IUC Vehicle Tax Subjective Incidence: Who Is Liable for Payment? CAAD Case 130/2014-T

APPLICANT: A..., SA

RESPONDENT: Tax and Customs Authority

Arbitral Decision[1]

I REPORT

A) The Parties and Constitution of the Arbitral Tribunal

1. A... SA, Legal Entity No. …, B..., SA, Legal Entity No. … and C..., SA, Legal Entity No. …, all with registered office at the Industrial Park of A..., …, hereinafter referred to as "Applicants", filed an application for constitution of a singular Arbitral Tribunal, pursuant to article 10 and subparagraph a), item 1, article 2, of the Legal Framework for Tax Arbitration, approved by Decree-Law No. 10/2011, of 20 January, hereinafter referred to as "LBTA" and articles 1 and 2 of Ordinance No. 112 – A/2011, of 22 March, to assess the dispute opposing them to the Tax and Customs Authority, hereinafter referred to as "Respondent" or "TA", with a view to the annulment, on the grounds of illegality, of 37 acts of official assessment of Unique Circulation Tax (UCT) and the respective assessments of compensatory interest, referring to the fiscal years 2009 to 2012, in the total amount of €5,390.26 and concerning motor vehicles identified by their respective registration numbers in the respective assessments and according to the table contained in article 11 of the arbitral application, which is hereby fully reproduced and contained in document No. 14 annexed to the arbitral pronouncement request, which is likewise fully reproduced herein.

2. The application for constitution of the Arbitral Tribunal, presented on 17 February 2014, was accepted by the Honourable President of CAAD and automatically notified to the Tax and Customs Authority. The Applicants chose not to designate an arbitrator, so that, pursuant to item 1, article 6 of the LBTA, the undersigned was designated by the Ethics Council of the Centre for Administrative Arbitration as arbitrator of the singular Arbitral Tribunal. The appointment was accepted and the parties, notified of the acceptance, on 2 April 2014, did not refuse the designation, in accordance with the terms provided in subparagraphs a) and b), item 1, article 11, of the LBTA, in conjunction with articles 6 and 7 of the Code of Ethics.

Thus, in accordance with what is provided in subparagraph c), item 1, article 11, of Decree-Law No. 10/2011, of 20 January, with the wording introduced by article 228, of Law No. 66-B/2012, of 31 December, the singular Arbitral Tribunal was constituted on 17 April 2014.

On 21 April 2014, the Respondent "TA" was notified to submit its response within the legal deadline, in accordance with items 1 and 2, article 17, of the LBTA. On 19 May 2014, the TA filed its Response and the annexed documents designated as AP (administrative proceeding).

On 29 May 2014, at 15:00 hours, the meeting provided for in article 18 of the LBTA took place, from which minutes were drawn up and are attached to the file and are hereby fully reproduced herein. In the meeting, the representatives of the parties declared they had nothing further to request or add regarding the proceeding, reiterating everything already contained in the file, the witness evidence indicated by the Applicant was dispensed with and both parties agreed to dispense with the production of arguments. At the close of the meeting, a deadline for issuing the arbitral decision was set until 30 September 2014. On 26 September 2014, the Tax Authority requested the attachment to the file of arbitral decisions Nos. 150-2014T and 220-2014T on matters identical to those of the present file, so a deadline was set for any response by the Applicant and the deadline for issuing the arbitral decision was extended until 15 October 2014.

The Applicant further filed three applications to amend the arbitral application, all concerning three vehicles already mentioned in the main application, with the registration numbers ..-..-.., ..-..-.. and ..-..-.., on the following dates: the first application was presented on 29 April 2014, the second on 5 June 2014 and the third on 5 August 2014, respectively, in the total amounts of € 701.00, 620.21 and 620.21, both concerning the year 2012.

The Respondent TA pronounced itself on the first amendment application, raising an objection to it as appears from the Response presented in the file. Upon notification of the two amendment applications subsequently presented, it did not pronounce itself on them.

B) Procedural Preliminaries

1. The Arbitral Tribunal is properly constituted and is materially competent, in accordance with article 2, item 1, subparagraph a) of Decree-Law No. 10/2011, of 20 January.

The Parties possess procedural personality and capacity, are legally entitled and are properly represented (See Articles 4 and 10, item 2, of DL No. 10/2011 and article 1 of Ordinance No. 112/2011, of 22 March). The legal entitlement of the Applicant A... SA to present the present arbitral pronouncement request in its capacity as a company that succeeded universally through a merger process in the legal and patrimonial positions of the extinct company D... SA is demonstrated by the content of Permanent Certification from the Commercial Register, attached to the file as document No. 1, indicated in the file.

1. As to the joinder of claims, seeking the joint assessment of the legality of 37 UCT assessments relating to the years 2009 to 2012, although they constitute autonomous acts, verifying the prerequisites required by item 1, article 3, of the LBTA and article 104 of the CPPT, the joinder is to be admitted. Thus, in the same arbitral application is accepted the joinder of applications for declaration of illegality of all tax acts of assessment of UCT and the respective compensatory interest associated with them, given the identity of the tax and the assessment of the tax acts in question depends on the assessment of the same factual circumstances and the application of the same legal rules.

2. As to the assessment acts challenged in the successive applications to amend the application filed, it is necessary to decide beforehand whether or not they should be admitted. Thus, it is necessary to decide:

The question must be decided in light of articles 264 and 265 of the Code of Civil Procedure, applicable ex vi, subparagraph e) item 1 of article 29 of the LBTA. It results from the provisions of the referred legal norms that if there is agreement between the parties, the claim and the cause of action may be altered or amended at any time, in first or second instance, unless the alteration or amendment inconveniently disturbs the instruction, discussion and judgment of the pleading. And, even in the absence of agreement, the plaintiff may at any time reduce the claim and may amend it until the close of the discussion in first instance if the amendment is the development or consequence of the original claim (art. 265, item 2).

It is also important to note the principle contained in subparagraphs c) and d) of item 2 of article 10 of the LBTA, from which it follows that the moment of presentation of the application for constitution of the arbitral tribunal is the appropriate time for exposition of the questions of fact and law that are the object of the arbitral pronouncement request and for presenting elements of proof of the alleged facts and indicating the means of proof to be produced. It being certain that, if duly substantiated by a fact supervening the presentation of the arbitral application and based on the development or consequence thereof, nothing seems to prevent the amendment of the application if it occurs until the close of the discussion in first instance.

