Summary
Full Decision
ARBITRAL DECISION
Arbitrator Marisa Almeida Araújo, appointed by the Deontological Board of the Administrative Arbitration Centre (CAAD) to form this Sole Arbitral Tribunal, makes the following:
ARBITRAL DECISION
Report:
A... , S.A., legal entity no. ..., with registered office at Rua..., ..., ...-... Lisbon (hereinafter referred to as "Claimant"), submitted a request for arbitral pronouncement and constitution of a sole arbitral tribunal, on 10 January 2018, pursuant to the provisions of article 4 and no. 2 of article 10 of Decree-Law no. 10/2011, of 20 January (Legal Regime of Arbitration in Tax Matters, hereinafter referred to as "RJAT"), in which the Tax and Customs Authority (hereinafter referred to as "Respondent" or "TA") is the Respondent.
The Claimant requests, in the said arbitral pronouncement request, that:
- The illegality be declared and the consequent annulment of the 77 assessment acts relating to IUC (Single Circulation Tax) concerning the 75 vehicles identified in the case file, relating to the years 2015 and 2016 and, likewise, of the acts dismissing the administrative claims; and consequently the TA be condemned,
- To the reimbursement of the sum of € 7,552.70, relating to tax and compensatory interest paid by the Claimant; and
- To the payment of indemnity interest, for the deprivation of the said sum, in accordance with article 43 of the General Tax Law.
The request for constitution of the Sole Arbitral Tribunal was accepted by the President of CAAD on 23 May 2018, and notified to the Respondent.
The Claimant did not proceed to appoint an arbitrator, whereby, pursuant to the provisions of article 6, no. 2, letter a) and article 11, no. 1, letter b) of the RJAT, the President of the Deontological Board of CAAD appointed the undersigned as arbitrator of the sole arbitral tribunal, who communicated acceptance of the appointment within the applicable period and the parties did not manifest any refusal of the appointment, in accordance with article 11, no. 1, letters a) and b) of the RJAT and article 7 of the Code of Ethics.
On 1 August 2018 the arbitral tribunal was constituted.
Notified to this effect on 3 August 2018, the Respondent submitted, on 28 September 2018 its Response, having remitted a copy of the administrative file on the same date.
The arbitral meeting provided for in article 18 of the RJAT was held on 20/11/2018, with examination of the Claimant's witness, B..., duly identified in the case file, who answered the matter indicated by the Claimant in the submission of 09/10/2018, followed by oral arguments.
The deadline for publication of the final decision was fixed at 17 December 2018.
The Claimant sustains its claim, in summary, as follows:
The Claimant is a credit institution with strong presence in the national market and, among its areas of activity, special relevance is assumed by financing to the automobile sector.
The financial leasing contracts or long-term rental contracts that it concludes are intended for the acquisition, by companies and individuals, of motor vehicles and comply, essentially, with a common script, typical of this type of financing: the Claimant, after being contacted by the customer acquires the vehicle from the supplier indicated by the customer, and proceeds, subsequently, to its delivery to the said customer – who thus assumes the quality of lessee.
During the period to be stipulated in the contract, this lessee maintains the temporary use of the vehicle – which remains property of the Claimant -, by means of remuneration to be delivered to the Claimant in the form of rent; being able to acquire the vehicle, at the end of the contract, by means of payment of a residual value, plus expenses and VAT.
The vehicle which is the subject of the contract remains at all times, during the validity of the contract, in the exclusive use of the customer/lessee.
The motor vehicles identified in the case file were subject to Financial Leasing Contracts or long-term rental contracts.
According to the Claimant, almost all these customers acquired, at the end of their respective contract, the motor vehicle which was the subject thereof, by means of payment of the residual value, plus expenses and VAT.
As for the vehicles with the registration numbers ..., ... and ..., by express indication of the lessee, or because there was a transfer of the respective contractual position, the subjects who came to acquire those vehicles do not coincide with those who originally concluded the financial leasing contract.
