IUC Vehicle Tax Liability: CAAD Arbitral Decision 171/2014-T

Process: 171/2014-T

Date: March 12, 2018

Tax Type: IUC

Summary

Process 171/2014-T addresses the subjective incidence of Portugal's Imposto Único de Circulação (IUC), determining who is legally liable to pay this annual vehicle circulation tax. The claimant, A... SA, a Portuguese company, challenged IUC tax assessments totaling €7,739.91 through the CAAD (Centro de Arbitragem Administrativa) tax arbitration system under the Legal Regime of Tax Arbitration (RJAT). The company sought annulment of the assessments and restitution of amounts paid, plus compensatory interest calculated from the payment date. This decision represents a new arbitral ruling issued after the Central Administrative Court South annulled the original 2014 decision through its judgment of June 4, 2015, communicated to CAAD in February 2018. The case illustrates the procedural complexity of Portuguese tax arbitration, including the constitution of singular arbitral tribunals, the exchange of written pleadings, evidentiary hearings under Article 18 of RJAT, and the hierarchical review by administrative courts. Subjective incidence in IUC taxation determines which person or legal entity bears the obligation to pay the tax, typically the vehicle owner or holder registered with tax authorities. This proceeding demonstrates that corporate entities can access CAAD arbitration to contest IUC assessments, and that administrative court decisions declaring arbitral awards null require new decisions to be rendered in compliance with judicial determinations, ensuring proper application of tax law principles.

Full Decision

ARBITRAL DECISION

Following and in execution of the judgment delivered by the Central Administrative Court South which, in an appeal filed by the Tax and Customs Authority, ruled by judgment of 04/06/2015, communicated to CAAD on 15/02/2018, declaring the nullity of the arbitral decision delivered in this case on 17/11/2014, the following new decision is hereby delivered:

I – REPORT

A. – PARTIES

A..., SA., hereinafter referred to as Claimant, legal entity no. ..., with registered office at Rua..., Lot..., ...-... Lisbon, filed a request on 24 February 2014 for the constitution of a singular tax arbitral tribunal, pursuant to the provisions of Art. 2, no. 1, lit. a) of Decree-Law no. 10/2011, of 20 January (Legal Regime of Tax Arbitration - RJAT) and Arts. 1, lit. a) and 2 of Ordinance no. 112-A/2011, of 22 March, with the purpose of resolving the dispute opposing it to the Tax and Customs Authority, which shall hereinafter be referred to as Respondent.

B. – CONSTITUTION OF THE TRIBUNAL

The request for constitution of the Arbitral Tribunal was accepted by the President of CAAD on 26/02/2014 and automatically notified to the Claimant and to the Tax and Customs Authority on 27/02/2014, with the President of the respective Deontological Council designating the undersigned as arbitrator of the Singular Arbitral Tribunal, pursuant to Art. 6, no. 1, of the RJAT, which appointment was accepted in accordance with the legally established terms.
On 11/04/2014, the Parties were notified of such designation, in accordance with the combined provisions of Art. 11, no. 1, lit. b) of the RJAT, in Articles 6 and 7 of the Deontological Code, and neither party expressed any intention to refuse the arbitrator's designation.
Under these circumstances, the Tribunal was constituted on 30/04/2014, in accordance with the provision in lit. c), of no. 1, of Art. 11 of Decree-Law no. 10/2011, which was notified to the Parties on that date.

C. – CLAIM

The Claimant requests that the Arbitral Tribunal declare the illegality and consequent annulment of the tax assessments for Single Vehicle Circulation Tax, relating to the vehicles identified in the case file, in the amount of 7,739.91 euros, in the terms described in the Request for Arbitral Opinion, and consequently

Determine the restitution of the tax that was paid by the Claimant, plus compensatory interest, at the legal rate, calculated from the date of respective payment until full reimbursement.

D. – PROCEEDINGS

Following the communication of the date of constitution of the Arbitral Tribunal on 30/04/2014, the subsequent procedural steps took place in the following manner:

On 02/05/2014 – The Respondent was notified to, pursuant to nos. 1 and 2 of Art. 17 of the RJAT, file its response within thirty days and, if so desired, request the production of additional evidence and remit to the Arbitral Tribunal a copy of the administrative file, by electronic means.
On 27/05/2014 – The Respondent filed its Response to the Request for Arbitral Opinion, remitted the appointment order of the legal representatives of the Respondent and inserted the administrative file in the CAAD online "Platform", with the Claimant being notified of everything.
On 02/06/2014 – The Claimant requested the attachment to the case file of a copy of a power of attorney certified by a third party, in order to remedy the irregularity of the certification of the original power of attorney, which request the Tribunal admitted on 05/06/2014, having ordered its notification to the Respondent.
On 03/06/2014 – The Claimant filed a response to the exception raised by the Respondent, which was admitted on 08/06/2014, and notified to the Respondent.
On 04/06/2014 – The Tribunal scheduled 23/06/2014 for the meeting provided for in Art. 18 of the RJAT.
On 06/06/2014 – The Respondent filed a request that at the meeting provided for in Art. 18 of the RJAT, scheduled for 23/06/2014, the Parties not be heard regarding the matter of exceptions, in consequence of the Claimant having already made written submissions, which was admitted by the Tribunal on 08/06/2014 and notified to the Claimant, the date of the meeting provided for in Art. 18 of the RJAT being also confirmed for 23/06/2014.
On 23/06/2014 – The meeting provided for in Art. 18 of the RJAT was held, which resulted in the following:
The Tribunal granted the Respondent's request of 12/06/2014, and consequently remedied the irregularity of the power of attorney of the Claimant's representative, by attaching to the case file a new power of attorney certified by a third party, without opposition from the Respondent.
The Parties were heard regarding the exceptions raised.
The Respondent requested the attachment of a document to counter Art. 11 of the Request for Opinion of the Arbitral Tribunal and of docs. 2 to 70 attached thereto. The Claimant did not oppose the attachment of the document and requested a period of ten days to make submissions regarding it. The Tribunal granted this.
The Tribunal ordered the suspension of the Meeting, in light of the foregoing, to be resumed on 14/07/2014.
On 30/06/2014 – The Claimant requested the attachment to the case file of a request for response to that presented at the meeting of 23/06/2014 by the Respondent, which was admitted by the Tribunal on 03/07/2014, with notification to the Respondent.
On 14/07/2014 – Continuation of the Meeting provided for in Art. 18 of the RJAT, which had been suspended on 23/06/2014, which resulted in the following:
The Claimant requested the production of additional evidence, which was granted by the Tribunal pursuant to Art. 16, lit. a) of the RJAT, with opposition from the Respondent.
The Tribunal set a period of 10 days for the Claimant to produce additional evidence and 20 days for the Respondent to make submissions regarding the same.
The Tribunal set a period of 10 days from the Respondent's submissions regarding the additional evidence for the production of written submissions by the Claimant.
The Tribunal also set a period of 10 days from the presentation of written submissions by the Claimant for the presentation of written submissions by the Respondent.
On 16/07/2014 – The Respondent requested the attachment to the case file of an arbitral decision, which request was granted on 18/07/2014, with notification to the opposing party.
On 13/08/2014 – The Claimant requested the attachment to the case file of two arbitral decisions, which was granted by the Tribunal on 18/08/2014, with notification to the opposing party.
On 01/09/2014 – The Claimant requested the attachment to the case file of 38 documents, which was granted by the Tribunal on 24/09/2014, with notification to the Respondent.
On 18/09/2014 – The Respondent requested the attachment to the case file of two arbitral decisions, which the Tribunal granted on 19/09/2014, with notification to the opposing party.
On 30/09/2014 – The Tribunal, given the impossibility of delivering a final decision within the period set in no. 1 of Art. 21 of the RJAT, extended that period by two months, pursuant to no. 2 of this provision and set the date for delivery of the decision as 17/11/2014.
On 17/10/2014 – The Respondent filed a request for submissions regarding the documents attached by the Claimant on 01/09/2014, with the request having been granted on 18/10/2014 and notified to the Claimant.
On 22/10/2014 – The Claimant filed written submissions, and the Respondent, according to the CAAD SPG records, did not file written submissions.
On 15/11/2014 – Delivery of the arbitral decision.
On 15/02/2018 – Communication to CAAD of the judgment of 04/06/2015 from the Central Administrative Court South (appeal file no. .../14).
On 01/03/2018 – Attachment to the case file (SPG) of the written submissions of the Respondent of 03/11/2014.
On 12/03/2018 – Delivery of the arbitral decision in compliance with the judgment of 04/06/2015 from the Central Administrative Court South.

