Summary
Full Decision
Arbitral Decision[1]
Claimant - A…, I.F.I.C. – Financial Credit Institution, S.A. – In Liquidation
Respondent - Tax and Customs Authority
The Arbitrator Dr. Sílvia Oliveira, designated by the Deontological Council of the Administrative Arbitration Center (CAAD) to form the Arbitral Tribunal, constituted on 1 June 2015, with respect to the case identified above, decided as follows:
1. REPORT
1.1 A…, I.F.I.C. – Financial Credit Institution, S.A. – In Liquidation (hereinafter referred to as "Claimant"), legal entity no. …, with registered office …, Paço de Arcos, filed a request for arbitral decision and constitution of a Singular Arbitral Tribunal, on 18 March 2015, pursuant to the provisions of Article 4 and No. 2 of Article 10 of Decree-Law No. 10/2011, of 20 January [Legal Regime of Arbitration in Tax Matters (RJAT)], against the Tax and Customs Authority (hereinafter referred to as "Respondent").
1.2 The Claimant seeks that the Arbitral Tribunal declare the "(…) illegality of the Autonomous Assessment Acts of the Single Motor Vehicle Tax, relating to the fiscal years 2009 to 2012 duly attached and indicated (…)".
1.3 The request for constitution of the Arbitral Tribunal was accepted by the Honorable President of CAAD on 20 March 2015 and was notified to the Respondent on 27 March 2015.
1.4 The Claimant did not proceed with the appointment of an arbitrator, and therefore, pursuant to the provisions of Article 6, No. 2, letter a) of RJAT, the undersigned was designated as arbitrator on 13 May 2015, by the President of the Deontological Council of CAAD, and the appointment was accepted, within the timeframe and legal terms provided for.
1.5 On the same date, both Parties were duly notified of this designation, and neither expressed the intention to refuse the arbitrator's appointment, in accordance with the combined provisions of Article 11, No. 1, letters a) and b) of RJAT and Articles 6 and 7 of the Deontological Code.
1.6 Thus, in conformity with the provisions of letter c) of No. 1 of Article 11 of RJAT, the Arbitral Tribunal was constituted on 1 June 2015, and an arbitral order was issued on the same date, requiring the Respondent to present its response, pursuant to the provisions of Article 17, No. 1 of RJAT, within a maximum period of 30 days and, if it wished, to request the production of additional evidence.
1.7 On 2 July 2015, the Respondent submitted its Response, defending itself by exception (lapse of the right of action) and by denial, and concluded to the effect that "the exception invoked should be judged well-founded, or failing that, the present request for arbitral decision should be judged unfounded, as not proven, with the tax assessment acts challenged remaining in the legal order and accordingly absolution of the Respondent from the claim".
1.8 On 8 July 2015, an arbitral order was issued requiring the Claimant to pronounce itself, within ten days, on the matter of exception raised by the Respondent in its Response.
1.9 On 10 August 2015, the Respondent attached to the file the respective administrative process (notified to the Arbitral Tribunal and the Claimant on 14 August 2015).
1.10 On 16 September 2015, following the arbitral order of 8 July 2015 (see point 1.8., above) and taking into account the fact that the Claimant had said nothing further to the process within the aforementioned period (with respect to the matter of exception raised by the Respondent), with the objective of guaranteeing the principle of contradiction and equality of the parties (in accordance with the provisions of Article 16, letters a) and b) of RJAT), a new arbitral order was issued notifying both Parties to pronounce themselves, within a period of five days, on the possibility of waiving the holding of the hearing referred to in Article 18 of RJAT, as well as waiving the submission of written arguments.
