IUC Subjective Incidence: CAAD Arbitration on Vehicle Tax Liability for 3,020 Cars (2009-2012)

ARBITRAL DECISION

CAAD: Tax Arbitration

Case No. 250/2014 – T

Subject: IUC – Subjective Incidence

ARBITRAL DECISION

I. Report

1. On 10 March 2014, A., legal entity no. … , with registered office at Street …. , came, under the terms of articles 2.º, no. 1, subparagraph a), and 10.º, no. 1, subparagraph a), of Decree-Law no. 10/2011, of 20 January, which approved the Legal Regime for Tax Arbitration (RJAT), and articles 1.º and 2.º of Ministerial Order no. 112-A/2011, of 22 March, to file a petition for the constitution of an Arbitral Tribunal, in which the TAX AUTHORITY AND CUSTOMS (AT) appears as Respondent.

2. The Petitioner requests that the illegality of the acts of official assessment of Single Circulation Tax (IUC) and respective compensatory interest relating to the years 2009, 2010, 2011 and 2012, in the total amount of € 353,798.34, concerning 3,020 motor vehicles identified in lists attached to the petition for arbitral ruling, be declared.

3. It further requests the condemnation of the Respondent in the costs of the proceeding and the recognition of the right to compensation concerning the charges incurred with the provision of bank guarantees for the suspension of the respective tax enforcement proceedings.

4. The Petitioner opted for non-designation of an arbitrator.

5. The petition for constitution of the arbitral tribunal was accepted by the President of CAAD and automatically notified to the Tax Authority and Customs on 12 March 2014.

6. Under the terms of subparagraph a) of no. 2 of article 6.º and subparagraph b) of no. 1 of article 11.º of the RJAT, as amended by article 228.º of Law no. 66-B/2012, of 31 December, the Deontological Council appointed as arbitrators of the collective arbitral tribunal Dr. José Pedro Carvalho, Prof. Doctor Luís Menezes Leitão and Dr. Álvaro Caneira, who communicated their acceptance of the appointment within the applicable period.

7. On 30 April 2014, the Parties were duly notified of this appointment, having expressed no intention to refuse the appointment of the arbitrators, under the combined terms of article 11.º, no. 1, subparagraphs a) and b), of the RJAT and articles 6.º and 7.º of the Deontological Code.

8. Wherefore, in conformity with the provision of subparagraph c) of no. 1 of article 11.º of the RJAT, as amended by article 228.º of Law no. 66-B/2012, of 31/12, the collective arbitral tribunal was constituted on 19 May 2014. The Respondent (AT) filed a response in which, in addition to defending the dismissal of the petition for arbitral ruling, raised the exception of illegal cumulation of claims as well as the exception of incompetence of the arbitral tribunal to consider and decide on the petition for compensation for undue provision of guarantee.

9. The Petitioner replied in writing to the exceptions invoked by the Respondent.

10. On 5 September 2014, the meeting provided for in article 18.º of the RJAT took place.

Having the parties declared they had nothing further to add, evidence was produced through the witnesses presented by the Petitioner, with the Parties dispensing with the respective audio recording.

1. Upon completion of witness testimony, the Parties were invited to make submissions on the completion of arguments. At the request of the Petitioner, a successive period of 10 days was granted for the Petitioner and the Respondent, in that order, to submit written arguments, and they were informed that the decision would be rendered within 30 days following the submission of arguments by the Respondent.

2. The parties submitted arguments within the period set by the Tribunal.

3. By petition filed on 23 September 2014, the Respondent requested the attachment to the file of two decisions rendered in CAAD.

4. Taking into account the provisions of article 423.º, no. 4, of the Code of Civil Procedure, as well as the circumstance that the documents presented were not intended as proof or counter-proof of any fact alleged by the Parties, but solely to support their legal position, the Tribunal, by order of 29 October 2010, admitted the attachment to the file of said decisions.

5. Considering the provision of article 16.º, subparagraph a), of the RJAT, by the same order, a period of 10 days was granted to the Petitioner to comment on the said documents, and the suspension of the previously set period for rendering the decision was determined.

II. Sanitation

1. The Arbitral Tribunal is regularly constituted and is materially competent, under the terms of subparagraph a) of no. 1 of article 2.º of Decree-Law no. 10/2011, of 20/01.

2. The Parties enjoy legal personality and capacity, are legitimate and are properly represented (cf. art. 4.º and no. 2 of art. 10.º of Decree-Law no. 10/2011 and art. 1.º of Ministerial Order no. 112/2011, of 22/03).

3. The proceeding is not affected by defects that would invalidate it.

III. Matter of Fact

1. Based on the documentary elements that are part of this proceeding and, in particular, on the testimony of the witnesses presented by the Petitioner, the following factual elements are highlighted which, not being contested by the Respondent, are considered fully proven:

19.1. The Petitioner has as its corporate purpose the trade of automobiles, their parts and accessories.

19.2. In the context of its activity, it proceeds with the admission, in Portuguese territory, of all motor vehicles of the brand …, which, in the new state, it acquires directly from the manufacturer.

19.3. The vehicles admitted in Portuguese territory are immediately transferred to other companies, invariably concessionaires of the brand which, in turn, sell them to end customers.

19.4. The transfers to concessionaires are documented by invoices issued in accordance with legal requirements, making reference to "reservation of ownership" in order to safeguard payment of the price, which normally occurs on the day immediately following.

19.5. The vehicles transferred to concessionaires, as soon as they enter Portuguese territory, are transported and deposited in the facilities of the acquiring concessionaires.

19.6. Since, at the time of sale, the vehicles transferred are not yet registered in Portugal, they are identified in the respective invoicing through the indication of the corresponding chassis number.

19.7. Only after the sale to the concessionaires does the Petitioner, as registered operator, bear the corresponding Vehicle Tax, which it passes on to the acquirers, then promoting the respective registration in Portugal.

19.8. It thus results that at the moment when the vehicles are registered, the Petitioner had, in general, already transferred the ownership of the vehicles to third parties.

19.9. The situation described above covers 2,946 vehicles, identified in attached list (Doc. …), which is hereby deemed fully reproduced, to which, in the assessments now contested, there corresponds the total amount of € 345,169.41 of IUC and compensatory interest.

19.10. Regarding the vehicles that are in the situation referred to above, the respective sales invoices are made available (Docs. … to …) as well as a list in which the chassis number of each vehicle is related to its respective registration.

19.11. In addition to the vehicles transacted on a date prior to their registration, the contested assessments also cover others which, not being in that situation, had already been subject to sale within 60 days following the date of assignment of the registrations.