For its part, according to the Claimant, as for the vehicle with registration number..., contrary to the "normal course" set out above, due to "total loss" following an accident that occurred on 13 May 2014, the vehicle was not transferred to the corresponding lessee, but rather to the sphere of the Insurance Company with which the insurance contract had been concluded.
The Claimant was notified to proceed with the payment of IUC, which it did.
Through the aforesaid acts, the Tax and Customs Authority came to demand payment of the missing IUC from the Claimant here, even knowing that the vehicles were no longer property of the Claimant, in the years to which the assessments relate.
The Claimant could not, therefore, be considered its respective taxpayer even though it appeared in the Motor Vehicle Registration Office as such.
The Claimant alleges the lack of reasoning of the TA's acts but alleges, nevertheless, that the fact that the TA came to demand payment of the IUC in question here from the Claimant can only be based on one line of argument: that – in the years in which the IUC were due – the ownership of the motor vehicles was still registered in the name of the Claimant – despite the same having already been the subject of transfer.
That registration – or its absence – cannot at any time be considered a determining factor in the tax liability of the Claimant now, which is why the Claimant considers that the tax assessments appear manifestly illegal and, consequently, the acts dismissing the administrative claims.
The (new) owners of the vehicles formerly leased are the taxpayers of IUC in accordance with the provisions of no. 1 of article 3 of the IUC Code.
Although the absence of registration does not affect the acquisition of the quality of owner – because, as has been shown, registration is not a condition of validity of the sales contract nor a condition of production of the effect of transfer thereof –, it is true that it (the absence of registration) does, however, prevent the full effectiveness of the sales contract; but not as to all entities.
The lack of registration, according to the Claimant, does not affect the validity of the sales contract, but only its effectiveness, and, even this, only against third parties acting in good faith for purposes of registration; a qualification which the TA undoubtedly does not assume in the case in question.
The presumption derived from motor vehicle registration cannot but be understood as a rebuttable presumption, in particular by virtue of the provisions of article 73 of the General Tax Law, by always admitting proof to the contrary.
As for the documents proving the transfers and, consequently, which rebut the presumption of registration, moreover, article 29 of the VAT Code has always recognized the invoice as a document to which legal relevance is attributed to document and prove transactions.
Concluding that the Claimant is not a taxpayer of IUC and, the subjective incidence of this tax not being verified, the tax acts of which it was subject are, therefore, absolutely illegal.
The mentioned assessments are the exclusive and sole responsibility of the TA, which, therefore, cannot but be responsible for the payment of indemnity interest and for the assumption of arbitral costs.
The Respondent responded sustaining the lack of merit of the arbitral pronouncement request and alleging, in summary, that:
Within the scope of the present arbitral pronouncement request the Claimant bases its claim on the ground that on the dates to which the tax facts relate that originated the IUC assessments in question here, the Claimant was no longer the owner of the vehicles to which they refer.
According to the TA it was incumbent upon the latter to demonstrate having complied with the ancillary obligation imposed by article 19 of the IUC Code.
In this way, following the thesis defended by the Claimant as to the fact that article 3 of the IUC Code establishes a rebuttable presumption, then it is necessary to conclude that the operation of that article (i.e., the rebuttal of the presumption) depends equally on compliance with what is established in article 19 of the IUC Code, as is derived from its literal element ("for purposes of article 3 of this Code (…)").
Consulted the Motor Vehicle Registration Office, according to the TA, it is verified that the Claimant appears as owner of the motor vehicles.
In this endeavor, that is, the Claimant not having complied with that obligation, it is necessary to conclude, according to the TA, that it is the taxpayer of the tax.
Notwithstanding, the Claimant alleges having concluded financial leasing and ALD contracts, it is true that it is responsible for payment of the respective IUC, since, according to the Respondent, it did not communicate the existence of financial leasing to which article 19 of the IUC Code refers.
The tax legislator in establishing in article 3, no. 1 who are the taxpayers of IUC established expressly and intentionally that these are the owners (or in the situations provided for in no. 2, the persons listed there), being considered as such the persons in whose name the same are registered.
