Summary
Full Decision
ENGLISH TRANSLATION
Claimant - A... - Civil Construction and Public Works, Ltd.
Respondent - Tax and Customs Authority
The Appointed Arbitrator - António Correia Valente
I. - REPORT
A - PARTIES
The company A... - Civil Construction and Public Works, Ltd., designated as "Claimant", with head office at …, municipality of …, with collective person number …, contesting party in the above-referenced tax procedure, has, invoking the provisions of subparagraph a) of paragraph 1 of Article 10 of Decree-Law No. 10/2011, of January 20 (hereinafter RJAT), requested the constitution of a sole arbitral tribunal, with a view to examining the following claim that opposes it to the Tax and Customs Authority, hereinafter designated as "Respondent" or "AT".
B - REQUEST
1 - The request for constitution of the Arbitral Tribunal was accepted by His Excellency the President of CAAD on 09/01/2014 and notified to the Tax and Customs Authority (AT) on the same date.
2 - In accordance with the provisions of paragraph 1 of Article 6 and subparagraph a) of paragraph 1 of Article 11 of Decree-Law No. 10/2011, of January 20, the Deontological Council appointed, on 24/02/2014, as sole arbitrator António Manuel Correia Valente, who communicated acceptance of the assignment.
3 - On 24-02-2014 the Parties were notified of such appointment, in accordance with the combined provisions of Article 11, paragraph 1, subparagraph b) of the RJAT, as amended by Article 228 of Law No. 66-B/2012, of December 31, and Articles 6 and 7 of the Deontological Code, and neither party manifested any intention to challenge the arbitrator's appointment.
4 - In these circumstances, in accordance with the provisions of subparagraph c) of paragraph 1 of Article 11 of Decree-Law No. 10/2011, of January 20, as amended by Article 228 of Law No. 66-B/2012, of December 31, the arbitral tribunal was regularly constituted on 11/03/2014.
5 - On July 1, 2014, a meeting was held with the Parties as referred to in Article 18 of the RJAT, of which minutes were drawn up and are attached to the file, with the AT raising once again the exception of lack of material jurisdiction of the tribunal, regarding the claims filed by the Claimant, both with respect to the administrative penalties, and to compensation for material damages resulting from the payment of the UCS for the year 2008, lack of jurisdiction which the Claimant considers not to exist, given the association of such claims with the illegality of the acts of assessment of the UCS and the payment of the corresponding amounts.
6 - The present Claimant requests that this Arbitral Tribunal:
a) - Declare the illegality and consequent annulment, both of the assessment acts relating to the Single Circulation Tax (hereinafter designated as UCS), for the years 2009, 2010 and 2011, relating to the vehicle, Scania brand, with registration ..-..-.., and of the acts of imposition of the administrative penalties associated therewith, indicating, as the value of the claim, the sum of € 1,745.60, which is broken down as follows:
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€ 1,061.00 - one thousand and sixty-one euros - relating to the UCS assessed and paid in 2013, relating to the years 2009; 2010 and 2011;
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€ 332.00 - three hundred and thirty-two euros - by way of compensation for material damages caused, resulting from payment of the UCS assessed in 2008 and paid in 2012;
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€ 46.60 - forty-six euros and sixty cents - paid by way of administrative penalties;
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€ 306.00 - three hundred and six euros - relating to procedural expenses/costs.
b) - Condemn the Tax and Customs Authority to the restitution of the sum of € 332.00, paid in the year 2012, by way of compensation, relating to the UCS assessed in 2008;
c) - Condemn the Tax and Customs Authority to the payment of accrued and accruing default interest;
d) - Condemn the Tax and Customs Authority to the payment of the costs of the present proceeding;
C - CAUSE OF ACTION
7 - The Claimant, in substantiation of its request for arbitral determination, states, in summary, the following:
8 - That it sold the vehicle, Scania brand, with registration ..-..-.. to company B.... SA, with head office at …, Bissau, as results from the purchase and sale contract executed on 30/07/2007 and the corresponding Invoice-Receipt;
9 - That the vehicle in question was no longer its property on the date identified by the Respondent as the date of occurrence of the taxable event;
10 - That on 31/10/2003 it filed an Administrative Appeal against the assessment of the UCS, relating to the years 2009, 2010 and 2011 and relating to the vehicle with registration ..-..-.., but the Respondent neither heeded, nor the evidence, nor the arguments submitted;
11 - That the taxable person of the UCS is the owner of the vehicle, even if, as such, does not appear in the Motor Vehicle Register, provided that sufficient proof is presented to rebut the presumption arising from the motor vehicle register, as was the case;
12 - That the purchase and sale of the vehicle constitutes a contract with real effect, in light of the provisions of paragraph 1 of Article 408 of the CC, in the sense that the transfer of property or possession occurs as a consequence of the contract itself, and that the documents it attaches are sufficient to prove that ownership of the vehicle was not its in the periods of taxation;
13 - That the norm contained in paragraph 1 of Article 3 of the CIUC, establishes a presumption which, as it concerns a norm of tax incidence, always admits proof to the contrary, in accordance with what is stipulated in Article 73 of the LGT;
14 - That the essential function of the motor vehicle register is to give publicity to the legal situation of the vehicles, the register having no constitutive effect, functioning only as a rebuttable presumption of the existence of the right;
15 - That the Single Circulation Tax is based on the principle of equivalence, aiming to burden taxpayers, in the measure of the environmental and road costs that they cause;
16 - That the AT, not meeting the requirements of the notion of third party for purposes of registration, cannot avail itself of the absence of updating of the registration of the right of property to call into question the full effectiveness of the purchase and sale contract of the vehicle and to require from the seller, as its former owner, the payment of the UCS, which is owed by the buyer, as the new owner of the vehicle;
17 - That the acts of assessment of the single circulation tax in question suffer from error as to the factual presuppositions, which constitutes a defect of violation of law, by virtue of Article 99, subparagraph a) of the CPPT, susceptible of founding the annulment of the said acts of assessment of the UCS.
D - RESPONSE OF THE RESPONDENT
18 - The Respondent, Tax and Customs Authority, (hereinafter designated as AT), filed, on 11/04/2014, a Response and attached a copy of the Tax Administrative Proceeding for the purposes of that provided, respectively, in paragraphs 1 and 2 of Article 17 of the Legal Regime of Tax Arbitration (RJAT), documents which, on 14/05/2014, were integrated into the file.
19 - In said Response, the AT raises the exception of lack of material jurisdiction of the Arbitral Tribunal, regarding the part of the claim that relates, both to the restitution of the amounts paid related to the administrative penalties, and to compensation of the amount of € 332.00, for material damages, in addition to defending that the impugned acts do not suffer from any illegalities, which, in summary and in essence, is embodied in the following:
BY EXCEPTION
REGARDING THE RESTITUTION OF AMOUNTS PAID BY WAY OF ADMINISTRATIVE PENALTIES
20 - The Respondent understands that the restitution of the amounts paid by the Claimant, by way of administrative penalties, implies the annulment of such penalties, which constitutes a matter of administrative violation nature, which goes beyond the scope of the competence of the Arbitral Tribunal, as results from the provisions of Article 2, paragraph 1 of the RJAT.