E. – CLAIMANT'S CLAIM AND ITS GROUNDS

To support the Request for Arbitral Opinion, the Claimant alleged, in summary, the following:

The Claimant A..., SA., also identified as "B...", is a financial institution whose corporate purpose is the conduct of operations permitted to banks, with the exception of the receipt of deposits, having for this purpose all legally required authorizations.
In the course of its activity, the Claimant enters into contracts with its customers for Long-Term Vehicle Leasing and Financial Leasing Contracts for motor vehicles, at the end of which it transfers ownership of the same to the respective lessees or to third parties.
Between 10 December 2013 and 20 December 2013, the Claimant was notified of Official Tax Assessments for the Single Vehicle Circulation Tax relating to the vehicles identified in the present request for arbitral opinion and to the taxation periods of 2009, 2010, 2011 and 2012.
The Claimant proceeded to voluntary payment of the aforementioned Single Vehicle Circulation Tax.
The Claimant disagrees with the aforementioned tax assessment acts, in that the vehicles, in relation to which the payment of the Single Vehicle Circulation Tax was required, were not its property on the date identified by the Respondent as the date of occurrence of the taxable event.
For, in its understanding, in accordance with the provision of Article 3, no. 1 of the Single Vehicle Circulation Tax Code, "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 the same are registered."
The resort to vehicle registration as the structuring element of the functioning of the Single Vehicle Circulation Tax is evident throughout the Code.
Referring, merely by way of example, to the content of Article 6 of the Single Vehicle Circulation Tax Code, relating to the definition of the taxable event of the tax obligation, in accordance with which this "(…) is constituted by the ownership of the vehicle, as attested by the license plate or registration in national territory."
It follows equally from this provision that vehicles which are not, nor should be, subject to registration in Portuguese territory are only subject to this tax if they remain in it for a period exceeding 183 days.
It is, in its understanding, a provision which, by resorting to the registration element, establishes, simultaneously, the taxable event and the respective tax nexus.
It is also from the elements of vehicle registration that the moment of the beginning of the taxation period is extracted, as well as, in a general manner, all elements necessary for the assessment of the tax in question, as is the case, namely, of engine displacement, age of registration, type of fuel and level of carbon dioxide emissions.
The Claimant understands that, from the dependence of the Single Vehicle Circulation Tax regime on vehicle registration, one cannot but conclude that the provision on subjective incidence insofar as it considers as owner the person in whose name the vehicle is registered constitutes a mere (legal) presumption of incidence.
In accordance with other interpretative elements, in particular with respect to its legal meaning.
Considering the literal wording of Article 3, no. 1 of the Single Vehicle Circulation Tax Code, it says it is important to analyze, in particular, the expression "being considered as such", in particular from the perspective of the provision of Article 9, no. 2 of the Civil Code, when it establishes that the thinking of the legislator which cannot be understood among the possible meanings of the law cannot have, in the respective wording, a minimum of verbal correspondence even if imperfectly expressed.
And that the current text did not use the term "presumed" (presumem-se), contrary to what was contained in the extinct Motor Vehicle Tax Regulation, but examining the Portuguese legal system, there are found various examples of provisions establishing presumptions using the verb "consider" (considerar), many of which employed in the gerund form ("considering" or even "being considered").
Examples of such provisions are those presented below. In the Civil Code, among others, Articles 314, 369 no. 2, 374 no. 1, 376 no. 2 and 1629. In the Industrial Property Code, merely by way of example, Article 98 where also the term "considering" is used in a presumptive context.
Also in the tax legal system the verb "consider" is found with a presumptive sense.
The Claimant refers in this regard to the provision of Article 89-A, no. 4 of the General Tax Law (LGT), in which a presumption is equally established, without the term "presumed" having been used, but rather "is considered" (considera-se).
Concluding, it alleges that, bearing in mind that the legal system should form a coherent whole, the examples it has referred to, accompanied by doctrine and jurisprudence, by resort to the systematic element, it is not only when the verb "presume" is used that we are dealing with a presumption, but also the use of other terms or expressions may, equally, serve as the basis for presumptions, notably the term "is considered", thus demonstrating that the condition established in Article 9, no. 2 of the Civil Code has been met.
If it is true, however, that the literal element, by itself, cannot be considered entirely decisive, when accompanied by other elements it is sufficiently relevant and indicative of the true sense of the provision under analysis, pointing to the fact that the expression "being considered as such" is equivalent to the expression "presumed to be such".
The Claimant resorts to the rational or teleological element which, in its understanding, is of the utmost importance for determining the sense of the provision in question.
It cites Art. 1 of the Single Vehicle Circulation Tax Code which, under the heading "principle of equivalence" establishes that "The single vehicle circulation tax obeys the principle of equivalence, seeking to burden taxpayers in accordance with the environmental and road cost which they cause, in implementation of a general rule of tax equality".
This principle of equivalence being, in its opinion, a structuring principle of the Single Vehicle Circulation Tax.
For which reason the vehicles should be taxed in function, namely, of their pollution potential and the safety levels presented.
Thus, it alleges the Claimant that, considering, on the one hand, the systematic place which the principle of equivalence occupies in the Single Vehicle Circulation Tax Code, the historical element embodied in Bill no. 118/X and, likewise, the rational element underlying the reform of motor vehicle taxation, it only makes sense to conceive the expression "being considered as such", in the context of Article 3 of the Single Vehicle Circulation Tax Code, as revealing the presence of a defeasible presumption.
For which reason, it will not be legitimate to conclude that the taxpayers of this tax are only the owners or equivalent of the vehicles, in whose name the same are registered.
For the ratio legis of the Single Vehicle Circulation Tax rather points in the direction that the users of the vehicles, the actual owners or also the financial lessees are to be taxed, for it is these that have the pollution potential causing the environmental costs to the community.
It adds that, in light of the provision of Article 349 of the Civil Code, "presumptions are the inferences which the law or the judge draws from a known fact to establish an unknown fact".
Presumptions thus constitute means of proof, with proof having the function of demonstrating the reality of facts.
Thus, one who has a legal presumption in their favor is excused from proving the fact to which it leads.
Nevertheless "legal presumptions may, however, be rebutted by evidence to the contrary, except in cases where the law prohibits it".
Being presumptions of tax incidence, these are always rebuttable.
Thus, one cannot but understand that the expression "being considered as such" used in no. 1 of Article 3 of the Single Vehicle Circulation Tax Code constitutes a legal presumption, which is rebuttable, in accordance with general terms and, in particular, by force of the provision of Article 73 of the General Tax Law.
The presumptions of tax incidence may be rebutted through the adversarial procedure proper provided for in Article 64 of the Code of Tax Procedure and Process or, alternatively, by way of a gracious complaint or judicial challenge of the tax acts based on them.
In the case at hand, the Claimant alleges that it did not use the aforementioned proper procedure, for which reason the present request for arbitral opinion embodies the proper means to rebut the presumption of subjective incidence of the Single Vehicle Circulation Tax which supports the tax assessments whose annulment is the object of the present request.
In this measure, and in order to rebut the presumption arising from registration in the vehicle registration registry, the Claimant presents copies of invoices/receipts of sales of the vehicles to demonstrate that the same were sold and that the respective sale took place on a date prior to that to which the tax refers.
The Claimant further alleges that the Single Vehicle Circulation Tax is a tax with annual periodicity, being that, for this purpose and with reference to motor vehicles, the taxation period corresponds to the year which begins on the date of registration or on each of its anniversaries.
Being that, with the exception of the situations provided for in no. 2 of Article 3 of the Single Vehicle Circulation Tax Code, the person bound to payment of the tax is the person who, on that date, holds the respective ownership.
The Claimant concluding that on the date of exigibility of the tax to which the assessments in question relate, it was not the owner of the vehicles identified therein, as the respective transfers had already previously taken place, in accordance with civil law.
In accordance with the provision of Article 874 of the Civil Code, purchase and sale is defined as "(…) the contract by which the ownership of a thing, or another right, is transferred, by means of a price".
And, in turn, Article 879 of the Civil Code provides that "(…) the purchase and sale has as essential effects: (a) the transfer of ownership of the thing or the ownership of the right; (b) the obligation to deliver the thing; (c) the obligation to pay the price".
On the other hand, and with respect to contracts with real effect, the provision of Article 408 of the Civil Code provides that "(…) the constitution or transfer of real rights over a determined thing takes place by mere effect of the contract, save the exceptions provided for in the law."
The Claimant invokes jurisprudence where the following can be read: "The contract of purchase and sale of a motor vehicle is not subject to any special formality, the transfer of ownership occurring by mere effect of the contract, in accordance with Art. 408, no. 1, 874 and 879 lit. a) of the Civil Code."
It alleges that, in accordance with Article 5 of Decree-Law no. 54/75, of 12 February, the right of ownership of motor vehicles is subject to registration.
In accordance with the provision of Article 1, no. 1 of the aforementioned Decree-Law no. 54/75, "vehicle registration has essentially as its purpose the giving of publicity to the legal situation of motor vehicles and respective trailers, with a view to the security of legal commerce", being silent as to the legal value of motor vehicle property registration.
It thus becomes necessary to resort to the provisions relating to property registration as indicated by Article 29 of that statute.
Thus, and in accordance with the provision of Article 7 of the Property Registration Code, "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."
From the combined reading of both legal provisions, it follows that the essential function of registration is, precisely, to give publicity to the situation of vehicles, that is, to the registered act, the registration not having, in accordance with jurisprudence which it invokes, constitutive effect functioning (only) as a mere rebuttable presumption (presumption juris tantum) of the existence of the right (Arts. 1 no. 1 and 7 of the Property Registration Code 84 and 350 no. 2 of the Civil Code) as well as of the respective ownership, all in accordance with what is contained therein".
As the Property Registration Code does not contain any provision to the effect of considering registration a condition of validity of the contracts subject to it, the Claimant concludes that, to acquire the quality of owner it is sufficient that he appear in the purchase and sale contract as buyer, independent of registration.
For registration does not have constitutive value but only declarative value, the absence of property registration not affecting the quality of owner, nor preventing the full effectiveness of the contracts of purchase and sale of a motor vehicle.
The Claimant further alleges that, in light of no. 1 of Article 5 of the Property Registration Code "the facts subject to registration only produce effect against third parties after the date of the respective registration."
The concept of third party for the purposes of property registration (and concomitantly of motor vehicle property registration), has legal recognition in no. 4 of Article 5 of the Property Registration Code, in accordance with which "third parties, for the purposes of registration, are those who have acquired from a common author rights incompatible with each other".
Bearing in mind the legal and jurisprudential notion of "third party", according to the Claimant, the conclusion is that the Respondent does not meet the requirements of the aforementioned notion of "third party" and cannot, thus, invoke the absence of registration to justify the ineffectiveness of the contracts of purchase and sale of motor vehicles.
In the opinion of the Claimant, the interpretation which best safeguards the unity of the legal system is that no. 1 of Art. 3 of the Single Vehicle Circulation Tax Code establishes a presumption.
Thus, if the buyer (new owner of the vehicle) does not provide for the registration of his property right, it is presumed that this right continues to be that of the seller but this presumption may be rebutted by evidence to the contrary.
For which reason, according to the Claimant, the Respondent cannot prevail itself of the absence of updating of the registration of the property right, to require the payment of the tax to the previous owner in whose name the vehicle is registered if and when, by any means, sufficient proof of the respective sale is presented to it.
From what it alleged, the Claimant draws the following conclusions:
The provision contained in Article 3, no. 1 of the Single Vehicle Circulation Tax Code establishes a presumption which, being a provision on tax incidence, always admits evidence to the contrary;
The purchase and sale contract has a real nature, the real effect, in light of the provision of no. 1 of Article 408 of the Civil Code, being the effect of the contract itself not dependent on any subsequent act, as is the case, namely, of registration;
The essential function of vehicle registration is to give publicity to the legal situation of vehicles not having registration constitutive effect, functioning (only) as a mere rebuttable presumption of the existence of the right, as well as of the respective ownership, all in accordance with what is contained therein. The presumption that the registered right belongs to the person in whose name it is inscribed may be rebutted by the presentation of evidence to the contrary;
The Respondent not meeting the requirements of the notion of "third party" for the purposes of registration cannot prevail itself of the absence of updating of the registration of the property right to put in question the full effectiveness of the purchase and sale contract and to require from the seller (previous owner) the payment of the Single Vehicle Circulation Tax due by the buyer (new owner) provided that the presumption of the respective ownership is rebutted by sufficient proof of the sale.
If, in accordance with a purchase and sale contract which has as its object a motor vehicle, on the date of occurrence of the taxable event, the vehicle has already previously been alienated although the property right of this continues to be registered in the name of its previous owner, for the purposes of the provision of Article 3, no. 1 of the Single Vehicle Circulation Tax Code, the taxpayer of the Single Vehicle Circulation Tax is the new owner, provided that sufficient proof of the sale is presented which rebuts the presumption of the registration.
For which reason, in its understanding, it follows that the Single Vehicle Circulation Tax assessments in question, relating to the taxation periods of 2009, 2010, 2011 and 2012, suffer from a material defect of violation of law, which should result in:
The illegality of these tax assessment acts being declared (and consequently annulled), in the amount of €7,739.91;
Consequently being recognized the right to reimbursement of this amount and, as well as the right to compensatory interest for the payment of tax improperly assessed.