Whereby, if it were understood that by using the expression "shall be considered" the legislator would have established a presumption, practically all the provisions on incidence in the context of CIT would be set aside precisely because the accounts prescribe solutions different from those of the CIT Code, being exactly the legislator's purpose to set aside such accounting rules.
In these terms, the Respondent concludes that, in the case of the present arbitral pronouncement proceedings, the legislator established expressly and intentionally that are to be considered as such [as owners or in the situations provided for in no. 2, the persons listed there] the persons in whose name the same [the vehicles] are registered, since this is the interpretation that preserves the unity of the legal-tax system.
Thus, the Respondent concludes that from the motor vehicle registration it appears that the owner of the vehicles is the Claimant, as appears from the administrative file.
On the other hand, also the Claimant did not attach any document proving the transfer of vehicle ownership, limiting itself to attaching copies of invoices/receipts.
According to the Respondent, also from the systemic element of interpretation of the law it is demonstrated that the solution advocated by the Claimant is untenable, the understanding endorsed by this finding no support in the law.
In these terms, and in the same sense, article 6 of the IUC Code, under the heading "Taxable Event and Exigibility", in its no. 1, establishes that: "The taxable event of the tax is constituted by ownership of the vehicle, as evidenced by the registration number or registration in national territory.
From the relationship between the scope of the subjective incidence of IUC and the constitutive fact of the corresponding tax obligation it follows unequivocally that only the legal situations that are the object of registration (without prejudice, to the permanence of a vehicle in national territory for a period exceeding 183 days, provided for in no. 2 of article 6) generate the birth of the tax obligation.
For its part, no. 3 of the same article provides that "the tax shall be deemed to be due on the first day of the tax period referred to in no. 2 of article 4".
That is, the moment from which the tax obligation is constituted has a direct relationship with the issuance of the registration certificate, which must contain the facts subject to registration (See articles 4/2 and 6/3 of the IUC Code, article 10/1 of Decree-Law 54/75, of 12 February, and article 42 of the Motor Vehicle Registration Regulation).
In the same sense the legislative solution adopted by the tax legislator in article 3/2 of the IUC Code militates in favour, by making coincide the equiparisons established there with the situations in which motor vehicle registration obliges to the respective registration.
In the absence of such registration, naturally, the owner will be notified to comply with the corresponding tax obligation, since the Respondent, taking into account the current configuration of the legal system, will not have to proceed to the assessment of the tax based on elements that do not appear in public records and documents and, as such, authentic.
In these terms, the Respondent concludes, the non-updating of the registration, in accordance with the provisions of article 42 of the Motor Vehicle Registration Regulation, will be imputable to the legal sphere of the taxpayer of IUC and not to that of the Portuguese State, as the active subject of this Tax.
According to the Respondent, even admitting that, from the point of view of the rules of civil law and real property registration, the absence of registration does not affect the acquisition of the quality of owner and that registration is not a condition of validity of contracts with real effect, in accordance with what is established in the IUC Code (which in the case in question constitutes special law, which, in accordance with general terms of law, derogates the general rule), the tax legislator intended expressly and specifically that are to be considered as owners, lessees, acquirers with reservation of ownership or holders of the purchase option right in long-term rental, the persons in whose name the vehicles are registered.
The TA further raises a teleological interpretation of the regime established throughout the IUC Code, the interpretation advocated by the Claimant in the sense that the taxpayer of the tax is the real owner, independently of not appearing in the motor vehicle registration the registration of that quality, is manifestly erroneous.
And it is an erroneous interpretation inasmuch as it is the very ratio of the regime established in the IUC Code that constitutes clear proof that what the tax legislator intended was to create a tax based on the taxation of the owner of the vehicle as it appears in the motor vehicle registration.
The TA further raises that, even if a rebuttable presumption were configured, the documents attached by the Claimant do not constitute sufficient proof to undermine the (supposed) legal presumption established in article 3 of the IUC Code.
The invoices/receipts do not prove, according to the Respondent, that ownership of the motor vehicle was transferred, since they only contain in the "description" field "residual value", the TA being unaware of what underlies that value or whether the same was paid and received.
