Summary
Full Decision
TAX ARBITRATION DECISION
1. REPORT
1.1 - The A…-Financial Credit Institution, S.A., with Tax ID: …, Claimant in the tax procedure above referenced and on the margins thereof, hereinafter referred to as "Claimant", came, invoking the provisions of paragraphs 1 and 2 of article 10 of Decree-Law no. 10/2011, of 20 January (hereinafter RJAT), article 99 of the Tax Procedure and Process Code (CPPT) and paragraph 1 of article 95 of the General Tax Law (LGT), to request the constitution of a Sole Arbitral Tribunal, with a view to:
- The annulment of 621 self-assessment acts relating to the Unique Circulation Tax (hereinafter referred to as IUC), carried out by the Tax and Customs Authority (hereinafter TA), referring to the years: 2009 to 2015, subject of Administrative Appeal and respective IUC liquidations, copies of which are attached to the Initial Petition, which form an integral part of the Request for Tax Arbitration Decision (documents nos. 1 and 2);
- The request for reimbursement of the total amount of € 50,446.40, unduly paid by the Claimant, plus the respective compensatory interest provided for in articles 43 of the LGT and article 61 of the CPPT.
1.2 Pursuant to the provisions of paragraph a) of no. 2 of article 6 and paragraph b) of no. 1 of article 11 of Decree-Law no. 10/2011, of 20 January, as amended by article 228 of Law no. 66-B/2012, of 31 December, the Ethics Council appointed Maria de Fátima Alves as sole arbitrator, who communicated acceptance of the appointment within the applicable deadline:
- On 29-06-2016 the parties were duly notified of this appointment, having not expressed any intention to challenge the appointment of the arbitrator, pursuant to the combined provisions of article 11 no. 1 paragraphs a) and b) of the RJAT and articles 6 and 7 of the Code of Ethics,
- Whereby, the arbitral tribunal was constituted on 14-07-2016, as prescribed in paragraph c) of no. 1 of article 11 of Decree-Law no. 10/2011, of 20 January, as amended by article 228 of Law 66-B/2012, of 31 December.
1.3 The Claimant, in the substantiation of its request for arbitration decision, states, in summary, the following:
- "The Claimant is a Financial Institution which, within the scope of its corporate purpose, carries out operations permitted to Banks, with the exception of deposit-taking, as well as enters into contracts with its customers for Long-term Lease (ALD), Short-term Lease (renting) and Financial Lease (leasing) of motor vehicles" (cf., documents nos. 1 and 2, attached to the Initial Petition);
- Whereby, within the scope of its Commercial Activity, the Claimant acquires new vehicles from national importers … and …, entering into contracts of a diverse nature: vehicle rental contracts without driver (with or without promise of sale and purchase), financial lease contracts and financing contracts;
- The Claimant, as a financial institution, acquires new vehicles from national importers … and … and, as a rule, carries out financial leasing, ALD or renting, AOV, operational lease or rental of these same vehicles, in favor of third parties;
- "After the termination of contracts, as a rule, the Claimant proceeds to transfer ownership of the vehicles to the respective lessees or to third parties, for a residual amount";
- In residual cases, the A… grants financed credit to third parties for motor vehicle acquisition, however reserving ownership of the vehicles;
- Given the analysis of the context and the content of the Administrative Appeal, attached to the case file as document no. 1, on the dates of IUC liability, concerning the vehicles in question, the Claimant had already leased these vehicles to third parties or was not the owner of the said vehicles by virtue of having sold them to the lessees or to third parties;
- Whereby, given the context presented, the 621 self-assessment acts challenged, to which the unique circulation tax relates, identified in documents nos. 1 and 2, attached to the Initial Petition, were carried out by the Claimant and paid in full, despite their disagreement;
- The Claimant only became aware of these liquidations when consulting the Tax Portal, whereby it retrieved the respective collection documents for self-assessment and payment of the IUC;
- However, not considering itself the passive subject of the said IUC, on 08-10-2015, the Claimant presented an Administrative Appeal, challenging the said self-assessments and corresponding IUC liquidations, also presenting the IUC collection documents, documents no. 1 to 4, better itemized and attached to the above-mentioned Administrative Appeal (cf., document no. 1, attached to the Initial Petition;
- After more than 4 months elapsed, without obtaining any decision from the TA, the Claimant presumes the Administrative Appeal in question to be tacitly rejected, pursuant to paragraphs 1 and 5 of article 57 of the LGT.
