Summary
Full Decision
ARBITRAL DECISION
I – REPORT
A..., LDA., a commercial company with a unique tax identification number and registration in the Commercial Register at ..., with registered office at ..., parish of ... and ..., Municipality of ..., hereinafter referred to as the Claimant, presented a request for constitution of an Arbitral Tribunal and for arbitral pronouncement on 09.07.2018, which was accepted and automatically notified to the Tax and Customs Authority ("AT"), in its capacity as Respondent.
The Claimant contests the tax assessment act for the levy of Excise Tax ("IEC") issued under number 2018/... of 26.03.2018, executed by the Customs Delegation of ... of the Directorate-General of Customs and Excise Taxes (current AT), in the amount of € 160,368.39 relating to Tax on Petroleum and Energy Products ("ISPPE") and Road Service Contribution ("CSR"), for the period between 01.01.2014 and 29.09.2017, and respective compensatory interest in the amount of € 8,178.65, totaling € 168,547.04.
The aforementioned tax assessment act and interest proceeds from three corrections:
(a) Commercialization of 273,033.88 liters of colored and marked diesel, between 01.01.2014 and 29.09.2017, without the respective sale having been registered in the electronic control system, POS terminal no. ..., in violation of article 93, paragraph 5 of the IEC Code and paragraphs 5 and 6 of Ordinance no. 361-A/2008, of 12.05;
(b) Commercialization of 227,339.75 liters of colored and marked diesel, between 01.01.2015 and 29.09.2017, without invoices having been issued in the name of the holders of the electronic card, in violation of article 93, paragraph 5 of the IEC Code and paragraph 8 of Ordinance no. 361-A/2008, of 12.05;
(c) Commercialization of 6,276.41 liters of colored and marked diesel to entities not holding the mandatory electronic microchip card, in violation of article 93, paragraph 5 of the IEC Code and paragraphs 5 and 6 of Ordinance no. 361-A/2008, of 12.05.
The Claimant did not proceed to appoint an arbitrator, wherefore, pursuant to article 6, paragraph 2, letter a) and article 11, paragraph 1, letter a) of the RJAT, the Chairman of the CAAD Ethics Council designated the signatories as arbitrators of the Collective Arbitral Tribunal, who communicated acceptance of the appointment within the applicable timeframe.
On 30.08.2018, the parties were notified of these appointments and expressed no wish to challenge any of them.
In accordance with the provisions of article 11, paragraph 1, letter c) of the RJAT, the Collective Arbitral Tribunal was constituted on 19.09.2018.
On 17.10.2018, the Respondent, duly notified to that effect, presented its response defending itself solely by way of contestation.
The meeting referred to in article 18 of the RJAT took place on 26.11.2018. Party statements were given by Mr. B... and testimony was heard from the three witnesses called by the Claimant, C..., D... and E....
The parties, notified to that effect, presented written submissions, in which they maintained the positions expressed in their initial pleadings, the Claimant raising the unconstitutionality of the rule contained in article 93, paragraph 5 of the IEC Code, which imposes on the owner or legal manager of authorized fuel stations for the public sale of colored and marked diesel the payment of the tax resulting from the difference between the taxation level applicable to road diesel and the rate applicable to colored and marked diesel, when the quantities sold are not properly registered in the electronic control system, or when, for those quantities, the corresponding invoices with the tax identification of the electronic card holder instituted for purposes of controlling supplies are not issued. The unconstitutionality alleged by the Claimant is based on the grounds invoked in Arbitral Decision no. 58/2018-T, of 19.11.2018, which dealt with a similar situation, specifically regarding the violation of the principle of typicality of sanctioning offenses, the ne bis in idem principle and the principle of proportionality.
It was also communicated to the parties that the final decision would be delivered by 18.03.2019.