19.12. The cases referred to in the previous sub-point – 74 vehicles – are highlighted in a list attached to the petition for arbitral ruling (Doc. …), to which in the assessments now contested, there corresponds the total amount of € 8,628.93 of IUC and compensatory interest.

19.13. Regarding the contested assessments, the Petitioner was notified to exercise the right of hearing (Docs. … to …).

19.14. The Petitioner exercised this right on 11 October 2013 (Docs. … to ….), having, in this manner, brought to the knowledge of the AT the facts referred to above, tending to demonstrate, at this procedural stage, that it should not be qualified as taxpayer of the obligation to pay the tax in question, since it was not the effective owner of the vehicles during the periods to which the tax relates.

19.15. In response to the elements offered by the Petitioner in the exercise of the right of hearing, the competent Tax Office informed the Petitioner, through Official Letter no. 6309, of the 23rd of the same month (Doc. …), that "the vehicles were your property on the dates of exigibility of the taxes, according to information existing in the database, transmitted by the IRN. In accordance with information sent in the notification for prior hearing, from the combination of article 2.º. no. 1, subparagraph a) with articles 3.º, 4.º and 6.º the taxpayer is in default regarding the taxes for the years 2009, 2010, 2011 and 2012."

19.16. The Petitioner was duly notified of the acts of official assessment to which this petition refers, as shown in the documents that constitute attachments 5588 to 8648, which are hereby deemed fully reproduced.

19.17. Having not made voluntary payment of the tax and interest to which the assessments now contested refer, the competent tax enforcement proceedings were instituted.

19.18. To obtain the suspension of said enforcement proceedings, bank guarantees were presented (Doc. 8655).

IV - Preliminary Matters

1. Having summarized the relevant factual elements, it is important, first of all, to analyze and decide the preliminary matters raised by the Respondent which, as mentioned above, relate to the illegality of cumulation of claims and to the incompetence of the arbitral tribunal to consider and decide on the petition for compensation for the provision of bank guarantee.

On the Exception of Illegality of Cumulation of Claims

1. Considering the existence of a direct relationship between the tax assessments whose legality is being questioned, the Petitioner chose to request the joint consideration of the tax acts in question alleging, in essence, that the success of the claim depends on the same circumstances of fact and on the interpretation and application of the legal rules relating to the subjective incidence of the IUC.

2. In its response, however, the Respondent raises an exception relating to the illegality of cumulation of claims, on the ground that there is not verified the existence of the same circumstances of fact, as one is "(...) faced with disparate factual situations, embodied in different vehicles, with different dates of sale, different procedures if we are before sales to concessionaires and sales to car rental companies, on different dates and to completely different owners, with completely different values."

3. Consequently, in the opinion of the Respondent, "the cumulation effected by the Petitioner is illegal, and should not be admitted by the Collective Arbitral Tribunal, which should notify the Petitioner in accordance with the terms and for the purposes of article 47.º/r and 5 of the CPTA, under penalty of dismissal of the instance."

4. In pronouncing itself on the exception invoked, the Petitioner sustains the legality of the cumulation of claims, in the terms in which it is admitted under article 3.º of the RJAT, since in the present petition, what is essentially at issue is the consideration of the same circumstances of fact and application of the same legal rules concerning the subjective incidence of the IUC.

5. Indeed, the cited provision, as well as article 104.º of the CPPT, establishes that cumulation of claims is admissible "when the success of the claims depends essentially on the consideration of the same circumstances of fact and the interpretation and application of the same principles or rules of law."

6. It should be noted that the said legal norms do not require full identity of the contested acts nor do they require the coexistence, alongside common grounds, of a specific ground for annulment of some or several of the contested acts.

7. In the present case, what are essentially at issue are tax acts relating to the IUC, involving a high number of motor vehicles, and, in the realm of law, the application of the legal rules relating to the subjective incidence of this tax.

8. It cannot, therefore, be understood that the factual situations alleged by the Respondent have sufficient relevance to preclude the possibility of cumulation of claims, in accordance with the law, so that the exception raised by it is unfounded.

9. In these terms, considering the identity of the tax facts, of the tribunal competent to decide and of the factual and legal grounds invoked, nothing precludes, in accordance with the provisions of articles 3.º of the RJAT and 104.º of the CPPT, the intended cumulation of claims.

On the Exception Relating to the Incompetence of the Arbitral Tribunal

1. In addition to the exception of illegality of cumulation of claims, the Respondent also raises another, this one relating to the incompetence of the Arbitral Tribunal to consider the petition for compensation for undue provision of bank guarantees.

2. As grounds, it alleges that "the fixing of the amount of compensation is by law removed from the competences of the Arbitral Tribunal, given that it does not appear in the exhaustive delimitation present in article 2.º of the RJAT."

3. This matter is addressed in articles 53.º of the General Tax Law and 171.º of the CPPT.

4. In accordance with the provision of no. 1 of article 53.º of the General Tax Law, the debtor who, to suspend enforcement, offers bank guarantee or equivalent shall be indemnified totally or partially for the damages resulting from its provision, should he have maintained it for a period exceeding three years in proportion to the expiration in administrative recourse, challenge or opposition to enforcement that have as their object the guaranteed debt. And without time limit if it is verified that there was an error attributable to the services in the assessment of the tax.

5. For its part, article 171.º of the CPPT establishes that "compensation in case of bank guarantee or equivalent unduly provided shall be requested in the proceeding in which the legality of the enforceable debt is disputed" and that "compensation must be requested in the complaint, challenge or recourse or in case its ground is subsequent within 30 days of its occurrence."

6. The judicial challenge proceeding, in which a decision is made on the legality of the tax act, thus constitutes an adequate procedural means to formulate the petition for compensation for undue guarantee. In this sense, see STA, Decision of 16.11.2011, Case 608/11.

7. In accordance with repeated arbitral jurisprudence, "The petition for constitution of the arbitral tribunal has as its consequence that it will be in the arbitral proceeding that the «legality of the enforceable debt» will be discussed, so that, as results from the express tenor of that no. 1 of the said art. 171.º of the CPPT, it is also the arbitral proceeding that is adequate to consider the petition for compensation for undue guarantee."

8. Thus, accepting the well-founded, and invariably followed, arbitral jurisprudence, the Arbitral Tribunal deems unfounded the exception raised by the Respondent regarding its incompetence to consider and decide on the petition for compensation for undue guarantee.

V. Matter of Law

1. The Petitioner bases the petition for arbitral ruling, essentially, on the illegitimacy of its qualification as taxpayer of the IUC, concerning the vehicles and period of taxation that it identifies in attached documents, considering two distinct situations:
   a) That ownership of the vehicles was transferred to third parties prior to the date of their registration in Portugal (Doc. 8653);
   b) That ownership of the vehicles was transferred to third parties after the date of registration, but within 60 days from the date thereof.