1.11 However, neither Party submitted any response to the arbitral order referred to in the preceding point.
1.12 In these terms, it was decided by the Arbitral Tribunal, in an order dated 24 September 2015 (notified to the parties on 25 September 2015), in accordance with the procedural principles established in Article 16 RJAT, of the autonomy of the arbitral tribunal in conducting the proceedings and determining the rules to be observed [letter c)], of cooperation and procedural good faith [letter f)] and the free conduct of proceedings established in Articles 19 and 29, No. 2 of RJAT, and further taking into account the principle of limitation of useless acts provided for in Article 130 of the Code of Civil Procedure (CPC) [applicable by virtue of the provisions of Article 29, No. 1, letter e) of RJAT], to waive the holding of the hearing referred to in Article 18 of RJAT as well as to waive the submission of written arguments, and 30 September 2015 was designated as the date for issuance of the arbitral decision.
1.13 Under the arbitral order referred to in the preceding point, the Claimant was further warned that "until the date of issuance of the arbitral decision it should proceed with the payment of the subsequent arbitral fee, in accordance with the provisions of No. 3 of Article 4 of the Regulation of Costs in Arbitration Proceedings in Tax Matters and communicate this payment to CAAD".
2. CAUSE OF ACTION
2.1 The Claimant seeks by means of the request for arbitral decision that the Arbitral Tribunal declare the "(…) illegality of the Autonomous Assessment Acts of Single Motor Vehicle Tax, relating to the years (…) 2009 to 2012 (…) concerning motor vehicles with the registration numbers (…) described (…)" and that the "Tax and Customs Authority be condemned to payment of the costs incurred (…)".
2.2 "The Claimant is a Financial Credit Institution that engaged, among other things, in the conclusion of financial leasing credit contracts and long-term rental, having motor vehicles as their subject matter".
On the Timeliness of the Request for Constitution of the Arbitral Tribunal
2.3 In this regard, the Claimant states that "in December 2014, (…) it was notified (…) of the decisions dismissing the Gracious Complaints (…) presented (…) against the acts of autonomous assessment of the Single Motor Vehicle Tax relating to the fiscal years 2009 to 2012, previously notified (…)".
2.4 The Claimant further states that "in accordance with the provisions of Article 10, No. 1 of RJAT, the request for constitution of the Arbitral Tribunal must be submitted within a period of 90 days, counted from (…)" specifically, "(…) from the dismissal of a gracious complaint" so that, according to the Claimant, "the deadline for submission of the request for constitution of an arbitral tribunal ends on the following day 18 March 2015", and is therefore still running at the date of filing of the request for constitution of this Arbitral Tribunal (18 March 2015).
2.5 Thus, the Claimant concludes that "the request for constitution of an Arbitral Tribunal in Tax Matters is timely".
On the Cumulation of Claims
2.6 In this matter, the Claimant states that "despite the high number of autonomous assessment acts at issue, all of them refer to the assessment of the same tax (Single Motor Vehicle Tax, relating to fiscal years 2009 to 2012), and the factual and legal bases (…), which substantiate the illegality of the said acts, are the same".
2.7 Thus, for the Claimant "the legal requirements that permit the cumulation of claims (…) are met".
On the Absence of Liability of the Claimant
2.8 "The now Claimant cannot agree, in particular, with the subjective imputation of responsibility for payment of the said tax in the years in question, insofar as, at the date of its exigibility, it was not a legal tax subject, since the vehicle subject to the tax was covered by a leasing contract, being thus the respective lessee responsible".
2.9 Indeed, the Claimant states that "in the course of its commercial activity (…) it concluded the contracts (…) identified (…)", "by means of which it leased the vehicles with the registration numbers equally (…) listed (…)".
2.10 The Claimant reiterates that "despite (…) being effectively the owner of the vehicles in question, at the date of exigibility of the IUC's allegedly in arrears, the truth is that the responsibility for their payment should not fall upon it, but rather upon the respective lessees (…)".
2.11 Thus, "the responsibility for payment of the tax sub judice falls unquestionably (…) upon the respective lessees (…) and never upon the (…) Claimant".
2.12 The Claimant continues to state that "the understanding explicitly stated above is supported by a significant portion of our Doctrine (…)", having the Claimant submitted "(…) Gracious Complaint against the acts of Autonomous Assessment in question (...)".