- The legal ownership belonged, in fact, to the Claimant, as the leasing entity, "however, this was never used by the Claimant, the vehicles being, from the moment of their acquisition, used (solely and only) by the lessees";
- Whereby, at the date of the tax facts, the Claimant could not be considered a passive subject of the tax, a fact that precludes any subjective liability for its payment;
- The Claimant bases its position on the fact that the motor vehicles taxed are within the scope of financial lease contracts, which, in our legal system, presupposes to the lessee the exclusive enjoyment of the leased asset;
- Adding that, within the scope of financial lease contracts, the ownership of vehicles is merely instrumental, as, according to Diogo Leite de Campos: "in financial leasing only the lessor is the owner of the vehicle as a guarantee";
- Whereby, within the scope of leasing contracts, the lessor becomes the owner with the purpose, assumed ab initio, of ceding the enjoyment of the asset,
- It being, therefore, the lessee, and not the lessor, who exercises the typical powers of ownership"
- Emphasizing the fact that the legal qualification of the lessor (in the present case, the Claimant), clearly surpasses the qualification of owner, since: the lessor is merely an instrumental owner (as already mentioned above) and whose rights and duties differ greatly from those typically associated with the legal figure of ownership;
- "The same applies to the acquirer with reservation of ownership, who exercises the faculties and powers inherent to the condition of owner, including the right to use the asset with exclusivity, practically without limits, and also to the lessee with purchase option, who likewise has the exclusive enjoyment of the leased asset";
- Furthermore, according to Diogo Leite de Campos ( ): "The IUC is an environmental tax that takes into account the use of the asset which is presumed, the owner becoming the passive subject presumed to use the asset. But, by contrary proof, to the effect that the owner does not use the asset, there being another with title to such use, whereby the passive subject becomes this one, and only this one";
- "It is this one who is effectively responsible for the damages caused to the environment and to the roads."
- Given the facts presented, at the date of the occurrence of the tax fact there were financial lease contracts, as evidenced by the proofs presented, documents nos. 1 and 7, attached to the Initial Petition, whereby the Claimant cannot be the passive subject of the tax, as it holds the legal figure of lessor, which, given the letter and spirit of no. 2 of article 3 of the Unique Circulation Tax Code (hereinafter referred to as CIUC), the passive subject of the tax will be the lessee, as it has the enjoyment of the vehicle and, as such is the potential polluter;
1.4 The Respondent, Tax and Customs Authority (hereinafter referred to as TA), presented a response, from which it transpires that the tax acts in question do not suffer from any defect of violation of Law, pronouncing itself for the dismissal of the Respondent's claim and for the maintenance of the 621 contested liquidation acts, defending, summarily, the following:
- It challenges the partial timeliness of the request for arbitration decision, concerning the vehicle with registration …-…-…, since the challenge of this vehicle exceeds the 120-day period, pursuant to no. 1 of article 102 of the CPPT, in virtue of article 70, no. 1 of the same legal instrument;
- Alleging that the date of most recent payment is 29-06-2014 and the Administrative Appeal was presented on 08-10-2015;
- Requesting, therefore, "the procedure of the partial exception invoked, pursuant to the provision in article 577-paragraph e) of the Code of Civil Procedure as amended by Law no. 41/2013, of 26 June;
- Requesting, thus, the dismissal of the claim, pursuant to paragraph d) of no. 1 of article 278 of the same legal instrument;
- Requesting, also, "that the present request for arbitration decision be dismissed as unfounded, the tax liquidation acts challenged remaining in the legal order, with the Respondent absolved from the Request".
1.5 The meeting provided for in article 18 of the RJAT was dispensed with, as these are matters already sufficiently debated, both in the case file and in case law, this Tax Arbitral Tribunal understanding it unnecessary for final arguments, also dispensing with witness examination;
- The Tribunal, in compliance with no. 2 of article 18 of the RJAT, set, predictably, until 09-12-2016 for the pronouncement of the arbitration decision, which for technical reasons beyond the Arbitrator's control, was only possible to send to CAAD on 15-12-2016.