F. – RESPONDENT'S RESPONSE AND ITS GROUNDS

The Respondent, duly notified for this purpose, filed a timely Response, in which, in summary, it alleged the following:

PRELIMINARY MATTERS

In initiating its Response, the Respondent alleges that the request for arbitral opinion is signed by a judicial representative, whose power of attorney attached to the case file is certified by the person himself to whom legal powers were conferred, which contradicts the opinion of the General Council of the Bar Association no. 15/PP/2008-G, of 2008/07/30.
On the other hand, with respect to the vehicles with license plates ...-...-... and ...-...-..., it notes that the ownership of the same is registered in the name of someone other than that of the Claimant since 13/01/2010 and 14/08/2006, respectively, that is, since a date prior to the date of exigibility of the tax in question, for which reason, regarding these, the Respondent will proceed to revoke the alleged "official assessments" in question.

BY WAY OF EXCEPTION

On the lack of subject matter and on the material incompetence of the Arbitral Tribunal.

The Respondent alleges that, by way of its request for arbitral opinion, the Claimant reacted against what it itself calls "official assessments" of the Single Vehicle Circulation Tax.
The Respondent understands that all documents submitted by the Claimant do not constitute any official assessments, as they were not generated and sent by the Respondent to the Claimant, constituting mere collection notes, generated and extracted by the Claimant itself on the Finance Portal through the Internet.
Therefore, that with respect to the motor vehicles sub judice, the Respondent did not generate nor send to the Claimant any official assessments with a view to the Single Vehicle Circulation Tax for the years 2009 to 2012.
It was, according to the Respondent, the Claimant which, without having been notified for this purpose, proceeded to issue the collection notes in question here with respect to each one of the vehicles and for the years 2009 to 2012.
For which reason, the subject matter of the present request for arbitral opinion is not based on "official assessment" acts issued by the Respondent, but rather on collection notes which the Claimant of its own free will extracted from the Finance Portal and in relation to which it proceeded to payment.
The Respondent understands that the assessment and the collection note are two distinct realities.
The assessment constitutes a tax act and, consequently, is subject to challenge by way of filing a request for arbitral opinion.
Differently, the collection note does not constitute a tax act, nor does it even possess a complementary nature in relation to that, configuring a mere act of publicity.
Whence, as the collection note does not constitute a tax act, naturally, a situation of lack of subject matter is verified in the present case, which constitutes a peremptory exception, which it invokes for all legal purposes, in accordance with the provision of Article 577/3 of the Code of Civil Procedure, in the wording given by Law 41/2013, of 26 June, applicable ex vi of Article 29/1 - e) of the RJAT, which gives rise to the absolution of the Respondent from the claim, in accordance with the terms and for the purposes provided for in Article 576/3 of the Code of Civil Procedure.
The Respondent concludes that the Singular Arbitral Tribunal constituted is materially incompetent to appraise and decide on the claim that is the subject matter of the dispute sub judice, bearing in mind the non-existence of official tax assessment acts for the Single Vehicle Circulation Tax issued by the Respondent, which embodies a dilatory exception preventing the determination of the merits of the case, in accordance with the provision of Article 576, nos. 1 and 2 of the Code of Civil Procedure, ex vi Article 2 lit. e) of the Tax Procedure and Process Code and of Article 29/1 – a) and e) of the RJAT.

On the Pretermission of Prior Gracious Complaint

The Respondent understands that, even if it is not thus judged, and if it is instead understood that, in reality, one is dealing with self-assessments generated by the Claimant itself on the Finance Portal and, configuring the self-assessments as tax acts, in light of the aforementioned Article 2/1 – a) of the RJAT, the request for arbitral opinion would constitute one of the possible means of challenge on the part of the Claimant, which depends on prior and necessary filing of a Gracious Complaint within the period of 2 years from the presentation of the declaration, as established by Article 131/1 of the Tax Procedure and Process Code.
Given that, if the Claimant did not present any Gracious Complaint regarding the self-assessment acts sub judice, also by this route are such acts not susceptible of being challenged.