2.13 "In response to the Gracious Complaint submitted, the Tax and Customs Authority came to dismiss, in the vast majority of cases, the claim formulated, determining the continuation of the autonomous assessment process (…)".
2.14 It happens that, continues the Claimant, "when exercising the right of Prior Hearing, the Claimant proceeded with the tax identification of the lessees/users of the leased vehicles (…)", so that, "in this manner (…) it complied with the specific obligation contained in Article 19 of CIUC, that is, it provided the Tax and Customs Authority with the data relating to the tax identification of the users of the leased vehicles".
2.15 Consequently, "the Tax and Customs Authority could not have initiated the autonomous assessment against the (…) Claimant since it already knew who were the lessees of the motor vehicles in question and had in its possession the elements of tax identification of the same".
2.16 In view of the foregoing, for the Claimant, "it is necessary to conclude that (…) it was not (nor could it be considered), demonstrably, responsible for the assessment and payment of the IUC in the fiscal years 2009 to 2012 and concerning the motor vehicles (…) discriminated (…) nor maintained with them any legal relationship that could give rise to the exigibility, against it, of the tax in question".
2.17 Thus, according to the Claimant, "not being met the requirements that underlie the tax-legal relationship (…) the imputation to the Claimant of responsibility for the IUC in fiscal years 2009 to 2012 and concerning the vehicles in question, the Tax and Customs Authority will never be able to demand such tax from it for manifest lack of subjective responsibility for its payment (…)".
2.18 And the Claimant concludes by petitioning that:
2.18.1 The "present request for constitution of an Arbitral Tribunal be admitted, since the same is timely";
2.18.2 The "joint examination of the legality of the autonomous assessment acts attached (…) be admitted since the legal requirements that permit the cumulation of claims (…) are met";
2.18.3 The "illegality of the Acts of Autonomous Assessment of Single Motor Vehicle Tax, relating to fiscal years 2009 to 2012, attached (…) concerning motor vehicles with the registration numbers (…) described (…)" be declared.
3. RESPONSE OF THE RESPONDENT
3.1 The Respondent, in its response submitted, defended itself by exception and by denial as described below.
BY EXCEPTION
On the Lapse of the Right of Action
3.2 In this regard, according to the Respondent, "the claim formulated recognizes and is absolutely consistent with this evidence: the Claimant petitions (solely) that the tribunal deign to examine the legality of the autonomous assessment acts attached (…)" but "(…) the immediate object of the present case would be or should be the dismissal of the gracious complaints submitted by the Claimant".
3.3 Now, the Respondent argues that "the contested documents (…) have as their final payment date 2013/12/1 and the Claimant submitted the request for constitution of the Arbitral Tribunal only on 2015/03/18 (…)" and therefore, still according to the Respondent, "(…) it appears (clearly) that the legally defined deadline for challenging tax assessment acts in arbitration has been exceeded".
3.4 In this context, for the Respondent, "the claim formulated is untimely and the tribunal cannot know of it" since, "having been exceeded the deadline for direct challenge of the tax assessment acts (that is, of the primary acts), the timeliness of the claim could only be based on the existence of some means of gracious challenge of the assessment acts where a decision had been rendered denying/dismissing, wholly or in part, the claims formulated therein by the tax subject (which would constitute a second-tier act)" (emphasis added).[2][3]
BY DENIAL
On the Absence of Liability of the Claimant
3.5 In this regard, the Respondent does not agree with the position defended by the Claimant (that at the date of exigibility of the tax it was not a legal tax subject, "since the vehicle subject to the tax was covered by a financial leasing contract, being thus the respective lessee responsible"), given that "although the Claimant's reasoning is correct, at least in theory, the same will only have practical application if the Claimant had made the communication to the Respondent in accordance with Article 19 of CIUC", "a legal norm that the Claimant cannot claim to be ignorant of".
3.6 And, continues the Respondent, "by not complying with the communication (…) of Article 19 of CIUC, the Claimant can only complain about itself, placing itself in this situation (…)" so that "(…) it will necessarily have to bear the responsibility for payment of the tax (…) insofar as (…) it recognizes, it was the owner of those vehicles".
