilateral character of the invoice, so it is a document insufficient for demonstrating the synallagmatic character of the purchase and sale contract; the fact of being able to hold a supposed transaction that may not actually occur, due to lack of acceptance by the other party; invokes for this purpose arbitral jurisprudence contained in decisions handed down in cases Nos. 63/2014-T, 130/29014-T; 150/2014 – T, 220/2014T and 339/2014 T, among others; completes with indication of diverse jurisprudence of the superior courts on the probative force of documents, namely particular, unilateral and internal documents, among which the Judgment of the TCA South of 19-03-2015, handed down in case no. 08300/14.

m) Concludes by seeking the procedence of the exception invoked under the provisions of article 577 - e) of the CPC, generating absolution from the instance under the provisions of article 278, no. 1, paragraph d) of the same code or, should this not be understood, the petition should be judged improcedent, maintaining in the legal order the disputed tax assessment acts, absolving the Respondent from the petition.

n) Therefore, the AT should also not be held responsible for the payment of procedural costs, as it is entirely attributable to the Claimant the issuance of the assessments.

II - PROCEDURAL REQUIREMENTS

The Arbitral Tribunal is regularly constituted. It is materially competent, under the terms of article 2, no. 1, paragraph a) of Decree-Law No. 10/2011, of 20 January.

The Parties enjoy legal personality and capacity, are legitimate and are legally represented (See article 4 and 10 no. 2 of DL No. 10/2011 and article 1 of Ordinance No. 112/2011, of 22 March).

As to the cumulation of petitions, seeking the joint assessment of the legality of the 131 IUC assessments, relating to the years 2009 to 2012, although constituting autonomous acts, relating to differentiated situations, verifying the requirements demanded by the provisions of no. 1, of article 3, of the RJAT and article 104 of the CPPT, the cumulation is to be admitted. Thus, the cumulation of petitions for declaration of illegality of all tax assessment acts of IUC and their corresponding compensatory interest associated with them is accepted in the same arbitral petition, given the identity of the tax and the assessment of the tax acts in question depending on the assessment of the same circumstances of fact and the application of the same rules of law. This is the case of the present arbitral petition. The legal requirements that allow the cumulation of petitions are thus met, under the terms provided in articles 104 of the CPPT and article 3, no. 1 of the RJAT, considering the identity of the tax and the competence of the tribunal, which is accepted by this Tribunal.

The proceeding does not suffer from defects that would invalidate it.

Taking into account the tax administrative proceeding, the documentary evidence joined to the records, it now falls to present the factual matter relevant to the understanding of the decision, which is set as follows.

III - FACTUAL REASONING

A) Proven Facts

As relevant factual matter, this tribunal takes as established the following facts:

a) The Claimant is a Financial Credit Institution subject to the supervision of the Bank of Portugal, which is dedicated to vehicle financing, namely under the modality of granting loans for the acquisition of vehicles or the celebration of financial leasing contracts;

b) The Claimant received 131 notes of IUC assessment on vehicles related to the above-mentioned activity, relating to the vehicles, identified in the Table Attached to the arbitral petition, which is hereby incorporated in full;

c) The Claimant filed an Amicable Complaint, which proceeded under the number … 2014 …, which was dismissed, as appears from the Administrative Proceeding and is hereby incorporated in full;

d) The ownership of these vehicles was at the date of the tax facts registered in the motor vehicle register in favor of the Claimant;

e) The Claimant issued the documents attached to the arbitral petition as documents nos. 1 to 50, second copies of invoices, which are hereby incorporated.

f) The Claimant celebrated the financial leasing contracts attached to the records as documents nos. 54 to 72, which are hereby fully incorporated.

g) The Claimant did not effect the communication provided for in article 19 of the CIUC.

B) UNPROVEN FACTS

Not proven the payment of IUC relating to the vehicle with registration …-…-…, relating to the year 2011, because document no. 76, referenced in the List Attached to the arbitral petition as proof of the alleged payment, is not found in the records.

There are no other unproven facts with relevance for the decision to be rendered.

C) REASONING OF PROVEN FACTS

The facts described above were taken as proven based on the documents that the parties attached to the present proceeding, the Claimant attached to the petition formulated and the ATA in the response presented and respective Administrative Proceeding.

IV – ISSUES TO BE DECIDED AND LEGAL REASONING

It thus falls to assess and decide the issues to be resolved:

a) Preliminary issue: of the lack of attachment of the assessments at issue in the present arbitral petition;

b) Decision and reasoning of the legal issues raised by the parties.

As to the preliminary issue raised by the ATA regarding the lack of attachment of the disputed assessments, account must be taken, first and foremost, of the provision of no. 2 of article 10 of the RJAT, according to which:

"2 – The petition for constitution of an arbitral tribunal is made by request sent electronically to the president of the Administrative Arbitration Center, which must contain:

a) the identification of the tax subject, including the tax identification number, and of the local peripheral service of its domicile or headquarters or, in the case of a coalition of tax subjects, of the local peripheral service of the domicile or headquarters of the tax subject identified first in the petition;

b) the identification of the tax act or acts that are the subject of the petition for arbitral pronouncement;

c) the identification of the petition for arbitral pronouncement, constituting the grounds for this petition those provided for in article 99 of the Code of Tax Procedure and Process and, as well as, the exposition of the issues of fact and of law that are the subject of the said petition for arbitral pronouncement;

d) the elements of proof of the facts indicated and the indication of the means of proof to be produced;

e) the indication of the value of the economic utility of the petition;

f) proof of payment of the initial arbitration fee, in cases where the tax subject has not chosen to appoint an arbitrator or proof of payment of the arbitration fee, should the tax subject manifest the intention to appoint the arbitrator;

g) the intention to appoint an arbitrator under the terms of paragraph b) of no. 2 of article 6.

(...)"

It follows from the provision of paragraph b), mentioned above, that the arbitral petition must contain the identification of the tax act or acts impugned. Now, given the enormous volume of documentation at issue, it is considered that the preparation of the Attached Map, where the identification of the assessments, respective vehicles, registrations and amounts of tax collected, is sufficient for the identification of the disputed assessments. Therefore, in light of the requirement contained in no. 2 of article 10 of the RJAT, it is considered that the tax acts impugned are sufficiently identified.