Summary of the Claimant's Position
The Claimant petitions for the annulment of the aforementioned tax assessment act, alleging, regarding the first correction, relating to the sale of colored and marked diesel allegedly not registered in the electronic control system, that all liters sold were registered in the TPA/POS terminal no. ..., having even registered more liters than those actually supplied, at the request of its customers, with the objective of thereby securing the liter quota to which they are entitled annually, as evidenced by the supply statement issued by the competent body, the Directorate-General for Agriculture and Rural Development ("DGADR").
According to the Claimant, in most cases, its customers, farmers, do not carry the electronic microchip card with them, such that they do not pass it at the moment of supply and its immediate registration is not made. In this way, sometimes the Claimant makes a record of the liters supplied and then registers them together, whether at the end of the day, week or month, a circumstance that may be at the origin of the AT's divergence, without however justifying the position adopted by the latter.
The Claimant contends that registration in some cases temporally deferred in the electronic control system does not compromise the application of the more favorable tax regime (reduced rate) for colored and marked diesel, as it does not constitute a substantive requirement of the tax regime. The obligation to register constitutes an element of control or verification of the fulfillment of the requirements for access to the regime (ad probationem) and not a constitutive requirement of the same (ad substantiam).
Furthermore, requiring the Claimant to pay the difference in tax merely and solely because the registration was not made "at the moment" of supply constitutes tax responsibility lacking legal basis, in accordance with the principle of tax legality, in terms of articles 165, paragraph 1, letter i) and 103, paragraph 2, of the Constitution, since such requirement [of registration at the moment of supply] does not appear in the law, specifically in article 93, paragraph 5 of the IEC Code, but only in the regulatory provision contained in paragraph 6 of Ordinance no. 361-A/2008, of 12.05.
Regarding the second correction, relating to the sale of colored and marked diesel with issuance of invoice to the final consumer, that is, without identification of the name of the holder of the electronic microchip card, the Claimant invokes that the AT acknowledges that such sales were made to electronic card holders, wherefore, similarly to the previous correction, what is at issue is not the failure to fulfill a material requirement of the benefit, but only an element of control of its granting, i.e., that in fact the diesel was sold to someone who had the right to purchase it at a reduced rate. The tax benefit in question depends only on an act of recognition by the DGADR, translated into the issuance of the microchip card. Through the issuance of such card, that Directorate-General recognizes and certifies that its holder meets the objective and subjective requirements to be able to benefit from the tax relief.
The Claimant argues that the microchip card is a document ad substantiam, as without it no sale can be effected at a reduced rate. The registration of sales and the issuance of invoices in the terms referred to, in its view, constitute a means of proof that can be replaced by any other. Thus, if there is evidence that the recipients of the sales were holders of the microchip card, respecting the material requirements even though the formalities provided for by law have not been observed, the right to the reduced rate must be maintained. In this case, all liters of diesel were sold to microchip card holders and properly registered, as proven by the TPA/POS sales computer system. Thus, the reduced rate was applied only to those who actually have the right to this benefit.
The fact that the Claimant failed to issue the invoice is punished in the context of an administrative offense, provided for in article 109, paragraph 2, letter p) of the General Regime of Tax Infractions ("RGIT"), by reference to paragraph 6 of article 93 of the IEC Code, and cannot be the basis for the levy of a tax that is not owed from the perspective of its material requirements, under penalty of, in such case, being nothing more than an(other) sanction for the same infraction, which is already punished by the RGIT provision, with the consequent violation of the ne bis in idem principle, as both sanctions protect the same legal interest.
Such an understanding also violates the constitutional principles of typicality of sanctioning offenses and the prohibition of excess, as the Fundamental Law establishes a numerus clausus of sanctioning measures, in consonance with the principle of the democratic rule of law – cf. articles 165, paragraph 1, letter d), 18, paragraph 2 and 266, paragraph 2, all of the Constitution.