3.7 On the other hand, the Respondent refutes that the Claimant provided it with "(…) the tax identification of the lessees when exercising the right of prior hearing" because, in this regard, "(…) no reaction from the claimant was (…) obtained".
3.8 Indeed, the Respondent reiterates, "the Claimant did not make the specific communication of Article 19 of CIUC before the autonomous assessment, nor did it exercise, as it claims, the right of prior hearing", having presented "(…) after notification of the autonomous assessment by the Respondent (…), in the legally provided manner, a gracious complaint where it presents a document prepared by itself, in the form of a table, where it identifies the assessments challenged associated with the respective registration numbers, as well as the other identifying elements".
3.9 From the examination carried out by the Respondent, of the table referred to above, in the context of the examination of the gracious complaint submitted by the Claimant, it resulted in its understanding that "(…) contrary to what is claimed, the legal requirements that determine the equation with owner status do not apply to all the vehicles, and that consequently, would relieve the Claimant of payment of the Tax in question, such that the assessments concerning the vehicles in which the claimant appears as owner and in relation to which there is no record of the existence of any leasing contract should be maintained".
3.10 Thus, in view of the foregoing, the Respondent concluded that "only with the respective communication in accordance with Article 19 of CIUC could there be the equation between owner and lessee" so that "in the cases in which the Respondent had such communication, it proceeded with the annulment of the assessments issued, maintaining as to the remaining assessments (…) the responsibility for payment of the tax, in the name of the Claimant, as owner".
3.11 With respect to proof, "having in mind the burden of proof which is embodied in the principle that whoever alleges a particular fact constitutive of a right, has the necessity of proving it (…), for the Respondent, the Claimant alleges facts that serve as the foundation and that substantially configure the alleged legal position that it arrogates to itself, without proving it", "of no relevance are the Claimant's claims that the Respondent had knowledge of the leases (…) since the latter failed to demonstrate having given knowledge to the Respondent of the facts that it now alleges".
3.12 In these terms, the Respondent argues that "(…) the Claimant's arguments cannot proceed in any way, since they make an interpretation and application of legal norms subsumable to the case sub judice notoriously erroneous", "first and foremost, because the understanding advocated by the Claimant derives from a skewed reading of the letter of the law (…), but also from an interpretation that ignores the ratio of the regime established (…) and, likewise, throughout the CIUC".
3.13 Indeed, continues the Respondent "even if faced with financial leasing contracts granted by the Claimant, it was nonetheless incumbent upon the latter to demonstrate having complied with the secondary obligation imposed by Article 19 of CIUC".
3.14 For the Respondent, "if the thesis defended by the Claimant regarding the fact that Article 3 of CIUC establishes a rebuttable presumption is to be followed, then it is necessary to conclude that the operation of that presumption (i.e., the rebuttal of the presumption) equally depends on compliance with what is established in Article 19 of CIUC (…)".
3.15 And the Respondent reiterates, "the Claimant made no proof regarding the compliance with this obligation with respect to the motor vehicles subject of the assessments in dispute".
3.16 And, continues the Respondent, "not having the Claimant complied with that obligation, it is necessary to conclude that it is a tax subject".
3.17 And, continues the Respondent, "not having the Claimant met the burden of proof that was imposed upon it (…) two consequences (…) necessarily must follow from its omissive conduct":
3.17.1 "(…) its responsibility for the arbitration costs relating to the present request for arbitral decision (…)", and,
3.17.2 "(…) the determination of its responsibility in terms of administrative infractions (…)".
On Responsibility for Payment of Arbitration Costs
3.18 In this respect, the Respondent argues that "vehicle registration constitutes the cornerstone of the entire structure on which the IUC is based", but "the competence for vehicle registration is not within the sphere of the Respondent, but rather assigned to various external entities (…) to whom it falls to transmit to the Respondent the changes that may occur with respect to ownership of motor vehicles".