Thus, there is no doubt about the assessments that are being impugned, which are only those identified in the List Attached to the arbitral petition, in accordance with which the Claimant formulated its petition, in the value of €22,816.48.

The elements referenced by the Claimant in the List Attached to the arbitral petition can further be complemented by the documents contained in the Administrative Proceeding joined to the records, which contains all the elements that make up the amicable complaint procedure that preceded the present arbitral petition.

It should be noted that the ATA itself, in the scope of the amicable complaint procedure, made use of the identical procedure to synthesize all the complained assessments, preparing an attached note, in which it analyzes the situations placed for assessment, assigning each a reference code (see Administrative Proceeding joined to the records). As results from the final decision of the amicable complaint procedure, attached to the Administrative Proceeding, the ATA itself used the same process of identifying the assessments in question, by preparing a Map with all the relevant elements for this purpose, "considering the enormous volume of documents presented, the quantity of vehicles that are the subject of the complaints...".

Thus, from the comparison of the List/Map attached to the arbitral petition, and of the Map prepared by the ATA in the amicable complaint proceeding which was accepted in amicable complaint as a sufficient document as the basis for analysis for the final decision of this proceeding, it results that the disputed assessments are duly identified, as well as the vehicles to which they relate and the years in question.

The same conclusion is drawn from the provision of article 108 of the CPPT, which states that the impugnation shall be formulated in a pleading, directed to the judge of the competent tribunal, "in which the impugned act and the entity that performed it are identified...". The legislator does not require the attachment of the assessment but rather its identification.

To which is added, the provision of article 16 of the RJAT, which establishes the principles of arbitral procedure, among them the principle of free conduct of the proceeding, this Tribunal considers that with the disputed assessments duly identified, both in the Map attached to the arbitral petition and in the Administrative Proceeding joined to the records by the Respondent, the requirement provided for in the RJAT for the knowledge of the petition is met, so there is no reason to consider the exception invoked by the ATA as procedent.

In these terms, this Tribunal considers the alleged exception improcedent.

As to the legal issues raised by the parties, considering the positions taken and the arguments presented by both, it is necessary to assess three distinct situations configured by the Claimant in its arbitral petition, reconducted to the defect of violation of law, by error concerning the assumptions, it is necessary to distinguish the three groups of situations identified by the Claimant in its arbitral petition, namely.

a) Assessments of tax relating to vehicles whose ownership was transmitted prior to the tax-generating fact, which correspond to the first 87 situations identified in the Table Attached to the arbitral petition;

b) Assessments of tax relating to vehicles with leasing contracts in effect on the date of the tax-generating fact;

c) Assessment of tax that had already been assessed and paid previously, which is referenced in the last situation described in the Table Attached, joined to the arbitral petition.

Given this, the legal issues to be decided are as follows:

a) Sense and scope of the rule of subjective incidence provided for in article 3, no. 1 of the CIUC, namely to know whether this legal provision provides for a rebuttable presumption or, conversely, a legal fiction, incapable, therefore, of being rebutted by contrary proof;

b) Sense and scope of the provision of no. 2 of article 3 and article 19, all of the CIUC, applicable to cases where there are leasing contracts;

c) Legal value of the registration of motor vehicles;

d) Probative value of the documents joined to the records by the Claimant to rebut the presumption, prove the existence of the alleged leasing contracts and the duplication of collection.

A) As to the Interpretation of article 3, nos. 1 and 2 of the CIUC

The Claimant invokes that, with reference to the assessment acts whose ownership was transmitted prior to the tax-generating fact, the prerequisites of subjective incidence provided for in article 3 of the CIUC are not met, and it is not, therefore, a tax subject liable for IUC. It invokes that, on the date of the tax facts, it was no longer the owner of the referred vehicles (in the case those identified in the map attached as the first 61 situations) and, as a consequence, the assessments must be annulled for manifest lack of subjective responsibility for its payment.

For this purpose, it alleges, in summary, that article 3 of the CIUC establishes an implicit presumption of ownership of the vehicles in favor of those in whose name the same are registered, a presumption that, by virtue of the application of the general rule provided for in article 73 of the General Tax Law, is rebuttable by contrary proof. Already for the Respondent, article 3 of the CIUC does not establish any implicit presumption, but a true legal fiction, not rebuttable.

Now, with reference to this issue, there is already abundant arbitral jurisprudence emanated in recent years, from which we highlight the decisions handed down in cases Nos. 14/2013-T, of 15 October, 26/2013-T of 19 July, 27/2013-T, of 10 September, 217/2013-T of 28 February and, more recently, in the decisions handed down in cases 286/2013-T, of 2 May 2014, 293/2013-T, of 9 June 2014, 46/2014-T of 5 September, 246 and 247/2014 T, of 10 October, among others. The Respondent, on the other hand, alleges that arbitral jurisprudence is not uniform, citing herself diverse arbitral decisions of different sense from those invoked by the Claimant, citing, among others, the arbitral decisions handed down in cases 126/2014-T, 220/2014-T. To this arbitral jurisprudence is added the most recent jurisprudence of the Central Administrative Court South (TCAS) of 19-03-2015, handed down in case no. 08300/14.

But, let us see what, in accordance with the principles of legal hermeneutics, should be the sense and scope of the provision of article 3 no. 1 of the CIUC. No. 1 of article 3 of the CIUC provides:

"Those liable for tax are the owners of the vehicles, being considered as such the natural or legal persons, of public or private law, in whose names the same are registered."

From the simple reading of number one of the said provision, it is clear, without great difficulty, that the crux is in the expression "considered" used by the legislator. Should it be understood that the legislator intended to establish an implicit presumption or a true legal fiction?

It is important to pay attention to some reference concepts to find the most appropriate answer to this question, such as the provision of article 349 of the Civil Code, according to which "presumptions are the inferences that the law or the judge draws from a known fact to establish an unknown fact."