Given this, it is important to note that the first and the second and third amendments are distinct applications presented by the Applicant, since we must assess them separately. Furthermore, as to the first, the respondent TA raised an objection and as to the second and third, once properly notified, it did not pronounce itself.

As to the first amendment application filed on 29 April 2014, it is found that it concerns three summonses for payment of amounts concerning UCT relating to vehicles with registration numbers ..-..-.., ..-..-.. and ..-..-.., relating to the year 2010, in the context of fiscal execution. Thus, as the TA correctly states in its response, we cannot accept that this is an amendment of the application, since the documents presented are summonses for payment in the context of fiscal execution and not tax assessment acts susceptible to challenge. To which is added the circumstance that these vehicles are already duly identified, with reference to the fiscal years 2009 to 2012, in the list of assessment acts that are already petitioned in the arbitral application, and that the appropriate time should have been then to challenge the assessment acts that were the basis for the execution summonses that the Applicant came to present in this amendment application.

In these terms and with the reasons mentioned above, the tribunal cannot accept the first amendment application filed.

As to the remaining two amendment applications still presented by the Applicant, respectively on 5 June 2014 and 5 August 2014, it occurs that, although these are UCT assessments concerning vehicles with registration numbers ..-..-.., ..-..-.. and ..-..-.., relating to the year 2012, not included in the initial application, the truth is that the submission of the respective amendment applications occurred after the close of the discussion, that is, after the holding of the meeting referred to in article 18 of the LBTA, which in the case of arbitral proceedings corresponds to the close of the discussion in first instance.

Thus, it is our understanding that the last possible moment to permit any amendment of the application is that of the final hearing, that is, the holding of the meeting provided for in article 18 of the LBTA, or, in cases where this does not take place by agreement between the parties, being understood as unnecessary, the moment of close of the discussion will be that of the submission of final arguments or, still, that of the arbitral order that closes this procedural phase and determines the continuation of the proceeding to final decision.

In the case of the present file, the meeting provided for in article 18 of the LBTA took place on 29 May 2014, so from that moment the discussion of the matter at issue in the file was closed, and it is not procedurally possible to amend the application.

In these terms and with the reasons stated, the amendments to the application, raised by the applications presented on 5 June and 5 August 2014, are not accepted.

The application initially formulated is thus maintained, on which this tribunal will pronounce itself.

The proceeding does not suffer from nullities that would invalidate it and no exceptions were raised that would prevent judgment on the merits of the case, so the Tribunal is in a position to issue the arbitral decision.

C) THE APPLICATION FILED BY THE APPLICANT

1. The Applicant files the present arbitral pronouncement request seeking the illegality and consequent annulment of the acts of assessment of Unique Circulation Tax and respective Compensatory Interest, relating to the years 2009 to 2012, in the total amount of €5,390.26, with reference to thirty-seven acts of assessment of UCT relating to motor vehicles identified by their respective registration number in the Table attached as document No. 14 annexed to the AP, which is hereby fully reproduced, as well as in the notes showing the calculation of tax assessment and the respective compensatory interest, all attached to the file and which are likewise fully reproduced herein.

It bases its application on the illegality of the tax assessments and respective interest, alleging in summary the following:

a) The applicant companies and Applicants were notified of the acts of official assessment, with a deadline for voluntary payment until 4/12/2013, with the exception of the assessment attached as document No. 12, whose deadline for voluntary payment was 21/11/2013, see docs. Nos. 2 to 13 attached to the AP;

b) The Applicants were no longer, however, the owners of the referred vehicles in the year to which the taxes relate, so the tax acts should be annulled on the grounds of their respective passive illegitimacy;

c) The ownership of the motor vehicles identified in the list attached to the AP as document No. 14 ANNEX to the AP had already been transferred in previous years, as evidenced by the supporting documents attached as documents Nos. 15 to 29 and 30 to 41 of the AP;

d) As to the vehicle with registration number ..-..-.., its deregistration was communicated to the General Directorate of Vehicles in 2007 and communicated to the Chief of the Finance Department of ... and to its respective Insurance Company;

e) Recently the Applicant was notified to proceed with payment of the UCT assessments contained in the present arbitral application, having effected payment in accordance with the supporting documents attached to the file.

1. For the legal grounds of the arbitral pronouncement request, the Applicant invokes, summarily, the following:

a. The Applicants cannot be considered taxpayers of UCT, even if, in the year to which the taxes in question relate, the transfer of the referred vehicles was not properly registered with the Motor Vehicle Register Office, since this results only in a mere presumption;

b. The responsibility for proceeding with payment of the UCT whose assessment is contested does not fall on the applicants, given that these are not the owners of the vehicles at the date of the period to which the tax facts relate;

c. The tax acts are, therefore, illegal due to lack of substantive legal standing of the Applicants in light of the provisions of item 1 of article 3 of the CIUC;

d. It further invokes, in summary, the provisions of articles 408, item 1, 874, 879 and 1317 of the Civil Code, as well as the case law resulting from decision 14/2013 T of CAAD and the Supreme Court of Justice judgment of 03.03.1998, cited in the judgment of 19.02.2004, all unanimous in the affirmation of the principle that the constitution or transfer of rights over a determined thing occurs by mere effect of the contract, "being valid even when celebrated in verbal form";

e. Motor vehicle registration has merely declarative or presumptive nature, therefore, not constitutive of ownership, which means that the presumption may be rebutted by evidence to the contrary;

f. The TA does not meet the requirements of a third party for purposes of registration, so it cannot avail itself of the outdatedness of motor vehicle registration to disregard the full efficacy of purchases and sales and require the sellers of the vehicles to pay the UCT, assuming sufficient proof of sale is made, and the actual owners of the vehicles should be notified for payment.

It concludes by petitioning the declaration of illegality and consequent annulment of the UCT assessment acts by violation of law on the grounds of error as to the factual premises and respective compensatory interest, as well as the legal fees incurred with the legal representation necessary to present the present arbitral application in the amount of €1,537.50 and condemnation in indemnity interest.