2. QUESTIONS TO BE DECIDED
2.1 Given the statements in the preceding paragraphs, relating to the expositions of the parties and the arguments presented, the main questions to be decided are the following:
- The allegation made by the Claimant relating to the material liquidation of the liquidation acts, relating to the years 2009 to 2015 concerning IUC on the vehicles above referenced in the Initial Petition;
- The preliminary question of the peremptory exception (timeliness of the request) invoked by the TA;
- The erroneous interpretation and application of the norms of subjective incidence of the unique circulation tax levied and collected, which constitutes the central question to be decided in the present proceeding;
- The legal value of the registration of motor vehicles.
3. FACTS ESTABLISHED
3.1 In matters of fact, relevant to the decision to be rendered, this Tribunal deems established, given the elements existing in the case file, the following facts:
- The Claimant presented evidentiary elements contained in documents nos. 1 and 2, attached to the Initial Petition, which are deemed fully reproduced for all legal purposes;
4. SUBSTANTIATION OF ESTABLISHED FACTS
- The facts deemed established are based on the documents attached to the request for arbitration decision of the above-mentioned Initial Petition, which are deemed fully reproduced for all legal purposes.
5. FACTS NOT ESTABLISHED
- There are no facts deemed not established, given that all facts deemed relevant to the appreciation of the request were established.
6. LEGAL GROUNDS
6.1 The Tribunal is materially competent and is regularly constituted, pursuant to articles 2 no. 1, paragraph a), 5 no. 2, paragraph a), 6 no. 1, 10 no. 1, paragraph a) and no. 2 of the RJAT:
- The parties possess legal personality and capacity and are legitimately entitled, pursuant to articles 4 and 10, no. 2, of the RJAT and article no. 1 of Regulation no. 112-A/2011, of 22 March;
- The proceeding is not affected by nullities;
- There exists a preliminary question on which the Tribunal should pronounce itself.
PRELIMINARY QUESTION
1st- The Tax Authority, Respondent in the above-mentioned proceeding, comes, within its Response, presented pursuant to the provision and for the purposes provided for in no. 1 and 2 of article 17 of the RJAT, to invoke the partial untimeliness of the Administrative Appeal, presented by the Claimant, concerning the vehicle with registration …-…-… and which is included in the tax acts contained in documents nos. 1 and 2, attached to the Initial Petition;
2nd- Further, the Request for Arbitration Decision was presented as a consequence of the tacit rejection of the Administrative Appeal (cf., content of the Initial Petition);
3rd- However, the Claimant was only notified by the TA, for the purpose of prior hearing, only on 17-05-2016, cf., supporting document no. 1, attached to the Respondent's response in the context of the alleged peremptory exception;
4th- However, at the time of that notification, the Claimant had already presented the request for tax arbitration decision, on 09-05-2016;
5th- The Claimant alleges that the legal deadline of 4 months that the TA had to appreciate the Administrative Appeal had long been exceeded, pursuant to no. 1 of article 57 of the LGT;
6th- In any case, "the Administrative Appeal did not have a final decision of express rejection either based on the alleged untimeliness, total or partial, or for any other reason";
7th- Within the context of the exception considered by the TA, alleging that tax acts cannot be substantiated a posteriori (cf. Diogo Leite de Campos, Benjamim Silva Rodrigues and Jorge Lopes de Sousa, in LGT annotated, Visilis, 1999, p. 265 and, Decision of the TCAN, Section of CT, of 10-05-2011, proc. 03716/10, in www.dgsi.pt);
8th- For the purposes due, the "antecedent Administrative Appeal is not untimely in whole or in part;
9th- Especially since the TA did not even issue official liquidations, as it was the Claimant who liquidated and paid the IUC, "it being, therefore, cases of self-assessment" cf., A. Brigas Afonso and Manuel T. Fernandes, in ISV and IUC, Annotated Codes, Coimbra Editora, p. 218 and 219;
10th- Whereby the deadline for Administrative Appeal, in this case, was 2 years and not merely 120 days, since what was at issue was a complaint against self-assessments of IUC, as results from the text of the Administrative Appeal, there are no doubts that the Administrative Appeal was presented against the self-assessments of IUC within the 2-year period provided for in article 131 no. 1 of the CPPT;
11th- Considering that the Administrative Appeal was presented on 08-10-2015, it is presumed tacitly rejected on 08-02-2016 and the Initial Petition was presented on 09-05-2016, within the 90-day period;
12th- Given the facts summarily described, the Administrative Appeal is fully timely, whereby, consequently, the present Request for Arbitration Decision is fully timely.