The invoices are also not suitable to prove the conclusion of a synallagmatic contract such as a sales contract, since such documents do not themselves reveal an essential and unequivocal declaration of intent (i.e., acceptance) by the alleged acquirers.
In sum, according to the Respondent, the Claimant failed to prove the alleged transfer of the vehicles in question here.
The Respondent argues for the lack of merit of the arbitral request but, even if that were not the case, was not liable for any indemnity interest nor for the costs of the proceedings.
Sanating Opinion:
2.1. The Tribunal is competent and is regularly constituted, in accordance with articles 2, no. 1, letter a), 5 and 6, all of the RJAT.
2.2. The parties have legal personality and capacity, are legitimate and are represented, in accordance with articles 4 and 10 of the RJAT and 1 of Order no. 112-A/2011, of 22 March.
2.3. There are no defects affecting the entire proceedings, whereby it is necessary to rule on the merits of the case.
2.4. The cumulation of claims is admitted in accordance with articles 3 of the RJAT and 104 of the CTCP, taking into account the identity of tax facts.
Findings of Fact (Proven Facts):
It is incumbent on the tribunal to select the facts that are important for the decision of the case and to distinguish the proven matter from the unproven (in accordance with article 123, no. 2, of the CTCP and article 607, no. 3 of the CPC, applicable ex vi article 29, no. 1, letters a) and e), of the RJAT).
Thus, the facts relevant to the judgment of the case are chosen and outlined according to their legal relevance, which is established having regard to the various plausible solutions of the legal question(s) (in accordance with the previous article 511, no. 1, of the CPC, corresponding to current article 596, applicable ex vi article 29, no. 1, letter e), of the RJAT).
Thus, taking into account the positions assumed by the parties, the documentary evidence and the elements contained in the Administrative File attached to the case file, the following facts were considered proven, with relevance to the decision:
The Claimant is a credit institution with strong presence in the national market and, among its areas of activity, special relevance is assumed by financing to the automobile sector.
For each of the 75 motor vehicles in question in the case file the Claimant concluded financial leasing or long-term rental contracts and, at the date of each of the tax facts in question in the case file, the right of ownership over the same was no longer in the legal sphere of the Claimant.
The IUC assessments, relating to the years 2015 and 2016 in a total of 77 tax acts, were notified to the Claimant and which it paid including compensatory interest, related to vehicles whose ownership was registered in the name of the Claimant on the date of the tax facts, in a total of € 7,552.70.
The customers acquired, at the end of their respective contract, the motor vehicle which was the subject thereof, by means of payment of the residual value (or of the value of the sale of the property in any case of early performance of the contract), plus expenses and VAT, and as for the vehicles with the registration numbers ..., ... and ..., by express indication of the lessee, or because there was a transfer of the respective contractual position, the subjects who came to acquire those vehicles do not coincide with those who originally concluded the financial leasing contract and, as for the vehicle with registration number ..., contrary to the "normal course" set out above, due to "total loss" following an accident that occurred on 13 May 2014, the vehicle was not transferred to the corresponding lessee, but rather to the sphere of the Insurance Company with which the insurance contract had been concluded.
The financial leasing and long-term rental contracts, as the cases may be, were communicated to the TA through that entity's electronic platform.
The Claimant submitted requests for administrative claim:
vi.i. No. ...2016... relating to the year 2015 and relating to 15 vehicles, partially granted;
vi.ii. No. ...2016... relating to the year 2015 and relating to 48 vehicles, dismissed in its entirety;
vi.iii. No. ...2017... relating to the year 2016 and relating to 44 vehicles, partially granted.
No other facts with relevance to the decision of the case were proven, considering the possible legal solutions.
Reasoning of the proven and unproven facts:
The conviction about the facts resulted from the documentary evidence attached to the proceedings and the position assumed by the parties.
The testimony of witness B... was also considered, who, being an employee of the Claimant since 1996, being responsible, since 2012, for the area that includes notifications of IUC and "registers" all notifications of the TA, even though he has always worked in a post-sales department, demonstrated profound knowledge about the processing of proceedings relating to financial leasing contracts and long-term rental, particularly those that are in question in the case file.