21 - It adds that, as it concerns the application of the General Regime of Tax Infractions (RGIT), neither the highest-ranking officer of the Tax and Customs Authority is competent to represent the State in court in these types of matters, nor are they included in the competences subject to the appreciation of the Arbitral Tribunal.
22 - It further considers that the discussion of the presuppositions relating to administrative violation responsibility does not fall within this instance, and the Arbitral Tribunal should declare itself incompetent for the part of the claim that relates to this matter.
REGARDING THE RESTITUTION OF AMOUNTS PAID BY WAY OF COMPENSATION FOR MATERIAL DAMAGES
23 - For this purpose, the AT considers that the claim in question constitutes a matter of extracontractual civil liability of the State, which goes beyond the scope of the competence of the Arbitral Tribunal, constituted under the aegis of CAAD, as results from the provisions of Article 2, paragraph 1 of the RJAT.
24 - The Regime of Extracontractual Civil Liability of the State and Other Public Entities (RRCEE), the Respondent adds, applying to the effectuation of the extracontractual civil liability of the State, includes in its application the civil liability of the Tax Administration for acts performed outside the scope of obligational relations.
25 - The said Regime of Extracontractual Civil Liability is applicable, in the first place, to situations in which there was no improper collection of amounts, but in which there was a lesion of the rights of individuals.
26 - As regards the representation of the State, if the Extracontractual Civil Liability of the latter is at issue, the Respondent notes that such representation, in light of the provisions of paragraph 2 of Article 11 of the Code of Procedure in Tax Courts (CPTA) and Article 20 of the Code of Civil Procedure (CPC), falls exclusively to the Public Prosecutor.
27 - It considers, finally, that the discussion of the presuppositions relating to the civil liability in question does not fall within this instance, and the Arbitral Tribunal should declare itself incompetent for the part of the claim that relates to this matter.
BY DEFENSE
28 - The AT also understands that the tax acts in question do not suffer from any defect of violation of law, pronouncing itself in favor of the lack of merit of the claim and the maintenance of the questioned assessment acts, defending, in summary, the following:
29 - The interpretation that the Claimant makes of the provisions of paragraph 1 of Article 3 of the CIUC is notoriously incorrect, in that it incurs not only "in a biased reading of the letter of the law", but also in the adoption "of an interpretation that does not heed the systematic element, violating the unity of the regime" established in the entire CIUC and, more broadly, in the entire legal-fiscal system, following also an "interpretation that ignores the ratio of the regime established in the article in question".
30 - The understanding that the legislator established a presumption in the mentioned Article 3 of the CIUC would be, in the understanding of the Respondent, unequivocally to carry out an interpretation contra legem, noting that,
31 - The legislator did not use the expression "presume" as it could have done, for example, in the following terms: "the taxable persons of the tax are the owners of the vehicles, presuming as such the natural or legal persons, of public or private law, in whose names the same are registered". (See No. 16 of Response)
32 - The CIUC substantially altered the regime of automobile taxation, with the taxable persons of the tax becoming the owners listed, as such, in the property register, independent of the circulation of the vehicles on the public highway.
33 - It will suffice, therefore, that the vehicle is registered in the name of a certain person for the same to constitute the position of taxable person of the obligation of UCS, given that the said tax aims to tax the owner of the automobile, and ownership is revealed through its registration, adding that it is in this sense that it points,
34 - The "understanding already adopted by the Jurisprudence of our courts", transcribing, for this purpose, part of the judgment of the Administrative and Fiscal Court of Penafiel, handed down in Process No. 210/13.OBEPNF. (See Nos. 25 and 26 of Response)
35 - The interpretation conveyed by the Claimant is, moreover, beyond what has already been mentioned, inconsistent with the Constitution, namely because, among others, it violates the principle of efficiency of the tax system, which has constitutional dignity.
36 - It further adds that, as the tax acts in question are valid and legal, the legal presuppositions that confer on the Claimant the right to compensatory interest are not met.
37 - As to the default interest accrued and accruing requested by the Claimant, the Respondent understands that responsibility for its payment would only take place if the arbitral decision were to be favorable to the Claimant, and if there were a delay on the part of the AT in executing that decision.
38 - In view of all the arguments it has advanced, the Respondent considers it evident the legal conformity of the acts subject to the present arbitral request, consequently lacking the claims filed by the Claimant.
E - ISSUES TO BE DECIDED
39 - It is necessary, therefore, to assess and decide.
40 - In light of the foregoing, regarding the positions of the Parties and the arguments presented, the main issues to be decided aim at:
a) Determine whether the Arbitral Tribunal has material jurisdiction to examine, both the request for restitution of the amounts paid by the Claimant by way of administrative penalties, and the request for restitution, by way of compensation, of the amount paid in 2012, relating to the UCS assessed in 2008;
b) Know whether the norm of subjective incidence contained in Article 3, paragraph 1 of the CIUC, establishes, or not, a presumption;
c) Know the legal value of the motor vehicle register in the economy of the CIUC, particularly for purposes of the subjective incidence of this tax;
d) Know whether, on the date of occurrence of the taxable event, the vehicle had been previously transferred, although the right of property therein continues registered in the name of its former owner, the taxable person of the UCS, for purposes of the provisions of Article 3, paragraph 1, of the CIUC, is the former owner or the new owner;
e) Know whether the Claimant has the right to the default interest requested in the request for arbitral determination.
F - PROCEDURAL REQUIREMENTS
41 - The Arbitral Tribunal is regularly constituted and is materially competent, in accordance with subparagraph a) of paragraph 1 of Article 2 of Decree-Law No. 10/2011, of January 20.
42 - The Parties enjoy legal personality and capacity, are legitimate and are legally represented (see Article 4 and paragraph 2 of Article 10 of Decree-Law No. 10/2011 and Article 1 of Regulation No. 112/2011, of March 22).
43 - The proceeding does not suffer from defects that would invalidate it.
44 - Taking into account the tax administrative proceeding and the documentary evidence attached to the file, it is necessary to present the factual matter relevant to the understanding of the decision, as is set forth in the terms fixed below, it being important, however, first and foremost, to examine the exceptions raised.
G - EXCEPTIONS OF LACK OF JURISDICTION OF THE ARBITRAL TRIBUNAL RAISED
45 - Taking into account the provisions of Article 13 of the Code of Procedure in Administrative Courts (CPTA), applicable here by virtue of Article 29, paragraph 1, subparagraph c), of the RJAT, the said question of jurisdiction should, be examined first, since, in light of the provisions of the aforementioned norm of the CPTA, its examination precedes that of any other matter.
46 - The Claimant, in its request for arbitral determination, in addition to the annulment of the acts of assessment relating to the UCS, for the years 2009, 2010 and 2011 and the request for restitution of the corresponding amount of € 1,061.00, also requested, on one hand, the return of the sum of € 46.60, relating to administrative penalties associated with such assessments and, on the other, the payment of the sum of € 332.00, by way of compensation for material damages that were caused to it, resulting from the payment of the UCS, concerning and assessed in the year 2008 and paid on 04-10-2012;
47 - As regards the amounts related to the administrative penalties, it is important to note that, although the concept of revenues of tax nature does not exclude, as is commonly understood, the revenues deriving from administrative penalties applied within the scope of tax administrative violations, the fact is that the said penalties, as sanctions, of administrative nature, are not confusible with taxes, not falling, from the outset, within tax-legal relations.