6.2 The request, subject of the present proceeding, is the declaration of annulment of the 621 IUC liquidation acts relating to the motor vehicles better identified in documents nos. 1 and 2, Attached to the Initial Petition;
6.2.1 Condemnation of the TA to reimburse the amount of tax relating to such liquidations in the amount of € 50,446.40;
6.2.2 Condemnation of the TA to payment of compensatory interest on the same amounts.
6.3 The factual matter is fixed, as stated in no. 3.1 above, it now being important to determine the Law applicable to the underlying facts, in accordance with the questions to be decided, identified in no. 2.1 above, it being certain that the central question at issue in the present case, concerning which there are absolutely opposing understandings between the Claimant and the TA, consists of determining whether no. 1 of article 3 of the CIUC relating to the subjective incidence of the unique circulation tax establishes or not a rebuttable presumption.
6.4 Everything analyzed and, taking into account, on the one hand, the positions of the parties in confrontation, mentioned in points 1.3 and 1.4 above and, considering, on the other hand, that the central question to be decided is whether no. 1 and 2 of article 3 of the CIUC establishes or not a legal presumption of tax incidence, it is necessary, in this context, to appreciate and render a decision.
7. QUESTION OF THE ERRONEOUS INTERPRETATION AND APPLICATION OF THE NORM OF SUBJECTIVE INCIDENCE OF IUC
7.1 Considering it to be a settled understanding in doctrine that in the interpretation of tax laws the general principles of interpretation apply fully, which will be, only and naturally, limited by the exceptions and particularities dictated by the law itself being subject to interpretation. This is an understanding that has been receiving acceptance in the General Tax Laws of other countries and which has also been established in article 11 of our General Tax Law, which has, moreover, been frequently emphasized by case law.
It is unanimously accepted that, with a view to understanding the meaning of the law, interpretation draws on, a priori, reconstructing the legislative thought through the words of the law, which means seeking its literal sense, valuing it and testing it in light of other criteria, with the so-called elements of a logical, rational or teleological nature and of a systematic order intervening:
- Regarding the interpretation of tax law, there is the consideration of case law, namely, the Decisions of the STA of 05-09-2012, case no. 0314/12 and of 06-02-2013, case 01000/12, available at www.dgsi.pt, the importance of the provision in article 9 of the Civil Code (CC), as a fundamental element of legal hermeneutics;
- No. 1 of article 3 of the CIUC provides that "The passive subjects of the tax are the owners of the vehicles, considered as such singular or collective persons, of public or private law, in whose names the same are registered";
- The formulation used in the said article draws on the expression "considering" which raises the question of whether such expression can be attributed a presumptive sense, equating it to the expression "presuming", these are expressions frequently used with equivalent meanings;
- As teaches Jorge Lopes de Sousa, in Tax Procedure and Process Code, Annotated and Commented, volume I, 6th Edition, Área Editora, SA, Lisbon 2011, p. 589, that in matters of tax incidence, presumptions may be revealed by the expression "it is presumed" or by a similar expression, there being mentioned various examples of such presumptions, referring to that contained in article 40, no. 1 of the CIRS, in which the expression "it is presumed" is used and that contained in article 46 no. 2, of the same Code, in which the expression "is considered" is used, as an expression with an effect similar to that one and also embodying a presumption;
- In the legal formulation set forth in no. 1 of article 3 of the CIUC, in which a presumption was established, revealed by the expression "considering", of meaning similar and of value equivalent to the expression "presuming", in use since the creation of the tax in question;
- The use of the expression "considering" aimed at nothing more than establishing a more marked and clear approximation between the passive subject of the IUC and the effective owner of the vehicle, which is in line with the reinforcement given to the ownership of the vehicle, which now constitutes the tax-generating fact, pursuant to article 6 of the CIUC;
- The relevance and interest of the presumption in question, which historically was revealed through the expression "presuming" and which now serves the expression "considering", resides in the truth and justice which, by that means, is conferred to the fiscal relationships and which embody fundamental fiscal values, allowing the taxation of the real and effective owner and not that one who, by circumstances of a diverse nature, often becomes nothing more than an apparent and false owner. If this were not the case, not admitting and highlighting the presentation of evidentiary elements intended to demonstrate that the effective owner is, in fact, a different person from the one appearing in the registration and who, initially and in principle, was supposed to be the true owner, those values would be objectively set aside.