Already according to no. 2 of article 350 of the Civil Code, legal presumptions may be rebutted by contrary proof, except in cases where the law prohibits it.

Moreover, as regards, in particular, tax incidence presumptions, according to article 73 of the General Tax Law, these always admit contrary proof.

A different situation, to which, at times, the legislator resorts, is the one designated by "legal fictions", which consist "in a legal process that considers a situation or a fact as different from reality in order to attribute legal consequences to it"[1]

In accordance with the thesis repeatedly defended by the Respondent ATA in various proceedings identical to that being discussed in the present records, the fact that article 3, no. 1, of the CIUC establishes that those are "considered" as owners, rather than "are presumed" as owners, reveals that the legislator, within his freedom of legislative conformation, expressly intended to determine that the persons in whose names the vehicles are registered are considered, without any admissibility of any contrary proof, as owners thereof. And, further according to the Respondent, if the legislator intended to create a presumption and not a legal fiction, would have written, as it does in various other statutes, that they are presumed as owners and not that they are considered owners.

Well, this Tribunal cannot support such understanding. And, let it not be said that this is a position only reflected in the successive arbitral cases that have addressed this issue. In truth, this same position was recently supported by the Central Administrative Court South, by Judgment handed down on 19-03-2015, in case no. 08300/14, in which it is stated that "(…) the said article 3, no. 1, of the CIUC enshrines a legal presumption that the holder of the motor vehicle register is its owner, and that such presumption is rebuttable, by virtue of article 73 of the LGT." And, adds the same Judgment, that "the rebuttal of the legal presumption follows the rule contained in article 347 of the Civil Code, under which legal proof can only be contradicted by means of proof that shows that the fact that is its subject is not true."

In fact, as has already been emphasized in several arbitral decisions handed down, the analysis of the historical and teleological elements, apart from, naturally, the literal element, of legislative interpretation, lead to the logical conclusion that the legislator did not intend to establish any legal fiction but only and solely a presumption, rebuttable by contrary proof under the terms and for the purposes of the provision of article 73 of the General Tax Law. Being a rule of tax incidence, any other understanding would be clearly contrary to the principles that govern the tax legal relationship.

Thus, as to the historical element, it is important to note that the CIUC had its genesis in the creation, through DL 599/72, of 30 December, of the tax on vehicles, which already expressly enshrined that the tax was due by the owners of the vehicles, being presumed as such the persons in whose names the same were registered or matriculated.[2]

Similarly, article 2 of the Regulations for Circulation and Haulage Taxes (approved by Decree-Law No. 116/94) established that: "those liable for circulation tax and haulage tax are the owners of the vehicles, being presumed as such, until proof to the contrary, the natural or legal persons in whose names the same are registered".

However, in the CIUC, the legislator replaced the expression "are presumed" with the expression "are considered", which in the perspective of the Respondent translated the establishment of a legal fiction, not rebuttable. We do not consider this to be the case.

In fact, in the current version of the Code only the verb changed, the legislator now opting for the expression "are considered". It is certain that, between the previous legislative versions and the current one, the General Tax Law came into force, which expressly enshrined the principle contained in article 73, from which it follows that in matters of tax incidence any presumption always admits contrary proof. Therefore, it becomes immaterial the adoption of an express or implicit presumption, because, one as well as the other are equally rebuttable.

As results already stated in several arbitral decisions, now reinforced by the jurisprudence of the Superior Courts, we are in the presence of a rebuttable presumption.

Moreover, as has already been said above, being a rule of tax incidence, it would never be admissible to enshrine a non-rebuttable presumption. As stated by Diogo Leite Campos, Benjamim Silva Rodrigues and Jorge Lopes de Sousa, in the annotation to no. 3, of article 73, of the LGT, "presumptions in matters of tax incidence may be explicit, revealed by the use of the expression 'is presumed' or similar (...). However, presumptions may also be implicit in rules of incidence, namely objective incidence, when certain values of movable or immovable property are considered as constituting taxable matter, in situations in which it is not impractical to ascertain the actual value".

Moreover, there are many examples of provisions in which the verb "consider" is used to establish rebuttable presumptions, as occurs with the provision of no. 2 of article 21 of the CIRC, in article 89-A of the LGT or in article 40, no. 1 of the CIRS among others. This appears to be normal, namely, in the case of other tax provisions in which the legislator used the formula "is considered" or "are considered", but attributing another meaning to it, since these are expressions that, depending on the context, may assume a plurality of meanings, without from which the conclusion that the Respondent intends can be drawn.

Taking into account that the legal system should form a coherent whole, the examples mentioned above, as well as the doctrine and jurisprudence indicated, allow us to conclude that it is not only when the verb "presume" is used that we are in the presence of a presumption, but also the use of other terms or expressions, such as the term "is considered" can serve as the basis for presumptions. And, as mentioned above, the literal element being the first instrument of interpretation of the legal norm, in search of legislative thought, it is important to confront it with the other elements of interpretation, namely the rational or teleological element, the historical element and the systematic.

It appears settled that, in matters of tax incidence, presumptions may be revealed by the expression "is presumed" or by a similar expression.[3]

By way of example, Jorge Lopes de Sousa notes that in article 40 no. 1 of the CIRS the expression "is presumed" is used, whereas in article 46, no. 2 of the same Code use is made of the expression "is considered", with no difference between one and the other expression, both meaning, after all, the same: a legal presumption.[4]

Thus, notwithstanding the CIUC having opted for the expression "is considered" rather than the expression "is presumed", from this no substantive alteration is drawn, both having the same meaning, that is, the establishment of a rebuttable presumption.

If we attend to the teleological element, the same conclusion is required. In the statement of reasons of the Bill No. 118/X of 07/03/2007, underlying Law No. 22-A/2007, of 29 June, it is explicit the purpose of proceeding with a "global 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 fiscal system and the need, even more imperative, to subordinate it to the principles and concerns of an environmental and energy nature that nowadays characterize the discussion of motor vehicle taxation.