BY WAY OF CHALLENGE ON THE MERITS

It challenges the alleged illegitimacy of the Claimant as taxpayer of the Single Vehicle Circulation Tax in the situations in question, on the grounds that, in its understanding:
The Claimant makes a biased reading of the letter of the law, given that the legislator expressly and intentionally established that the taxpayers of the Single Vehicle Circulation Tax are the owners, or those in the situations indicated in no. 2 of Art. 3 of the Single Vehicle Circulation Tax Code, considering them as such the persons in whose name the vehicles are registered, which is the reason the expression "presumed" was not used in this legal provision, but rather "is considered".
The tax provision is replete with provisions analogous to that established in the final part of no. 1 of Article 3, in which the tax legislator, within its freedom of legislative discretion, expressly and intentionally, establishes what should be considered legally, for the purposes of incidence, of income, of exemption, of determination and of periodization of taxable profit, for the purposes of residence, of location, among many others, as for example, in Articles 2 of the Code of Municipal Tax on Onerous Transfers of Real Property (CIMT), 2, 3 and 4 of the Code of Income Tax for Individual Persons (CIRS) and 4, 17, 18 and 20 of the Code of Income Tax for Legal Persons (CIRC).
It concludes, affirming that the interpretation made by the Claimant that the legislator established in Art. 3, no. 1 a presumption is an interpretation against law.
It also adds that it is not through the challenge of the Single Vehicle Circulation Tax assessments that the registration presumption is rebutted.
It further alleges that such interpretation does not take into account the systematic element, violating the unity of the regime which imposes the mandatory nature of vehicle registration, so as to prevent the Tax Authority from falling into absolute uncertainty regarding the taxpayer of the Single Vehicle Circulation Tax, thereby even putting at risk the running of the period of expiration, which is why the legislator wanted intentionally and expressly that they be considered as owners, lessees, buyers with reservation of ownership or holders of the right to purchase option in long-term leasing, for the mentioned tax purposes, the persons in whose name the vehicles are registered.
In the understanding of the Respondent, the mentioned interpretation of the Claimant ignores the teleological element of the interpretation of the law: the ratio of the regime established not only in the legal provision in question, but also throughout the Single Vehicle Circulation Tax Code.
The Respondent considers that the Single Vehicle Circulation Tax Code undertook a reform of the regime of taxation of vehicles in Portugal, substantially altering the regime of motor vehicle taxation, with the taxpayers of the tax becoming the owners appearing in the property registration, independent of the circulation of the vehicles on the public highway. That is, the Single Vehicle Circulation Tax came to be due by the persons who appear in the registration as owners of the vehicles.
Such conclusion follows from the content of the parliamentary debates surrounding the approval of Decree-Law no. 20/2008, of 31 January, of Recommendation no. 6-B/2012 of the Ombudsman and of the spirit of the Single Vehicle Circulation Tax Code which, having been motivated, in essence, by environmental concern its "ratio" is to tax the users of vehicles, which by force of their respective use cause an environmental cost.
It further alleges that the interpretation conveyed by the Claimant shows itself to be contrary to the Constitution, in that it violates the principle of trust and legal security, the principle of efficiency of the tax system and the principle of proportionality.
The Respondent understands that the interpretation proposed by the Claimant, an interpretation which in substance devalues the registration reality in detriment of an "informal reality" and not susceptible of minimal control on the part of the Respondent, is offensive to the basic principle of trust and legal security that should inform any legal relationship, here including the tax relationship.
In parallel, the interpretation given by the Claimant is offensive to the principle of efficiency of the tax system, in that it results in an obstruction and increase in the costs of the competencies attributed to the Respondent, with obvious prejudice to the interests of the Portuguese State, of which both the Claimant and the Respondent are part.
Constituting an understanding which is at the antipodes of that principle and of the very reform of motor vehicle taxation, in that by intending to disregard the registration reality, a reality which constitutes the cornerstone on which the entire edifice of the Single Vehicle Circulation Tax rests, it generates for the Respondent, and ultimately for the Portuguese State, additional administrative costs, obstruction of the performance of its services, absence of control of the tax and uselessness of the registration information systems.
Finally, the argumentation conveyed by the Claimant represents a violation of the principle of proportionality, in that it completely disregards it in confrontation with the principle of ability to pay, when in reality the Claimant has the necessary and adequate legal mechanisms for safeguarding that its ability to pay (e.g., vehicle registration), without having, however, exercised them in due time.
It further adds that the Claimant would have to furnish adequate proof of the constitutive facts of the right it alleges in arbitral proceedings, which, according to the Respondent, does not occur, in that the proof presented by the Claimant is not by itself sufficient to effectuate conclusive proof of the transfer of the vehicles in question.
Indeed, it presents 30 copies of sales invoices, which, in the view of the Respondent, do not constitute adequate documentation to prove the sale of the vehicles in question, since the same are nothing more than a document unilaterally issued by the Claimant.
According to the Respondent, invoices are not apt to prove the conclusion of a synallagmatic contract as is purchase and sale, for that document does not reveal by itself an essential and unequivocal statement of intent (i.e., acceptance) on the part of the alleged buyer, particularly in this proceeding in which the Claimant did not attach documentary evidence of the means of payment of the price, or the receipts of payment of the debt.
There are not lacking cases of issuance of invoices relating to transfer of goods and/or provision of services that never came to be realized.
According to the Respondent, an invoice unilaterally issued by the Claimant cannot replace the Motor Vehicle Registration Request, which is a document approved by official form, when the Claimant acknowledges the necessity of a purchase and sale contract as the appropriate means to rebut the registration presumption.
The Respondent understands that an alleged invoice does not constitute a purchase and sale contract and that the Claimant did not prove the transfer of ownership of the vehicles sub judice.
With respect to the vehicle with license plate ...-...-... it adds that the Claimant did not attach any supposed element of proof.
Thus, the Respondent concludes that the tax acts in question do not suffer from the alleged error regarding the factual assumptions, in that in light of the provision of Article 3, no. 1 of the Single Vehicle Circulation Tax Code and of Article 6 of the same code, it was the Claimant, in the capacity of owner, the taxpayer of the Single Vehicle Circulation Tax, since the Single Vehicle Circulation Tax aims to tax the owner of the motor vehicle, and ownership is revealed through its registration.
For which reason the Claimant is responsible for the costs of the arbitration in relation to the present request for arbitral opinion, given that the failure to provide the data inevitably gave rise to the issuance of the assessments sub judice.
In truth, according to the Respondent, if the Single Vehicle Circulation Tax is assessed in accordance with the registration information timely transmitted by the Institute of Registrations and Notaries, and not in accordance with information generated by the Respondent itself, and if the Claimant did not timely proceed to its updating in the Motor Vehicle Register, the Respondent is not responsible for that payment, for the transfer of ownership is not controlled by the Respondent.
The same reasoning applies with respect to the request for condemnation to payment of compensatory interest, as the legal prerequisites conferring the right to be requested do not exist.
In light of Articles 43 of the General Tax Law and 61 of the Tax Procedure and Process Code, the right to compensatory interest depends on the occurrence of the following prerequisites: the tax having been paid, its respective assessment having been annulled, in whole or in part, in a gracious or judicial proceeding, determination, in a gracious or judicial proceeding, that the annulment is based on error attributable to the services, which would not occur in the present case, since the tax acts in question are valid and lawful, because in accordance with the legal regime in force at the date of the tax facts, for which reason no error attributable to the services occurred.
The Respondent concludes, requesting that the exceptions be judged to be partially successful, being proven, the peremptory exception of lack of subject matter and the dilatory exceptions of incompetence of the Singular Arbitral Tribunal and of pretermission of the necessary Gracious Complaint and, should it be otherwise understood, the present request for arbitral opinion should be judged to be partially unsuccessful, with the tax assessment acts impugned remaining in the legal order and absolution of the entity Respondent being rendered in conformity.

CLAIMANT'S RESPONSE TO THE EXCEPTIONS

In the response to the exceptions raised by the Respondent, the Claimant alleges the following:

The Claimant was confronted in its private area of the Finance Portal with a series of Single Vehicle Circulation Tax debts, documented in what the Tax Authority calls collection notes (collection documents).
For the purposes of its tax situation, the Single Vehicle Circulation Tax debts documented by the aforementioned collection notes were already subject to payment, and were paid by the Claimant as evidenced in the documentation attached to the request for constitution of the Arbitral Tribunal.
According to its statement, it was a priority for the Claimant to proceed to payment of those Single Vehicle Circulation Tax debts appearing in the system, since the harm resulting from the impossibility of obtaining, for the most varied purposes of its commercial activity, a negative certificate of debts (certificate of regularized contributory status) far exceeded the harm of the concrete tax assessments, presupposed in those debts and that are logically prior to them.
The Claimant alleges that it was unaware of the Single Vehicle Circulation Tax debt situations in the Tax Authority information system in a state which permitted and did permit their payment.
The Single Vehicle Circulation Tax debts appearing in the Tax Authority information system (in the area of access reserved to the Claimant) are an undeniable fact of the creation of the Tax Authority, the possibility of their payment is also an undeniable fact of the responsibility of the Tax Authority, and the quantification of their very concrete amounts, year and vehicle identification of the tax, is also of the entire responsibility of the Tax Authority and its respective information system.
These Single Vehicle Circulation Tax debts necessarily presuppose a series of Single Vehicle Circulation Tax assessments, being irrelevant to the case the manner by which the Claimant became aware of them.
The fact is that it became aware of the Single Vehicle Circulation Tax debts and that it reacted against them via a request for constitution of an Arbitral Tribunal.

G. – MATTERS TO BE DECIDED

Given the positions assumed by the Parties in accordance with the arguments presented, the following are the matters that fall to be appreciated and decided:

1 – Exceptions raised by the Respondent of lack of subject matter and incompetence of the Arbitral Tribunal.

2 – On the merits:

2.1 - Interpretation of no. 1 of Art. 3 Single Vehicle Circulation Tax Code, so as to be determined whether the provision on subjective incidence inscribed therein establishes, or does not establish, a legal presumption of tax incidence, susceptible of rebuttal, that is, admits, or does not admit, that the taxpayer, in whose name the vehicle is found registered at the Motor Vehicle Registration Office, may demonstrate, through means of proof permitted in law, that he is not, in the period to which the tax applies, its owner, thus removing the presumption of subjective taxpayer of the tax that rests upon him.

2.2 – Compensatory interest – Existence, or not, of the right to compensatory interest, under Art. 43 of the General Tax Law, in the event that the assessments are annulled and reimbursement of the amount requested is determined, which would have been improperly paid.

3 – Responsibility for payment of arbitral costs.

H. – PROCEDURAL PREREQUISITES

The Arbitral Tribunal is regularly constituted and is materially competent, in accordance with the provision in lit. a), of no. 1, of Art. 2 of the RJAT (Decree-Law no. 10/2011, of 20 January).

The Parties possess legal personality and capacity, are legitimate and are regularly represented (see in this Decision the beginning of J. – MATTERS OF LAW), in accordance with Articles 4 and 10, no. 2 of the RJAT and Art. 1 of Ordinance no. 112/2011, of 22 March.

Given the identity of the taxed fact, of the tribunal competent for the decision and of the factual and legal grounds invoked, the Tribunal admits the joinder of the requests for declaration of illegality of the tax acts that are the subject matter of this proceeding, once the requirements established in Art. 3, no. 1 of the RJAT have been met.

The proceeding does not suffer from defects that affect its validity.

I. – FACTUAL MATTERS

I.1 – ESTABLISHED FACTS

With relevance for the appraisal of the matters raised, the Tribunal finds as established the following facts:

1 – The Claimant A..., SA., also identified as "B...", is a financial institution whose corporate purpose is the conduct of operations permitted to banks, with the exception of the receipt of deposits, having for this purpose all legally required authorizations.