D) THE RESPONDENT'S RESPONSE

1. The Respondent alleges in its response, in summary, that the Applicants are not correct, whose understanding, it alleges, incurs the following mistakes:

a) in a biased reading of the letter of the law;

b) in an interpretation that does not attend to the systematic element, which violates the unity of the regime established throughout the CIUC and, more broadly, throughout the entire legal-tax system;

c) in an interpretation that ignores the ratio legis of the regime established in the article in question and likewise throughout the CIUC;

d) and, finally, an interpretation contrary to the Constitution of the Portuguese Republic.

It bases its allegation on the provisions of items 1 and 2 of article 3 of the CIUC, which provide, respectively, that "The taxpayers of the tax are the owners of the vehicles, being considered as such the natural or legal persons, of public or private law, in whose name they are registered" and that the taxpayers of the UCT are "the owners (or in the situations provided for in item 2, the persons therein named), being considered as such the persons in whose name they are registered".

The Respondent alleges that the legislator did not use the expression "are presumed", as it could have done, indeed similarly to what occurs in other legal norms, exemplifying some situations provided for in law; it understands that in cases where the tax legislator uses the expression "is considered", it is not establishing a presumption; it enumerates, merely as exemplary, various norms contained in different tax codes that use the expression "is considered". To understand that the legislator established here a presumption is based on an interpretation contrary to law, since "the clear option of the legislator was to consider that, for purposes of UCT, those who appear as such in motor vehicle registration should be considered owners;" it invokes, in defense of this understanding, the decision issued in the context of Process No. 210/13.0BEPNF, by the Administrative and Tax Court of Penafiel.

It further understands that this is the interpretation that attends to the systematic element and preserves the unity of the legal-tax system, and that, another interpretation would be to ignore the teleological element of interpretation of law, the ratio of the regime established in the article in question, and likewise, throughout the CIUC.

Furthermore, the non-update of the registration, in accordance with article 42 of the Regulation of Motor Vehicle Registration, shall be imputable in the legal sphere of the UCT taxpayer and not in that of the State, as the active subject of this tax; any other understanding would place the TA in absolute uncertainty. This understanding is reinforced by invoking the parliamentary debates surrounding the approval of DL No. 20/2008, of 31 January, from which excerpts are transcribed, to conclude that the legislator intentionally intended to establish a solution from which it results that UCT is owed by the persons who appear in the register as owners of the vehicles. It also invokes Recommendation No. 6-B/2012, from the Ombudsman, which it attached as document No. 2 annexed to the response, addressed to the Secretary of State for Public Works, Transport and Communications.

In addition to all this, the Respondent alleges that the interpretation conveyed by the Applicant is contrary to the Constitution, since the principle of tax capacity is not the only nor the principal principle that informs the tax system; alongside it, we find others with the same constitutional dignity, such as the principle of trust and legal certainty, the principle of efficiency of the tax system and the principle of proportionality. In the view of the Respondent, "the interpretation proposed by the Applicant, which devalues the registration reality to the detriment of an "informal reality" and unsusceptible to minimal control by the Respondent, violates the basic principle of trust and legal certainty that should inform any legal relationship, including here the tax relationship.

1. Finally, attending to the rules of burden of proof, it further alleges the lack of proof of the transfer of ownership of the vehicle, given that the documents attached by the Applicants, debit notes, are not, in the view of the TA, by themselves documents apt to prove the celebration of a synallagmatic contract such as a purchase and sale, especially since they did not prove the receipt of the price; it refutes throughout its response the evidence presented for the eradication of the presumption in relation to each of the vehicles in question in the present file, to conclude by the lack of proof capable of dispelling the presumption. It attaches arbitral decisions Nos. 150-2014-T and 220/2014-T in support of the thesis of the unsuitability of debit notes as proof documents for the transfer of ownership of the vehicles in question in the file.

The TA concludes that the UCT assessment acts do not suffer from illegality nor are the legal prerequisites for condemnation in indemnity interest met. It expresses its disagreement regarding the request for condemnation to payment of legal fees by invoking the recent arbitral decision issued in process No. 48/2013 – T CAAD.

It pronounces itself as to the amendment of the applicants' request, raising an objection to it.

It concludes, by the unfoundedness of the arbitral request, arguing for the legality of the impugned tax acts and by the absolution of the Respondent in the application.

II. ISSUES TO BE DECIDED

1. Attending to the positions of the Parties assumed in the arguments presented, it is for the Tribunal to decide the following issues:

1st) On the subjective incidence of UCT, the effects of motor vehicle registration and the eventual existence or non-existence of a rebuttable presumption in this matter;

2nd) On the proof of transfer of ownership of the vehicles and the displacement of the presumption;

3rd) On the right to payment of fees and indemnity interest.

III. FACTUAL GROUNDS

A) Proven Facts

1. As factual matters relevant to the decision to be issued, the Tribunal takes as established the following facts:

1. The Applicant A... SA, legal entity No. … succeeded universally, through a merger process, to the company D..., SA, and has as its social purpose the production and marketing of cellulose pulp and paper and related products and also the production of electrical energy and thermal energy;

2. The Applicants A... SA, above identified, A... SA, legal entity No. … and C.... SA, legal entity No. …, all with registered office at the Industrial Park of A..., were notified to proceed with payment of thirty-seven assessments of unique circulation tax, relating to the years 2009 to 2012, as well as the respective compensatory interest, concerning vehicles with registration numbers duly identified in the UCT assessments attached to the file as documents Nos. 2 to 13 and 35 to 41 annexed to the arbitral application, all duly detailed in the summary Table attached to the AP as document No. 14, which are hereby fully reproduced;

3. All motor vehicles referenced in the UCT assessments are registered in the motor vehicle registration database in the name of the Applicants;

4. The tax assessments were issued and notified, with a deadline for voluntary payment until 04.12.2013, with the exception of the assessments attached as document No. 12, whose voluntary payment deadline is 21 November 2013;

5. The value of the impugned assessments totals the global amount of €5,390.26;

6. The Applicant effected payment of all the tax assessments impugned in the file, which is evidenced by the documents attached to the file by the Applicant and which form part of document No. 1 annexed to the AP;

7. As of the date of the tax facts, the motor vehicles referenced in the UCT assessments herein impugned were registered in the motor vehicle registration under the ownership of the now Applicants, in their capacity as owners;

8. In relation to the vehicle with registration number ..-..-.., its deregistration was communicated on 27/12/2007 to the Chief of Finance Service of … and to its respective insurance company, as is proven by documents Nos. 30 to 33 attached to the AP.