(...) the two new taxes that are now being created, the tax on vehicles and the single vehicle circulation tax, constitute much more than the technical continuation of the figures created in the 70s and 80s that preceded them, aimed predominantly at revenue collection, 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 one intends, certainly, to collect public revenue, but to collect it in the measure of the cost that each individual causes to the community."

In this line of thinking, the legislator enshrined the principle of equivalence, inscribed in article 1 of the CIUC, as a fundamental principle in the operation of the tax, "thus making it clear that the tax, as a whole, is subordinated to the idea that taxpayers should be burdened in the measure of the cost they cause to the environment and the road network, this being the reason for being 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 IUC, as a true environmental tax, chose as its tax subject the user, the polluter, in obedience to the polluter-pays principle. This consideration is particularly relevant, also, for a correct interpretation of the sense and scope to be given to the provision of no. 2 of article 3 of the CIUC, relating to the case of lessees and other users of motor vehicles. In fact, the structuring principle of the reform of motor vehicle taxation is precisely the incidence of taxation on the true user of the vehicle, and this principle is not in accordance with the "blind" reading of the letter of the law, which could lead, after all, to taxing those who are not owners and, thus, who are not the subject causing the "environmental and road cost" provoked by the vehicle, to which article 1 of the CIUC refers.

In this conformity, considering the elements of interpretation of the law, mentioned above, we are led to the conclusion that the expression "is considered" has exactly the same sense as the expression "is presumed", and should, therefore, be understood that article 3, no. 1, of the CIUC, enshrines a true presumption of ownership and not any fiction, and therefore, such presumption is rebuttable. Therefore, the tax subject is, in principle, the owner, because the law presumes that he himself uses the property. But if it is proven that it is not the owner who makes use of the vehicle, but a third party, as occurs with lessees, then it will be this party, the tax subject. Thus, as to the subjective incidence of the tax, it is to be concluded that there are no changes with respect to the situation previously in force in the context of the Municipal Tax on Vehicles, Circulation Tax and Haulage Tax, as is widely recognized by the doctrine, continuing to apply a rebuttable presumption in this matter. This understanding is, furthermore, the only one that appears adequate and in accordance with the principle of material truth and justice, underlying tax relationships, with the objective of taxing the actual and effective owner and not the one who, by circumstances of a different nature, is sometimes merely an apparent and false owner, because of appearing in the motor vehicle register.

In this sense, also the arbitral decisions handed down in cases Nos. 150/2014-T and 220/2014-T, confirm the same understanding already embodied in earlier arbitral decisions, among which those invoked in the records by the Claimant. Also in this regard, and in the same sense, refers the arbitral Judgment No. 63-2014-T, of 15 September, that: "(…) if the legislator had, as the Respondent intends, established in the law a non-presumptive qualification as to who is the owner of the vehicles (a legal fiction), he would be thereby establishing, through a different formulation, a rule in all identical to the referred hypothetical rule. He would be making the subjective incidence of the tax rest on a legal fiction, in total disconnection from any economic substance as the basis of the subjective incidence. (…) And, if this is so, it will necessarily also be concluded that article 3, no. 1, can only establish a presumption of ownership of the vehicle, even with all the negative consequences that this conclusion will entail, certainly, in terms of efficiency of the administration of the tax."

Therefore, the holder registered in the motor vehicle register must be allowed the possibility of presenting probative elements sufficient for demonstrating that the actual owner is, after all, a person different from the one appearing in the register, and that initially, and in principle, is supposed to be the true owner. Otherwise, one would accept the supremacy of the formal truth of the register over material truth, and would be admitting the gross violation of the fundamental tax principles enunciated and, further, of the principle contained in article 73, of the LGT according to which there are no non-rebuttable presumptions in matters of tax incidence. To all that is left above expounded would be added the violation of the principles of legality, proportionality and justice, as well as that of the inquisitorial, enshrined, respectively, in articles 55 and 58 of the LGT. This interpretation is, furthermore, in harmony with the principle enunciated in article 11, no. 3, of the General Tax Law, which establishes, in cases of doubt about the interpretation of tax provisions that "attention must 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, rest on the economic reality underlying the tax facts."

The Central Administrative Court South reached an identical conclusion in the aforementioned Judgment of 19-03-20015. The presumption of ownership resulting from the motor vehicle register may be displaced "by means of proof that shows that the fact that is its subject is not true."

Moreover, only in this way is the principle of equivalence underlying the reform of the single vehicle circulation tax fulfilled. On this question, the position set forth in the Arbitral Decision No. 286/2013-T, of 2 May 2014, is quite enlightening in stating:

"It is this principle (of equivalence) that dictates the burdening of vehicles in accordance with their respective ownership and until the moment of scrapping, the common use of a specific taxable base, the revision of the framework of fiscal benefits in force and the allocation of a portion of revenue to the municipalities of their respective use. Now, to claim, as the Respondent does, that the legislator, in art. 3, no. 1 of the CIUC, fixed, whatever the underlying technical means, the subjective incidence of the tax on the persons in whose names the vehicles are registered, with total independence of whether or not they are, in the relevant tax period, holders of the right to use the vehicle, especially its ownership, would imply disregarding that purpose which presides over the normativity of taxation, well manifested in the objective incidence and in the taxable base associated with the various categories of vehicles (cfr. arts 2 and 7 of the CIUC). For a registry entry, without correspondence with the underlying holding, possesses no value to give satisfaction and fulfillment to such purpose, for it is not the persons in whose names the vehicles are inscribed, when they are not holders of rights over their use, that cause environmental and road costs, but rather such environmental and road costs are caused by the actual users of the vehicles, under the terms of the relevant substantive legal situations, even if they do not appear, as they should, in the motor vehicle register. The register, in fact, in no way speaks to or serves the principle of equivalence established in art. 1 of the CIUC. Indeed, to assume that the determining element of subjective tax incidence is simple and exclusively the motor vehicle register also does not allow one to affirm a connection to any manifestation of relevant tax capacity, which, as a rule, in taxes not strictly commutative, is essential, since there should exist, notwithstanding requirements of practicability, some actual connection between the tax and a materially relevant economic assumption capable of grounding the tax. The reason for being of the tax figure thus removes the idea that its incidence is tied strictly and exclusively to the registry entry itself of the ownership of the tax vehicles and not to the substantive situations attributive of the right to use vehicles (art. 3, nos. 1 and 2 of the CIUC) to which the register is intended to give publicity (cfr. art. 1 and art. 5 of Decree-Law No. 54/75, of 12 February, as amended subsequently, which regulates motor vehicle registration)."