2. In the first case, according to the Petitioner's understanding, although the vehicles in question were registered in its name at the Motor Vehicle Registry, it was not the effective owner at the date of occurrence of the facts that determine the obligation to pay tax, given that they had already been sold to their respective concessionaires, as evidenced by the invoices issued, which it attaches as evidentiary material. (See, inter alia, Arbitral Decisions of 14.5.2013, Case 1/2013 and of 2.4.2014, Case 224/2013-T)

3. In the second case, the Petitioner considers that, although on the date of occurrence of the tax facts the vehicles, besides being registered in its name at the Motor Vehicle Registry, were its effective property, but were transferred within 60 days following the date of registration, so that the tax in question would only become exigible after the expiration of said period.

4. This consideration, resulting from the interpretation that the Petitioner makes of the rules of no. 1 of article 17.º and of article 18.º of the CIUC, relating to the period of payment of the tax and official assessment, respectively, is based on the assumption that "in the year of registration the taxpayer of the IUC is the owner of the vehicle on the date on which those 60 days counted from the date of assignment of the registration expire, and he must assess and pay it to the State within the 60 days following."

5. In addition to the invoked defect of illegitimacy of its qualification as taxpayer of the tax obligations to which the assessments now contested refer, the Petitioner points out other defects common to all of them, namely:
   a) Insufficiency of grounds;
   b) Violation of the right to prior hearing;
   c) Violation of the inquisitorial principle.

6. Let us, therefore, examine the matters to be considered in this proceeding, following the order in which they are set out above.

On the Transfer of Ownership of Vehicles Prior to the Date of Registration

1. In the context of its business activity, the Petitioner proceeds with the admission in Portuguese territory of new vehicles which, at a moment prior to their respective registration, it transfers to its concessionaires, a fact which it proves through the respective invoicing.

2. However, by force of the applicable legal rules, the registration of the vehicles in question is effected in the name of the Petitioner, even though, at the moment when it takes place, it is not the owner thereof.

3. This is what results from the combined reading of articles 117.º, no. 4, of the Highway Code – which attributes to the person, natural or legal, who proceeds with the admission, importation or introduction into consumption in national territory, the obligation to request the registration of the vehicles – and 24.º, no. 1, of the Motor Vehicle Registration Regulation, which determines that the initial registration of ownership of imported, admitted, assembled, constructed or reconstructed vehicles is based on the respective petition.

4. From the said rules it thus results that the Petitioner, in the capacity of registered operator that proceeds with the admission of new vehicles in national territory, necessarily appears in the respective initial registration as its owner, even though at the moment when this takes place, ownership thereof has already been transferred to third parties.

5. From the above, the Respondent extracts that, "having the Petitioner requested the issuance of a registration certificate, with the same registered in its name, the prerequisites of the fact generating the IUC are fulfilled, as well as its exigibility, with the Petitioner being the taxpayer of the tax."

6. Conversely, the Petitioner understands that the norm concerning the subjective incidence of said tax establishes a legal presumption of ownership, susceptible of being rebutted by proof to the contrary.

7. In this aspect of the present petition for arbitral ruling what is at issue is, therefore, the interpretation of article 3.º, no. 1, of the CIUC, in order to determine whether or not it establishes a presumption regarding the qualification as owner, and consequently, as taxpayer of this tax, the person, natural or legal, in whose name the ownership of the vehicle is registered and, should it be so concluded, its rebuttal based on the evidentiary elements that comprise it.

On the Subjective Incidence of the IUC

1. Notwithstanding the fact that the IUC Code establishes as a structuring principle of this tax the principle of equivalence, understood as compensation for the harmful effects in environmental and energy terms resulting from the circulation of vehicles, said Code elects, with respect to subjective incidence, the owner of the vehicle, considering as such the person in whose name the same is registered (art. 3.º, no. 1, of the CIUC).

2. While not generally according special relevance to the actual use of vehicles, the legislator does not fail to consider such fact in specific situations that involve its presumptive and potential use, equating to owners, financial lessees, acquirers with reservation of ownership as well as other holders of purchase option rights arising from lease contracts (art. 3.º, no. 2, of the CIUC).

3. The incidence rule, by referring to the elements of the motor vehicle registry, does not distinguish between the initial registration of the vehicle and subsequent registrations: the taxpayer of the tax is the owner of the vehicle, being considered as such the person, natural or legal, in whose name the vehicle is registered.

4. It is, therefore, on the interpretation of the rule of no. 1 of article 3.º that, as already mentioned, the different positions expressed by the Petitioner and the Respondent stand out.
   (See Sérgio Vasques, "Special Consumption Taxes", Almedina, 2000 and Statement of Reasons of the Draft Law no. 118-X, which gave rise to Law no. 22-A/2007, of 29/05 (reform of automobile taxation)).

5. According to the Petitioner, the said rule establishes a presumption of ownership, based on registration, rebuttable in general terms and, in particular, by virtue of the provision of article 73.º of the General Tax Law.

6. Conversely, the Respondent understands that by establishing the CIUC the passive subject as well as the fact generating the obligation to pay tax, by reference to the elements contained in the motor vehicle registry, as results from articles 3.º and 6.º of the respective Code, with the Petitioner requesting the issuance of the registration certificate and with the vehicles registered in its name during the taxation periods to which the contested assessments refer, "the prerequisites of the fact generating the IUC are fulfilled, as well as its exigibility, with the Petitioner being the taxpayer of the tax."

7. This matter has been the subject of various arbitral decisions which, repeatedly and uniformly, have pronounced themselves to the effect that the rule of no. 1 of article 3.º of the CIUC establishes a presumption, rebuttable, in general terms and, in particular, by virtue of the provision of article 73.º of the LGT. This is the approach which is accepted and will be followed closely.

8. Indeed, with the exception of the provision of no. 2, concerning situations of sale with reservation of ownership and leases that assume the nature of financing, article 3.º of the CIUC establishes that the taxpayers of this tax are the owners of the vehicles, being as such considered the persons in whose names the vehicles are registered.