9. The Applicants exercised their legitimate right to prior hearing, to which the TA responded as appears in document No. 42 attached as an annex to the AP corroborated by the AP attached to the file.

B) GROUNDS FOR THE PROVEN FACTS

1. The decision on the factual matter as described above is based on the documentary evidence that the parties attached to the present proceeding, either the Applicant in an annex to the application filed, or the TA in the response and AP attached to the file.

C) FACTS NOT PROVEN

1. There are no other facts held as not proven, since all facts relevant to the assessment of the application were held as proven.

IV – LEGAL GROUNDS

Given the factual matter established, it is important to address the legal issues indicated above, corresponding, in summary, to the questions of illegality raised by the Applicant in the present arbitral application. Let us then proceed to the first issue to be decided.

1st - On the subjective incidence of UCT, the effects of motor vehicle registration and the eventual existence or non-existence of a rebuttable presumption

1. The first legal question to be decided is whether or not the Applicants should be considered as taxpayers of UCT in light of the applicable legal framework and, as such, whether they should be qualified as taxpayers of the Unique Circulation Tax assessed in relation to the years 2009 to 2012, as regards the vehicles identified in the arbitral pronouncement request.

It is alleged in the arbitral application by the Applicants that, as of the date of the tax facts, they were no longer the owners of the motor vehicles mentioned in the impugned UCT assessments. Although all the motor vehicles in question are registered in the name of the Applicants, because the corresponding motor vehicle registration was not updated.

The decision of this first issue implies, therefore, assessing the terms of the configuration of the subjective incidence of UCT in light of the provisions of art. 3 of the Code of the Unique Circulation Tax (CIUC), namely, the question of whether the subjective incidence is strictly based on the registration of the ownership of the vehicle in the Motor Vehicle Register, or whether the registration operates only as a presumption of tax incidence, rebuttable, in accordance with the provisions of art. 73 of the General Tax Law.

1. The fundamental legal framework applicable in this matter is provided for in articles 1 to 6 of the CIUC, approved by Law No. 22-A/2007, of 29 June.

Article 1 of the CIUC defines the objective incidence of the tax, distinguishing vehicles by specified categories, a norm that appears clear and without difficulties of application. However, the same does not apply to the norm of subjective incidence contained in item 1 of article 3 of the CIUC, which is at the origin of the present dispute. The analysis of both provisions (articles 1 and 3 of the CIUC) permit the conclusion that in the functioning of UCT the motor vehicle registration plays a fundamental role. What matters, therefore, is to determine what that role is, that is, what is the meaning and scope of the norm of subjective incidence contained in article 3, item 1, of the CIUC and the eventual existence or non-existence of a rebuttable presumption, connected with the question of the legal effects of motor vehicle registration.

On this issue, the positions of the parties are summarized as follows:

• for the Applicants, they cannot be considered taxpayers of UCT, even if, in the year to which the UCT in question relates, the transfer of the referred vehicles was not properly registered with the Motor Vehicle Register Office, since registration, or its absence, cannot be considered a determining element of tax responsibility but only a rebuttable presumption;

• for the Respondent TA, article 3, item 1, of the CIUC establishes a norm of tax incidence and not mere rebuttable presumption.

Let us therefore see what results from the legal regime in force and its application to the specific case at hand.

Article 3 of the CIUC provides:

"ARTICLE 3

SUBJECTIVE INCIDENCE

1 – The taxpayers of the tax are the owners of the vehicles, being considered as such the natural or legal persons, of public or private law, in whose name they are registered.

2 – Equivalent to owners are financial lessees, buyers with reservation of ownership, as well as other holders of purchase option rights by virtue of the leasing contract".

Item 1 of article 11 of the GTL provides:

"In determining the meaning of tax norms and in qualifying the facts to which they apply, the general rules and principles of interpretation and application of laws are observed".

The interpretation and application of the legal norm presupposes the carrying out of an interpretive activity, which must be objective, balanced, and in conformity with the letter and spirit of the law. Any text, and the law is no exception, contains multiple meanings and frequently contains ambiguous or obscure expressions. For that reason, although the letter of the law is "the guiding thread" of the interpreter, it must be interpreted having in regard the underlying objectives, "the ratio" or the motivation of the legislator in establishing the norm in question.[2]

To these elements is added another according to which the interpretation of the legal norm must respect the "unity of the legal system", its coherence and intrinsic logic. Article 9 of the Civil Code (CC), provides the rules and fundamental elements for the interpretation of the legal norm, to which the interpretation of tax law must also obey what is provided in that provision, which begins by saying that interpretation must not be limited to the letter of the law, but must reconstruct from it the "legislative thought".[3]

To these general principles are added, moreover, the principles contained in the GTL, particularly in article 73, which establishes that presumptions contained in norms of tax incidence always admit proof to the contrary.

With regard to the issue under analysis, the contribution of arbitral decisions already issued in processes 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 issued in processes 286/2013-T, of 2 May 2014 and 293/2013-T, of 9 June 2014, and more recently, in the decisions issued in processes Nos. 46 and 89/2014-T of 5 September 2014, among many others, should be noted, revealing a careful reflection on the fundamental issue under review, establishing uniform understanding on the existence of a rebuttable presumption established in the referred legal norm. It is, therefore, in this foundational framework, using the fundamental hermeneutic principles just mentioned, endorsed by the case law of our superior courts, the understanding widely endorsed by the arbitral decisions issued in this matter that this tribunal will decide the present case.

1. Thus, as to the question of knowing, given the literal content of item 1 of article 3 of the CIUC, what is the scope of the expression "being considered as such", given that in the current version the legislator did not use the term "are presumed" (which was contained in the extinct Vehicle Tax Regulation), the Tribunal understands that it can only be the following: the legislator presumes (considers) that the owners are the persons in whose name the vehicles are registered. This means that such presumption, implicit, is naturally rebuttable in accordance with the provisions of article 73 of the GTL.

The presumption established in article 3, item 1, of the current CIUC was already established in the previous versions of the codes abolished with the entry into force of the CIUC. Article 3 of the Vehicle Tax Regulation (approved by Decree-Law No. 143/78) already provided that: "the tax is owed by the owners of the vehicles, being presumed as such, until proof to the contrary, the persons in whose name they are registered or matriculated". Likewise, art. 2 of the Regulation of Circulation and Haulage Taxes (approved by Decree-Law No. 116/94) provided that: "the taxpayers of 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 name they are registered".