48 - It is known that the tax-legal relation, as, namely, results from the provisions of paragraphs 2 and 3 of Article 1 of the LGT and Article 30 of this same statute, implies, beyond the active and passive subjects of that relation, that its object relate to the assessment and collection of taxes or to the resolution of conflicts arising therefrom.
49 - The scope of the jurisdiction of tax arbitral tribunals comprises, precisely, the claims that are inscribed in the aforementioned tax-legal relation. It establishes, indeed, paragraph 1 of Article 2 of the RJAT, as amended by Law No. 64-B/2011, of December 30, that the jurisdiction of the said tribunals comprises: a) The declaration of illegality of acts of assessment of taxes, of self-assessment, of withholding at source and of payment on account; b) The declaration of illegality of acts of determination of the taxable matter, of acts of determination of the taxable base and of acts of fixing patrimonial values, which evidences the absence of competences of tax tribunals for purposes of examination of the decisions relating to the imposition of administrative penalties, within the framework of the above-mentioned infractions.
50 - What the law manifestly privileged, as regards the competences of arbitral tribunals in tax matters, was the judgment of cases that in administrative and fiscal courts assume the procedural form of judicial challenge, in accordance with the provisions of subparagraph a) of Article 101 of the LGT and in subparagraphs a) to f) of paragraph 1 of Article 97 of the CPPT, it being noted that, even in this domain, there are limitations, as results, in particular, from the provisions of paragraph 2 of Regulation No. 112-A/2011, of March 22.
51 - To this end, Councilor Jorge Lopes de Sousa states, in Commentary on the Legal Regime of Tax Arbitration, included in the Guide to Tax Arbitration, Almedina, March, 2013, p. 105 that "[…] thus, excluded from the jurisdiction of these arbitral tribunals is the examination of disputes generated in fiscal execution proceedings or in tax administrative violation proceedings".
52 - Thus, the claim filed by the Claimant for restitution of the amounts paid by way of administrative penalties and annulment of such penalties, does not fall within the scope of arbitrable claims, and this tribunal cannot know of it.
53 - In view of the foregoing, it is concluded by the merits of the exception raised by the Respondent, and this Arbitral Tribunal cannot therefore know, ratione materiae, of the invalidity of the decisions relating to the imposition of administrative penalties and the restitution of amounts paid for this purpose.
54 - As to the request for payment of the sum of € 332.00, filed by the Claimant in the request for arbitral determination, by way of compensation for material damages that were caused to it, it should be noted that, here too, jurisdiction is not seen to this tribunal for this purpose.
55 - It has already been stated that the scope of tax arbitral jurisdiction, in light of the provisions of Article 2 of the RJAT, is focused on conflicts relating to acts of assessment of taxes, of determination of the taxable matter and taxable base and to acts of fixing patrimonial values.
56 - The request for restitution of the sum of € 332.00, filed by the Claimant in the request for arbitral determination, by way of compensation, aims at the repair of damages suffered, as a result of the payment of that same amount, made on 04-10-2012, relating to a tax assessment act of UCS, allegedly illegal, relating to the vehicle Scania brand, with registration ..-..-.., relating to the year 2008 and assessed in that year.
57 - This is a claim that, aiming to effectuate the extracontractual civil liability of the State, disciplined, as results from what is established in Law No. 67/2007, of December 31, amended by Law No. 31/2008, of July 17, not by norms of tax law, but by norms of civil and administrative law, and that having, although, as its remote origin the said act of assessment, does not correspond to a conflict emerging from a tax relation tout court, being, moreover, manifestly, subsequent to the aforementioned tax act.
58 - In these circumstances, also, regarding the said claim, it is concluded by the merits of the exception raised by the Respondent, and this Arbitral Tribunal is therefore not competent, in reason of the matter, for its examination.
II - REASONING
H - FACTUAL FOUNDATION
59 - In the matter of relevant fact, the present tribunal considers the following facts as proven:
60 - The Claimant is a limited liability company, whose activity is civil construction and public works.
61 - In order to satisfy its activities, it acquired, on 05-05-1999, a heavy goods vehicle, Scania brand, with registration ..-..-.., which, subsequently, it sold.
62 - The purchase and sale contract relating to the mentioned vehicle occurred on 30-07-2007, and was executed with company B.... SA, with head office on Rua ... - Bissau.
63 - The vehicle in question was no longer the property of the Claimant on the date identified by the Respondent as the date of occurrence of the taxable event.
64 - The Claimant was, on 26-07-2013, informed that the AT would proceed with the official assessment of the UCS relating to the vehicle ..-..-.., for the years 2009, 2010 and 2011, and in this context was notified to exercise the right of prior hearing.
65 - On 31/10/2013, within the framework of the exercise of the right of prior hearing, the Claimant alleged that the mentioned vehicle was not, since the year 2007, its property, having, for this purpose, presented invoice No. 200, of 30-07-2007, evidencing the sale of such vehicle to company B.... SA.
66 - The Claimant, on 07-11-2013, was notified by the AT, not only of the non-acceptance of the arguments adduced by it in the prior hearing, but also that, in the near future, official assessment would be issued.
67 - The Claimant was notified of the assessment of the UCS and compensatory interest, relating to the vehicle in question, for the years 2009, 2010 and 2011, and was set as the payment deadline the day 21-11-2013, payment which, in the amount of € 1,061.00 and relating to the UCS, was, as is evidenced by documentation attached to the file, made on 29-11-2013.
FOUNDATION OF PROVEN FACTS
68 - The facts taken as proven are based on the documents mentioned in relation to each of them, and insofar as their correspondence to reality was not questioned.
FACTS NOT PROVEN
69 - There are no facts taken as not proven, given that all facts deemed relevant for the examination of the claim were proven.
I - LEGAL FOUNDATION
70 - The factual matter has been determined, it being necessary now to proceed to legal subsumption and determine the law applicable to the underlying facts, in accordance with the issues to be decided stated in paragraph 40.
71 - The central issue that is at stake in the present proceedings, regarding which there are absolutely opposing understandings between the Claimant and the AT, consists in knowing whether the norm of subjective incidence contained in paragraph 1 of Article 3 of the CIUC establishes, or not, a rebuttable presumption.
72 - The positions of the parties, in light of what has been stated above, are known. Indeed, for the Claimant, that norm establishes a rebuttable legal presumption, whereas for the Respondent the interpretation that the Claimant makes of the provisions of paragraph 1 of Article 3 of the CIUC is notoriously wrong, in that it incurs not only "in a biased reading of the letter of the law", but also in the adoption "of an interpretation that does not heed the systematic element, violating the unity of the regime" established in the entire CIUC and, more broadly, in the entire legal-fiscal system", also following an "interpretation that ignores the teleological element of interpretation of the regime established throughout the CIUC", also expressing an inconsistency with the Constitution, namely because, among others, it violates the principle of efficiency of the tax system. (No. 67 of Response).