9. The recourse to the motor vehicle registry as a structuring element of the system of assessment of this tax is evidenced throughout its respective Code. It should be noted, in particular, its article 6.º relating to the definition of the fact generating the obligation to pay tax, whose no. 1 provides that it is constituted by the ownership of the vehicle, "as attested by the registration or registry in national territory." From this provision it follows that the vehicles (In this sense, Arbitral Decisions of 19.7.2013, Case 26/2013-T, of 10.9.2013, Case 27/2013-T, of 15.10.2013, Case 14/2013-T, of 5.12.2013, Case 73/2013-T, of 14.2.2014, Case 170/2013-T, of 30.4.2014, Case 256/2013-T, of 2.5.2014, Case 286/2013, of 16.6.2014, Case 289/2013-T, of 14.7.2014, Case 43/2014-T, of 6.6.2014, Case 294/2013-T, of 15.9.2014, Cases 63/2014-T and 220/2014) that are not registered, nor should be, in Portuguese territory, are only covered by the objective incidence of this tax if they remain therein for a period exceeding 183 days, as provided in no. 2 of the same article. It is, therefore, a rule that, by having recourse to the registry element, simultaneously establishes the fact generating the tax and the respective fiscal connection. It is also from the elements of the motor vehicle registry that the moment of the beginning of the taxation period and the constitution of the tax obligation are extracted and, in a general manner, all the elements necessary for the assessment of the tax in question, as, moreover, is well emphasized in the response prepared by the AT.

10. However, from the dependence of the IUC taxation regime on the motor vehicle registry, one cannot immediately conclude that the rule concerning subjective incidence, in the segment in which it considers as owner the person in whose name the vehicle is registered, does not constitute a presumption of incidence.

11. There will thus be recourse to other interpretive elements, with special relevance to the legal notion of presumption.

12. According to the notion set out in article 349.º of the Civil Code, presumptions are the inferences that the law or the judge draws from a known fact to establish an unknown fact. Presumptions constitute means of proof, having this the function of demonstrating the reality of facts (art. 341.º of the Civil Code). Thus, whoever has in their favor the legal presumption is excused from proving the fact to which it leads (art. 350.º, no. 1, of the Civil Code). However, presumptions, except in cases where the law prohibits it, may be rebutted, by proof to the contrary (art. 350.º, no. 2, of the Civil Code). In the case of tax incidence presumptions, these are always rebuttable, as expressly provided by article 73.º of the LGT.

13. Presumptions may be explicit or merely implicit in the text of the law.

14. Indeed, in the definition of the subjective incidence of the ICI, ICA and IMV, taxes which the present IUC has come to replace, this was the expression used by the legislator. In the context of the abolished taxes, it is established that "the tax is due by the owners of the vehicles, presumed to be such, until proof to the contrary, the persons in whose names the same are registered or matriculated."

15. In the same sense, article 3.º, no. 1, of the Regulation of Circulation and Trucking Taxes, approved by Decree-Law no. 116/94, of 3/05, establishes that the taxpayers of these taxes are "the owners of the vehicles, presumed to be such, until proof to the contrary, the natural or legal persons in whose names the same are registered."

16. With respect to the IUC, the legislator chose to use a different formulation of the subjective incidence rule. Just as in the abolished taxes, it continues to assign to the owners of the vehicles the status of taxpayers. However, it abandons the expression "presumed to be such, until proof to the contrary, the persons in whose names the same are registered" in favor of "being considered as such the persons (...) in whose names the same are registered."

17. Unlike the position expressed by the AT, we understand that this is merely a question of semantics, which in no way alters the content of the rule in question, and for two reasons: For there to be a legal presumption, it is necessary that the rule that establishes it conforms to its legal concept, set out in art. 349.º of the Civil Code, and for this it is irrelevant whether the same be explicit, revealed by the use of the expression "presumed" or merely implicit.

18. It is, therefore, in the sense of the legal concept of presumption and in compliance with the constitutional principles of equality and contributive capacity that the legislator attributes full effect to the presumption derived from motor vehicle registration, adopting it as such in the definition of the subjective incidence of this tax established in no. 1 of art. 3.º of the CIUC.
    (See article 3.º, no. 1 of the Regulation of Municipal Tax on Vehicles, approved by Decree-Law no. 143/78, of 12 June. Cf. Jorge de Sousa, CPPT, 6th Edition, Áreas Editora. Lisbon, 2011, pages 586 and STA, Decisions of 29.2.2012 and of 2.5.2012, Cases 441/11 and 381/12.)

19. It is further noted that Decree-Law no. 54/75, of 12/02, which regulates the registration of motor vehicles, not providing any rule concerning the constitutive character of the registration of automobile ownership, establishes, in no. 1 of its article 1.º that the motor vehicle registry aims only to publicize the legal situation of the property. In accordance with article 7.º of the Land Registry Code, supplementarily applicable to motor vehicle registry, by referral of article 29.º of that instrument, it determines that the registry only "(...) constitutes a presumption that the right exists and belongs to the registered holder, in the precise terms in which the registry defines it."

20. In pronouncing itself on this matter, the Supreme Court of Justice, in a decision of 19-02-2004, rendered in case no. 3B4369, concludes that "(...) the registry does not have constitutive effect, as it is intended to publicize the registered act, functioning (only) as a mere presumption, rebuttable (presumption 'juris tantum') of the existence of the right (arts. 1.º, no. 1, and 7.º of the CRAutoP84 and 350.º, no. 2, of the Civil Code) as well as of the respective ownership, in the terms set out therein (...)."

21. Thus, following the repeated arbitral jurisprudence relating to identical situations, it cannot fail to be understood that the expression "being considered as such" contained in the said rule configures a legal presumption, and that this is rebuttable, in general terms, and, in particular, by virtue of the provision of article 73.º of the LGT which determines that the presumptions enshrined in tax incidence rules always admit proof to the contrary.

On the Rebuttal of the Presumption

1. Tax incidence presumptions may be rebutted through the contradictory proceeding proper provided for in article 64.º of the CPPT or, alternatively, by way of amicable complaint or judicial challenge of the tax acts based thereon.

2. In the present case, the Petitioner did not use that proper proceeding, having instead chosen the present petition for arbitral decision which, thus, constitutes an appropriate means to rebut the presumption of subjective incidence of the IUC on which the tax assessments whose annulment is the object thereof are based, since this is a matter that falls within the scope of the material competence of this arbitral tribunal (arts. 2.º and 4.º of Decree-Law 10/2011).

3. To rebut the presumption derived from the entry in the motor vehicle registry, the Petitioner offers, as a means of proof, the invoicing issued with reference to the transfer of the vehicles to which the contested assessments refer (Docs. 1 to 5586 and 5587).

4. In pronouncing itself, at the stage of arguments, on the documentary evidence presented, the Respondent merely considers that "Even if by hypothesis one followed the arbitral jurisprudence to the effect that persons in whose names the vehicles are registered or matriculated could rebut the legal presumption that derives from that registration or motor vehicle registry, the truth is that the Petitioner failed to rebut that presumption, and it is obviously not sufficient for this purpose the attachment of invoices, unilateral, internal, commercial documents, issued by itself."