7.2 There is also to consider the principle of equivalence, inscribed in article 1 of the CIUC, which underlies the polluter-pays principle and concretizes the idea inscribed therein that whoever pollutes must, therefore, pay. The said principle has constitutional grounding, insofar as it represents a corollary of the provision in paragraph h) of no. 2 of article 66 of the Constitution, having also grounding in community law, whether at the level of original law, article 130-R of the Treaty of Maastricht (Treaty on European Union, of 07-02-1992), where the said principle came to be set forth as the basis of Community Policy, in the environmental field and which aims to hold responsible those who contribute with the prejudices that arise for the community, arising from the use of motor vehicles, are borne by their owner-users, as costs that only they should bear.
7.3 Given the facts described above, it is important to emphasize that the aforementioned elements of interpretation, whether those related to literal interpretation, supported by the words legally used, whether those relating to logical elements of interpretation, of a historical nature or of a rational order, all point to the sense that the expression "considering" has a meaning equivalent to the expression "presuming", and should thus be understood that the provision in no. 1 of article 3 of the CIUC establishes a legal presumption which, in light of article 73 of the LGT, where it is established that "The presumptions established in the norms of tax incidence always admit proof to the contrary", will necessarily be rebuttable, which means that the passive subjects are, in principle, the persons in whose names such vehicles are registered. These persons, identified under these conditions, are to whom the TA must necessarily direct itself;
- But it will be, in principle, given that within the framework of prior hearing, of obligatory character, given the provision in paragraph a) of no. 1 of article 60 of the LGT, the tax relationship may be reconfigured, validating the passive subject initially identified or redirecting the procedure towards that which is, in fact, the true and effective passive subject of the tax in question.
- The taxpayer has the right to be heard, through prior hearing (José Manuel Santos Botelho, Américo Pires Esteves and José Cândido de Pinho, in Code of Administrative Procedure, Annotated and Commented, 4th edition, Almedina, 2000, annotation 8 of article 100).
- Prior hearing, which naturally must be concretized in a moment immediately preceding the procedure of liquidation, corresponds to the proper place and time to, with certainty and security, identify the passive subject of the IUC.
- That in the case at hand, the Claimant demonstrated, to the TA, within the framework of the Administrative Appeal, that the facts were within the scope of financial lease contracts, or by contracts of operational leasing with promise of sale and purchase and ALD, which are detailed in the table attached to the case file, documents no. 5, whereby at the date of the incidence of the IUC, it was the lessees who were responsible for the payment of the IUCs, pursuant to no. 2 of article 3 of the CIUC.