3.19 In fact, continues the Respondent "the registration of ownership constitutes an essential element in the information system between the Respondent and other public entities (…) and with the law enforcement authorities (…) with a view to the exchange of information necessary for the assessment and inspection of (…) the IUC".
3.20 Thus, "the transmission of ownership of motor vehicles is not susceptible to being controlled by the Respondent, since there is no secondary obligation declaring on this matter (…) meaning that the IUC is assessed in accordance with the registration information duly transmitted by the Institute of Registries and Notaries".
3.21 In summary, the Respondent argues that "the IUC is not assessed in accordance with information generated by the Respondent itself (…)" so that, the Claimant not having "(…) proceeded with the care that was required of it, led (…) the Respondent to limit itself to complying with the legal obligations to which it is bound (…) and (…) to follow the registration information that was provided to it (…)".[4]
3.22 "Therefore, it was not the Respondent that gave rise to the filing of the request for arbitral decision, but rather the Claimant itself" so that, consequently, "the Claimant should be condemned to payment of the arbitration costs arising from the present request for arbitral decision (…)".[5]
3.23 In these terms, the Respondent concludes its response submitted to the effect that:
3.23.1 "The exception invoked should be judged well-founded, or failing that,
3.23.2 The present request for arbitral decision should be judged unfounded, as not proven, with the tax assessment acts challenged remaining in the legal order and accordingly absolution of the entity respondent from the claim".
4. EXAMINATION OF PRELIMINARY MATTER - EXCEPTION ISSUE
4.1 Having the Respondent invoked the exception of lapse of the right of action, it is incumbent upon this Arbitral Tribunal to pronounce itself, preliminarily, on the merits or otherwise of the same.
4.2 In this regard, since the lapse of the right of action is a peremptory exception, if the same is upheld it will prevent the tribunal from knowing the merits of the claim.[6]
4.3 Preliminarily, it should be noted that with respect to peremptory exceptions, the legislator dispensed with any enumeration and was content with the definition contained in No. 3 of Article 576 of the CPC, in accordance with which the same are defined as "consisting in the invocation of facts that prevent, modify or extinguish the legal effect of the facts pleaded by the plaintiff".
4.4 Thus, as defended in jurisprudence, it is from this legal definition that one should proceed to inquire about the nature of the exception arising from the lapse of the right of action.[7] [8] [9]
4.5 Indeed, the lapse of the right of action, since it prevents the production of the legal effect of the facts pleaded by the plaintiff (here the Claimant), constitutes a peremptory exception, since it configures a cause to which substantive law attributes the cessation of the right that the plaintiff invokes as already validly constituted and, from this perspective, it integrates the domain of that type of exceptions, which "are those that translate into the invocation of facts or causes that are imperative, modificative or extinctive of the Plaintiff's right (…) leading to the total or partial unfoundedness of the action".[10]
4.6 In consequence, it will therefore be important to know of it beforehand.
4.7 In general terms, in accordance with the provisions of Article 102 of the Code of Tax Procedure and Process (CPPT), the deadline for bringing judicial challenges is three months counted, in particular, from the end of the deadline for voluntary payment of tax installments legally notified to the taxpayer or from notification of the other acts that may be subject to autonomous challenge.
4.8 On the other hand, in the context of the tax arbitration regime, Article 10, No. 1, of RJAT establishes that the request for constitution of an arbitral tribunal must be submitted, in particular, "within a period of 90 days, counted from the facts provided for in Nos. 1 and 2 of Article 102 of the CPPT, as to acts susceptible of autonomous challenge (…)".
4.9 In this matter, it should be noted that, in accordance with the provisions of Article 29 of RJAT, the regulations of a procedural or tax process nature, the rules on organization and proceedings in administrative and tax courts, the rules of the Code of Administrative Procedure (CPA) and the CPC are subsidiary applicable to the tax arbitration regime.