5. In support of this thesis, the Respondent refers to case 63/2014-T of CAAD in which, although with a dissenting opinion, the Arbitral Tribunal considered invoices to be "unilateral and internal documents, to which jurisprudence has recognized very reduced value to prove the existence of a synallagmatic contract."

6. Subsequently, it requested the attachment to the file of arbitral decisions rendered on 15-09-2014, in cases 150/2014-T and 220/2014-T, in which, in the same sense as that decision, it was concluded that "invoices as unilateral documents do not possess sufficient probative value to rebut the registry presumption."

7. If one properly extracts from the position of the Respondent as to the evidence produced, supported by the grounds of the cited arbitral decisions, would that be insufficient to rebut the presumption enshrined in the rule concerning tax incidence, defined on the basis of ownership as contained in the registry, which, in coherence with the substantive position assumed by it, would only be set aside in light of a timely updating of the registry itself.

8. However, this not being the understanding of the tribunal, it is important to evaluate the evidence produced by the Petitioner in order to determine whether it is sufficient to rebut the presumption derived from the motor vehicle registry which, in the realm of subjective incidence, is adopted for purposes of the IUC.

9. For this, it is important to bear in mind that, in the situation under analysis, one is dealing with contracts of purchase and sale which, relating to movable property and not being subject to any special formalities (Civil Code, art. 219.º), effect the corresponding transfer of real rights (Civil Code, art. 408.º, no. 1).

10. Being contracts that involve the transfer of ownership of movable goods through payment of a price, these have, as essential effects, among others, that of delivering the thing (Civil Code, arts. 874.º and 879.º).

11. However, being a contract of purchase and sale whose object is a motor vehicle, in which registration is mandatory, its due performance presupposes the issuance of the declaration of sale necessary for the inscription in the registry of the corresponding acquisition in favor of the buyer, as has been understood by the jurisprudence of the superior courts.

12. Such declaration, relevant for registry purposes, may constitute proof of the transaction, but is not the sole or exclusive means of proof of such fact.

13. For registry purposes, no special formality is required, merely the presentation to the competent entity of a petition subscribed by the buyer and confirmed by the seller, who, through a declaration of sale confirms that the ownership of the vehicle was by the buyer acquired through a verbal contract of sale (see Motor Vehicle Registration Regulation, art. 25.º, no. 1, subparagraph a) (Cf. Supreme Court of Justice, Decisions of 23.3.2006 and of 12.10.2006, Cases 06B722 and 06B2620.)

14. Notwithstanding these being the rules resulting from the provisions of civil law, relating to the informality of transfer of movable property and, where applicable, of its registry, it cannot fail to be borne in mind that, in the situation under analysis, we are dealing with commercial transactions, effected by a business entity in the context of the activity that constitutes its corporate purpose.

15. In that context, the company is bound to comply with specific accounting and tax rules, in which invoicing assumes special relevance.

16. First and foremost, by virtue of tax rules, the entity transferring the goods is obliged to issue an invoice for each transfer of goods regardless of the quality of the respective acquirer (CIVA, art. 29.º, no. 1, subparagraph b).

17. Also in accordance with the provision of tax rules, the invoice must comply with a certain form, detailed regulated in articles 36.º of the VAT Code and article 5.º of Decree-Law no. 198/90, of 19 June.

18. It is on the basis of this document issued by the supplier of the goods that the acquirer, when it is an economic operator – as is the case with the majority of the situations to which this proceeding refers – will deduct the VAT to which it is entitled (CIVA, art. 19.º, no. 2) and account for the expense of the operation (CIRC, arts. 23.º, no. 6 and 123.º, no. 2).

19. For its part, it is also on the basis of the invoicing it has issued that the supplier of the goods must account for the respective income, as results from the provision of subparagraph b) of no. 2 of article 123.º of the CIRC.

20. Since they are issued in the legal form and constitute supporting documents for accounting entries in accounting organized in accordance with commercial and tax legislation, the data contained therein are covered by the presumption of truthfulness referred to in article 75.º, no. 1, of the LGT.

21. Indeed, said presumption covers not only the accounting books and records, but also the respective supporting documents, as, moreover, is consistent understanding of the tax administration itself and the firm jurisprudence of the superior courts.

22. The presumption of truthfulness of commercial invoices issued in accordance with the law may, however, be set aside whenever the operations to which they refer do not correspond to reality, it being sufficient for this that the Tax Administration gathers and demonstrates founded indications of such fact (LGT, art. 75.º, no. 2, al. a).

23. In the present case, the Respondent did not challenge, nor does it raise any doubt, as to the operations documented by the invoices presented by the Petitioner.

24. Considered, therefore, the relevance attributed by tax legislation to invoices issued, in accordance with the law, by commercial companies in the context of their business activity and the presumption of truthfulness of the operations documented thereby, it cannot fail to be considered that the same constitute, by themselves, sufficient proof of the transfers invoked by the Petitioner, following, in this matter, the majority arbitral jurisprudence.

25. Considering thus proven documentally the transfer of the right of ownership of the vehicles in question, it merely remains to determine the date on which, according to the respective invoice, the same will have taken place, taking into account that the exigibility of the tax, (Cf. Opinion of the Center for Tax Studies, endorsed by order of the Director-General of Taxes, of 2 January 1992, published in Science and Tax Technique no. 365. Cf. Supreme Court of Justice, Decision of 27.10.2004, Case 0810/04, Regional Court of Administrative Law, Decision of 4.6.2013, Case 6478/13 and Regional Court of Administrative Law - North, Decision of 15.11.2013, Case 00201/06.8BEPNF, among others. Cf. Supreme Court of Justice, Decisions of 24.4.2002, Case 102/02, of 23.10.2002, Case 1152/02, of 9.10.2002, Case 871/02, of 20.11.2002, Case 1428/02, of 14.1.2004, Case 1480/03, among many others. In this sense, cf. Arbitral Decisions of 19.7.2013, Case 26/2013-T, of 10.9.2013, Case 27/2013-T, of 15.10.2013, Case 14/2013-T, of 5.12.2013, Case 73/2013-T, of 14.2.2014, Case 170/2013-T, of 30.4.2014, Case 256/2013-T, of 2.5.2014, Case 289/2013-T, of 6.6.2014, Case 294/2013-T, of 25.6.2014, Case 42/2014 and of 6.7.2014, Case 52/2014-T.) with respect to new land vehicles, occurs on the first day of the taxation period, which begins on the date of registration, as provided in article 6.º, no. 3, of the CIUC, being this the moment when the tax legal relationship is defined.

26. On the basis of the documents that are part of this proceeding (Docs. 8653 and 1 to 5586) it is verified that, on the date of exigibility of the tax, the situation of the vehicles identified therein was no longer property of the Petitioner by virtue of having been transferred by it to third parties.