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

Thus, it is understood that the fact that the legislator, in the current version of the CIUC, has opted for an implicit presumption (using the expression "being considered") instead of an express presumption (by using the expression "are presumed"), as occurred previously, does not reflect a substantial alteration with regard to the subjective incidence of the tax. It is not, therefore, the ownership registered in the motor vehicle register a condition, by itself determinative of tax incidence in UCT, but merely a rebuttable presumption.

1. Furthermore, contrary to what is alleged by the Respondent, we can easily point out several examples, drawn from the tax legal system, in which the legislator opted for the use of the verb "consider", with a presumptive sense. Besides which, as already stated above, being a norm of tax incidence, it would never be admissible the establishment of an irrebuttable presumption. As affirmed by Diogo Leite Campos, Benjamim Silva Rodrigues and Jorge Lopes de Sousa, in the annotation to item 3 of article 73 of the GTL, "presumptions in the matter of tax incidence may be explicit, revealed by the use of the expression is presumed or similar (…). However, presumptions may also be implicit in norms of incidence, particularly objective incidence, when certain values of mobile or immobile property are considered as constituting taxable matter, in situations in which it is not infeasible to ascertain the real value". And there are many examples of norms in which the verb "consider" is used to establish rebuttable presumptions, as occurs with the provision of item 2 of article 21 of the CIRC, in article 89-A of the GTL or in article 40, item 1 of the CIRS, among others. The Respondent alleges, however, in the response presented, that this same word "being considered" is also normally used, by the tax legal system, to define situations distinct from presumptions. Now, such appears to be normal, particularly in the case of other tax norms in which the legislator used the formula "is considered" or "are considered", but attributing it another meaning, since these are expressions that, depending on the context, may assume a plurality of meanings, without from which the conclusion intended by the Respondent can be extracted.

2. Taking into account that the legal system must form a coherent whole, the examples referred to above, as well as the doctrine and case law indicated, permit the conclusion that it is not only when the verb "presume" is used that we are before 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 stated above, being the literal element 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, particularly the rational or teleological element, the historical element and the systematic element.

And, also in this line of reflection, the Tribunal cannot follow the argumentation adduced by the Tax Authority. As to the historical element, it must be noted that since the origin of circulation tax, with the entry into force of Decree-Law No. 599/72 of 30 December, a presumption was expressly established, relating to the taxpayers of the tax as being those in whose name the vehicles were registered or matriculated. This version of the law used the literal expression "are presumed as such".

However, attending to the purposes of the tax in question, it must be recognized that the use of the expression "is considered" in the current version contemplates an expression with an effect similar to that one, embodying, likewise, a presumption. This same occurs in the formulation contained in item 1 of art. 3 of the CIUC, in which a presumption was established, revealed through the use of the expression "being considered", of similar meaning and equivalent value to the expression "are presumed", in use since the creation of the tax in question. The use of the expression "being considered" is justified, solely, as it appears to be more in keeping with the reinforcement given to the ownership of the vehicle, which became the constituent fact of the tax, in accordance with the provisions of article 6 of the CIUC.

Whereby, in light of the literal element of interpretation, nothing prevents the understanding that the provision of item 1 of art. 3 of the CIUC establishes a rebuttable presumption.

Thus, as to the subjective incidence of the tax, it is to be concluded that there are no alterations relative to the situation previously in force within the scope of the Municipal Tax on Vehicles, Circulation Tax and Haulage Tax, as is moreover widely recognized by doctrine, continuing to apply a rebuttable presumption in this matter.[4]

This understanding is, moreover, the only one that appears adequate and in conformity with the principle of material truth and justice, underlying tax relations, with the objective of taxing the real and effective owner and not the one who, by circumstances of diverse nature, is sometimes merely an apparent and false owner, by appearing in the motor vehicle register.

1. For being so, the person inscribed in the motor vehicle register must be permitted the possibility of presenting sufficient probative elements for the demonstration that the effective owner is, after all, a person different from the one that appears in the register, and which initially, and in principle, was supposed to be the true owner. Otherwise, one would accept the supremacy of the formal truth of the register over the material truth, and would be to admit a gross violation of the fundamental fiscal principles stated and, also, of the principle contained in article 73 of the GTL, according to which there are no irrebuttable presumptions in the matter of tax incidence.

To all that is left set forth above would be added a violation of the principles of legality, proportionality and justice, as well as that of the inquisitorial, established, respectively, in articles 55 and 58 of the GTL.

Besides, it is possible to extract, still, another argument from the provisions of article 7 of the Code of Land Registration (which constitutes the fundamental legal basis regarding property registration) which provides that "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". In light of the principle of uniformity and coherence intrinsic to the legal system, no basis appears acceptable for the principle in force in property registration in general to suffer an inflection or even an unjustified "trampling" in the matter of motor vehicle registration.

1. Furthermore, if any doubt persisted, it would still be said that, as to elements of interpretation of rational or teleological nature, the preamble of the Legislative Proposal No. 118/X of 07/03/2007, underlying Law No. 22-A/2007, of 29/06, is quite expressive in clarifying that the reform of motor vehicle taxation is implemented through the shifting of part of the tax burden from the moment of acquisition of vehicles to the circulation phase and aims to "form a coherent whole" which, although intended for the collection of public revenue, intends that the same be collected "in the measure of the environmental costs that each individual causes to the community", further adding, regarding the tax in question and the different types and categories of vehicles, that "as a structuring and unifying element (…) the principle of equivalence is established, thus making clear that the tax, as a whole, is subject to the idea that taxpayers should be burdened in the measure of the cost they cause to the environment and to the road network, being this the raison d'être of this tax figure", further stating, being "(…) this principle that dictates the burdening of vehicles in function of their ownership and until the moment of scrapping (…)".