As to the communication in accordance with article 19 of the IUC Code, the witness provided clarifications, with direct knowledge of the processing undertaken, regarding its compliance. He clarified that, twice a month that communication is made to the TA through its electronic platform and that, whenever it does so, the file with the registration numbers entered is integrated "without errors".
That the invoices attached to the proceedings are second copies, never questioned by the TA, with the original being sent to the customer, as well as the respective declaration of sale for registration purposes, clarifying that the reason for the distinction in the description between "residual value" and "sale of property" in that the former refers to contracts that ended without complications and in the remaining cases there is early performance thereof.
The witness further clarified that the contracts in question in the case file also have, as an integral part of those transactions, purchase and sale promise contracts since the Claimant does not retake the vehicles, thus guaranteeing that the customer acquires them.
Object and Scope of this Proceedings:
The following questions for decision are placed before the Tribunal:
Should the 3 acts dismissing the administrative claims be declared illegal and consequently the 77 assessment acts relating to IUC concerning the 75 vehicles identified in the case file be annulled, with the sums paid being returned to the Claimant?
Does the Claimant have the right to indemnity interest?
Can the Respondent be exempted from payment of arbitral costs, with responsibility, in these cases, being solely that of the Claimant?
On the Law:
The issue underlying the present arbitral pronouncement request takes into consideration the IUC assessments that the Claimant paid, plus the respective compensatory interest, in accordance with the attached list and assessments attached to the case file, in a total of 77, invoking the circumstance that, on the date to which the tax facts that originated them relate, the same were already the property of another.
For this purpose, it will be necessary to determine the subjective incidence of the Single Circulation Tax, that is, to determine whether the Claimant should or should not be considered a taxpayer of IUC as to the vehicles and periods to which the tax relates.
As to this specific question, article 3 of the IUC Code establishes:
"1 - The taxpayers of the tax are the owners of vehicles, being considered as such the natural or legal persons, of public or private law, in whose name the same are registered.
2. The following are deemed equivalent to owners: financial lessees, acquirers with reservation of ownership, as well as other holders of purchase option rights by virtue of leasing contracts".
Subjective Incidence of IUC After the Final Term of a Financial Leasing Contract (or Long-Term Rental Contract)
Financial leasing contracts or long-term rental contracts – which we do not distinguish here since, for the purposes of assessing the merits of the present action, it does not prove necessary – the taxable event in question, considering the very documentary content, applying the general rule of no. 1, that is, the taxpayer of the tax is the owner.
The question that arises here is who should be considered the owner for purposes of IUC payment when, in the motor vehicle registration, who appears as the owner of the vehicles is the Claimant, despite the financial leasing contracts having ended.
The Judgment of the Central Administrative Court of the South, delivered on 19-03-2015, Case 08300/14, available at: www.dgsi.pt, establishes that article 3, no. 1 of the IUC Code "[...] establishes a legal presumption that the holder of motor vehicle registration is its owner, being that such presumption is rebuttable by virtue of article 73 of the LGT".
This is also our position.
Following what is referred to in decision 43/2014-T, which we follow closely here, "it is verified, by way of example, that in articles 243, no. 3, of the Civil Code and 45, no. 6, and 89-A, no. 4, of the General Tax Law, the expression 'shall be considered' is also used, and yet, we are faced with legal presumptions whereby, in accordance with the general rules of interpretation provided for in article 9, no. 2, of the Civil Code, it is considered that the minimum of verbal correspondence is assured, for purposes of determining the legislative thought that is embodied in the provision in question – literal element".
That is, both expressions have been used by the legislator without it being possible to conclude that it did not intend to establish, in fact, a legal presumption, and it cannot be inferred that the alteration of the expression could lead to a different interpretive sense.