Finally, regarding the third correction, relating to the sale of colored and marked diesel to non-holders of the mandatory microchip card, the Claimant alleges that this was an error on the part of the fuel station employee, and that of the total of 6,276.41 liters sold, 1,620.08 liters were invoiced to the Claimant itself and 2,693.11 liters to F.... In the first case, it presents two justifications: an oversight resulting from the Claimant appearing as the first customer/taxpayer to appear on the list and the fact that it consumes this colored marked diesel in its tractor for cleaning the land surrounding the fuel station, with the microchip card being in the name of Mr. G..., manager, and not in the name of the company. In the second situation, it states that the holder of the "green card" was the husband of the person who was invoiced.
Summary of the AT's Position
The AT contends that the sale of colored and marked diesel without the operator, now the Claimant, having proceeded to register, via TPA/POS, the quantities in question in the electronic control system, violates the provisions of article 93, paragraph 5 of the IEC Code and articles 5 and 6 of Ordinance no. 361-A/2008 and constitutes grounds for the requirement of tax (differential between the taxation level of colored and marked diesel and road diesel). It also states that article 6 of Ordinance no. 361-A/2008 requires that sales of colored and marked diesel at fuel stations be obligatorily registered in POS terminals at the moment they occur.
According to the AT, the Claimant's argument reveals complete lack of control in compliance with legal rules regarding the obligation to register colored and marked diesel transactions, even admitting that registrations are not made at the time of supplies at the station, and may be postponed until the end of the month in question, in complete disregard of what is legally established.
Thus, it considers that, regarding these transactions, tax responsibility (which it characterizes as objective) is verified, as provided for in article 93, paragraph 5 of the IEC Code, on the part of the owner or legal manager of the fuel stations authorized for public sale, in relation to quantities sold not properly registered in the electronic control system, and that the alleged "oversights" of the Claimant in not proceeding to immediately register the supplies of colored and marked diesel cannot have any relevance, since article 93, paragraph 5 of the said Code establishes the objective tax responsibility of the owner or legal manager of fuel stations authorized for public sale, in relation to quantities sold in disregard of the commercialization rules for that fuel.
On the other hand, regarding the commercialization of colored and marked diesel without the corresponding invoice identifying the card holder, the AT understands that the same violates the obligations arising from article 93, paragraph 5, in fine, of the IEC Code, in the version given by Law no. 82-B/2014, of 31.12, State Budget Law for 2015 ("LOE 2015") and article 8 of Ordinance no. 361-A/2008.
In its view, article 93, paragraph 5 of the IEC Code provides for the requirement of tax corresponding to the differential taxation between colored and marked diesel and road diesel, for transactions effected from 01.01.2015, in relation to quantities for which the corresponding invoices in the name of the card holder have not been issued. It does not recognize the validity of the argument that there is no occasion to levy tax since the issuance of the invoice in the name of the card holder is merely an ad probationem formality, emphasizing that the Claimant itself admits not having issued invoices as it was obligated to do.
According to the AT, it was the Claimant's obligation to title all its sales with the issuance of the corresponding invoice, in terms of article 29, paragraph 1, letter b) of the Code of Value Added Tax ("VAT"), such that the invoice is the proof, par excellence, of these transactions and not mere formalism. It argues that, in the particular case of the sale of colored and marked diesel, the general obligation of the VAT Code is supplemented by the requirement that the invoice must be issued in the name of the card holder, in terms of article 93, paragraph 5 of the IEC Code. In fact, the requirement of invoice issuance in the name of the card holder, introduced by LOE 2015 in the cited paragraph 5 of article 93 of the IEC Code, does not constitute a purely formal requirement, but rather, in itself, a cause of liability for payment of the IEC relevant to quantities for which the corresponding invoices in the name of the holder have not been issued.
Similarly, the AT argues that the allegation that colored and marked diesel "was acquired only by electronic card holders" lacks substantiation, as the non-identification of purchasers on invoices issued to "final consumer" prevents inspection from confirming, on the one hand, whether the purchaser is a card holder who is entitled to acquire the product and, on the other hand, the cross-referencing of the sale (invoice) with the corresponding registration in the control system (TPA). The requirement of invoice issuance in the name of the card holder, introduced by LOE 2015, aimed, among other objectives, to avoid the risk of abusive use of third-party cards in registrations in the control system (TPA), wherefore an interpretation could also never proceed whereby, as the Claimant wishes, the fact that there are registrations in the TPA for quantities coinciding with those invoiced, without identification of the purchaser, would constitute proof of the sale to the respective electronic microchip card holder.