4.10 In the present case, the Claimant, in compliance with the provisions of letter b) of No. 2 of Article 10 of RJAT, petitions in its request for arbitral decision that the Arbitral Tribunal declare "(…) the illegality of the Acts of Autonomous Assessment of Single Motor Vehicle Tax, relating to the years (…) 2009 to 2012 (…) concerning motor vehicles with the registration numbers (…) described (…)" and that the "Tax and Customs Authority be condemned to payment of the costs incurred (…)".
4.11 In these terms, the object of the claim is, therefore, the assessments of the Single Motor Vehicle Tax (IUC)[11] referred to above (copies of which were attached to the file – docs. nos. 1 to 106 of the claim – and the contents of which are hereby taken as proven) and not the acts of dismissal (wholly or in part)[12] of the Gracious Complaints nos. …, (copies of which were attached to the file – Annex I to IX of the claim – and the contents of which are hereby taken as proven), appropriately presented on 24 March 2014, with respect to those assessments, such that the tax acts to be examined in this claim are those assessments.
4.12 Indeed, in accordance with the provisions of Article 10, No. 1, letter a) of RJAT, the Claimant seeking to challenge the autonomous assessment acts of IUC relating to the years 2009 to 2012 (identified in the proceedings), the request for constitution of an arbitral tribunal should have been submitted within a period of 90 days counted from the end of the deadline for voluntary payment (11 December 2013), in accordance with the provisions of Article 102, No. 1, letter a) of the CPPT, that is, counted from 12 December 2013.
4.13 Having the Claimant submitted the request for constitution of the Arbitral Tribunal on 18 March 2015[13], and considering what is stated in the preceding points, it is therefore verified that on that date the said deadline had been vastly exceeded (even though there were acts of dismissal of gracious complaints that could have been, but were not, the object of the request for arbitral decision).
4.14 Thus, the claim here formulated is untimely, taking into account the lapse of the right of action, and this Arbitral Tribunal cannot know of it.
4.15 Indeed, since that lapse deadline is peremptory and subject to ex officio knowledge [determining, upon its expiry, the extinction of the right to perform the act (as provided for in No. 3 of Article 145 of the CPC)], having been exceeded the deadline for direct challenge of the tax assessment acts (that is, the deadline for challenging the primary acts), the timeliness of the claim could only be founded on the existence of some means of gracious challenge of the assessment acts where a decision had been rendered denying/dismissing (wholly or in part), the claims formulated therein by the tax subject (which would constitute a second-tier act) and that act be the object of the claim.
4.16 In this regard, it is established in doctrine and in CAAD arbitral jurisprudence that despite Article 2, No. 1, letter a), of RJAT making explicit reference to the jurisdiction of arbitral tribunals to declare the illegality of assessment acts, this jurisdiction also extends to second and third-tier acts that examine the legality of primary acts (such as, in particular, acts of dismissal of gracious complaints).
4.17 In these terms, having been exceeded the deadline for direct challenge of the IUC assessments, the avenue was opened for the Claimant to challenge the acts of dismissal of the various gracious complaints (to which it even makes reference in Article 3 of its claim, when explaining the reasoning it gives to defend the timeliness of the request for constitution of the Arbitral Tribunal[14]) that is, to raise the examination of the legality of the IUC assessments in dependence on the filing and unfavorable decision of a means of gracious defense.
4.18 Thus, if it is unequivocal that the Claimant when identifying and formulating its arbitral claim did not make any reference to the challenge of the acts of dismissal of the gracious complaints that it submitted on 24 March 2014 (as shown in Annex I to IX of the claim), it is also certain that the scope of this Tribunal's jurisdiction is limited by the scope of the claim.
4.19 Indeed, access to justice is not unlimited or unconditional so that, in accordance with the legal rules that govern it, the Claimant had an adequate means to secure its claim (challenging the acts of dismissal of the various gracious complaints submitted), without thereby being contrary to any constitutional provision, in particular those that guarantee the principle of access to courts for the protection of rights (see Articles 20, No. 1 and 268, No. 4 of the Portuguese Constitution) or the principle of protection of legitimate expectations (Article 2), nor to the provisions of Article 9 of the Civil Code.