On the other hand, as is derived from the mentioned decision 43/2014-T "still within the scope of the elements of interpretation in accordance with article 9 of the Civil Code, it is important to consider the historical element. Thus, recalling Decree-Law no. 599/72, of 30 December and Decree-Law no. 116/94, of 3 May, as regards subjective incidence it was provided that the presumption that the taxpayers of IUC are the persons in whose name the vehicles were registered on the date of assessment".
On the other hand, considering the rational and teleological element, IUC has as its premise the environmental and road cost of the actual use of the motor vehicle. IUC therefore has underlying the principle of equivalence provided for in article 1 of the IUC Code, with a view to "burdening taxpayers in the measure of the environmental and road cost that these cause, in concretization of a general rule of tax equality".
Thus fulfilling the constitutional command, provided for in article 66, in which sustainable development requires that the State ensure "that fiscal policy reconciles development with the protection of the environment and quality of life" (letter h) of no. 2).
Promoting a principle of "polluter-pays", fulfilling the requirement of material equality among all citizens who cause the environmental cost, thus embodying IUC the environmental concerns that fiscal policy imposes.
Thus, also in accordance with this element, article 3, no. 1, of the Single Circulation Tax Code should be interpreted in the sense that it is a true presumption.
As Regards Registration Matters
In accordance with article 7 of the Real Property Registration Code, applicable ex vi article 29, of Decree-Law no. 54/75 (Motor Vehicle Registration), that "definitive registration constitutes a presumption that the right exists and belongs to the registered holder in the exact terms in which the registration defines it".
This means that the registration of the right of ownership of the vehicle has a merely declarative effect and not a constitutive one of any registered right, whereby it is configured as a presumption of the existence of the right, in the terms in which it is registered, which can be rebutted, that is, admits proof to the contrary.
The definitive registration constitutes nothing more than the presumption that the right exists and belongs to the registered holder, in the exact terms of the registration, but the presumption is rebuttable, thus admitting counterproof, as derives from the law and case law exemplarily noting the Supreme Court of Justice Judgments nos. 03B4369 and 07B4528, respectively, of 19/02/2004 and 29/01/2008, available at www.dgsi.pt.
For this reason, and following the arbitral decision delivered in the scope of case no. 145/2017-T "the function legally reserved to registration is, thus, on the one hand, to publicize the legal situation of the properties, in the case, of vehicles and, on the other, to allow us to presume that the right exists over those vehicles and that it belongs to the holder, as such inscribed in the registration, which means that the registration does not have a constitutive nature of the ownership right, but only declarative, being that such presumptions are rebuttable, either by virtue of what is established in no. 2 of article 350 of the CC, or in light of the provisions of article 73 of the LGT. Hence, from the moment the presumptions in question are set aside, by means of adequate proof, the TA will not be able to persist in considering as taxpayer of IUC the person in whose name the vehicle remains registered".
There being, particularly at the level of the IUC Code, any legal provision that attributes to vehicle registration any legal effect, including a condition of validity or effectiveness of the underlying transaction.
In this way, and following the decision delivered in the scope of case no. 145/2017-T "The interpretation of no. 1, of article 3 of the IUC Code, (...), taking into account, in particular, the legal relevance conferred on the principle of equivalence, does not entail the taxation, in IUC, of the lessor who, as the formal owner of the vehicle, does not, consequently, have any potential polluting effect, which means that the harm arising to the community, resulting from the use of motor vehicles should be assumed by their real users, as costs that only they should bear. The lessee, on the other hand, has full use and enjoyment of the vehicle, as legally established, being its true user and actual generator of environmental harm, and should, therefore, be responsible for the corresponding tax, being this the understanding which, having regard to the ratio legis of the IUC Code, should be gathered from the provisions of no. 2 of article 3 of that same Code".
"Thus, the interpretation of no. 2 of article 3 of the IUC Code will only allow us to view the lessee as responsible for the payment of IUC, being important to note, for this purpose, the provisions of article 19 of the IUC Code, when, precisely, for purposes of the provisions of article 3 of the said Code, that is, for purposes of subjective incidence, it comes to impose on the entities that proceed with financial leasing the obligation to provide the TA with data relating to the tax identification of the users of the leased vehicles, which reveals, in particular, that, for purposes of the said incidence, it was intended to know who were, ultimately, the real users of the leased vehicles, so that they, and not others, would bear the single circulation tax, which, moreover, is in full harmony with the principle of equivalence, as a structuring principle of the IUC Code".