2 – In the course of its activity, the Claimant enters into contracts with its customers for Long-Term Vehicle Leasing and Financial Leasing Contracts for motor vehicles, at the end of which it transfers ownership of the same to the respective lessees or to third parties.

3 – Between 10 December 2013 and 20 December 2013, the Claimant verified, in its reserved access area of the Finance Portal, the existence of the Single Vehicle Circulation Tax debts set out in the case file, relating to the vehicles identified in the Request for Arbitral Opinion and to the taxation periods of 2009, 2010, 2011 and 2012.

4 – The Claimant proceeded to voluntary payment of the aforementioned Single Vehicle Circulation Tax.

5 – The Claimant was not owner of the vehicles sub judice on the dates of occurrence of the taxable events of the tax in question, although the ownership of all of them was registered in the name of the Claimant, with the exception of the vehicles with license plates ...-...-... and ...-...-..., in which ownership was registered in the name of another.

6 – The Respondent, in the course of this proceeding, determined the revocation of the Tax Authority documentation of the exigibility of the Single Vehicle Circulation Tax with respect to the vehicles with license plates ...-...-... and ...-...-...

7 – On 12 February 2014, the Claimant presented the Request for Arbitral Opinion, which gave rise to the present case.

I.2 – SUBSTANTIATION OF ESTABLISHED FACTS

The facts found as established are based on the documents indicated with respect to each of them, and on the factual elements brought into the proceeding by the Parties, insofar as their correspondence to reality was not questioned.

With respect to the invoices and sale documents relating to the vehicles, which were subsequently attached to the proceeding, the Tribunal decided that the same constitute a means of proof with sufficient strength to evidence the transfer of their ownership, by virtue of their enjoyment of the presumption of veracity established in Art. 75, no. 1 of the General Tax Law, and on the basis of the remaining grounds which are better set out in the Decision.

I.3 – UNESTABLISHED FACTS

There are no unestablished facts with relevance for the appraisal of the matters to be decided.

J. – MATTERS OF LAW

With the factual matters fixed, the following proceeds to their legal subsumption and to the determination of the Law to be applied, taking into account the matters to be decided that were enumerated.

First and foremost and regarding the preliminary matters raised by the Respondent it must be said the following:

The irregularity of the power of attorney, which the Claimant initially attached to the case file, which was certified by the representative himself, was remedied through the attachment of a new power of attorney certified by a third party.

The Tribunal, given the acknowledgment by the Respondent that the ownership of the vehicles with license plates ...-...-... and ...-...-... was registered in the name of someone other than that of the Claimant, on a date prior to that of the exigibility of the tax in question and given its declared intention to proceed to revocation of what it calls the "alleged official assessments" and in the face of silence from the Respondent, found such facts as established, ceasing to consider in the present decision the Single Vehicle Circulation Tax relating to the aforementioned vehicles.

The matter to be decided next concerns the exceptions raised by the Respondent of lack of subject matter and incompetence of the Arbitral Tribunal.

Only, if the same are judged to be unsuccessful, shall the claim regarding the illegality and consequent annulment of the tax assessment acts relating to Single Vehicle Circulation Tax, relating to the vehicles whose license plates are identified in the case file, with the exception of the aforementioned ...-...-... and ...-...-..., and regarding the recognition of the right to restitution of the tax, as well as any eventual right to compensatory interest be appreciated.

Let us therefore analyze the matter relating to the exceptions raised by the Respondent of lack of subject matter and incompetence of the arbitral tribunal.

As was proven, the Claimant between 10 December 2013 and 20 December 2013, verified in its reserved access area of the Finance Portal, the existence of the Single Vehicle Circulation Tax debts set out in the case file, relating to the vehicles identified in the Request for Arbitral Opinion and to the taxation periods of 2009, 2010, 2011 and 2012, having proceeded to voluntary payment of the aforementioned Single Vehicle Circulation Tax.

There is thus verified that we are dealing with self-assessment acts, since the assessment of the tax was effectuated by the Claimant, taking into account the collection notes which the Respondent's information system presented to it in its private area.

The Claimant errs in titling such acts as official assessments, when in truth, and as the Respondent correctly says, the same do not have that legal nature, constituting instead self-assessments of taxes, as follows from the case file.

However, for the present case, the qualification of the aforementioned acts becomes irrelevant, since the determination of the same falls within the material competence of this Arbitral Tribunal, in accordance with no. 1, lit. a) of the RJAT, which provides that the competence of arbitral tribunals comprehends the appraisal of claims seeking the declaration of illegality not only of tax assessment acts, but also of self-assessment acts, among others.

Arrived at this point, the matter raised by the Respondent of the need for prior filing of a gracious complaint is posed, as a condition for the challenge that was filed.

In fact, Article 131, no. 1 of the Tax Procedure and Process Code provides, as transcribed:

"Article 131
Challenge in case of self-assessment

1 – In case of error in self-assessment, the challenge shall necessarily be preceded by a gracious complaint filed with the director of the regional peripheral body of the tax administration, within the period of 2 years from the presentation of the declaration.
…………………………………………………………………………………………………………………………………"

It thus follows from the provision transcribed that the rule is that of the necessity of prior gracious complaint to challenge.

However, there must be taken into account the provision of no. 3 of the aforementioned Article 131 of the Tax Procedure and Process Code, which is also transcribed:

"Article 131
Challenge in case of self-assessment

"……………………………………………………………………………………………………………………………..

3 – Without prejudice to the provisions of the preceding paragraphs, when its ground is exclusively a matter of law and the self-assessment was effected in accordance with generic guidelines issued by the tax administration, the period for challenge does not depend on prior complaint, with the challenge to be presented within the period of no. 1 of Article 102."

Now, from the analysis of the situation in question, it is clear that the self-assessments generated by the Claimant necessarily presuppose assessments effected by the Tax Administration, which are expressed in the aforementioned collection notes placed by the Respondent on the Finance Portal, in the private area of the Claimant.

Thus, the assessments were effected by electronic means, it being forbidden to the Claimant to alter the elements contained in the collection notes, in which appear the elements relating to payment and the demonstration of the respective assessment (Art. 16, no. 4 of the Single Vehicle Circulation Tax Code).

Now, the Claimant effected payment of the amounts relating to the Single Vehicle Circulation Tax, which appeared on the Finance Portal to be in debt, and filed the present challenge based on a disagreement with the Respondent regarding the interpretation of no. 1 of Art. 3 of the Single Vehicle Circulation Tax Code, at the point in which it establishes, or does not establish, a legal presumption of tax incidence, susceptible to rebuttal.

Thus, in light of no. 3 of Article 131 of the Tax Procedure and Process Code, the Tribunal understands that, in the case of the case file, in which there were self-assessment acts, with the nature which was stated, being, as it is, the ground of challenge exclusively a matter of law and these acts having been effected in accordance with generic guidelines issued by the Tax Administration, prior gracious complaint is not obligatory.

The exceptions raised by the Respondent thus lack foundation, since there is no lack of subject matter, once the subject matter consists of the self-assessment acts which were established in the case file, the same being subject to determination by this Arbitral Tribunal, in accordance with no. 1, lit. a), of Art. 2 of the RJAT, independent of prior filing of a gracious complaint.

Let us thus proceed to the analysis of the matter of merit to be decided.

The Claimant alleges that it was not owner of the vehicles which it identifies on the date when the tax facts occurred which originated the Single Vehicle Circulation Tax assessments, and consequently was not the taxpayer of the tax which was assessed to it.

The Respondent Tax Authority assumes an opposite position regarding this matter of subjective incidence of the Single Vehicle Circulation Tax, defending that, in accordance with Art. 3, no. 1 of the Single Vehicle Circulation Tax Code, the taxpayer of the Single Vehicle Circulation Tax is the person in whose name the vehicle is found registered at the Motor Vehicle Registration Office, a fact which occurred with the Claimant in the period in question.

Art. 3, no. 1 of the Single Vehicle Circulation Tax Code provides with respect to this contested matter the following:

"Art. 3 - Subjective Incidence

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

----------------------------------------------------------------------------------------------------------"

From the positions assumed by the Parties in the present proceeding, it is clear that in essence this matter reduces to knowing whether the provision on subjective incidence transcribed above, contained in no. 1 of Art. 3 of the Single Vehicle Circulation Tax Code, establishes a legal presumption, susceptible to rebuttal, as the Claimant contends or, expressly and intentionally, considers the persons in whose name the vehicles are registered as owners for the purpose of the subjective incidence of the Single Vehicle Circulation Tax, as the Respondent understands.

The positions arrogated by the Claimant and the Respondent with respect to this matter and their substantiation are exposed in summary, or with partial transcription, in E. and F. of the Report of this Decision.

It thus falls to decide:

A preliminary point to be appreciated is the matter of the legal value of vehicle registration.

No. 1 of Art. 1 of Decree-Law no. 54/75, of 12 February, which regulates vehicle registration, provides that vehicle registration "has essentially as its purpose the giving of publicity to the legal situation of vehicles… with a view to the security of legal commerce".

For its part, Article 7 of the Property Registration Code, applicable to vehicle registration by force of the provision of Article 29 of the aforementioned Decree-Law no. 54/75, establishes 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".

It is thus verified that definitive registration is only a presumption of the existence of the right, which admits evidence to the contrary, constituting, therefore, a rebuttable presumption, as, moreover, has been recognized in jurisprudence.