4.20 However, the Claimant did not do so in the request for arbitral decision submitted and, therefore, not having requested that the tribunal examine the declaration of illegality of second-tier acts (that is, the acts of dismissal of the gracious complaints), there does not exist the support that could establish the timeliness of the claim and, consequently, the possibility of this Tribunal examining the claim formulated with respect to the IUC assessment acts that the Claimant seeks, in fact, to examine.
4.21 Now, with the tribunal's jurisdiction being limited by the claim, and not being able, as is obvious to exceed it[15], this Tribunal is prevented from examining and declaring (whatever may be) with respect to the claim given that the same is, therefore, untimely.
4.22 In summary, it resulting clearly and unequivocally from the request for arbitral decision, the direct challenge of the tax acts referred to above (see point 2.1.), the claim formulated (leading to the annulment of the IUC assessment acts relating to fiscal years 2009 to 2012 of the vehicles identified in the proceedings) should be declared unfounded, as untimely.
4.23 Given that the lapse of the right of action constitutes a peremptory exception preventing the tribunal from knowing the merits of the case [in accordance with the provisions of Nos. 1 and 3 of Article 576 of the CPC (ex vi letter e) of Article 2 of the CPPT and letters a) and e) of No. 1 of Article 29 of RJAT)] the Respondent should, in consequence, be absolved of the claim, since the lapse of the right of action prevents the production of the legal effect of the claim formulated by the Claimant.
5. DECISION
5.1 In accordance with the provisions of Article 22, No. 4, of RJAT, "the arbitral decision issued by the arbitral tribunal includes the fixing of the amount and apportionment among the parties of the costs directly resulting from the arbitration proceedings".
5.2 In this regard, the basic rule regarding responsibility for the costs of proceedings is that the Party that has given rise to them should be condemned, it being understood that the party that gives rise to the costs of proceedings is the losing party, in the proportion in which it loses (Article 527, Nos. 1 and 2 of the CPC in force).
5.3 In these terms, by the grounds set out in the preceding Chapter, this Arbitral Tribunal decided:
5.3.1 To uphold the exception of lapse of the right of action, since the request for arbitral decision is untimely and, in consequence, to absolve the Respondent of the claim;
5.3.2 And, to condemn the Claimant to payment of the costs of the present proceedings.
Value of the Case: In conformity with the provisions of Articles 306, No. 2 of the CPC, Article 97-A, No. 1 of the CPPT and Article 3, No. 2 of the Regulation of Costs in Arbitration Proceedings in Tax Matters, the value of the case is fixed at EUR 19,754.05.
In accordance with the provisions of Table I of the Regulation of Costs in Tax Arbitration Proceedings, the value of the Arbitration Proceeding costs is fixed at EUR 1,224.00, at the charge of the Claimant, in accordance with Article 22, No. 4 of RJAT.
Let it be notified.
Lisbon, 30 September 2015
The Arbitrator
Sílvia Oliveira
[1] The drafting of the present decision is governed by the spelling prior to the Orthographic Agreement of 1990, except for transcriptions made.
[2] In this matter, the Respondent cites Jorge Lopes de Sousa (Guide to Tax Arbitration, Almedina, 2013, page 121) to the effect that "(…) although in letter a) of No. 1 of Article 2 of RJAT reference is made only explicitly to the jurisdiction of arbitral tribunals to declare the illegality of assessment acts, acts that define the amount to be paid by the taxpayer, this jurisdiction also extends to second and third-tier acts that examine the legality of those primary acts, in particular acts of dismissal of gracious complaints and acts of dismissal of hierarchical remedies filed from the decisions of these complaints"
[3] In the same sense, the Respondent cites the decision issued in the context of the CAAD proceedings No. 261/2013.
[4] In this regard, the Respondent cites the Arbitral Decision issued in the context of proceedings No. 26/2013.
[5] In this regard, the Respondent cites the Arbitral Decision issued in the context of proceedings No. 72/2013.