We are thus brought back to the question of the analysis of the means of proof joined to the records, for the full demonstration that the fact contained in the register is not true, which will be analyzed further ahead.

As to the second group of assessments impugned by the Claimant, for allegedly existing active leasing contracts, account must be taken that, in harmony with all that has been exposed above, the legislator instituted an explicit rule for leasing contracts, in no. 2, of article 3 of the CIUC, according to which, during the currency of the leasing contract are the lessees the tax subjects liable, during the currency of the contract. After the alienation of the vehicles, whether such alienation occurred in favor of the former lessees or whether it occurred in favor of third parties indicated by them, the new acquirers become tax subjects. Therefore, the lessor or financial institution that underwrites the celebration of leasing contracts or loans for the acquisition of vehicles, is never a tax subject liable for IUC, with reference to the vehicles titled in the respective contracts provided that it makes proof of the assumptions just enunciated. For this purpose as well, the CIUC obliges the communication provided for in its article 19, in order to hold the lessors and financial institutions responsible for providing to the ATA the elements necessary for the collection of the tax.

In truth, the burden of knowing whether or not a leasing contract exists in effect on the date of the tax facts, what is its beginning and what is its end, as well as the identification of the lessees, falls to the Claimant and not to the ATA. If this does not receive the information in good time on the existence and conditions of the contract, it can only be guided by the information at its disposal, consulted the register bases and/or of the IMT.

However, the breach of the provision of article 19 of the CIUC entails, as the ATA itself alleges, responsibility under the law in light of article 117, combined with article 26 no. 4, both of the General Regime of Tax Infractions, punishable with a fine of € 300.00 to € 7,500.00 for each of the financial leasing contracts. It is certain that the breach of the provision of art. 19 of the CIUC does not prevent the Claimant from proving by recourse to suitable means of proof that the leasing contracts it invokes and joins to the records were in effect on the date of the tax facts.

Once again, we are brought to the question of the analysis of the means of proof, presented by the Claimant to achieve the purpose of demonstrating the existence of these same contracts and their respective period of validity.

In summary, as to the legal issues to be decided in the present records, the position of the arbitral tribunal, supporting the positions already previously set forth in the various arbitral decisions handed down, is as follows:

a) As to the first group of situations referred to by the Claimant, relating to the 87 IUC assessments relating to vehicles whose ownership was allegedly transmitted prior to the tax-generating fact, it is considered that the presumption inscribed in no. 1, of art. 3 of the CIUC, constitutes a rebuttable presumption, which corresponds to the interpretation most suited to the pursuit of the objectives sought by the legislator.

b) As to the second group of situations referred to by the Claimant, relating to the cases of assessments relating to vehicles used by the respective lessees by virtue of leasing contracts, it is considered necessary that the Claimant prove that the same were in effect at the time of the tax facts. Once such proof is made, it appears evident that those responsible for the payment of IUC are the lessees themselves, since any other understanding would entail accepting the possibility of taxing natural or legal persons without responsibility in the production of any environmental damage, violating the principle of equivalence, while the real causers of such damage would not be subject to the tax, frustrating absolutely the regulatory purposes of the law itself, that is, its true ratio legis.

c) As to the last assessment impugned on the grounds of prior and timely payment of that value, it remains to ascertain the proof presented by the Claimant of the alleged fact.

For all that has been set forth above, this tribunal does not follow the understanding set forth in the judgment handed down by the Administrative and Fiscal Court of Penafiel, in the scope of case no. 210/13.0BEPNF, which has repeatedly been invoked by the Tax and Customs Authority, namely when it states that "the ownership and actual possession of the vehicle is irrelevant for the verification of the subjective and objective incidence and the tax-generating fact of the tax". Moreover, the understanding set forth in this Judgment, far from representing a settled understanding on this issue, came to be contradicted by the understanding recently set forth in the Judgment of the TCA South, of 19-03-2015, already mentioned above.

B) As to the Legal Value of Motor Vehicle Registration

The treatment of the previous issues already anticipates, in some manner, the assessment of this other matter, which relates to knowing what is the legal value of motor vehicle registration.

Under the provision of no. 1 of article 1 of DL 54/75, of 12 February, which instituted the Register of Motor Vehicle Ownership, "the registration of vehicles has essentially the purpose of giving publicity to the legal situation of motor vehicles and their trailers, with a view to the security of legal commerce". Article 7 of the Property Registration Code, supplementary legislation to motor vehicle registration, adds that "the definitive registration constitutes a presumption that the right exists and belongs to the registered holder, in the precise terms in which the registration defines it".

The registration of motor vehicle ownership (and not only) does not have a constitutive nature, but merely declarative, allowing only the registry entry to presume the existence of the right and its ownership. Therefore, the presumption resulting from the register may be rebutted by contrary proof, which, moreover, accords with the understanding set forth in the assessment of the previous issues. And this is so precisely because, under the provision of article 408 of the Civil Code, except for the exceptions provided for in law, the constitution or transfer of real rights over a specific thing occurs by the mere effect of the contract, its validity not depending on registry entry.

In the case of a contract for purchase and sale of a motor vehicle, the law not providing for any exception to it, the contract has real effect, the acquirer becoming its owner, independently of the register, and the holder registered in the register will cease to be the owner, notwithstanding that it may still appear, for some time or even a very long time, in the register as such. It should also be noted that the transmissions effected are enforceable against the Respondent, notwithstanding the provision of no. 1 of article 5 of the Property Registration Code, which provides: "facts subject to registration only produce effects against third parties when registered."