It thus appears clear that the logic and rationality of the new system of motor vehicle taxation presupposes and aims at a taxpayer coinciding with the owner of the vehicle, on the assumption that this, and not another, is the real and effective subject causing environmental damage, as results from the principle of equivalence inscribed in art. 1 of the CIUC. This principle of equivalence, which informs the current unique circulation tax, has underlying it the polluter-payer principle, and embodies the idea, inscribed therein, that whoever pollutes must, for that reason, pay. It is, after all, about achieving the negative environmental externalities that arise from the use of motor vehicles, whether assumed by their owners and/or by the users, as costs that only they should bear.[5]

This is, moreover, the position of the tribunal in the present file, understanding that we are before the establishment of a rebuttable presumption.

Any other understanding would imply accepting the possibility of taxing legal or natural persons without responsibility in the production of any environmental damage, while the real causes of such damage would not be subject to the tax, frustrating in absolute the purposes of the regulatory power of the law itself, that is, its true ratio legis.

For all that is set forth, neither can the understanding contained in the sentence issued by the Administrative and Tax Court of Penafiel, in the context of process No. 210/13.0BEPNF, invoked by the Tax and Customs Authority in the present file, be endorsed, namely, when it states that "the ownership and actual possession of the vehicle is irrelevant for the verification of subjective and objective incidence and of the constituent fact of the tax". A sentence that is far from representing a settled understanding on this issue.

1. Having gone through all the relevant elements of interpretation, all point to the direction that the expression "being considered" has a meaning equivalent to the expression "are presumed". In consequence, it results from the provision of item 1 of art. 3 of the CIUC, the establishment of a legal presumption, which, faced with the provision of art. 73 of the GTL, can only be understood as rebuttable. This presumption may be displaced or rebutted should, within the scope of the assessment proceeding in progress, the person inscribed in the motor vehicle register come to demonstrate that he or she is not the true owner of the vehicle, taxpayer of the tax in question. It would be said that the legislator, in the new CIUC, did not feel the need to maintain in the new incidence norm an express and rebuttable presumption, since after the entry into force of the General Tax Law (1999) "presumptions established in norms of incidence always admit proof to the contrary". Therefore, faced with the content of article 73 of the GTL, it would be technically incorrect to use the expression "are presumed as such, until proof to the contrary", contained in the previous version in force.

But the Respondent further alleges that the interpretation defended by the Applicant in this matter, in addition to translating a biased reading of the law and being based on an interpretation contrary to law, shows itself contrary to the Constitution.

Now, for all that is left set forth above, it results also that the tribunal does not follow the Respondent in this allegation. It will be important, nevertheless, to add to all the arguments already exposed, a final one extracted from the case law of the Constitutional Court (CC) itself. Thus, it should be noted that, contrary to what is alleged by the Respondent, the consideration that the provision of art. 3, item 1, of the CIUC establishes a rebuttable presumption represents the best interpretation and the one most in conformity with the Constitution, as results from the judgment of the CC with No. 348/97, of 29.4.1997, a position reiterated in judgment No. 311/2003, of 28.4.2003, which declare the unconstitutionality of "establishment by the tax legislator of a presumption "juris et de jure" since "it completely prevents taxpayers from the possibility of contravening the presumed fact, subjecting them to a taxation that may be founded on a taxable matter fixed in disregard of the principle of tax equality". In this conformity, the allegation of the Respondent does not appear to have acceptance.

1. As to Recommendation No. 6-B/2012 of the Ombudsman, invoked by the Respondent TA, it demonstrates only that the interpretation and application that the Tax Authority came to pursue as to the legislative solution in question in the file generated a chaotic, unjust and disproportionate situation, to which the Ombudsman presents some recommendations. As we have already stated in a very recent arbitral decision issued in process No. 89-2014-T, of 27 August 2014, this recommendation comes, precisely, to highlight a legislative foresight failure as to the insufficiencies of the registration system itself, as to the articulation of competencies between the different services involved (IMTT, Motor Vehicle Register and Tax Authority).

2. In summary: in light of the new norm of incidence, the taxpayer of the UCT is the owner, even if not appearing in the motor vehicle register, provided that sufficient proof is made to rebut the legal presumption deriving from the register.

Naturally, the burden of proof rests on the party that has the burden of demonstrating that the reality inscribed in the register does not correspond to the effective ownership of the property right, in accordance with the general terms provided in article 342 of the Civil Code.

It is therefore incumbent upon the Applicants to rebut the presumption already since in their name there exists a motor vehicle property registration from which the presumption of ownership results. It remains now to analyze the question of whether, in the present file, the Applicants presented sufficient proof to rebut the presumption, proving the transfer of ownership in favor of third-party acquirers.

3rd) On the proof of transfer of ownership of the vehicles and the eradication of the presumption

1. The Respondent alleges "the lack of proof of the transfer of ownership of the vehicles", given that debit notes and even invoices are not, by themselves, documents apt to prove the celebration of a synallagmatic contract such as a purchase and sale.

The Applicants, to demonstrate the alienation of the vehicles, attached to the file copies of debit notes (docs. Nos. 15 to 18, 20 and 24), a copy of an invoice attached as document No. 19 and some correspondence exchanged with D... and with a company regarding a process of negotiation for the sale of vehicles for scrapping equipment. It did not attach documents evidencing the amounts received from the sales of the vehicles (checks, bank transfers or extracts evidencing such receipts), it did not present any documents from which the acquirers are duly identified or from which the true existence of the alleged purchase and sale contracts can be extracted. At this point, it is important to make a reference that distinguishes this case from other cases decided in previous arbitral decisions in which the transfers of ownership that took place within the scope of previous financial leasing contracts are analyzed and in which the support documents attached by the lessors, in addition to invoices, permit clearly to extract the existence of the transfer of ownership, especially since these are commercial transactions that occurred within the specific scope of the activity of companies duly authorized by the invoices, by the leasing contracts of support and by the accounting extracts that attest the payments of residual values. Now, such cases are manifestly different, particularly with regard to the means of proof exhibited and as well as to the circumstances of fact and law that surround them.

1. In the case of the present file, the alienation of property of the patrimony of the Applicant companies, such as the vehicles in question, are not demonstrated merely by the exhibition of mere debit notes. Not because they are merely unilateral documents as the TA alleges, since the proof of a negative fact such as that required for the displacement of the presumption contained in article 3, item 1 of the CIUC, that is, the proof that as of the date of the tax facts it was no longer the owner of the vehicle in question, may be effected through recourse to all means of documentary proof at the disposal of the party that has the burden of proof. What it has is to demonstrate, without room for doubt, by resorting to the demonstration of positive facts that the transfer was made in favor of a third party, which must be duly identified and the effective payment of the price demonstrated, and that such value entered the company's accounting. In other words, that a purchase and sale contract actually occurred. This tribunal understands that the debit note does not permit such demonstration, as it is not an accounting document suited for that purpose.