J - INTERPRETATION OF THE NORM OF SUBJECTIVE INCIDENCE CONTAINED IN PARAGRAPH 1 OF ARTICLE 3 OF THE CIUC
73 - It is important to note, first and foremost, that it is settled understanding in legal scholarship that, within the framework of the interpretation of tax laws, the general principles of interpretation fully apply. This is an understanding that, moreover, has acceptance in Article 11 of the General Tax Law.
74 - It is commonly accepted that, with a view to grasping the meaning of the law, interpretation resorts to various means, it being important, first, to reconstruct the legislative thought through the words of the law, which means seeking, from the outset, its literal sense. The said sense, as is also settled, corresponds to the lowest degree of interpretative activity, it being important, therefore, to assess and verify it in light of other criteria, with the so-called elements of a logical nature intervening, whether of a rational (or teleological) sense, of a systematic character or of a historical order.
75 - With respect to the interpretation of tax law, it should be recalled, as, moreover, jurisprudence has been noting, namely in the Judgments of the STA of 05/09/2012 and 06/02/2013, Processes Nos. 0314/12 and 01000/12, respectively, available at: www.dgsi.pt, the importance of the provisions of Article 9 of the Civil Code (CC), as a fundamental precept of legal hermeneutics, which, in this framework, cannot be disregarded.
76 - Interpretative activity is, therefore, unavoidable in resolving the doubts raised by the application of the legal norms in question.
77 - In the understanding of FRANCESCO FERRARA, in Interpretation and Application of Laws, translated by MANUEL DE ANDRADE, (2nd ed.), Arménio Amado, Editor, Successor - Coimbra, 1963, p. 131, the said interpretative activity "[…] is unique [and] complex, of a logical and practical nature, as it consists in inferring from certain circumstances the legislative will", adding, ibidem, p. 130, that "Looking to the practical application of law, legal interpretation is of its nature essentially teleological".
78 - For MANUEL DE ANDRADE, citing FERRARA, in Essay on the Theory of Interpretation of Laws, p. 16 (2nd ed.), Arménio Amado, Editor, Successor - Coimbra, 1963, "Interpretation seeks the voluntas legis, not the voluntas legislatoris […], and seeks the actual will of the law, not its will at the moment of application: it is not, therefore, a will of the past, but a will always present as long as the law does not cease to be in force. This is to say that the law, once formed, detaches itself from the legislator, gaining autonomous consistency; and, more than that, becomes a living entity, not merely a lifeless body […]".
ON THE LITERAL ELEMENT
79 - It is within this framework that it will be important to find an answer to the issues to be decided, particularly the one that seeks to know whether Article 3, paragraph 1 of the CIUC establishes or not a presumption, starting, from the outset, with the literal element.
80 - As the literal element is the first that is important to use, in search of the legislative thought, it is, necessarily, there that one should begin, seeking to reach the meaning of the expression, considering as such the persons, registered in the said Article 3, paragraph 1 of the CIUC.
81 - Paragraph 1 of the said Article 3 of the CIUC provides that "The taxable persons of the tax are the owners of the vehicles, considering as such the natural or legal persons, of public or private law, in whose names the same are registered". (emphasis ours)
82 - The formulation used in the said article will be important to note, first and foremost, resorts to the expression "considering-as", which raises the question of whether, to such an expression, can be attributed a presumptive sense, thus equating it with the expression "presuming". These are expressions frequently used with equivalent senses, as is evident in various situations of the Portuguese legal order.
83 - In fact, there are countless norms that establish presumptions, resorting, for this purpose, to the verb "consider" in various forms. It is not, therefore, difficult to identify situations, in various areas of law, in which the expression "considering-as" or "considers" is used with a sense equivalent to the expression "presuming" or "presumes", expressions to which, whether at the level of irrebuttable presumptions, whether within the scope of rebuttable presumptions, an equivalent meaning is conferred, countless times.
84 - As it does not seem pertinent to once again reference examples revealing these situations, given that such examples are, abundantly, set forth in some of the decisions of tax arbitral tribunals, of which example are those handed down within Processes Nos. 14/2013 - T, 27/2013 - T and 73/2013 - T, we deem these as fully reproduced herein.
85 - In these circumstances, as the mentioned expressions are recurrently used with an equivalent purpose and meaning, it can be concluded that it is not only the use of the verb "presume" that places us before a presumption, but also the use of other terms can serve as a basis for presumptions, as, namely, occurs with the expression "considering-as", which, in our view, is precisely what occurs in paragraph 1 of Article 3 of the CIUC.
It is, therefore, an understanding which, not appearing to correspond to a biased reading of the law as the AT considers, reveals itself in harmony with the provisions of paragraph 2 of Article 9 of the CC, in that it ensures, to the legislative thought, the minimum of verbal correspondence required therein.
86 - From the literal perspective, in light of what has been set forth, there is no doubt that the interpretation that considers a rebuttable presumption established in paragraph 1 of Article 3 has full support in the formulation established there, in light of the mentioned equivalence between the expression "considering as such" and the expression "presuming as such".
The linguistic element, as was mentioned above, being the first that must be used in search of the legislative thought, must, however, in order to find the true meaning of the norm, be submitted to the control of the remaining elements of interpretation of a logical nature. (whether such elements are of a rational (or teleological) sense, of a systematic character or of a historical order).
87 - Indeed, as is drawn from the work of MANUEL DE ANDRADE, mentioned above, p. 28, "[…] the purely linguistic analysis of a legal text is only the beginning […], the first degree […] or the first act of interpretation. In other words, it only provides us with the probable legislative thought and will […] or, rather, the grammatical delimitation of the possible consistency of the law […], the framework within which its true content resides".
88 - Thus being, let us then see the rational (or teleological) element.
ON THE RATIONAL (OR TELEOLOGICAL) ELEMENT
89 - Attending to elements of interpretation of a rational or teleological bent, it is appropriate, from the outset, to recall what, expressly, is set forth in the explanatory memorandum of the Legislative Proposal No. 118/X of 07/03/2007, underlying Law No. 22-A/2007 of 29/06, when it states therein that the reform of automobile taxation is realized through the shifting of part of the tax burden from the moment of acquisition of vehicles to the circulation phase and aims to "form a coherent whole" which, although intended for the raising of public revenue, intends that the same be raised "in the measure of environmental costs that each individual causes to the community", adding, with respect to the tax in question and the different types and categories of vehicles, that "as a structuring and unifying element […] the principle of equivalence is established, thus making it clear that the tax, as a whole, is subject to the idea that taxpayers should be burdened in the measure of the cost they cause to the environment and to the road network, this being the reason for being of this tax figure", further stating that it is "[…] this principle that dictates the burdening of vehicles according to their respective ownership and up to the moment of scrapping […]".
90 - Within this framework, it seems clear that the logic and rationality of the new system of automobile taxation can only coexist well with a taxable person of the tax, on the assumption that that, and no other, is the real and effective subject causing road and environmental damages, as results from the principle of equivalence, inscribed in Article 1 of the CIUC.