[6] In this regard, see AC TCAS No. 02970/09, of 27 September 2011, to the effect that "(…) lapse must be embodied as a peremptory exception liable to ex officio examination by the tribunal (cf. Articles 328, 331 and 333, all of the Civil Code, Article 496 of the Civil Code, as well as Luís A. Carvalho Fernandes, in General Theory of Civil Law, II, A.A.F.D.L., 1983, p. 567 et seq., Carlos Alberto da Mota Pinto, in General Theory of Civil Law, 3rd edition, Coimbra Editora, 1989, p. 372 et seq. and Aníbal de Castro, in Lapse in Doctrine, Law and Jurisprudence, 3rd edition, 1984, p. 29 et seq.)".
[7] In this matter, see AC STA No. 340/13, of 22 May 2013, in accordance with which it is stated that "(…) in the CPTA, more specifically in Article 89, No. 1, letter h), in the context of the special administrative action, the lapse of the right of action was qualified as a dilatory exception. There it appears that one has opted for an approach somewhat different from the question (…) viewing lapse as a preclusive fact, although founded on reasons of substantive law, whose effect is to preclude all inquiry about the controversial legal situation, dispensing with ascertaining its prior existence [since] once lapse is invoked the right subject to it can no longer be exercised, which renders useless the discussion about its prior existence (LEBRE DE FREITAS, Code of Civil Procedure Annotated, volume II, 2nd ed., Coimbra Editora, pages 333 et seq.). Now, the characteristic effect of dilatory exceptions is, precisely, to prevent the tribunal from knowing the merits of the case, necessarily limiting judicial activity to knowledge of the exception (…) of the lapse of the right of action, in which the tribunal limits itself to certifying, in light of the pertinent facts (…) that the right invoked by the plaintiff is precluded (…), having as an effect the absolution of the instance".
"In the case sub judice, because the law subsidiary applicable is the CPC, we understand that the legal effect will be absolution of the claim (…). From the point of view of practical results, this diversity of doctrinal options will have no repercussions since in both the tribunal does not proceed with the examination of the merits of the case (…)" (emphasis added).
[8] In this regard, see also AC TCAS No. 07674/11, of 10 January 2013, in accordance with which it is stated that "the lapse of the right of action has legal classification, both in the CPC and in the CPTA, although distinct, since in the domain of the special administrative action, Article No. 89, No. 1 h) CPTA expressly integrates it in the legal enumeration of dilatory exceptions, but with respect to the common administrative action (…), it follows from the combined provisions of the articles (…) of the CPC the incorporation of the lapse of the right of action in the domain of peremptory exceptions".
[9] See also AC STA No. 76/09, of 27 May 2009 and AC STA No. 875/09, of 12 November 2013.
[10] See MANUEL DE ANDRADE, in "Elementary Notions of Civil Procedure", Coimbra Editora, 1979, pp. 130/131.
[11] Assessments dated 2 November 2013, as appears from the contents of docs. nos. 1 to 106 of the claim and Annex I to IX also of the claim, the contents of which are hereby taken as proven.
[12] Letters/Notices nos. …, …, all of 30.12.2014 (as appears from copies attached to the file – Annex I to IX of the claim – the contents of which are hereby taken as proven).
[13] And, as the Claimant alleges in Articles 2, 3 and 4 of the claim, within the period provided for in Article 102 of the CPPT, because "(…) it was notified of the first dismissal of a gracious complaint on 31 December 2014, with the remaining ones being notified on a later date".
[14] See footnote no. 12.
[15] Based on the provisions of No. 2 of Article 608 and No. 1 of Article 609 of the CPC, Counselor Jorge Lopes de Sousa states, in Code of Tax Procedure and Process, Annotated and Commented, Áreas Editora, 6th Edition, Volume II, 2011, page 319 that "(…) apart from matters of ex officio knowledge, the judge cannot know in a judgment of questions not raised by the parties, nor condemn in object or quantity greater than what has been requested".
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