Now, for each of the automobiles in question in the case file the Claimant attached the respective leasing or long-term rental contracts as well as, for each one, the invoices/receipts for the sale of the vehicles.
This is what we understand based on the proof presented by the Claimant.
Thus, following the decision delivered in case no. 634/2016-T of CAAD (consulted at www.caad.pt) "the relevance and interest of the presumption, in question, which historically was revealed by means of the expression 'being presumed' and which now serves the expression 'being considered', resides in the truth and justice that, by that means, is conferred on tax relations and which embody fundamental tax values, allowing the taxation of the real and actual owner and not one who, by circumstances of various nature, is sometimes no more than an apparent and false owner. If the case were not thus considered, not admitting and valuing the presentation of evidential elements intended to demonstrate that the actual owner is, after all, a person different from that which appears in the registration and, which initially, and in principle, was supposed to be the true owner, those values would be objectively postponed".
Concluding, therefore, that article 3, no. 1, of the Single Circulation Tax Code establishes a presumption, being this rebuttable in accordance with article 73 of the General Tax Law - "presumptions established in the norms of tax incidence always admit proof to the contrary, whereby they are rebuttable".
All of which the Claimant demonstrated to the TA but which, notwithstanding, ended up not supporting this understanding even though the Respondent was duly informed independent of any registration mention.
On the Evidential Value of Invoices
Such contracts and respective invoices/receipts are suitable means to prove the quality of lessor and lessee and subsequent transfer of the right of ownership, all of which is within the knowledge of the TA. There are, moreover, no elements that allow understanding that the data entered in those documents do not correspond to the contractual truth, this Tribunal seeing no reason to challenge them, it being also true that the law, in the case, no. 1 of article 75 of the LGT, attributes to that document a presumption of veracity that has not been overcome.
Furthermore, it is necessary to verify the question if the provisions of article 19 of the IUC Code have not been complied with.
Until its repeal by letter f) of no. 1 of article 215 of Law no. 7-A/2016, of 30 March, article 19 of the IUC Code imposed on the financial lessor of vehicles the obligation to provide the General Tax Authority (today, to the TA – Tax and Customs Authority) with data relating to the tax identification of the users of leased vehicles.
Now, in the concrete case, compliance with this obligation was proven, particularly considering the testimony of the witness called. As to this aspect, and considering the electronic communications of the communication and basing ourselves on the fact, of general knowledge, that it is frequent for the non-availability of evidence of the acts that taxpayers perform through the TA's electronic communication platform, we understand that we should consider it proven that the Claimant actually complied with the duty incumbent upon it by virtue of article 19 of the IUC Code.
But even if that were not the case, that is, even if that obligation had not been complied with, it is noted that the relevance of the breach of such obligation with regard to the incidence of the tax has been the subject of various arbitral decisions, recalling for this purpose the Arbitral Decision delivered in the scope of Case 136/2014-T:
"Indeed, the provisions of article 3, no. 2 of the IUC Code are quite clear regarding the subjective incidence of IUC, during the validity of financial leasing contracts, subjecting the lessee to that obligation, when it deems him equivalent to the owner for this purpose.
Thus, not assigning the law that obligation to the owner-lessor, there will be no place for any relief on the part of the latter, with the communication provided for in the said article 19 of the IUC Code, for the simple reason that it was never subject to payment of the tax.
The subjective incidence of IUC is established, in all its elements, in article 3 of the IUC Code, and it is through the application of this provision that the taxpayer will be determined, with the breach of compliance with the mentioned ancillary obligation being irrelevant for purposes of the incidence of the tax."
It is, therefore, to this jurisprudential orientation, to which we adhere.