8. ON THE LEGAL VALUE OF REGISTRATION
8.1 Regarding the legal value of registration, it is important to note what is established in no. 1 of article 1 of Decree-Law no. 54/75, of 12 February (amended several times, the last being by Law no. 39/2008, of 11 August), when it provides that "the registration of motor vehicles has essentially the purpose of publicizing the legal situation of motor vehicles and their trailers, with a view to the security of legal commerce":
- Article 7 of the Land Register Code (CRP), applicable, supplementarily, to the registration of motor vehicles, by force of article 29 of the CRA, provides that "Definitive registration constitutes presumption that the right exists and belongs to the titled holder, in the exact terms in which the registration defines it";
- Definitive registration constitutes nothing more than a rebuttable presumption, admitting therefore contrary proof, as results from law and case law has been indicating, which can be seen, among others, in the Decisions of the Supreme Court of Justice nos. 03B4369 of 19-02-2004 and no. 07B4528, of 29-01-2008, available at: www.dgsi.pt;
- Therefore, the function legally reserved to registration is on the one hand to publicize the legal situation of the assets, in the case at hand, of vehicles and, on the other hand, allows us to presume that the right over those vehicles exists and that it belongs to the holder, as such registered in the registration, it does not have a constitutive nature of the right of ownership, but only declarative, whereby the registration does not constitute a condition of validity of the transfer of the vehicle from the seller to the buyer;
- The acquirers of vehicles become owners of those same vehicles by way of the celebration of the corresponding purchase and sale contracts, with or without registration;
- In this context it is worth recalling that, given the provision in no. 1 of article 408 of the CC, the transfer of real rights over things, in the case sub judice, motor vehicles, is determined by mere effect of the contract, it being that pursuant to the provision in paragraph a) of article 879 of the CC, among the essential effects of the purchase and sale contract, the transmission of the thing stands out;
- Given the foregoing, it becomes clear that the legislative thought points to the sense that the provision in no. 1 of article 3 of the CIUC establishes a presumption "juris tantum", consequently rebuttable, thus allowing that the person who, in the registration, is inscribed as owner of the vehicle, may present elements of proof intended to demonstrate that such ownership is within the legal sphere of another person, to whom the ownership was transferred;
- What regarding the facts in dispute, there exist financial lease contracts, which were proved by the Claimant, both within the framework of the Appeal, tacitly rejected by the TA, documents nos. 1 and 2, attached to the case file, as well as in the request for arbitration decision, documents 1 to 7, configuring therefore the certainty that the responsibility for the payment of the IUCs belongs to the respective lessees, pursuant to no. 2 of article 3 of the CIUC.
9. THE PRESUMPTION OF ARTICLE 3 OF THE CIUC AND THE DATE ON WHICH THE IUC IS DUE
9.1 DATE ON WHICH THE IUC IS DUE
- The IUC is a tax of periodic taxation, whose periodicity corresponds to the year which begins in the act of registration or in each of its anniversaries, as provided for in nos. 1 and 2 of article 4 of the CIUC;
- It is due pursuant to no. 3 of article 6 of the said Code;
- It being to be noted that, regarding the liquidation of the IUC levied on the Claimant for the vehicles above referenced, in the years 2009 to 2015 are not to be considered, because as it concerns financial lease contracts and others, better identified in the Initial Petition, at the moment of the tax facts, the vehicles in question were within the legal sphere of the lessees, whereby these hold the use and enjoyment of the said vehicles, whereby pursuant to no. 1 and 2 of the CIUC, they must be held responsible for the payment of the obligation of the said tax.
9.1.1 On the burden of proof, article 342 no. 1 of the CC stipulates "to him who invokes a right it falls to make proof of the constitutive facts of the alleged right";
9.1.2 Also article 346 of the CC (contrary proof) determines that "to the proof that is produced by the party on whom the burden of proof falls, the opposing party may oppose contrary proof regarding the same facts, intended to render them doubtful; if it succeeds, the question is decided against the party burdened with the proof." (As states Anselmo de Castro, A., 1982, ED. Almedina Coimbra, "Civil Procedural Law Declaration", III, p. 163, "falling upon one of the parties the burden of proof, to the opposing party it suffices to oppose contrary proof, this being proof intended to make doubtful the facts alleged by the first".
Thus, in the case at hand, what the Claimant must prove, in order to rebut the presumption that results either from article 3 of the CIUC or from the Motor Vehicle Registration itself, is that it, the Claimant, did not hold the possession and use of the said vehicles in question, was only the legal owner of the vehicles in the period to which the challenged self-assessments refer. It proposes to prove, as results from the case file, that the vehicles were enjoyed by the respective lessees (cf., no. 1 to 5, attached to the Administrative Appeal, contained in the Initial Petition, which are deemed fully reproduced for all legal purposes.
9.2 REBUTTAL OF THE PRESUMPTION
- The Claimant, as referred to in 3.1, regarding the facts established, alleged, with the purpose of setting aside the presumption, not being the passive subject of the tax, at the time of the occurrence of the tax facts, offering for the purpose the following documents:
- Documents nos. 1 to 7, contained in the Administrative Appeal and the Initial Petition;
- Since the Claimant, due to its Commercial Activity, the vehicles that are part of financial lease contracts and others which are presumed pursuant to no. 2 of article 3 of the CIUC that: "financial lessees are equated to owners, acquirers with reservation of ownership, as well as other holders of purchase option rights by force of the leasing contract";
- Now, those documents enjoy the presumption of veracity provided for in no. 1 of article 75 of the LGT. It results from this that at the date on which the IUC was due, those who held ownership of the motor vehicles were the legitimate lessees.