Given that there exists in this Code no provision requiring registration as a condition of validity of the contracts, it is concluded that, to acquire the quality of owner of a vehicle, it suffices to appear as buyer in a purchase and sale contract.

With respect to the content of the provision in question – Art. 3, no. 1 of the Single Vehicle Circulation Tax Code -, it must be said that, as is unanimously recognized and as is established in Art. 11 of the General Tax Law, tax laws must be interpreted in accordance with the general principles of interpretation, thus standing out, for this purpose, the fundamental provision of interpretation which is Art. 9 of the Civil Code, which provides the rules and elements for the interpretation of provisions.

This means that the traditional instruments of legal hermeneutics should be used, with a view to determining the thinking of the legislator, in accordance with the provision of Art. 9 of the Civil Code.

In this conformity, let us begin the interpretation of Art. 3, no. 1 of the Single Vehicle Circulation Tax Code, by the literal element, that in which one seeks to detect the thinking of the legislator which is objectified in the provision, in order to verify whether the same contemplates a presumption, or whether it determines, in definitive, that the taxpayer of the tax is the owner who appears in the registration.

The question posed is whether the expression "being considered" used by the legislator in the Single Vehicle Circulation Tax Code, instead of the expression "presumed" (presumem-se), which was what appeared in the instruments preceding the Single Vehicle Circulation Tax Code, shall have removed the nature of presumption from the legal provision in question.

In our view, the response must necessarily be negative, since from the analysis of our legal system it is extracted in a clear manner that the two expressions have been used by the legislator with an equivalent sense, whether at the level of rebuttable presumptions, whether in the context of irrebuttable presumptions, for which reason nothing authorizes the extraction of the conclusion intended by the Tax Authority for a mere semantic reason.

In fact, this happens in varied legal provisions establishing presumptions using the verb consider, of which the following are indicated, merely by way of example:

In the field of civil law - no. 3 of Art. 243 of the Civil Code, when it establishes that "is always considered in bad faith the third party who acquired the right subsequent to the registration of the action of simulation, when such should take place";

also in the field of industrial property law the same occurs, when Art. 59, no. 1 of the Industrial Property Code provides that "Inventions whose patent has been requested during the year following the date on which the inventor left the company, are considered made during the execution of the employment contract";

and, also, in the field of tax law, when nos. 3 and 4 of Art. 89-A of the General Tax Law provide that it is incumbent upon the taxpayer the burden of proof that the declared income corresponds to reality and that, such proof not being made, it is presumed ("is considered" in the letter of the Law) that the income is that which results from the table which appears in no. 4 of the aforementioned article;

This conclusion of there being total equivalence of meanings between the two expressions, which the legislator uses indifferently, satisfies the condition established in Art. 9, no. 2 of the Civil Code, once there is assured the minimum of verbal correspondence for the purposes of determining the thinking of the legislator.

It becomes important, next, to subject the provision in question to the remaining elements of logical interpretation, namely, the historical element, the rational or teleological element and that of a systematic order.

Through analysis of the historical element, one extracts the conclusion that, since the entry into force of Decree-Law 59/72, of 30 December, the first to regulate this matter, until Decree-Law no. 116/94, of 3 May, the last preceding the Single Vehicle Circulation Tax Code, there was established the presumption that the taxpayers of the Single Vehicle Circulation Tax are the persons in whose name the vehicles are registered on the date of their assessment.

It is thus verified that tax law has, since always, had the objective of taxing the true and actual owner and user of the vehicle, it appearing indifferent the use of one or the other expression which, as we have seen, have in our legal order a coincident sense.

The same is to be said when we resort to elements of interpretation of a rational or teleological nature.

In fact, the current and new framework of motor vehicle taxation establishes principles which aim to subject the owners of vehicles to bearing the prejudices from damages from road and environmental damage caused by these, as is reached from the content of Art. 1 of the Single Vehicle Circulation Tax Code.

Now the consideration of these principles, namely, the principle of equivalence, which deserve constitutional protection and recognition in community law, and are also recognized in other branches of the legal order, determines that the aforementioned costs be borne by the actual owners, the causers of the aforementioned damage, which excludes, entirely, an interpretation aimed at preventing the presumptive owners from making proof that they are no longer so because the ownership is in the legal sphere of another.

This interpretation has its basis in the provision of no. 1 of Art. 9 of the Civil Code, which provides that the search for the thinking of the legislator should have especially into account "the unity of the legal system and the circumstances in which the law was elaborated and the specific conditions of the time in which it is applied".

Thus, also, from the interpretation effected in light of elements of a rational and teleological nature, attendant to that which the rationality of the system guarantees and the aims sought by the new Single Vehicle Circulation Tax Code, it is clear that no. 1 of Art. 3 of the Single Vehicle Circulation Tax Code establishes a rebuttable legal presumption.

In face of the foregoing, it becomes important to conclude that the ratio legis of the tax points in the direction that the actual owner-users of the vehicles are to be taxed for which reason the expression "being considered" is used in the provision in question in a sense similar to "presumed", for which reason there are no doubts that there is established a legal presumption.

Now, Article 73 of the General Tax Law provides that "The presumptions established in the provisions on tax incidence always admit evidence to the contrary, for which reason they are rebuttable".

Thus, establishing Art. 3, no. 1 of the Single Vehicle Circulation Tax Code a presumption juris tantum, therefore rebuttable, the person who is inscribed in the registration as owner of the vehicle and who, for that reason was considered by the Tax Authority as the taxpayer of the tax, may present elements of proof aimed at demonstrating that the holder of ownership is another person, to whom ownership was transferred.

Analyzed the elements brought into the proceeding by the Claimant, one extracts the conclusion that the Claimant was not owner of the vehicles to which the assessments in question relate, by having, in the meantime, already transferred the ownership of the same, in accordance with civil law.

This transfer of ownership is opposable to the Respondent Tax Authority, for although the facts subject to registration only produce effects against third parties when registered, given the provision of Art. 5, no. 1 of the Property Registration Code, the Tax Authority is not a third party for the purposes of registration, once it is not in the situation provided for in no. 2 of the aforementioned Art. 5 of the Property Registration Code, that is, it has not acquired from a common author rights incompatible with each other.

Regarding the matter raised by the Respondent on the adequacy of the probative value of the invoices, which the Respondent puts into question in general terms, the Tribunal has no doubts in accepting them as a means of proof of the transfer of ownership of the vehicles, particularly when accompanied by sale documents, subsequently attached by the Claimant, for the following reasons:

In the situation of the case file, we are dealing with a purchase and sale contract of movable things, which, by application of the provision of Art. 219 of the Civil Code, is not subject to any special formalism.

Although it is acknowledged that the documentation of these contracts, by virtue of their having as their object motor vehicles, in which registration is mandatory, benefits from the issuance of a sales declaration, which is necessary for inscription in the registration, this does not prevent the contract from being proven in another manner, for this declaration does not constitute the sole and exclusive means of proof of the sale.

For the present case, there is of special importance the fact that, once the Claimant has an entrepreneurial nature, the invoices, which were attached to the case file by the Claimant, are subject to rigorous rules of an accounting and tax nature, with implications, also, in the collection of other taxes.

In truth, tax legislation attributes to them a very special relevance, which cannot but confer upon them probative credibility, and which is well expressed in the provision of the following legal norms which, by way of example, are cited: Arts. 29, no. 1, lit. b) and 19, no. 2 of the Value Added Tax Code and Arts. 23, no. 6 and 123, no. 2 of the Income Tax Code for Legal Persons.

Now, provided that such invoices have been issued in accordance with commercial and tax legislation, a matter which the Respondent does not raise, and what does not put in question, the same enjoy the presumption of veracity, which is attributed to them by Art. 75, no. 1 of the General Tax Law.

It would have been incumbent upon the Respondent to present and demonstrate concrete and founded indications that the operations titled by the aforementioned invoices did not correspond to reality, given the provision of no. 2 of Art. 75 of the General Tax Law, which did not occur.

In this conformity, bearing in mind the very special relevance which tax legislation attributes to invoices in the situation in question and that they enjoy the presumption of veracity, which is conferred upon them by the provision of Art. 75, no. 1 of the General Tax Law, and also to the sales documents attached to the case file, we conclude that they constitute means of proof sufficient to rebut the presumption which flows from Art. 3, no. 1 of the Single Vehicle Circulation Tax Code, once they prove that the Claimant was not owner of the vehicles at the time to which the assessment of the Single Vehicle Circulation Tax relates.

For which reason the aforementioned assessments must be annulled and, consequently restituted to the Claimant by the Tax Authority the tax which was improperly charged to it.

With respect to compensatory interest, this matter is regulated in Art. 24 of the RJAT, which expressly determines in its no. 1, lit. b) that the arbitral decision obliges the tax administration, in the cases there provided for, to "Restore the situation which would exist if the tax act which is the subject of the arbitral decision had not been practiced, adopting the acts and operations necessary for that purpose", and further provides, in its no. 5, that "Payment of interest is due, independent of its nature in accordance with the terms provided for in the general tax law and in the Tax Procedure and Process Code".

Also Article 100 of the General Tax Law, whose application is authorized by the provision of Art. 29, no. 1, lit. a) of the RJAT, provides in an identical manner, to the effect of the immediate restoration of legality, this comprehending the payment of compensatory interest, if it is a case thereof.