As has already been concluded, in situations where vehicles, on the date of the occurrence of the tax fact, are sold to third parties, resulting from financial leasing contracts or other leases involving purchase options, the taxpayer liable for the tax obligation is, therefore, the owner and not the Claimant. And this is verified independently of whether or not the provisions of article 19 of that Code have been complied with and of the circumstance that the property registration remains in the name of the lessor, without the leasing contract having been registered therein.
For all these reasons, it will be said, in consonance with what has been set out above, that the assessment acts relating to the vehicles identified in the case file are considered illegal, it is concluded that there is no legal basis for the IUC assessment acts and compensatory interest relating to the vehicles and periods identified in the annex to the arbitral pronouncement request.
The Claimant's claim thus proceeds as to the request for annulment of the assessments in question in the case file and the respective decisions dismissing the administrative claims.
On the Right to Indemnity Interest
In addition to the annulment of the assessments and consequent reimbursement of the sums unduly paid, the Claimant further petitions that it be recognized as having the right to indemnity interest, under article 43 of the LGT.
In accordance with the provisions of article 100 of the LGT, applicable to the case by virtue of the provisions of letter 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 merit of administrative claims or appeals, or of judicial proceedings in favor of the taxpayer, to the immediate and full reconstitution of the situation that would have existed if the illegality had not been committed, including the payment of indemnity interest, in accordance with the terms and conditions provided for in the law."
The case contained in the present proceedings raises the application of the mentioned rules, since as a consequence of the illegality of the acts referenced in this proceedings, there must, by virtue of these rules, be reimbursement of the sums paid, either as tax or as compensatory interest, as a way of achieving the reconstitution of the situation that would have existed if the illegality had not been committed.
Thus, in light of what is established in article 61 of the CTCP and the requirements for the right to indemnity interest being met, that is, the existence of error attributable to the services being verified, as is the case, resulting from the payment of the tax debt in an amount greater than that legally due, as provided for in no. 1 of article 43 of the LGT, the Claimant has the right to indemnity interest at the legal rate, counted from the date of payment relating to each of the annulled assessments.
Whereby the Claimant has the right, in addition to reimbursement of the sums unduly paid, to indemnity interest, calculated on those sums relating to the annulled assessments.
On the Responsibility for Payment of Arbitral Costs
In accordance with article 527, no. 1 of the Code of Civil Procedure, ex vi 29, no. 1, e) of the Legal Regime of Tax Arbitration, it establishes that the party that caused the costs or, there being no winning of the action, who derived benefit from the proceedings shall be condemned to costs.
No. 2 of the said article makes concrete the expression "caused the costs" understanding that it is the party that loses the case.
It being true that the TA based itself on the elements contained in motor vehicle registration, the truth is that, after the invoices for the sale of the automobiles were presented, the presumption regarding vehicle ownership was rebutted, with the TA, notwithstanding, maintaining its position, whereby considering the Claimant's claim to be well-founded, in this respect, and the law being clear as to responsibility for costs, we understand that the Respondent should be condemned to the arbitral costs.
Decision:
In these terms, and with the grounds set out, the present Arbitral Tribunal decides:
- To rule favorably, as proven, declaring the illegality of the 3 acts dismissing the administrative claims and the 77 IUC assessment acts in question in the case file.
- To condemn the TA to reimburse the sums paid as IUC and compensatory interest in the amount of € 7,552.70 relating to the annulled assessment acts and, for these, to the payment of indemnity interest at the legal rate counted from the date of payment of the said sum, until the full reimbursement thereof;
- To condemn the TA to pay the costs of this proceedings.
Value of the Proceedings:
In accordance with the provisions of articles 306, no. 2 of the CPC and 97-A, no. 1 of the CTCP and 3, no. 2 of the Regulation of Costs in Tax Arbitration Proceedings, the value of the proceedings is fixed at 7,552.70.
Arbitration Fee:
The amount of the arbitration fee is fixed at € 612.00, in accordance with Table I attached to the Regulation of Costs in Tax Arbitration Proceedings.
Let it be notified.
Lisbon, 6 December 2018
The Arbitrator
(Marisa Almeida Araújo)
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