10. OTHER QUESTIONS RELATING TO THE LEGALITY OF THE LIQUIDATION ACTS
- Regarding the existence of other questions pertaining to the legality of the liquidation acts, taking into account that it is inherent in the establishment of an order of knowledge of defects, as provided for in article 124 of the CPPT, that proceeding the request for arbitration decision based on defects that prevent the renewal of the challenged liquidations, becomes precluded, because useless, the knowledge of other defects, it does not appear necessary to know of the other questions raised.
11. REIMBURSEMENT OF TOTAL AMOUNT PAID
- Pursuant to the provision in paragraph b) of no. 1 of article 24 of the RJAT and, in accordance with what is established therein, the arbitration decision on the merits of the claim for which there is no room for appeal or challenge, binds the tax administration as from the end of the period provided for appeal or challenge, the latter having to, in the exact terms of the granting of the arbitration decision in favor of the passive subject and until the end of the period provided for the spontaneous execution of the sentences of tax judicial tribunals "Reestablish the situation that would have existed if the tax act subject of the arbitration decision had not been practiced, adopting the acts and operations necessary for the purpose"
- These are legal commands that are in full accordance with the provision in article 100 of the LGT, applicable to the case, by force of the provision in paragraph a) of no. 1 of article 29 of the RJAT, in which it is established that "The tax administration is obliged, in case of total or partial granting of complaints or administrative appeals or of judicial proceeding in favor of the passive subject, to the immediate and full reconstitution of the situation that would have existed if the illegality had not been committed, corresponding payment of compensatory interest, pursuant to the terms and conditions provided for in law".
- The case contained in the present proceedings raises the manifest application of the mentioned norms, given that as a consequence of the illegality of the liquidation acts referenced in this proceeding, there will necessarily be place for the reimbursement of the amounts paid, whether as title of the tax paid, whether of the corresponding compensatory interest, as a way of achieving the reconstitution of the situation that would have existed if the illegality had not been committed.
12. OF THE RIGHT TO COMPENSATORY INTEREST
- The declaration of illegality and consequent annulment of an administrative act confers to the recipient of the act the right to reintegration of the situation in which it found itself prior to the execution of the annulled act.
- Within the context of the liquidation of the tax, its annulment confers to the passive subject the right to restitution of the tax paid and, as a rule, the right to compensatory interest, pursuant to no. 1 of article 43 of the LGT and article 61 of the CPPT.
- Whereby the Claimant has the right to compensatory interest on the amount of tax paid relating to the liquidations annulled.
13. DECISION
Given the foregoing, this Arbitral Tribunal decides:
- To judge well-founded the request for declaration of illegality of the IUC liquidation, concerning the years: 2009 to 2015 relative to the motor vehicles identified in the present proceeding, annulling consequently the corresponding tax acts;
- To judge well-founded the request for condemnation of the Tax Administration to reimburse the amount unduly paid, in the amount of 50,446.40 euros,
condemning the Tax and Customs Authority to effect these payments.
CASE VALUE: In accordance with the provision in articles 306 no. 2 of the CPC and 97-A, no. 1 of the CPPT and article 3, no. 2 of the Regulation of Costs in Tax Arbitration Proceedings, the case is fixed at the value of 50,446.40 euros.
COSTS: In harmony with no. 4 of article 22 of the RJAT, the amount of costs is fixed at € 2,142.00, in accordance with Table I, attached to the Regulation of Costs in Tax Arbitration Proceedings, at the charge of the Tax and Customs Authority.
Notify the parties.
Lisbon, 15-12-2016
The Arbitrator
Maria de Fátima Alves
(the text of the present decision was prepared on a computer, pursuant to article 131, no. 5 of the Civil Process Code, applicable by remission of article 29, no. 1 paragraph e) of Decree-Law 10/2011, of 20 January (RJAT), its drafting being governed by current orthography)
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