This is because the ATA is not a third party for purposes of registration, in the context provided for in law. The notion of third parties for purposes of registration is enshrined in no. 4 of the same article 5: third parties, for purposes of registration, are those who have acquired from a common author rights that are incompatible with each other, which is manifestly not the case of the ATA.

The transmission of the ownership of a movable asset, although subject to registration, as occurs with a motor vehicle, operates by the mere effect of the contract, under the terms provided in article 408, no. 1 of the Civil Code. The contract for purchase and sale has a real nature, that is, the transmission of the ownership of the thing sold, or the transmission of the right alienated, has the contract itself as its cause. Motor vehicles are movable assets, whose transmission of ownership does not obey any special formalism. In Portuguese law, the fact that determines the transmission of the ownership of a movable asset (although subject to registration) is the contract expressed by the will of the parties. So much so is this so that the buyer becomes the owner of the vehicle sold by the celebration of the contract for purchase and sale, independently of the register, which is assumed as a condition of effectiveness and enforceability against third-party acquirers.

Thus, the proof of the existence of this contract for purchase and sale may be effected by any means, and the invoice is a suitable accounting document for this purpose if accompanied by the means of payment that proves that the transaction occurred. The unilateral character of the invoice does not deprive it of the value of a fiscal document nor the possibility of being used as a probative document which, combined with others, may allow one to conclude that the business was transacted. Invoices are documents that carry particular legal and accounting force, by virtue of the rules in force in VAT and Income Tax, it being certain that Invoices evidence sales, transactions or provision of services that are presumed to be true by virtue of the presumption of truthfulness established in article 75 of the LGT. This rule is, moreover, a basic principle of accounting and fiscal organization essential to the security of the functioning of commercial transactions. But, being a presumption, nothing prevents the demonstration of its falsity or inadequacy in the face of the legal requirements established in article 36 of the CIVA.[6] This is also, in this case, a rebuttable presumption, with the burden of proof falling to the ATA. In the case of the present records, the ATA questions the truthfulness of the second copies of the invoices joined to the records by the Claimant, which in its view reveal inconsistencies, diverse contents and, fundamentally, from those it is not proven the transmission of ownership, since these are unilateral documents.

In summary, since the presumption resulting from the register is rebuttable, it remains to analyze whether in the case at hand, considering the probative elements joined by the Claimant in the present records, whether such presumption was or was not rebutted.

Thus, the invoices presented by the Claimant benefit, as has been said, from the presumption of truthfulness contained in article 75 of the LGT, provided that they meet the legal requirements and demonstrate the correspondence to the factual reality that the Claimant intends to demonstrate in the records: the transmission of ownership of the vehicles. Let us see, therefore, whether such proof is achieved in the records, since the correct decision to be rendered depends on it.

C) As to the Probative Value of the Documents Contained in the Records to Rebut the Presumption

As results from the proven matter in the present records, on the date of the tax facts referenced to the years 2009 to 2012, the vehicles identified in the Map attached to the arbitral petition appeared in the motor vehicle register as being the property of the Claimant.

Taking into account all that has been set forth above regarding the applicable regime in this regard, it remains to analyze whether the Claimant presented means of proof sufficiently adequate and sufficient to remove the presumption resulting from the motor vehicle register. The means of proof joined to the records by the Claimant consist of 76 documents, of which the first 54 are second copies of invoices relating to the vehicles contained in the MAP Attached to the arbitral petition, and the remainder are copies of leasing contracts (see docs. 55 et seq.). Analyzing the documentation joined to the records by the Claimant, the following deficiencies are verified: the documents referenced in the Map Attached as documents nos. 40, 51, 52, 53, 73, 74 and 75 are not found in the records. The same occurs with the document referenced in the arbitral petition as proof of payment of the last assessment impugned.

The Claimant did not join copies of declarations of sale of the vehicles that it alleges to have alienated before the occurrence of the tax facts nor of accounting or banking documents to prove that the invoices in question were accepted and paid by their recipients, in order to allow the conclusion that the transmission of ownership actually occurred.

Also with respect to the leasing contracts joined to the records, which it alleges were in effect on the date of the occurrence of the tax facts, it is verified that many of them do not have the date of celebration of the contract appended, and, above all, nothing proves that on the date of the occurrence of the tax facts those contracts were in effect. It is known that a contract has a period of validity assigned by the parties during which diverse vicissitudes may occur, such as: early termination of the contract, termination based on subsequent non-performance, destruction of the object by accident or by force majeure, assignment of contractual position, among others.

Said this, it is necessary to conclude that to prove the validity of a leasing contract on the date when the tax fact occurs, the mere joining of a copy of the contract is not sufficient, being necessary to demonstrate that, on that date, the contract was in effect with the lessee identified therein. This proof may be achieved with the joining to the records of accounting or banking documents that prove the payments of the installments in effect or of the residual value provided for in the contract, on the date when the tax facts occur. The Claimant did not achieve such proof.

In fact, the second copies of invoices joined have very diverse descriptions, such as for example: "termination" (see, for example, Doc. 1, 9 and 13 joined to the arbitral petition), "residual value" (see for example doc. 6, 8 and 25 joined to the arbitral petition), "total loss – Bonanza Fleet" (Doc. 16 joined to the arbitral petition, among others), "termination" (see for example, Doc. 9 joined to the arbitral petition).

We are, therefore, left without knowing who and on what title was using the vehicles on the date when the tax facts occurred. In the remaining cases, the invoices, by themselves, do not allow one to conclude whether they were accepted and paid by their recipients and whether they were the actual acquirers of the goods. Such doubt could be clarified by the joining of documents proving payment of the respective invoiced amounts or, better yet, by the joining to the records of declarations of sale issued for the finalization of transactions and regularization of motor vehicle registration.

Now, from the second copies of invoices, as well as from the contracts joined to the records, without the accompaniment of any other document, it is not possible for this Tribunal to conclude whether on the date of the occurrence of the facts such contracts were or were not in effect, or whether the transmissions occurred or did not occur for the recipients identified in the invoices.