27. In these terms, the presumption of ownership derived from motor vehicle registration adopted in no. 1 of article 3.º of the CIUC is deemed rebutted, with respect to the vehicles and periods to which the contested assessments refer, with reference to the 2,946 vehicles identified in the list attached to this petition for arbitral ruling (Doc. 8653).

On the Transfer of Ownership of Vehicles After the Date of Registration

1. In addition to the situations provided for in article 3.º, no. 2, of the CIUC, in which financial lessees and acquirers with reservation of ownership are equated to owners as well as, in general, other holders of purchase option rights arising from lease contracts, for purposes of their qualification as taxpayers of the obligation to pay tax, the cited Code does not provide for any other situation that would exclude the subjective incidence defined in terms of ownership of the vehicle with this being assessed in light of the presumption derived from its respective registry.

2. Thus, in the absence of express legal provision, the registered operator, whose status and requirements for assignment are defined in articles 12.º and 13.º of the Vehicle Tax Code, does not benefit from any special regime or status for purposes of IUC.

3. For the purpose of the marketing of new vehicles imported or admitted in Portuguese territory, the said operator will have to obtain the respective registration, without which they cannot be admitted to circulation in Portugal, as results from the provision of article 117.º, nos. 1 and 4, of the Highway Code.

4. Once granted, the operator, by force of the rules relating to the mandatory registration of motor vehicles, contained, in particular, in articles 24.º and 42.º of the Motor Vehicle Registration Regulation, must proceed with the respective registration, within a maximum period of 60 days from the assignment of the registration.

5. Consequently, the first registration of a new vehicle is necessarily effected in the name of the operator that proceeds with its importation or admission in Portuguese territory which, in the absence of any exception or special regime, assumes, from the outset, the status of taxpayer of the tax obligation.

6. In accordance with the rule of no. 1 of article 6.º of the CIUC, the fact generating the obligation to pay tax is constituted by the ownership of the vehicle, as attested by its respective registration in national territory.

7. Having the legal prerequisites been met – existence of a taxable vehicle, whose list appears in article 2.º of the CIUC and assignment of the respective registration – the tax fact is constituted. And having identified, in the terms referred to above, the person, natural or legal, bound to comply with the tax obligation, the tax legal relationship is shown to be fully defined, being thus assembled the conditions necessary for the exigibility of the tax.

8. Being the IUC an annual periodic tax, whose periodicity, in the case of motor vehicles, corresponds to the year that begins on the date of registration and, subsequently, on each of its anniversaries, its exigibility occurs on the first day of each taxation period (arts. 4.º, no. 2, and 6.º, no. 3, of the CIUC).

9. In the case of vehicles subject to first registration, it is therefore at the date when this is effected that the moment of exigibility of the tax is defined, understood as the moment from which the tax creditor can assert, against the debtor, its right to payment of the tax, much although this may be deferred in time.

10. Without prejudice to the provision of article 18.º, no. 1, of the CIUC, applicable in case of failure to comply with the obligation to register a vehicle to which the first registration has been assigned, the period for assessment and payment of the tax is established in article 17.º of the CIUC, whose no. 1 provides that, in the year of registration of vehicles in national territory the tax must be assessed and paid by the taxpayer within 30 days following the expiration of the period legally required for its registration.

11. Such period, relating to the fulfillment of the tax obligation, already previously constituted in the terms set out above, does not configure a period of suspension of tax nor contends with its respective exigibility.

12. Contrary to the understanding upheld by the Petitioner, the exigibility of the tax does not occur at the moment when it is, or should be, assessed, but at the moment that the law fixes. And this is situated on the date when the taxation period begins which, in the year of registration, corresponds to the date when this is assigned, as expressly provided in art. 6.º, no. 3, of the CIUC.

13. The circumstance that, in the course of the period that the law grants to the operator to effect the registration, the transfer of the vehicle to which the tax relates takes place to a third party – end consumer or other – does not imply, concomitantly, the transfer of the tax obligation nor alters the tax legal relationship already constituted (see art. 36.º of the LGT), in which the person in whose name it is registered on that date, and being the effective owner of the vehicle, holds the status of taxpayer and debtor of the tax.

14. The petition for arbitral ruling does not thus proceed, with respect to cases relating to vehicles which, on the date of exigibility of the tax, were the property of the Petitioner, although they were transferred to third parties in the course of the 60 days following, evidenced in a list attached to the petition (Doc. 8654), comprising 74 vehicles, identified therein, to which correspond in the assessments now contested, the total amount € 8,628.93 of IUC and compensatory interest.

On the Defects Common to the Assessments

1. The Petitioner further attributes various defects, common to the contested assessments, namely:

• Insufficiency of grounds;
• Violation of the right to prior hearing; and
• Violation of the inquisitorial principle;

On the Insufficiency of Grounds

1. The Petitioner alleges that the contested tax acts are not properly substantiated, in particular by the fact that they do not contain the IUC rates specifically applied, the dates of registration of the vehicles are not indicated nor are the calculation operations and determination of the tax explicated.

2. In response to the alleged, the Respondent sustains that "each assessment act had exclusively and solely as its basis the factual elements identified, revealed and completed by the Petitioner in the requests for assignment of registrations."

3. Proceeding further, the Respondent considers that the content of the present petition for constitution of the Arbitral Tribunal as well as the statement of the Petitioner in the context of prior hearing clearly reveal that the latter fully understood the grounds of each tax act per se.

4. As is well known, the duty to provide grounds for tax acts is not a rigid, watertight binding, but rather dynamic and functionalized. In this manner, the content of said duty varies in each concrete situation, depending on various circumstances, such as the type of act in question and its respective recipient.

In the present case, we are, evidently, dealing with the execution of tax acts in mass (it is sufficient to note the number of acts that are the subject of this proceeding), and of a taxpayer who is, notoriously, a large taxpayer, equipped with means and structures that enable it to understand and grasp the meaning of the notifications made to it, far beyond that which is the normal taxpayer. In this context, taking into account that from the elements of the proceeding, in particular from those referred to by the Respondent, it is evident that the Petitioner came to know the factual and legal reasons that underlie each contested tax act, it cannot fail to be considered that the questioned assessment acts are sufficiently substantiated.

1. The petition is thus unfounded, as to the alleged insufficiency of grounds.

On the Violation of the Right to Hearing and of the Inquisitorial Principle

1. Also as defects common to the assessments now contested does the Petitioner allege that there have been violated the right to prior hearing and the inquisitorial principle.

2. In essence, the Petitioner considers that the alleged defects are translated in the circumstance that "the AT limited itself to reproducing the letter of the law and referring to the AT databases, without considering the facts invoked by the Petitioner in the exercise of its right to hearing," demonstrating "total disinterest in the search for material truth."