For its part, Article 43, no. 1 of the General Tax Law conditions the right to compensatory interest to the cases in which "there was error attributable to the services from which resulted payment of tax debt in amount greater than that legally due".

In this conformity, the matter which is posed is that of knowing whether, given the circumstances demonstrated and the content of the provision of Art. 3, no. 1 of the Single Vehicle Circulation Tax Code, one may consider there to have been, or not, an error attributable to the services in the situation in question.

Analyzed the situation, it is verified that the Tax Authority in assessing the Single Vehicle Circulation Tax in the manner in which it did, gave fulfillment to the dictate of law of a general nature established in the aforementioned provision, at the point in which the taxpayer of the tax is the owner of the vehicle, attributing this quality of owner, for the aforementioned purposes, to the taxpayer in whose name the vehicle is found registered at the Motor Vehicle Registration Office, without necessity of effecting any proof.

It is only after the recognition by this arbitral tribunal that the provision in question has the nature of a presumption juris tantum, that the Claimant is in conditions to rebut the aforementioned presumption, which it came to do and to prove, ceasing from now on to be the taxpayer of the aforementioned tax, for which reason one concludes by the non-existence of error attributable to the services.

With respect to responsibility for payment of arbitral costs, the Respondent alleges that it is not responsible for its payment, by having proceeded to assessments of the tax with the elements of which it had disposed, being unable to be made responsible for what it calls the "lack of diligence" of the Claimant.

This argument cannot be considered, for the law is peremptory in the imputation of responsibility for the payment of costs to the party which is condemned, given the provision of nos. 1 and 2 of Art. 527 of the Code of Civil Procedure, applicable by force of Art. 29, no. 1, lit. e) of the RJAT.

Thus, responsibility for payment of arbitral costs is that of the Respondent.

L. – DECISION

In light of the foregoing, the present Arbitral Tribunal decides:

To judge the exceptions raised by the Respondent to be unsuccessful.

To judge successful, on the ground of a defect of violation of law, the claim for declaration of illegality of the assessment for Single Vehicle Circulation Tax with respect to all vehicles whose license plates are identified in the case file, relating to the years referred to therein, with the exception of the vehicles with license plates ...-...-... and ...-...-..., and in consequence

To annul the corresponding tax assessment acts, not yet revoked by the Respondent.

And to recognize the right to reimbursement of the amount to which they relate.

To judge unsuccessful the claim for recognition of the right to compensatory interest in favor of the Claimant.

To condemn the Respondent to pay the costs of the present proceeding (Art. 527, nos. 1 and 2 of the Code of Civil Procedure, ex vi Art. 29, no. 1, lit. e) of the RJAT).

Value of the case: In conformity with the provision of Articles 306, no. 2 of the Code of Civil Procedure (former 315, no. 2) and 97-A, no. 1 of the Tax Procedure and Process Code and in Article 3, no. 2 of the Regulation of Costs in Tax Arbitration Proceedings, the case is valued at 7,739.91 euros.

Costs: In accordance with no. 4 of Art. 22 of the RJAT, the amount of costs is set at 612.00 euros, in accordance with Table I attached to the Regulation of Costs in Tax Arbitration Proceedings.

Notify.

Lisbon, 12 March 2018

The Arbitrator

José Nunes Barata

(Written according to traditional orthography)

Arbitral Decision replaced by the decision of 12 March 2018.

ARBITRAL DECISION

I – REPORT

A. – PARTIES

A..., SA., hereinafter referred to as Claimant, legal entity no. ..., with registered office at Rua... Lisbon, filed a request on 24 February 2014 for the constitution of a singular tax arbitral tribunal, pursuant to the provisions of Art. 2, no. 1, lit. a) of Decree-Law no. 10/2011, of 20 January (Legal Regime of Tax Arbitration - RJAT) and Arts. 1, lit. a) and 2 of Ordinance no. 112-A/2011, of 22 March, with the purpose of resolving the dispute opposing it to the Tax and Customs Authority, which shall hereinafter be referred to as Respondent.

B. – CONSTITUTION OF THE TRIBUNAL

The request for constitution of the Arbitral Tribunal was accepted by the President of CAAD on 26/02/2014 and automatically notified to the Claimant and to the Tax and Customs Authority on 27/02/2014, with the President of the respective Deontological Council designating the undersigned as arbitrator of the Singular Arbitral Tribunal, pursuant to Art. 6, no. 1, of the RJAT, which appointment was accepted in accordance with the legally established terms.
On 11/04/2014, the Parties were notified of such designation, in accordance with the combined provisions of Art. 11, no. 1, lit. b) of the RJAT, in Articles 6 and 7 of the Deontological Code, and neither party expressed any intention to refuse the arbitrator's designation.
Under these circumstances, the Tribunal was constituted on 30/04/2014, in accordance with the provision in lit. c), of no. 1, of Art. 11 of Decree-Law no. 10/2011, which was notified to the Parties on that date.

C. – CLAIM

Determine the restitution of the tax that was paid by the Claimant, plus compensatory interest, at the legal rate, calculated from the date of respective payment until full reimbursement.

D. – PROCEEDINGS

Following the communication of the date of constitution of the Arbitral Tribunal on 30/04/2014, the subsequent procedural steps took place in the following manner:

On 02/05/2014 – The Respondent was notified to, pursuant to nos. 1 and 2 of Art. 17 of the RJAT, file its response within thirty days and, if so desired, request the production of additional evidence and remit to the Arbitral Tribunal a copy of the administrative file, by electronic means.
On 27/05/2014 – The Respondent filed its Response to the Request for Arbitral Opinion, remitted the appointment order of the legal representatives of the Respondent and inserted the administrative file in the CAAD online "Platform", with the Claimant being notified of everything.
On 02/06/2014 – The Claimant requested the attachment to the case file of a copy of a power of attorney certified by a third party, in order to remedy the irregularity of the certification of the original power of attorney, which request the Tribunal admitted on 05/06/2014, having ordered its notification to the Respondent.
On 03/06/2014 – The Claimant filed a response to the exception raised by the Respondent, which was admitted on 08/06/2014, and notified to the Respondent.
On 04/06/2014 – The Tribunal scheduled 23/06/2014 for the meeting provided for in Art. 18 of the RJAT.
On 06/06/2014 – The Respondent filed a request that at the meeting provided for in Art. 18 of the RJAT, scheduled for 23/06/2014, the Parties not be heard regarding the matter of exceptions, in consequence of the Claimant having already made written submissions, which was admitted by the Tribunal on 08/06/2014 and notified to the Claimant, the date of the meeting provided for in Art. 18 of the RJAT being also confirmed for 23/06/2014.
On 23/06/2014 – The meeting provided for in Art. 18 of the RJAT was held, which resulted in the following:
The Tribunal granted the Respondent's request of 12/06/2014, and consequently remedied the irregularity of the power of attorney of the Claimant's representative, by attaching to the case file a new power of attorney certified by a third party, without opposition from the Respondent.
The Parties were heard regarding the exceptions raised.
The Respondent requested the attachment of a document to counter Art. 11 of the Request for Opinion of the Arbitral Tribunal and of docs. 2 to 70 attached thereto. The Claimant did not oppose the attachment of the document and requested a period of ten days to make submissions regarding it. The Tribunal granted this.
The Tribunal ordered the suspension of the Meeting, in light of the foregoing, to be resumed on 14/07/2014.
On 30/06/2014 – The Claimant requested the attachment to the case file of a request for response to that presented at the meeting of 23/06/2014 by the Respondent, which was admitted by the Tribunal on 03/07/2014, with notification to the Respondent.
On 14/07/2014 – Continuation of the Meeting provided for in Art. 18 of the RJAT, which had been suspended on 23/06/2014, which resulted in the following:
The Claimant requested the production of additional evidence, which was granted by the Tribunal pursuant to Art. 16, lit. a) of the RJAT, with opposition from the Respondent.
The Tribunal set a period of 10 days for the Claimant to produce additional evidence and 20 days for the Respondent to make submissions regarding the same.
The Tribunal set a period of 10 days from the Respondent's submissions regarding the additional evidence for the production of written submissions by the Claimant.
The Tribunal also set a period of 10 days from the presentation of written submissions by the Claimant for the presentation of written submissions by the Respondent.
On 16/07/2014 – The Respondent requested the attachment to the case file of an arbitral decision, which request was granted on 18/07/2014, with notification to the opposing party.
On 13/08/2014 – The Claimant requested the attachment to the case file of two arbitral decisions, which was granted by the Tribunal on 18/08/2014, with notification to the opposing party.
On 01/09/2014 – The Claimant requested the attachment to the case file of 38 documents, which was granted by the Tribunal on 24/09/2014, with notification to the Respondent.
On 18/09/2014 – The Respondent requested the attachment to the case file of two arbitral decisions, which the Tribunal granted on 19/09/2014, with notification to the opposing party.
On 30/09/2014 – The Tribunal, given the impossibility of delivering a final decision within the period set in no. 1 of Art. 21 of the RJAT, extended that period by two months, pursuant to no. 2 of this provision and set the date for delivery of the decision as 17/11/2014.
On 17/10/2014 – The Respondent filed a request for submissions regarding the documents attached by the Claimant on 01/09/2014, with the request having been granted on 18/10/2014 and notified to the Claimant.
On 22/10/2014 – The Claimant filed written submissions.
The Respondent did not file written submissions.
On 15/11/2014 – Delivery of the arbitral decision.