Finally, as to the last assessment impugned, the Claimant also did not join proof of the alleged payment, the burden of proof for which fell to it.

From the administrative proceeding joined by the ATA, there are no other documents that alter the analysis of this Tribunal, it being certain that the statement of the ATA when it says that the Claimant does not join to the records "a single leasing contract" does not correspond to the truth. The Claimant joins the leasing contracts that are found attached to the arbitral petition with document nos. 54 to 76 (with some deficiencies already mentioned above). A different matter is to know whether such contracts prove the essential fact invoked by the Claimant, which in the present records did not occur.

To the above is added that the Claimant does not prove having effected the communication provided for in article 19 of the CIUC, which if it existed with reference to the vehicles and contracts at issue in the records, could be sufficient for the realization of the burden of proof that weighs on the Claimant, as to the second group of assessments impugned. Or, alternatively, the joining of some other accounting document or proof of payment of the monthly amount agreed in each of the contracts with reference to the date of the tax facts, which could make it apparent that those same contracts were in effect on the date of the occurrence of the tax facts and, consequently, would allow the decision of whether the tax subject liable was or was not the Claimant or a determined and concrete lessee, duly identified.

Thus, following the terms in which the Claimant configured its petition, it is concluded that:

A) As to the First Group of Situations Relating to the First 87 Assessments Identified in the Map Attached to the Arbitral Petition

The Claimant alleges that, on the date when the tax facts occurred, it had already transmitted the ownership of the vehicles to third-party acquirers. To prove this it joins second copies of Invoices, in which the vehicle registration, the Customer no., and the identification of the recipient are mentioned. In the description each document has a distinct mention, for example: in Doc. no. 1 the mention is of "residual value", while in Docs. 3, 7 and 8 the mention is of "sale of credit asset", whose meaning leaves us with many doubts that it may have as underlying a transmission of ownership. But, already in doc. no. 5 there appears in the description "Total loss insurance claim". Now, for all that has been set forth above, only with these elements is the alleged by the Claimant not proven, that is, that on the date of the tax facts, it was no longer the Claimant but a determined third party, the owner of the vehicle in question.

Moreover, in all the second copies of invoices joined to the records, the expression "valid after good collection" appears. This mention appears in all documents joined to the records by the Claimant. Thus, it appears evident that the descriptions of the documents under analysis do not allow one to conclude, without more, by the existence of purchases and sales underlying, given the diversity of situations described and the absence of proofs of payment of the invoices issued. But, such doubt could have been clarified and the proof of transmission of ownership would have been demonstrated, if the Claimant had joined to the records copies of the declarations of sale relating to each of the vehicles in question, which had to be issued and delivered to the respective purchasers for the conclusion of the business and subsequent alteration of the property register, or the accounting document that would prove conclusively the payment of the residual value of the contract. Certainly, if all those transmissions of ownership existed, the declarations of sale were duly completed and the document process conveniently concluded with the issuance of the receipt, because the financial institutions do not as a rule send the documents that finalize the process to the new owner without previously verifying payment of the value of the last invoice, residual value and charges inherent thereto. Indeed, it is for this reason that the documents joined to the records contain the indication of "valid after good collection". Of course, the Claimant, given its size and business structure, certainly has all processes duly organized and copies of all documents formalizing the transactions. It is not credible that it only has second copies of invoices.

Having arrived here, it is important to add that in the case of the financing of vehicle acquisition through leasing contracts or of identical nature, the finalization of the process may lead to the acquisition of the vehicle by the holder of the contract itself or by a third party indicated by the holder, and that the Client may choose not to pay the residual value and choose instead to formalize a new contract for the acquisition of a new vehicle, leaving the previous vehicle in the ownership of the financial institution. We do not know with sufficient certainty what occurred in the cases stated in the present records.

In summary, this tribunal considers that invoices are a type of means of proof of the occurrence of transmissions of ownership if accompanied by something more that leaves no doubt about the concretion of that specific business with that acquirer who is identified in the document and with an indication of the dates of celebration and conclusion of the contract. Now, the Claimant did not join other documents, apart from the said second copies, from which it is proven that the business was concluded. It fell to the Claimant to make such proof and had the opportunity to do so. In the amicable complaint procedure this question had already been placed and in the scope of the right to a hearing the Claimant did not join other elements of proof, namely copies of contracts and leasing, declarations of sale, or receipts proving payment of the invoiced amounts.

There is abundant arbitral jurisprudence that has been requiring that the proof of transmission of ownership be effected by the joining of the respective invoices accompanied by other elements that do not allow any doubt about the actual concretion of the business.[7] This understanding was supported, in essence, in the Judgment TCA South of 19-03-2015. To this regard, moreover, recall the jurisprudence of the Judgment TCA South, already mentioned above, in which it is clear that the proof of the invoice may be complemented with any other from which the existence, payment or discharge of the transaction follows.

As to the position already set forth in some arbitral decisions, according to which "an invoice is not apt to prove the celebration of a synallagmatic contract such as purchase and sale, because that document does not reveal in itself an essential and unequivocal declaration of will (i.e., acceptance) on the part of the presumed acquirer", it is important to note that the invoked lack of probative value has to be duly contextualized and analyzed in function of the constraints of the specific case. It cannot slide into requirements of impossible or diabolical proof. On the question of proof and the added difficulty of proof of negative facts, account should be taken, by force of the constitutional principle of proportionality, of a lesser probative requirement on the part of the applicator of the law, giving relevance to less relevant and convincing proofs than those that would be required if such difficulty did not exist, applying the Latin maxim "iis quae difficilitoris sunt probationis leviores probationes admittuntur".[8] These proof requirements must be accompanied by the necessary precautions imposed by the principle of proportionality, under penalty of imposition of proof requirements that would make it impossible to displace the presumption, transforming it into an absolute and non-rebuttable presumption, which is entirely unacceptable. Thus, the requirements of proof for the displacement of the presumption cannot be so exacting that they result in a practical impossibility of eluding the presumption or, put differently, only achieve its evasion if the alienator proves to have effected the registry entry itself, replacing the acquirer itself, inverting the normal rules of operation of the register. That would be a solution equivalent to rendering the presumption non-rebuttable, which is considered unacceptable under the terms already set forth above.