91 - The said principle of equivalence, which informs the current single circulation tax, has, at least insofar as it specifically concerns the environment, underlying the polluter-pays principle, and realizes the idea, inscribed therein, that he who pollutes should, for that reason, pay. The said principle which, in some way, has constitutional footing, in that it represents a corollary of the provisions of subparagraph h) of paragraph 2 of Article 66 of our Constitution, also has establishment at the level of community law, whether at the level of primary law, which has been the case since February 7, 1992, at which time the Treaty on European Union was signed in Maastricht, in whose Article 130-R, paragraph 2, the aforementioned principle came to be included as support of Community policy in the environmental field, whether at the level of secondary law.
92 - What is aimed to be achieved through the said principle is to internalize negative environmental externalities, which, after all, in the case of the present proceedings, is nothing more than making the damages that accrue to the community, deriving from the use of motor vehicles, be assumed by their "economic-user owners", as costs that only they should bear.
93 - Returning to the mentioned principle of equivalence, it is to be said that the same has, in the economy of the CIUC, an absolutely structuring role, the normative edifice of the Code in question being founded on it. The said principle cannot, therefore, fail to constitute a desideratum that is legally to be pursued, embodying, in that measure, a light of remarkable brilliance that, constant and continuously, cannot fail to illuminate the interpreter's path.
94 - With respect to the said principle, it is appropriate to note what Sérgio Vasques tells us, when, in Special Consumption Taxes, Almedina, Coimbra, 2001, p. 122, with respect to the technical realization of that principle he considers that "In obedience to the principle of equivalence, the tax must correspond to the benefit that the taxpayer derives from public activity; or to the cost that the taxpayer imputes to the community through his own activity".
95 - Addressing specifically the UCS, the mentioned author adds, op. cit., that "Thus, a tax on automobiles based on a rule of equivalence will be equal only if those who cause the same road wear and the same environmental cost pay the same tax; and those who cause different road wear and environmental cost, pay different tax also", adding that the realization of the said principle "[…] dictates other requirements still with regard to the subjective incidence of the tax […]".
96 - In light of what has just been mentioned, it is clear that the taxation of the real polluters corresponds to an important purpose pursued by the law, in the case by the CIUC, a purpose which, in the words of Francesco Ferrara, in Interpretation and Application of Laws, 2nd Edition, Arménio Amado, Editor, Successor, Coimbra, 1963, p. 130, should always be before the eyes of the jurist, given that, as the mentioned author states therein, "[…] legal interpretation is of its nature essentially teleological", it is appropriate to note that, also in light of the elements of a rational or teleological character of interpretation, it is imperative to conclude that paragraph 1 of Article 3 of the CIUC can only establish a rebuttable presumption.
97 - One must also not forget the systematic element of interpretation.
ON THE SYSTEMATIC ELEMENT
98 - About the systematic element, BAPTISTA MACHADO tells us, in Introduction to Law and Legitimizing Discourse, p. 183, that "this element comprises the consideration of the other dispositions that form the complex of norms of the institute in which the norm being interpreted is integrated, that is, that regulate the same matter (context of the law), as well as the consideration of legal dispositions that regulate parallel normative problems or related institutes (parallel places). It further comprises the systematic place that befits the norm being interpreted in the overall legal order, as well as its harmony with the spirit or intrinsic unity of the entire legal order".
99 - It is known that a legal principle, in this case the principle of equivalence, does not exist in isolation, but is linked by an intimate nexus with other principles that integrate, at a more global level, the respective legal order, in this case, with the other principles embodied in the UCS system. In that sense, each article of a given statute, in this case of the CIUC, will only be understandable if we place it before the other articles that follow or precede it.
100 - As regards the systematization of the CIUC, environmental concerns were determinant in order that the mentioned principle of equivalence be, from the outset, inscribed in Article 1 of the Code, which necessarily leads to the fact that the subsequent articles, insofar as they are founded on such principle, are influenced by it. This occurred, namely, with the taxable base, which came to be constituted by various elements, particularly those concerning pollution levels, and with the rates of the tax, established in Articles 9 to 15, which were influenced by the environmental component, and, naturally, also with the very subjective incidence, provided for in Article 3 of the CIUC, which cannot escape the influence mentioned.
101 - The vehicles of category C, in which the vehicle in question in the present proceeding is indeed inscribed, were also influenced by the said principle of equivalence. To this end, it is appropriate to recall the understanding of BRIGAS AFONSO and MANUEL FERNANDES, in Tax on Vehicles and Single Circulation Tax, Coimbra Ed., 2009, p. 205, when, in annotations to Article 11 of the CIUC, relating to the rates applicable to vehicles of category C, they state that "[…] is recorded, as positive, the fact that a positive fiscal discrimination is maintained for the least polluting vehicles, understood as those that were registered at a more recent date, in line with what happened in the last years of validity of the ICi. This fact demonstrates that it is possible an innovative approach, in environmental terms, of automobile taxation, even when goods vehicles are at issue".
102 - The systematic element of interpretation and the interaction between the various articles and principles that integrate the system inscribed in the CIUC, also appeal to the understanding that what is established in paragraph 1 of Article 3 of the CIUC cannot fail to constitute a presumption.
103 - Paragraph 1 of Article 9 of the CC provides that the search for the legislative thought should have "[…] particularly in account […] the unity of the legal system, the circumstances in which the law was drawn up and the specific conditions of the time in which it is applied", circumstances and conditions which, today more than ever, are of sensitivity to the environment and respect for matters related to it.
In this context, the considerations formulated on the mentioned elements of interpretation, whether of a literal character or of a historical bent, whether of a rational nature or systematic, point in the sense that Article 3 of the CIUC establishes a presumption, that is, the ratio legis of that norm, as the reason or purpose that may reasonably be attributed to it, cannot fail to envision the expression "considering as such", used in the said article, as revelatory of the establishment of a rebuttable presumption, which means that the taxable persons of the UCS are not only the owners of the vehicles in whose names the same are registered.
It is to be said, moreover, that the establishment of a presumption in the mentioned norm will correspond to the interpretation that appears most compatible, both with the principle of equivalence, mentioned above, and with the principles, which below will be referenced, of material truth and proportionality.
104 - Here arrived, it is appropriate to recall the provisions of Article 73 of the LGT, when it establishes that "The presumptions established in the norms of tax incidence always admit proof to the contrary", (emphasis ours), which means that the legal presumption, which appears to be established in paragraph 1 of Article 3 of the CIUC, will necessarily be rebuttable.
105 - Within this framework, the taxable persons of the tax are, presumptively, the persons in whose names the vehicles are registered, that is, the said taxable persons are, in principle, the persons in whose names such vehicles are registered. They will, therefore, be these persons, identified in these conditions, to whom, from the outset and in principle, the AT must, necessarily, address themselves, communicating to them the draft decision corresponding thereto.
106 - However, this will be so only in principle, given that within the framework of the prior hearing, of a mandatory character, in light of the provisions of subparagraph a) of paragraph 1 of Article 60 of the LGT, the tax relation may be reconfigured, validating the taxable person initially identified, or redirecting the proceeding in the sense of the one that will be indicated by the holder of the right of prior hearing, as being the owner of the vehicle in question.