3. Specifically, the Petitioner states, in summary, that, in the context of prior hearing, it informed the AT of the circumstance that, on the date of the facts to which the assessments now (In similar sense, cf. for example, the Decisions of the Supreme Court of Justice of 17-06-2009, rendered in case 0246/09, and of 27-04-2005, rendered in case 07/05, both available at www.dgsi.pt) contested refer, it was not the effective owner of the vehicles in question, having identified the respective owners.

4. According to the Respondent, the petition should not proceed as to the invoked defects, inasmuch as "the elements presented by the Petitioner in the context of the tax proceeding were not capable of setting aside the fact and the relevant proof of being the same, on the date of exigibility of the taxes, the owner of the vehicles and debtor of the tax, in accordance with the motor vehicle registry and with the IUC Code, so the thesis presented by the Petitioner of there having been no diligence on the part of the Tax Authority is refuted."

5. Indeed, the AT has been sustaining, as is apparent from the position assumed in numerous petitions for arbitral ruling, including in the present petition, that the subjective incidence of the IUC is defined in terms of the motor vehicle registry, with taxation falling on the person who appears therein as owner, on the date of exigibility of the tax.

6. According to the AT, the rule of incidence contained in no. 1 of article 3.º of the CIUC, combined with other provisions of the same Code, in particular its article 6.º relating to the fact generating and exigibility of the tax, does not configure a presumption, on the understanding that "the tax legislator intended to create an IUC based on the taxation of the owner of the vehicle as it appears in the motor vehicle registry."

7. Being this the interpretation invariably followed by the AT with respect to the subjective incidence of the IUC, it is not seen that, in the administrative proceeding, in particular of prior hearing, it is bound by diligences arising from different interpretation, advocated by the respective recipients.

8. As results from the provision of no. 7 of article 60.º of the LGT, the AT, in the substantiation of the tax act, is obliged to weigh the new elements that have been brought by the respective recipient in the context of prior hearing and, should it decide not to attribute relevance to them, must explicitly state the respective reasons.

9. Although the decision of the AT be based on erroneous interpretation of applicable law, it is certain that it is evident from the decision rendered in the context of prior hearing that the new elements adduced by the Petitioner would not minimally be susceptible of altering the draft assessment, supported by substantiation resulting from that interpretation, for the reasons that, clearly and expressly, the deciding entity communicated to the Petitioner. In this field, one cannot fail to take into account the already mentioned circumstance that we are dealing with mass tax acts, as well as the special capacity to understand and grasp of the taxpayer in question.

Having these facts in mind, it will be understood that one is dealing with a situation, at least, at the threshold of the imposition of the duty of prior hearing, so that, necessarily, the standard of compliance with it must be recognized as sufficiently broad so that it be, minimally, assured in the cases of the file.

1. In these terms, the petition is deemed unfounded as to the alleged violation of the right to hearing and of the inquisitorial principle.

On the Illegality of the Assessment of Compensatory Interest

1. In addition to the annulment of the official assessments of IUC, the Petitioner questions also the legality of the assessment of compensatory interest that comprise the tax debt, on the ground that, given the factuality described, no censurable conduct can be imputed to it. (Cf. to this effect, for example, the Decisions of the Supreme Court of Justice of 28-11-2007, rendered in case 0469/07, and of 13-02-2008, rendered in case 0346/07, available at www.dgsi.pt, where it can be read that the "impracticability of the holding of the hearing referred to in al. c) of nº 1 of artº 103º of the CPA is that which results from the compromise of its utility for the purposes of the proceeding, not only by reasons of delay, but of aggregate aggravation of the decision-making proceeding, in light of the interdependence and multiplicity of the issues that may be raised".)

2. The interest in question is provided for in article 35.º of the General Tax Law, whose no. 1 establishes the respective legal prerequisites.

3. In accordance with the cited provision, the requirements for the assessment of compensatory interest are the existence of a tax debt and the delay in its respective assessment, provided that this is attributable to culpable conduct, whether by intent or negligence, of the taxpayer.

4. Thus, and considering the various situations evidenced in the present petition for arbitral ruling, it is verified that:

a) With respect to the assessments concerning vehicles which, on the date of exigibility of the tax, were not the property of the Petitioner by having already been transferred to third parties and having the presumption derived from the registry been rebutted, it results that the respective tax is not owed by it, which, consequently, implies that the compensatory interest associated with it are not owed;

b) As far as the assessments are concerned with respect to vehicles which, being the property of the Petitioner at the moment when the exigibility of the tax occurred, although it transferred the same in the course of the 60 days following the registration, not only is the assessed tax shown to be owed, but the compensatory interest associated with it.

1. As far as the situations referred to in b) are concerned, although the Petitioner sustains that it is not the respective taxpayer and debtor of the tax, based on the interpretation it expounds, it does not appear that the absence of culpability (negligence) in the delay of the assessments is verified.

2. The argument of the Petitioner, to the effect that the period provided for in no. 1 of article 17.º of the CIUC implies the deferment of the exigibility of the tax, thus granting the importer "the possibility of avoiding the incidence of the IUC in case of sale of the vehicle within 60 days following the date of its respective registration," does not appear to be defensible.

3. Reference is made by the cited rule to the period for effecting the assessment and payment of the tax, a matter which, as has already been emphasized above, is not to be confused with the constitution of the tax obligation which, in the case of the IUC, occurs on the first day of the taxation period. This period, when it is new land vehicles subject to tax, corresponds to the year that begins on the date of registration (Cf. CIUC, arts. 6.º, no. 3 and 4.º, no. 2).

4. It is therefore from the first day of the taxation period that the IUC becomes due, the right of the State to demand its respective payment from the debtor being constituted, although the respective period of assessment and payment may be deferred in time.

5. In the present case, it being proven that the vehicles in question were the property of the Petitioner at the moment when the exigibility of the tax occurred, it was for it to effect the assessment and payment in the terms and period provided for in article 17.º, no. 1, of the CIUC.

6. From the inertia of the Petitioner resulted, therefore, the delay of the assessment of the tax in question, and being this fact exclusively attributable to the Petitioner, it is by it owed the corresponding compensatory interest, in accordance with the law.

On the Petition for Compensation for Undue Guarantee

1. The Petitioner further petitions for compensation for the charges incurred with the provision of bank guarantees with a view to obtaining, in accordance with article 169.º of the CPPT, the suspension of the tax enforcement proceedings relating to the collection of the tax debts to which the present arbitral ruling refers.