For the reasons stated, the AT concludes that the arbitral claim is unfounded.
II. PROCEDURAL REQUIREMENTS
The Arbitral Tribunal is materially competent and is properly constituted, in accordance with articles 2, paragraph 1, letter a), 5 and 6, paragraph 1, of the RJAT.
The parties have legal personality and capacity, are properly parties to the action and are legally represented, as provided for in articles 4 and 10 of the RJAT and article 1 of Ordinance no. 112-A/2011, of 22.03.
The action is timely and the proceeding is not affected by any nullities.
III. REASONING
A. FACTS
A.1. Proven Facts
A. The Claimant develops the main activity of retail trade in fuel for motor vehicles, in a specialized establishment (CAE 47300), in addition to other secondary activities (CAE 056301 – Café; CAE 049392 – Other diverse passenger transport and CAE 049410 – Road freight transport) – cf. Customs Inspection Report ("RIA") attached as document 2 with the request for arbitral pronouncement ("ppa").
B. The Claimant's activity is conducted at a fuel supply station of which it is the owner, where it sells, among other products, colored and marked diesel – cf. RIA.
C. Between 2014 and 2017, the Claimant registered in the electronic system, through TPA/POS terminal no. ..., supplies of colored and marked diesel in a total volume of 389,219.80 liters, distributed as follows:
LITERS REGISTERED TPA/POS BY YEAR
2014 2015 2016 2017
106,683.00 116,009.70 106,273.50 60,253.60
389,219.80
– cf. document 3 attached with the ppa (DGADR statement).
D. The supplies of colored and marked diesel registered by the Claimant in the electronic control system are listed on a statement issued by the DGADR that identifies, for each one, the following information elements:
(i) Name of the customer who supplied;
(ii) Date and time of supply;
(iii) Number of liters;
(iv) Number of the microchip card used; and
(v) Number of microchip card beneficiary
– cf. document 3 attached with the ppa (DGADR statement).
E. In the period between January 2014 and September 2017, the supplies of colored and marked diesel registered by the Claimant in the electronic control system were superior to those purchased from suppliers and which it actually sold by approximately 60,000 liters – cf. quantitative data contained in the RIA and document 3 of the DGADR, corroborated by the testimony given.
F. The customers, farmers, who supply colored and marked diesel at the Claimant's establishment, frequently do not carry the electronic microchip card with them at the moment of supply, such that they do not pass it through the TPA/POS terminal no. ... of the Claimant and its immediate registration is not made. In such cases, the Claimant makes a manual record of the liters supplied and registers them later as a batch, whether at the end of the day, week or month – cf. party statements and witness testimony.
G. When customers pass the microchip card through the TPA, it is frequent that they enter a quantity higher than the actual supply, either because this step is, as a rule, prior to that of supply and they must make an estimate of the fuel necessary to fill the tank, with subsequent rectification of the actual consumption not being possible through the TPA, as the system does not allow it, unlike what occurs, for example, with the operation of bank debit and credit cards; or because they wish to maintain a history of high consumption, to ensure their "quotas" of colored and marked diesel (for fear that, should they consume lower values, these "quotas" will be reduced), registering consumption in excess, to which the Claimant accedes. The invoiced value corresponds to that of the actual consumption – cf. party statements and witness testimony.
H. In the period from 01.01.2014 to 29.09.2017, the volume of 273,033.88 liters of colored and marked diesel sold by the Claimant was registered in the electronic control system (automatic payment terminal POS no. ...) at a different time from when the supply occurred – cf. joint analysis of the party's statements and witness testimony with elements of the RIA and document 3 of the DGADR attached with the ppa.