107 - The right that the taxpayer has to be heard, which is operated by means of prior hearing, should correspond to and translate itself into the possibility granted to individuals of having a useful participation in the proceeding, and should not be transformed into an inconsequential and routine practice, as well note José Manuel Santos Botelho, Américo Pires Esteves and José Cândido de Pinho, in Administrative Procedure Code, Annotated and Commented, 4th Edition, Almedina, Coimbra, 2000, annotation No. 8 to Article 100.
108 - With respect to the right of prior hearing, it is appropriate to recall the understanding of jurisprudence on the matter, namely the Judgment of the STA, of 24-10-2012, Proc. 0548/12, from which it is drawn that under pain of the said right transforming itself into a meaningless ritual, the arguments and documents presented by the taxpayer cannot be regarded with haughty indifference, requiring their analysis by the administration, so as to make it visible that the decision of the proceeding results from a transparent weighing of the elements of fact and law submitted to its examination.
109 - The prior hearing, which, naturally, must be realized at a moment immediately prior to the proceeding of assessment, corresponds to the seat and proper occasion for, with certainty and security, identifying the taxable person of the UCS.
The said assessment proceeding, as is noted by Diogo Leite Campos, Benjamim Silva Rodrigues and Jorge Lopes de Sousa, in General Tax Law, Annotated and Commented, 4th Edition 2012, Writing Meeting, Ltd., Lisbon, annotation No. 5 to Article 36, serves solely to make certain the tax obligation and, consequently, enforceable. In this sense, the said authors add, in annotation No. 6 to the same article, that "Assessment, as any tax act, being an act defining the position of the tax administration before individuals, does not constitute the obligation. It makes it certain and enforceable […]".
110 - Prior hearing is, moreover, the proper seat, to seek the material truth of the essential elements to the assessment of the tax, among which will be the knowledge of the true taxable persons of the tax, as the first elements of the tax-legal relation. To this end, it is appropriate to refer to what the above-mentioned authors tell us, op. cit., in annotation No. 5 to Article 55, when they state there that, in the domain of tax proceedings, the tax administration, particularly in light of the principles of justice and impartiality, should be guided by "[…] criteria of abstention in the investigation of factual situations, carrying out all the diligences that appear necessary to investigate material truth, regardless of whether the facts to be investigated are contrary to the patrimonial interests that the tax administration has to defend". (emphasis ours)
111 - It is also important to recall the inquisitorial principle, with respect to which it is appropriate to again allude to the teachings of Diogo Leite Campos, Benjamim Silva Rodrigues and Jorge Lopes de Sousa, in General Tax Law, Annotated and Commented, 4th Edition 2012, Writing Meeting, Ltd., Lisbon, p. 488/489, when, in annotations to the cited Article 58, they state that it falls to the administration a dynamic role in the collection of elements with relevance to the decision, adding that the "[…] lack of diligences deemed necessary for the construction of the factual basis of the decision will affect this not only in the hypothesis that they are mandatory (violation of the principle of equality), but also if the materiality of the facts considered is not proven or if there are missing from that basis, facts relevant, alleged by the interested party, by insufficiency of proof that the Administration should have collected […]".
The inquisitorial principle, the said authors add, op. cit, "[…] has to do with the powers (-duties) of the Administration to proceed with the investigations necessary to the knowledge of the facts essential or determinant to the decision […]".
112 - It should not be said, as the AT does, that the establishment of a rebuttable presumption in Article 3 of the CIUC and the consequences arising therefrom would offend the principle of efficiency of the tax system, in that they would lead, namely, to the "impeding and increasing the costs of the competences attributed to the Respondent". (See No. 67 of Response)
The efficiency of the Administration in general, or of the AT in particular, in the current sense, corresponds to the capacity/methodology of work oriented toward the optimization of work performed or services rendered, which will mean producing the maximum, in quantity and quality, with the minimum of costs, nothing having to do with the observance of legally established principles and with respect for the rights of citizens, whether in the capacity of taxpayers or not.
In a technical sense, it is to be said that the principle of efficiency of the tax system is, commonly regarded, in the domain of tax proceedings, as a corollary of the principle of proportionality, which, as is known, imposes an adequate proportion between the legal purposes and the means chosen to achieve those ends, or, as Diogo Leite Campos, Benjamim Silva Rodrigues and Jorge Lopes de Sousa state, in General Tax Law, Annotated and Commented, 4th Edition 2012, Writing Meeting, Ltd., Lisbon, p. 488, in annotations to Article 55 of the LGT, it is a principle that obligates "[…] the tax administration to refrain from imposing on taxpayers obligations that are unnecessary to the satisfaction of the purposes that it pursues".
In this framework, the said principle of efficiency of the tax system will mean the capacity to achieve the legally fixed objectives with the available means, or rather, with the minimum of means, which will also have nothing to do with respect for the rights of citizens, nor with the need for observance of the principles to which the tax administration should subordinate its activity, namely that of the inquisitorial and the discovery of material truth, and obviously, the application of the mentioned principle of efficiency cannot be done to the detriment of the rights of citizens.
L - ON THE ACQUISITION OF OWNERSHIP OF THE VEHICLE AND THE VALUE OF REGISTRATION
113 - First of all, it should be added, in light of what will hereinafter, expressly, be said about the value of registration, that the acquirers of vehicles become owners of those same vehicles through the execution of the corresponding purchase and sale contracts, with registration or without it.
114 - There are three articles of the Civil Code that are important to take into account, with respect to the acquisition of ownership of a motor vehicle. They are, first of all, Article 874, which establishes the notion of purchase and sale contract, as "[…] the contract by which property of a thing, or another right, is transmitted, in return for a price"; Article 879, in whose subparagraph a) is provided, as essential effects of the purchase and sale contract, "the transmission of property of the thing or the title of the right" and Article 408, which has the heading contracts with real effect, and establishes in its paragraph 1, that "the constitution or transfer of real rights over a certain thing occurs by mere effect of the contract, save the exceptions provided by law". (emphasis ours)
We are, with effect, in the domain of contracts with real effect, which means that their execution provokes the transmission of real rights, in the case, motor vehicles, determined by mere effect of the contract, as expressly results from the aforementioned norm.
115 - With respect to the said contracts with real effect, it is appropriate to note the teachings of Pires de Lima and Antunes Varela, when, in annotations to Article 408 of the CC, they tell us that "These contracts said to be real (quoad effectum), because they have as their immediate effect the constitution, modification or extinction of a real right (and not merely the obligations tending to that result) are distinguished from the so-called real contracts (quoad constitutionem), which require the delivery of the thing as an element of their formation (see Articles 1129, 1142 and 1185 ".
We are, therefore, before contracts in which the property of the thing sold is transferred, without more, from the seller to the buyer, having, as its cause, the contract itself.
116 - Also from jurisprudence, namely from the Judgment of the STJ Nos. 03B4369 of 19/02/2004, available at: www.dgsi.pt, it is drawn that, in light of the provisions of Article 408, paragraph 1, of the Civil Code, "the constitution or transfer of real rights over a certain thing occurs by mere effect of the contract, save the exceptions provided by law". This is the case of the purchase and sale contract of motor vehicle (Articles 874 and 879 subparagraph a) of the Civil Code), which does not depend on any special formality, being valid even when executed verbally - in accordance with Judgment of the STJ of 3-3-98, in CJSTJ, 1998, year VI, Volume I, p. 117". (emphasis ours)
117 - Having the purchase and sale contract, in light of what has been stated, a real nature, with the mentioned consequences, it is necessary to consider, also, the legal value of the motor vehicle registration object of that contract, insofar as the transaction of the said good is subject to public registration.