The transfer of ownership operates by mere effect of the contract, in accordance with the provisions of article 408, item 1 of the Civil Code. The purchase and sale contract has real nature, that is, the transfer of ownership of the thing sold, or the transfer of the alienated right, has as its cause the contract itself. Motor vehicles are movable property, whose transfer of ownership does not obey special formalism. In Portuguese law, the fact that determines the transfer of ownership of movable property (even if subject to registration) is the contract expressed by the will of the parties. So much so that the buyer becomes the owner of the sold vehicle through the celebration of the purchase and sale contract, independently of registration, which is assumed as a condition of efficacy and opposability as to third-party acquirers.

Thus, the proof of the existence of this purchase and sale contract may be effected by any means, the invoice being an accounting document suited for this purpose, as for many others, particularly fiscal ones, the same not occurring with debit notes. It is not, however, its unilateral character does not deprive it of probative force, it would only require a reinforcement of proof that evidenced the existence of the purchase and sale contract, with the precise identification of the buyers, which would necessarily have to be reinforced with the presentation of other supplementary means of proof, such as, for example, the means of payment.

Thus, this tribunal understands that the debit note does not have sufficient probative force for the conclusive demonstration of the alleged existence of the transfer of ownership. The same applies to the invoice attached to the file. In neither case did the applicants demonstrate without room for doubt that they have actually concluded the alleged purchase and sale contracts and they could have done this demonstration by attaching, for example, evidence of the entry of the respective amounts into the company's accounting.

The Respondent alleges, to this effect, the lack of sufficient proof presented by the Applicants by considering that the documents attached are not apt to prove the celebration of a synallagmatic contract such as a purchase and sale. Now it reinforces its thesis in the arbitral decisions Nos. 150 and 220/2014 T, as well as in Arbitral Decision No. 63/2014-T. However, this tribunal does not follow, with due respect, the understanding set forth therein as to the probative value of invoices nor as to the rigor of the probative requirements for the displacement of the presumption, for the reasons stated below.

To this effect, it should be clarified that the attachment to the file of the referred decisions was admitted, despite the moment in which it occurred, in absolute compliance with the principle of due process and attending to the interest of the issue raised by the TA. An opportunity was given to the Applicant to pronounce itself, which it did by application attached to the file.

It results from the constitutional principle of prohibition of defenselessness, which emanates from the right of access to law and courts recognized in article 20, item 1 of the Constitution, that situations will not be constitutionally admissible consisting of the imposition of a burden of proof that amounts to the practical impossibility of proof of a fact necessary for the recognition of a right. But in the case in question we are not before a situation of practical impossibility of this type, since the proof of a negative fact, which is the proof that the ownership of the vehicle no longer belonged to the holder of the register, may be effected through positive facts, by way of demonstration of receipts of the prices, the entries of the amounts into the company's accounts (accounting extracts, etc).

Furthermore, with regard to the question of proof, the increased difficulty of the proof of negative facts should have as its corollary, by force of the constitutional principle of proportionality, a lower probative requirement on the part of the applicator of the law, giving relevance to proofs less relevant and convincing than those that would be required if such difficulty did not exist, applying the Latin maxim "iis quae difficilioris sunt probationis leviores probationes admittuntur".[6]

These requirements of proof must be accompanied by the due cautions imposed by the principle of proportionality, under penalty of imposition of requirements of proof that would make impossible the displacement of the presumption, transforming it into an absolute and irrebuttable presumption, which is at all accepted as possible. Thus, the requirements for proof for the displacement of the presumption cannot be so demanding that they result in a practical impossibility of rebutting the presumption or, to put it another way, only to succeed in its eradication if the alienator proves having effected the very registration, substituting itself for the acquirer itself, inverting the normal rules of operation of the register. That would be a solution equivalent to rendering the presumption irrebuttable, which is considered unacceptable in the terms already set forth above.

What is relevant, however, is the conviction that the tribunal, faced with the documentary evidence in the specific case under review, extracts as to the value of the means of proof concretely presented in the present file, whose factuality it must analyze in order to support the decision of considering or not rebutted the presumption deriving from the motor vehicle property register.

As to this issue, it is necessary to distinguish, in the first place, debit notes from invoices, since one and the other do not have identical accounting or probative value. Debit notes are mere internal documents produced by the company itself for posting of customer balances intended for regularizations or other operations, but in no case are they documents adequate to title sales or commercial transactions generating revenue for the company. Even in periods prior to 2008, as the Applicants allege, the understanding of debit notes as documents equivalent to invoices, only prevailed if and when these possessed all the essential requirements of the invoice itself. Now, in the case at hand, this does not occur, so for that reason also it is not considered the presumption displaced.

1. The applicants could have reinforced this proof with the demonstration of the means of payment/receipt of the respective prices or with the accounting extracts that revealed the entry of the respective amounts into the account of the companies in question. Furthermore, it would also be necessary that all the acquirers were duly identified. What did not occur.

In the case at hand, the Applicants are companies with a considerable size in the market and with good accounting and tax advice, so it was justifiable, if not even required, that the sales of used vehicles or their scrapping be properly documented and even immediately submitted to the motor vehicle register, avoiding future occurrences generating potential losses and liabilities for the companies, especially since such alienations relate to assets of the company's patrimony and not to inventory or assets inherent to its normal activity. Thus, it would be expected, for example, to keep filed the statements of sale issued in favor of the respective buyers of the vehicles. However, the Applicants did not present them.

Furthermore, the correspondence presented in the file regarding D... and E…, SA, contained in documents Nos. 22 and 23 and 27 to 29, leaves us with many doubts as to whether such transactions occurred and in favor of whom, who were the acquirers, since no proof was presented that proves the existence of the alleged transactions. Such proof could have been effected, for example, by presentation of evidence of payment of the respective prices and of the identification of the acquirers.

Thus, this tribunal understands that the mere issuance of debit notes is not sufficient to displace the presumption contained in article 3, item 1 of the CIUC. It was incumbent on the Applicants, since on them the burden of proof falls, to present other documents of proof from which it would be possible to conclude the alienations of the vehicles in favor of concrete acquirers, duly identified.