2. In accordance with the provision of no. 1 of article 53.º of the General Tax Law, the debtor who, to suspend enforcement, offers bank guarantee or equivalent shall be indemnified totally or partially for the damages resulting from its provision, should he have maintained it for a period exceeding three years in proportion to the expiration in administrative recourse, challenge or opposition to enforcement that have as their object the guaranteed debt.

3. As results from no. 2 of the cited article, all damages incurred with the provision of guarantees provided to suspend enforcement are indemnified, without dependence on the said period, in case of total success in an action in which it is verified that there has been an error attributable to the services in the assessment of the tax.

4. However, in accordance with no. 3 of the same article, the amount of compensation for undue guarantee is subject to a maximum limit equivalent to the amount resulting from the application to the guaranteed value of the rate of indemnification interest provided for in article 43.º, no. 4, of that law.

5. For its part, article 171.º of the CPPT establishes that "compensation in case of bank guarantee or equivalent unduly provided shall be requested in the proceeding in which the legality of the enforceable debt is disputed" and that "compensation must be requested in the complaint, challenge or recourse or in case its ground is subsequent within 30 days of its occurrence."

6. As already decided above, in the consideration of the exception invoked by the Respondent, the judicial challenge proceeding, in which a decision is made on the legality of the tax act, thus constitutes an adequate procedural means to formulate the petition for compensation for undue guarantee. The concept of error attributable to the services is clarified in no. 2 of art. 43.º of the LGT, with respect to indemnification interest.

7. In the case at hand, two distinct situations stand out: one relating to assessments of IUC with reference to vehicles which on the date of exigibility of the tax, were not the property of the Petitioner, although they were registered in its name and another in which, on the said date, they were its property, although they were transferred by it to third parties in the course of the period for assessment and payment of the tax.

8. With respect to the first of the said situations, the Tribunal cannot fail to consider that the assessments concerning the vehicles that were in the conditions referred to therein result from an error of law exclusively attributable to the Tax Administration, thus assisting the Petitioner with the right to the petitioned compensation.

9. Indeed, understanding, contrary to the interpretation adopted by the AT, that the rule of no. 1 of article 3.º constitutes a rebuttable presumption, it cannot fail to be considered that the Petitioner, in the context of prior hearing, provided to the AT factual elements tending to its rebuttal, not only alleging the relevant facts relating to the transfer of the vehicles but also identifying the respective acquirers.

10. Understanding that the said rule does not enshrine a presumption, and that the subjective incidence of the said tax results, exclusively, from the registry entry, the AT, incurring in an error of law, did not consider the factual elements that were provided to it by the Petitioner, proceeding, officially, with the corresponding assessments.

11. As already decided, such understanding does not violate the legal rules relating to the right to hearing, inasmuch as in the instruction of the proceeding the deciding entity is not bound to follow another orientation than that which results from the interpretation it makes of applicable law.

12. However, it cannot be ignored that the Petitioner, in the exercise of that right, questioned such orientation and, timely, provided to the AT factual elements relevant tending to permit that the tax acts in question had as their recipients the effective owners of the vehicles on the date to which the same refer.

13. From the above it results that, at the date when the final decision of the proceeding was rendered, the AT had elements sufficient for, should it have followed a correct interpretation of applicable law, to abstain from effecting the questioned acts of assessment. And, if it deemed it necessary, to develop the appropriate diligences in order to discover material truth, making the tax owed fall on the effective owners of the vehicles on the date of exigibility of the tax.

14. It is certain that the Petitioner could have resorted to the contradictory proceeding for rebuttal of the presumption, provided for in article 64.º of the CPPT and did not do so. However, the presentation of a petition, in the context of prior hearing, in which the interested party expounds its intention, indicating the reasons that justify it and attaching the respective evidentiary documents, could not fail to produce effects, under penalty of reducing this institute to a mere formality with no consequences.

15. In these terms, and with reference to the guarantees offered by the Petitioner with a view to obtaining the suspension of the enforcement proceedings relating to the vehicles which, on the date of exigibility of the tax, were not its property, identified in an attached list (Doc. 8653), it is considered that compensation is owed to it, under the cited legal rules.

16. Not having the Tribunal at its disposal elements that would permit it to fix the exact value of the compensation petitioned, the respective value must be calculated on the basis of the costs actually incurred with the guarantees provided from the date on which they were constituted until the day on which they will be released, with the maximum limit provided for in article 53.º, no. 3, of the LGT.

17. Being the Tribunal impossible to quantify the exact costs of the guarantees provided as well as to ascertain that maximum limit, the condemnation will have to be effected with reference to what is to be assessed in execution of the present decision (articles 609.º of the C. P. Civil and 565.º of the Civil Code).

18. With respect to the vehicles which were the property of the Petitioner on the date of exigibility of the tax, although transacted within the 60 days following the registration, the assessments are shown to be correctly effected, not being affected by defects that would invalidate them, so that, being the tax assessed by it owed, it does not have the same right to be indemnified for the costs incurred with the guarantees provided to suspend the corresponding tax enforcement proceedings.

VI - Decision

In these terms, and with the grounds set out, the Arbitral Tribunal decides:

a) To dismiss the preliminary exceptions raised by the Respondent;

b) To uphold the petition for arbitral ruling, with respect to the rebuttal of the presumption of subjective incidence of the IUC, with the consequent annulment of the assessments of tax and compensatory interest, with respect to the taxation periods and vehicles identified in the list attached to this petition for arbitral ruling (Doc. …);

c) To dismiss the petition for arbitral ruling, insofar as it concerns the illegality of the assessments of tax and compensatory interest, with respect to the periods and vehicles which, on the date of exigibility of the tax, were the property of the Petitioner, identified in the attached list (Doc. …);

d) To dismiss the petition as to the invoked defects of violation of the right to hearing and of the contradictory principle;

e) To condemn the Respondent to pay compensation for the costs incurred with the provision and maintenance, by the Petitioner, of undue guarantees corresponding to the tax enforcement proceedings to which the now annulled assessments relate, to be assessed in execution of judgment, always having as maximum limit that provided for in no. 3 of article 53.º of the LGT.

f) To condemn both the Petitioner and Respondent in the costs of the present proceeding, in proportion to their respective success.

Value of the case: € 353,798.34

Costs: In accordance with article 22.º, no. 4, of the RJAT, and in accordance with Table I attached to the Regulation of Costs in Tax Arbitration Proceedings, the amount of costs is set at € 6,120.00.

The Petitioner is charged with payment of € 149.33 (2.44%);
The Respondent is charged with payment of € 5,970.67 (97.56%).

Lisbon, 17 November 2014

The arbitrators,

José Pedro Carvalho (arbitrator-president)
Luís Menezes Leitão
Álvaro Caneira (reporting arbitrator)