118 - The Claimant raises, moreover, the question of non-fulfillment of the requirements of the notion of third party for purposes of registration, on the part of the AT, which does not allow it to avail itself of the absence of updating of the registration of the right of property to call into question the full effectiveness of the purchase and sale contract of the vehicle and to require from the seller, as its former owner, the payment of the UCS, which is owed by the buyer, as the new owner of the vehicle.
119 - It establishes, with effect, paragraph 1 of Article 1 of Decree-Law No. 54/75, of February 12, relating to the registration of motor vehicles, (amended various times, the last of which by Law No. 39/2008, of 11/08), that "The registration of vehicles has essentially the purpose of giving publicity to the legal situation of motor vehicles and their respective trailers, with a view to the security of legal commerce". (emphasis ours)
120 - Becoming clear, in light of the said norm, what the purpose of registration is, there is, however, no clarity, within the scope of the said Decree-Law, about the legal value of that registration, it being important to consider Article 29 of the mentioned statute, relating to the registration of motor vehicle ownership, when it is therein provided that "The provisions relating to property registration apply, with necessary adaptations, to the registration of automobiles, […]". (emphasis ours)
121 - Within this framework, so that we may achieve the sought knowledge about the legal value of motor vehicle ownership registration, it is important to take into account what is established in the Property Registration Code, which, approved by Decree-Law No. 224/84, of July 6, and amended for the last time, by Decree-Law No. 125/2013, of August 30, provides in its Article 7 that "the definitive registration constitutes a presumption that the right exists and belongs to the registered holder, in the precise terms in which the registration defines it". (emphasis ours)
122 - The combination of the provisions in the three aforementioned articles, particularly that established in paragraph 1 of Article 1 of Decree-Law No. 54/75, of February 12 and in Article 7 of the Property Registration Code, allows to consider, on the one hand, that the fundamental function of registration is to give publicity to the legal situation of the vehicles, allowing, on the other, to presume that the right exists and that such right belongs to the holder, in favor of whom the same is registered, in the precise terms in which it is defined in the registration.
123 - Thus, the definitive registration constitutes nothing more than the presumption that the right exists and belongs to the registered holder, in the exact terms of the registration, but a rebuttable presumption, admitting, for this reason, contrary proof, as results from the law and jurisprudence has been noting, and reference may be made, among others, to the Judgments of the STJ Nos. 03B4369 and 07B4528, respectively, of 19/02/2004 and 29/01/2008, available at: www.dgsi.pt.
124 - The function legally reserved to registration is, therefore, on one hand, to publicize the legal situation of the goods, in the case, of the vehicles and, on the other hand, to allow us to presume that the right over those vehicles exists and that the same belongs to the holder, as such registered in the registration, which means that registration does not have a constitutive nature of the right of property, but only a declarative one, hence registration does not constitute a condition of validity of the transmission of the vehicle from the seller to the buyer.
125 - Note, however, that while it is true that the non-existence of registration has the relevance that was mentioned above, it is no less true that its non-existence does not prevent the full effectiveness of the purchase and sale contract. To this end, it is appropriate to note the provisions of paragraphs 1 and 4 of Article 5 of the Property Registration Code, applicable to motor vehicle ownership registration by virtue of what is established in Article 29 of Decree-Law No. 54/75, of February 12.
126 - Paragraph 1 of Article 5 of the said Property Registration Code provides that "Facts subject to registration only produce effects against third parties after the date of their respective registration", establishing, on its side, paragraph 4 of the same article that "Third parties, for purposes of registration, are those who have acquired from a common author rights incompatible with each other".
127 - In these circumstances, it is easy to conclude that the AT, given that it did not acquire, from the same seller, rights over the vehicle, incompatible with the rights of the buyer, does not meet the concept of third parties for purposes of registration, as legally fixed.
128 - Thus, if the buyers of the vehicles, as their "new" owners, do not promote, from the outset, the appropriate registration of their right, it is presumed, for purposes of paragraph 1 of Article 3 of the CIUC and in accordance with the provisions of Article 7 of the Property Registration Code, that the vehicle continues to be the property of the person who sold it and who remains its owner in the registration, being, however, certain that such presumption is rebuttable, whether by virtue of what is established in paragraph 2 of Article 350 of the CC, or in light of the provisions of Article 73 of the LGT. Hence, from the moment in which the said presumption is rebutted, by means of proof of the respective sale, the AT cannot persist in considering as the taxable person of the UCS the seller of the vehicle, who, in the registration, continues to appear as its owner.
129 - In light of what has just been stated, and taking into account, both the presumption established in Article 3 of the CIUC, and the transfer of ownership of the vehicle in question, by mere effect of the contract, prior to the date of occurrence of the taxable event, as well as the legal value of motor vehicle registration in the economy of the CIUC, the tax acts in question cannot merit our agreement, whether because an adequate interpretation and application of the legal norms of subjective incidence was not taken into account, which constitutes an error as to the legal presuppositions, whether because the said acts were based on a matter of fact, clearly divergent from the actual reality, which constitutes an error as to the factual presuppositions.
M - ON THE EVIDENCE PRESENTED
130 - As it is not legally required for the written form for the contract of purchase and sale of motor vehicles, proof of the corresponding sale may be made by various means, namely by means of testimonial or documentary evidence, in which are included invoices/receipts relating to the sales of vehicles.
131 - As a means of proof that, on 30-07-2007, it proceeded to sell the vehicle with registration ..-..-.., to company B..., SA, the Claimant attached the corresponding Invoice, numbered, under No. 200, dated 30-07-2007, as well as the respective receipt, numbered under No. 198, dated 30-07-2007, in which the due reference to the aforementioned invoice No. 200 is evidenced, and the receipt of the amount relating to the sale of the vehicle in question, by which, in 2009, 2010 and 2011, dates of occurrence of the respective taxable events, was no longer the owner of the said vehicle, verifying, in these circumstances, the presumptions established in Article 3, paragraph 1, of the CIUC and 7 of the Property Registration Code being rebutted, and the Claimant not being, therefore, the taxable person of the UCS, whose assessment was notified to it.
132 - The documents presented by the Claimant, as means intended to prove the transaction of the vehicle in question, enjoy the presumption of truthfulness provided for in paragraph 1 of Article 75 of the LGT, appearing, thus, with sufficient reliability, in order to demonstrate the said transaction, which allows it to be taken as proven that the Claimant sold the mentioned vehicle, on 30-07-2007, to the said company B..., SA.
133 - In these circumstances, considering, on one hand, that the presumption established in Article 3 of the CIUC was rebutted and that, on the other, the registration of the vehicle in question was assigned in Portugal, on 05 - 05 - 1999, it cannot fail to be considered that, at the time of enforceability of the tax, which, in the case of the present proceedings, in light of the provisions of paragraph 2 of Article 4, combined with the provisions of paragraph 3 of Article 6, both of the CIUC, occurred on May 5 of the years 2009, 2010 and 2011, the Claimant was not the taxable person of the tax in question.