In the case of the present records, nothing is required of the Claimant that it should not have in its accounting files and as well as documented in each individual process of each customer or contract celebrated.

This Tribunal understands that the Invoice accompanied by other elements (declarations of sale, contracts, receipts or others) allows, with reasonableness, to ascertain whether the business was concretized or not. Requiring proof from the joining of this type of documents appears reasonable and proportional, especially when the Claimant is a financial institution that develops all its activity concentrated on the operations of financing the acquisition of motor vehicles, which is characterized by the celebration of written contracts, duly documented, from its beginning until its end. In the case of the present records, the truth is that the Claimant did not join sufficient means of proof, to rebut the presumption resulting from the register, so the petition formulated by the Claimant will have to be adjudged improcedent.

B) As to the Second Group of Situations Mentioned by the Claimant

The Claimant alleges the existence of leasing contracts in effect at the time of the occurrence of the tax facts. However, once again, the Claimant failed to concretize the proof. But, as has already been said above, the Claimant joined some of those contracts, which reveal deficiencies as to the appending of the dates of celebration, but above all do not allow the tribunal to ascertain whether, effectively, they were or were not still in effect on the date of the tax facts. Thus, the Tribunal to ascertain whether these contracts were or were not in effect, with those subjects identified therein, would need some other complementary document, for example an accounting document that attests to the payment of the monthly amount or of the residual value on the time when the tax fact occurred. This did not occur in the present records.

From the documents joined to the present records, in accordance with all set forth above, the Tribunal cannot conclude with sufficient certainty whether the referred contracts were or were not in effect on the date of the tax facts. It fell to the Claimant to make proof of that fact, which did not occur.

C) As to the Situation of the Last Assessment Impugned on the Grounds of Alleged Duplication of Collection

With respect to the last situation described in the Map Attached to the arbitral petition, the Claimant alleges that the assessment should be annulled on the grounds of duplication of collection, since the Claimant had previously effected payment of that value. But, once again, as to this allegation the Claimant does not join any means of proof of the payment effected. Now, according to the general rules of the burden of proof already mentioned above, the burden of proof of the fact falls to the one who alleges it, in this case, to the Claimant.

The document that it references as proof of payment, certainly by oversight, does not prove such payment. Thus, the last document joined to the records, with no. 77, is an informational document regarding the motor vehicle registration of another vehicle, which in no way allows one to conclude as to the alleged payment. The Claimant further alleges that the referred payment "can be easily proven by the ATA by accessing the tax records of the Claimant."

It happens that the burden of proof falls to the Claimant and not to the ATA.

It fell to the Claimant to make proof of the facts alleged in the arbitral petition, which did not occur. Moreover, the fact that the Claimant, like any taxpayer, especially of business structure, may access via the internet the Tax Portal and extract proof of such payment to join to the records is added. Not having proven the prior payment that it alleges, this tribunal cannot consider such fact as proven.

Consequently, the alleged duplication of collection is not proven, so, also in this matter the petition is considered improcedent.

V - REGARDING THE REQUEST FOR PAYMENT OF INDEMNIFYING INTEREST

Given all that has been set forth above regarding the decision of the previous issues, knowledge of this petition is prejudiced.

VI - DECISION

Given the foregoing, this Arbitral Tribunal decides:

A) To consider the exception deduced by the Respondent improcedent;

B) To judge the present arbitral petition wholly improcedent.

VII - VALUE OF THE PROCEEDING

In accordance with the provision of articles 305, no. 2 of the CPC, article 97-A, no. 1, paragraph a), of the CPPT and article 3, no. 2 of the Regulation of Costs in Tax Arbitration Proceedings, the proceeding is assigned a value of €22,816.48.

VIII - COSTS

Under the provision of article 22, no. 4, of the RJAT and in accordance with Table I attached to the Regulation of Costs in Tax Arbitration Proceedings, the amount of costs is fixed at €1,224.00, to be borne by the Claimant.

Registered and notified.

Lisbon, 9 October 2015

The Sole Arbitrator,

(Maria do Rosário Anjos)

[1] In this sense, see: PARDAL, F. RODRIGUES. "The use of presumptions in tax law", in Science and Tax Technique, no. 325-327, page 20 et seq.

[2] In this sense, see article 3 of the Regulations for Tax on Vehicles, attached to the said DL 599/72, of 30 December.

[3] To this regard, see LOPES DE SOUSA, J. (2011) Code of Tax Procedure and Process Annotated and Commented. Volume I. 6th Edition. Areas Publisher: Lisbon. Page 589 et seq.

[4] See cited work, page 590 et seq.

[5] In this sense, see, among others, the following Judgments of the STJ: Judgment STJ of 31.05.1966, in Case no. 060727 (Rapporteur: Counselor Lopes Cardoso), specifically relating to motor vehicle registration; Judgment STJ of 5.05.2005 (Rapporteur: Counselor Araújo Barros) and Judgment STJ of 14.11.2013, in Case no. 74/07.3TCGMR.G1.S1 (Rapporteur: Counselor Serra Baptista) excellent in affirming the predominance of the principle of substance over form, valuing the proof, by any suitable means, of who is substantively the holder of the property right, which operates to elude the presumption of the register.

[6] To this regard, see, among others, the arbitral decision handed down in case no. 130/2014 – T.

[7] See, among others, the decisions handed down in arbitral cases nos. 130/2014-T; 46/2014 – T; 125/2014-T, 212/2014-T; 217/2014T and 231/2014T, all to the effect of considering the Invoice as a suitable means of proof provided it is accompanied by the respective loan or leasing contracts and/or another means of proof that allows one to conclude that the business was concretized until final.

[8] In this sense, see Manuel de Andrade - «Elementary Notions of Civil Procedure», 1979, page 203; Assent of the STJ no. 4/83 of 11-7-1983, in OR, I series, of 27-08-1983; Judgment STA of 17/10/2012, in case no. 0414/12, among others.