As to the vehicle with registration number ..-..-.., referenced in documents Nos. 30 to 33, it is proven that by letter of 27/12/2007, …SA, a company of the A... group, communicated to the Finance Service of ... that it deregistered a set of vehicles, among which the vehicle with registration number ..-..-.., with the then General Directorate of Circulation. It indicates in the referred letter that it attaches the documents sent to the DGC, which, however, are not presented in the present file, nor any evidence of criminal notification that proves the alleged theft on which basis the cancellation was reported to the insurer.

Now, also as to this vehicle, with the scant means of proof attached to the file, the applicants did not succeed in displacing the presumption of article 3, item 1 of the CIUC, since they did not prove the effective scrapping of the automobile in the respective databases as of the date of the tax facts. To which is added the fact that it results proven by document 66 of the AP that the cancellation of the referred registration was only effectively promoted on 17/09/2013, that is, on a date subsequent to that of the tax facts in question in the present file.

1. It is thus verified that if the registration of the motor vehicles contained in the UCT assessments impugned in the present file are still in the name of the Applicants in the motor vehicle register, it is presumed that the right of ownership of the referred vehicles still belongs to them, this presumption being able, however, to be rebutted by means of proof to the contrary. (See arts. 1 of DL No. 54/75, 7 of the CRP and 350, item 2, of the CC).

In the case at hand, as is left set forth above, the Applicants did not attach sufficient documentary evidence to demonstrate without room for doubt that the alleged transfers of ownership occurred. The debit notes, documents on which they based the proof presented in the file, are not documents susceptible to prove the existence of a sale or alienation of the property mentioned therein. Even the Invoice always requires the presentation of other means of proof that demonstrate the effective completion of the underlying transactions. Neither did they demonstrate having promoted the scrapping of the vehicle with registration number ..-..-.., on a date prior to the date of the tax facts.

Thus, it is concluded that the proof presented in the file does not prove to be adequate and sufficient to rebut the presumption.

Yet again, it is necessary to conclude that definitive registration constitutes nothing more than a presumption that the right exists and belongs to the registered holder, in the exact terms of the registration, which is rebuttable, thus admitting proof to the contrary.

And, on this point, attending to the function legally reserved to the register to publicize the legal situation of property, it is necessary to conclude, in the case of motor vehicles, that it only permits us to presume that there exists the right over such vehicles and that the same belongs to the person inscribed in the register. The register does not, therefore, have a constitutive nature of the property right, but only a declarative one, so that registration does not constitute a condition of validity of the transfer of the vehicle from the seller to the buyer.

Whereby, the acquirers of the vehicles thus become, owners of those same vehicles by way of the celebration of the corresponding purchase and sale contracts, by mere effect of the contract, with or without registration. This interpretation is the only one that guarantees perfect harmony between this regime and that which results from the provision of item 1 of art. 408 of the Civil Code, according to which the transfer of rights over things is determined by mere effect of the contract, being one of such effects the transfer of the thing or the ownership of the right (see subparagraph a) of art. 879 of the referred Civil Code).

However, the presumption resulting from article 3, item 1 of the CIUC imposes that, in the absence of correspondence between the holder of the register and the true and current owner of the vehicle, it is necessary to prove the transfer of ownership, without room for doubt, in order to rebut the presumption resulting from the motor vehicle register.

In the case of the present file, the Applicants did not succeed in demonstrating when, to whom, how and under what conditions they actually transferred the ownership of the motor vehicles contained in the impugned assessments. It is certain that the means of proof attached to the file do not permit concluding with sufficient certainty that the alleged transfers of ownership took place, so it is necessary to conclude that they did not succeed in displacing the presumption.

1. For all that is set forth above, the presumption contained in item 1 of article 3 of the CIUC is not considered rebutted, so the Applicants assume the status of taxpayers of UCT with reference to the vehicles under analysis, in the taxation periods in question (years 2009 to 2012), so it is not apparent that there is a defect of illegality in the tax assessments generating their annulment.

3rd) On the application and the right to payment of indemnity interest and Fees to the representative of the Applicants.

1. In light of all the foregoing regarding the decision of the previous issue, the following are prejudiced, that is, the issue concerning the fees, interest and legal fees petitioned.

V - DECISION

In view of the foregoing, this Arbitral Tribunal decides:

A) Not to admit the applications to amend the arbitral application presented by the Applicants;

B) To rule the present arbitral application unfounded.

Value of the proceeding: In accordance with the provisions of articles 306, items 1 and 2 of the CPC, article 97 - A, item 1, subparagraph a), of the CPPT and article 3, item 2 of the Regulation of Costs in Tax Arbitration Proceedings, the value of the proceeding is set at €5,390.26.

Costs: In accordance with the provision of item 4 of art. 22 of the LBTA and in accordance with Table I annexed to the Regulation of Costs in Tax Arbitration Proceedings, the amount of costs is set at € 612.00, at the charge of the Applicant.

It is hereby registered and notified.

Lisbon, 15 October 2014

The Sole Arbitrating Judge,

(Maria do Rosário Anjos)

[1] The present decision is drafted in accordance with the old orthography.

[2] In this sense, see BAPTISTA MACHADO, Introduction to the Legitimating Discourse, p. 175 et seq.

[3] In this sense, see, among others, the Judgments of the SAC of 05/09/2012 and 06/02/2013, respectively, issued in processes Nos. 0314/12 and 01000/12, available at www.dgsi.pt.

[4] In this sense, see Afonso, A. Brigas and Fernandes, M. (2009) Tax on Vehicles and Unique Circulation Tax, Coimbra Publisher, p. 187.

[5] To this effect, see the position set forth in the recent Arbitral Decision No. 286/2013-T of 2 May 2014. In the same sense, see Arbitral Decisions Nos. 14/2013-T, 26/2013-T of 19 July 2013, 27/2013 –T, 217-2013-T of 28 February and, more recently, 293/2013-T of 9 June 2014, among others.

[6] In this sense, see Manuel de Andrade - «Elementary Notions of Civil Procedure», 1979, p. 203; Assent of the SJC No. 4/83 of 11-7-1983, in OP, I series, of 27-08-1983; Judgment SAC of 17/10/2012, in process No. 0414/12, among others.