134 - In light of what has just been stated, and taking into account, both the rebuttal of the presumption established in Article 3 of the CIUC, embodied in the transfer of ownership of the vehicle in question, by mere effect of the contract, prior to the date of occurrence of the respective taxable events, as well as the legal value of motor vehicle registration in the economy of the CIUC, the tax acts in question cannot merit our agreement, whether because an adequate interpretation and application of the legal norms of subjective incidence was not taken into account, which constitutes an error as to the legal presuppositions, whether because the said acts were based on a matter of fact, clearly divergent from the actual reality, which constitutes an error as to the factual presuppositions.
135 - The AT when it understands that the taxable persons of the UCS are, definitively, the persons in whose names the motor vehicles are registered, without considering the probative elements which, whether within the framework of prior hearing, whether at a later moment, were presented to it, intended to identify the effective and true owners of the vehicles, is proceeding to the illegal assessment of the UCS, based on the erroneous interpretation and application of the norms of subjective incidence of the Single Circulation Tax, contained in Article 3 of the CIUC, whether at the level of the provision, whether of the enactment, which configures the practice of a tax act lacking in legality due to error as to the factual and legal presuppositions, which determines the annulment of the corresponding tax acts, by violation of law.
N - DEFAULT INTEREST REQUESTED
136 - The Claimant, in its request for arbitral determination, requests the condemnation of the AT to the payment of accrued and accruing default interest until the full reimbursement of all amounts improperly collected and paid by it, a request which, however, does not prove pertinent.
With effect,
137 - Default interest, in light of what is provided and enacted in paragraph 2 of Article 102 of the LGT, applicable here, is owed in the case that the decision/judgment implies the restitution of the tax paid, and is counted from the term of the deadline for spontaneous execution of that decision/judgment.
138 - Thus, only after the lapse of that deadline will the creditor of the restitution of the tax have the right to default interest, which, as is noted by Diogo Leite Campos, Benjamim Silva Rodrigues and Jorge Lopes de Sousa, in General Tax Law, Annotated and Commented, 4th Edition 2012, Writing Meeting, Ltd., Lisbon, p. 887, in annotations to Article 102 of the LGT, do not result from "[…] a direct effect of the annulment of the act which when decreed already involves the consideration of the time elapsed until then and in whose payment the Administration emerges already condemned, but before a pure yield of a capital obligation".
139 - In these circumstances, as the taxable event for default interest resides in the delay of the Tax Administration in paying to the creditor the tax to be reimbursed, it is clear that, in this case, there is no place for any payment of default interest.
140 - However, it should be noted that the terms in which such request proves to be formulated are based, manifestly, on improper and inadequate terminology, in light of what is substantially intended, which should be understood in light of the intervention of the Claimant, by itself, given, in the case, that the constitution of a lawyer is not mandatory, a circumstance that raises the requirement of a lesser degree of legal rigor.
141 - In truth, the said request, as results from its strict literal dimension, aims at nothing more than the condemnation of the Respondent to the payment of interest on the amounts improperly assessed and paid by the Claimant.
It is intended, therefore, that the amounts paid by way of UCS be reimbursed and compensated by way of interest, which cannot fail to respect the compensatory interest, which, once the respective requirements are met, embodied in the existence of error attributable to the services from which results payment of the tax debt in an amount greater than legally due, are owed to the Claimant.
142 - In the case of the present proceedings, it appears manifest that, in light of what is established in Article 61 of the CPPT and the requirements for the right to compensatory interest are met, that is, verified the existence of error attributable to the services from which results payment of the tax debt in an amount greater than legally due, as provided for in paragraph 1 of Article 43 of the LGT, the Claimant has the right to compensatory interest at the legal rate, which, calculated on the sum of € 1,061.00, will be counted from 29-11-2013, until the full reimbursement of that same amount.
143 - Finally, in a brief reference regarding responsibility for the payment of costs, which the AT considers are owed by the Claimant, in accordance with the provisions of paragraph 1 of Article 527 of the CPC, applicable ex vi of Article 29, paragraph 1, subparagraph e) of the RJAT, it is only appropriate to note that, in light of what is enacted in paragraph 2 of the said Article 527 of the CPC, the "[…] costs of the proceeding are borne by the unsuccessful party, in the proportion in which it is unsuccessful", which is precisely what will apply in the case of the present proceedings.
CONCLUSION
144 - Within the circumstantial framework that has been referred to, the AT, in practicing the acts of assessment of UCS in question in the present proceeding, relating to the years 2009, 2010 and 2011, based on the idea that Article 3, paragraph 1, of the CIUC does not establish a rebuttable presumption, makes an erroneous interpretation and application of this norm, committing an error as to the legal presuppositions, which constitutes violation of law.
145 - On the other hand, because the AT, at the date of occurrence of the tax facts, considered the Claimant the owner of the vehicle referenced in the present proceeding, considering it, as such, the taxable person of the tax, when such ownership was no longer inscribed in its legal sphere, basing itself, thus, on matter of fact divergent from the actual reality, commits an error as to the factual presuppositions, and therefore of violation of law.
III - DECISION
146 - Thus, in view of all that has been stated, this Arbitral Tribunal decides:
-
Judge partly as having merit, as proven, based on a defect of violation of law, the request for arbitral determination insofar as it concerns the annulment of the acts of assessment of UCS and compensatory interest, for the years 2009, 2010 and 2011;
-
Annul, consequently, both the acts of assessment of UCS, for the years 2009, 2010 and 2011, relating to the heavy goods vehicle, Scania brand, with registration ..-..-.., and the acts of assessment of the compensatory interest associated therewith;
-
Condemn the AT to the full reimbursement of the sum of € 1,061.00, relating to the UCS assessed and paid in 2013, relating to the years 2009; 2010 and 2011, and to the payment of compensatory interest at the legal rate, counted from 29-11-2013, until the full reimbursement of the said amount;
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Condemn the Claimant and the Respondent in costs, which are fixed, for each, in the proportion of the respective lack of success.
VALUE OF THE PROCEEDING
In accordance with the provisions of Articles 306, paragraph 2 of the CPC (former Article 315, paragraph 2) and 97-A, paragraph 1 of the CPPT and Article 3, paragraph 2 of the Regulation on Costs in Tax Arbitration Proceedings, the proceeding is valued at € 1,745.60.
COSTS
In harmony with the provisions of Article 12, paragraph 2, in fine, Article 22, paragraph 4, both of the RJAT, and Article 4 of the Regulation on Costs in Tax Arbitration Proceedings and of Table I, which is attached thereto, the amount of total costs is fixed at € 306.00.
Let notice be given.
Lisbon, July 31, 2014
The Arbitrator
António Correia Valente
(The text of the present decision was prepared by computer, in accordance with Article 131, paragraph 5 of the Code of Civil Procedure (former Article 138, paragraph 5), applicable by reference from Article 29, paragraph 1, subparagraph e) of Decree-Law No. 10/2011, of January 20 (RJAT), being governed in its drafting by the spelling prior to the Orthographic Agreement of 1990.)
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