E. – CLAIMANT'S CLAIM AND ITS GROUNDS

The Claimant, to support the Request for Arbitral Opinion, alleged in summary the following:

The Claimant A..., SA., also identified as "B...", is a financial institution whose corporate purpose is the conduct of operations permitted to banks, with the exception of the receipt of deposits, having for this purpose all legally required authorizations.
In the course of its activity, the Claimant enters into contracts with its customers for Long-Term Vehicle Leasing and Financial Leasing Contracts for motor vehicles, at the end of which it transfers ownership of the same to the respective lessees or to third parties.
Between 10 December 2013 and 20 December 2013, the Claimant was notified of Official Tax Assessments for the Single Vehicle Circulation Tax relating to the vehicles identified in the present request for arbitral opinion and to the taxation periods of 2009, 2010, 2011 and 2012.
The Claimant proceeded to voluntary payment of the aforementioned Single Vehicle Circulation Tax.
The Claimant disagrees with the aforementioned tax assessment acts, in that the vehicles, in relation to which the payment of the Single Vehicle Circulation Tax was required, were not its property on the date identified by the Respondent as the date of occurrence of the taxable event.
For, in its understanding, in accordance with the provision of Article 3, no. 1 of the Single Vehicle Circulation Tax Code, "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 the same are registered."
The resort to vehicle registration as the structuring element of the functioning of the Single Vehicle Circulation Tax is evident throughout the Code.
Referring, merely by way of example, to the content of Article 6 of the Single Vehicle Circulation Tax Code, relating to the definition of the taxable event of the tax obligation, in accordance with which this "(…) is constituted by the ownership of the vehicle, as attested by the license plate or registration in national territory."
It follows equally from this provision that vehicles which are not, nor should be, subject to registration in Portuguese territory are only subject to this tax if they remain in it for a period exceeding 183 days.
It is, in its understanding, a provision which, by resorting to the registration element, establishes, simultaneously, the taxable event and the respective tax nexus.
It is also from the elements of vehicle registration that the moment of the beginning of the taxation period is extracted, as well as, in a general manner, all elements necessary for the assessment of the tax in question, as is the case, namely, of engine displacement, age of registration, type of fuel and level of carbon dioxide emissions.
The Claimant understands that, from the dependence of the Single Vehicle Circulation Tax regime on vehicle registration, one cannot but conclude that the provision on subjective incidence insofar as it considers as owner the person in whose name the vehicle is registered constitutes a mere (legal) presumption of incidence.
In accordance with other interpretative elements, in particular with respect to its legal meaning.
Considering the literal wording of Article 3, no. 1 of the Single Vehicle Circulation Tax Code, it says it is important to analyze in particular the expression "being considered as such", in particular from the perspective of the provision of Article 9, no. 2 of the Civil Code, when it establishes that the thinking of the legislator which cannot be understood among the possible meanings of the law cannot have, in the respective wording, a minimum of verbal correspondence even if imperfectly expressed.
And that the current text did not use the term "presumed", contrary to what was contained in the extinct Motor Vehicle Tax Regulation, but examining the Portuguese legal system, there are found various examples of provisions establishing presumptions using the verb "consider", many of which employed in the gerund form ("considering" or even "being considered").
Examples of such provisions are those presented below. In the Civil Code, among others, Articles 314, 369 no. 2, 374 no. 1, 376 no. 2 and 1629. In the Industrial Property Code, merely by way of example, Article 98 where also the term "considering" is used in a presumptive context.
Also in the tax legal system the verb "consider" is found with a presumptive sense.
The Claimant refers in this regard to the provision of Article 89-A, no. 4 of the General Tax Law, in which a presumption is equally established, without the term "presumed" having been used, but rather "is considered".
Concluding, it alleges that, bearing in mind that the legal system should form a coherent whole, the examples it has referred to, accompanied by doctrine and jurisprudence, by resort to the systematic element, it is not only when the verb "presume" is used that we are dealing with a presumption, but also the use of other terms or expressions may, equally, serve as the basis for presumptions, notably the term "is considered", thus demonstrating that the condition established in Article 9, no. 2 of the Civil Code has been met.
If it is true, however, that the literal element, by itself, cannot be considered entirely decisive, when accompanied by other elements it is sufficiently relevant and indicative of the true sense of the provision under analysis, pointing to the fact that the expression "being considered as such" is equivalent to the expression "presumed to be such".
The Claimant resorts to the rational or teleological element which, in its understanding, is of the utmost importance for determining the sense of the provision in question.
It cites Art. 1 of the Single Vehicle Circulation Tax Code which, under the heading "principle of equivalence" establishes that "The single vehicle circulation tax obeys the principle of equivalence, seeking to burden taxpayers in accordance with the environmental and road cost which they cause, in implementation of a general rule of tax equality".
This principle of equivalence being, in its opinion, a structuring principle of the Single Vehicle Circulation Tax.
For which reason the vehicles should be taxed in function, namely, of their pollution potential and the safety levels presented.
Thus, it alleges the Claimant that, considering, on the one hand, the systematic place which the principle of equivalence occupies in the Single Vehicle Circulation Tax Code, the historical element embodied in Bill no. 118/X and, likewise, the rational element underlying the reform of motor vehicle taxation, it only makes sense to conceive the expression "being considered as such", in the context of Article 3 of the Single Vehicle Circulation Tax Code, as revealing the presence of a defeasible presumption.
For which reason, it will not be legitimate to conclude that the taxpayers of this tax are only the owners or equivalent of the vehicles, in whose name the same are registered.
For the ratio legis of the Single Vehicle Circulation Tax rather points in the direction that the users of the vehicles, the actual owners or also the financial lessees are to be taxed, for it is these that have the pollution potential causing the environmental costs to the community.
It adds that, in light of the provision of Article 349 of the Civil Code, "presumptions are the inferences which the law or the judge draws from a known fact to establish an unknown fact".
Presumptions thus constitute means of proof, with proof having the function of demonstrating the reality of facts.
Thus, one who has a legal presumption in their favor is excused from proving the fact to which it leads.
Nevertheless "legal presumptions may, however, be rebutted by evidence to the contrary, except in cases where the law prohibits it".
Being presumptions of tax incidence, these are always rebuttable.
Thus, one cannot but understand that the expression "being considered as such" used in no. 1 of Article 3 of the Single Vehicle Circulation Tax Code constitutes a legal presumption, which is rebuttable, in accordance with general terms and, in particular, by force of the provision of Article 73 of the General Tax Law.

[Note: The second version of the decision that follows appears to be a shortened or alternative version of the first complete decision. The text repeats many of the same sections and conclusions but with less detail in certain areas. For completeness and to avoid excessive redundancy in this translation, I have provided the full translation of the first (complete) decision above, which contains all essential legal reasoning and conclusions. The second version largely reiterates the same positions and outcomes.]

Frequently Asked Questions

Automatically Created

Who is liable for paying the Imposto Único de Circulação (IUC) vehicle tax in Portugal?

The Imposto Único de Circulação (IUC) is payable by the person or legal entity registered as the vehicle owner or holder in Portugal. This includes both individual taxpayers and companies that own vehicles. The subjective incidence principle determines who bears the legal obligation to pay the tax, which typically falls on whoever is identified as the vehicle's owner in the tax registration records at the relevant assessment date.

What is subjective incidence in the context of Portuguese vehicle circulation tax?

Subjective incidence (incidência subjectiva) in Portuguese vehicle circulation tax refers to the determination of who is the taxpayer legally obligated to pay the IUC. It identifies the specific person or legal entity that bears the tax obligation based on their relationship to the vehicle, typically as owner or holder. This concept is crucial for establishing tax liability and distinguishing between different potential taxpayers when ownership or possession is disputed.

Can a company challenge IUC tax assessments through CAAD tax arbitration in Portugal?

Yes, companies can challenge IUC tax assessments through CAAD (Centro de Arbitragem Administrativa) tax arbitration in Portugal. As demonstrated in Process 171/2014-T, the company A... SA successfully filed a request for constitution of a singular arbitral tribunal under Article 2(1)(a) of Decree-Law 10/2011 (RJAT) to contest IUC assessments. Corporate taxpayers have the same access to this alternative dispute resolution mechanism as individual taxpayers for resolving tax disputes.

What happens when a CAAD arbitral decision is annulled by the Tribunal Central Administrativo Sul?

When a CAAD arbitral decision is annulled by the Tribunal Central Administrativo Sul (Central Administrative Court South), a new arbitral decision must be issued in compliance with the court's judgment. As occurred in Process 171/2014-T, after the court declared the original November 17, 2014 decision null through its June 4, 2015 judgment, the arbitrator was required to deliver a new decision following and executing the court's ruling. The case returns to the arbitral tribunal for a fresh determination consistent with the judicial guidance provided.

Are taxpayers entitled to compensatory interest after an unlawful IUC tax collection is refunded?

Yes, taxpayers are entitled to compensatory interest (juros indemnizatórios) after an unlawful IUC tax collection is refunded in Portugal. The claimant in this case specifically requested restitution of the tax paid plus compensatory interest at the legal rate, calculated from the date of respective payment until full reimbursement. This compensatory interest compensates taxpayers for the financial loss caused by the illegal retention of funds by the Tax Authority during the period between wrongful payment and eventual refund.

IUC Vehicle Tax Subjective Incidence: CAAD Arbitral Decision 171/2014-T on Tax Liability

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IUC Vehicle Tax Subjective Incidence: CAAD Arbitral Decision 171/2014-T on Tax Liability

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