I. In the period from 01.01.2015 to 29.09.2017, invoices were issued by the Claimant for the sale of 227,339.75 liters of colored and marked diesel, without name, that is, assuming as recipient the generic category of "final consumer", NIF 999 999 990 – cf. RIA.
J. In the period from 01.01.2014 to 29.09.2017, there were charged/invoiced by the Claimant 6,276.41 liters of colored and marked diesel to entities that are not holders of the electronic microchip card, of which 1,620.08 liters were invoiced to the Claimant itself and 2,693.11 liters to F.... – cf. RIA.
K. The POS terminal used by the Claimant to register the quantities sold of colored and marked diesel frequently does not function due to lack of network – cf. party statements and witness testimony.
L. When the POS terminal does not function due to lack of network, the Claimant notes on paper the quantity sold and the respective customer, with such information being registered in the POS terminal at a later time – cf. party statements and witness testimony.
M. On 29.09.2017, in compliance with service order no. OI2017..., the Customs Delegation of ... initiated an inspection action with respect to the Claimant, of external procedure, with scope ISP - control of sale of colored and marked diesel, in the period between 01.01.2014 and 29.09.2017 – cf. RIA.
N. The inspection carried out had as its main objective to determine whether the commercialization of colored and marked diesel was being done in compliance with what is stipulated in article 93 of the IEC Code and Ordinance no. 361-A/2008, of 12.05 – cf. RIA.
O. As a result of this inspection action, on 20.02.2018, the Claimant was notified of the draft conclusions, to exercise the right to a hearing on the following correction proposals:
(a) Excise Tax on Road Diesel - € 106,229.65;
(b) Road Service Contribution on Diesel ("CSR") - € 53,055.97;
(c) CSR Collection Charges – 1,082.77
– cf. PA, fls.25-37 and 101-108
P. The Claimant chose not to exercise the right to a hearing and the AT proceeded to notify the Final Inspection Report by letter dated 21.03.2018, on which a concordant dispatch of the Delegation Head with the same date fell, which maintained the proposed corrections, and whose content is hereby incorporated by reference, extracting the following reasoning relevant to the matter under discussion in the present arbitral proceedings:
"Chapter IV – Controls Performed
[…] the inspection procedure began with the inventory of colored and marked diesel existing in the company's facilities.
In the company's accounts, the accounting elements considered relevant were analyzed, namely the current accounts of fuel suppliers, the registrations made in the subcategories of the fuel purchases account, subcategories of the merchandise – fuel sales account, among others.
Files from the SAF-T were collected for the period under analysis.
Information was collected from the database of the Directorate-General for Agriculture and Rural Development (DGADR), regarding colored marked diesel sold to electronic card holders, as well as colored marked diesel acquired by holders of invalid or suspended cards.
Information was cross-referenced between accounting records (colored marked diesel purchases) and supplies made by suppliers.
Controls Performed:
[…]
2 – Analysis of fuel purchases
From the analysis of documents registered in the company's financial accounts, it was found that in the period under analysis colored and marked diesel (C.M.D) was acquired from three suppliers, as shown in the following table:
Table I – Determination of C.M.D purchases
Purchases
SUPPLIERS 2014 2015 2016 2015 (until 29/09)
H..., Lda 7,000.00 0.00 0.00 0.00
I..., SA 74,996.00 41,007.00 0.00 0.00
J..., Lda 0.00 52,062.00 96,024.00 58,992.00
TOTAL 81,996.00 93,069.00 96,024.00 58,992.00
The aforementioned acquisitions were confirmed by cross-referencing information with the supplier companies.
[…]
3 – Analysis of colored and marked diesel sales
To determine the quantities of colored marked diesel that were not properly registered in the electronic control system, POS terminal no. ..., as well as to determine the quantities for which the corresponding invoice was not issued in the name of the card holder, the following measures were taken:
Collection and analysis of elements from SAF-T files for the years 2014, 2015, 2016 and 2017;
Extraction of listings from the database of the Directorate-General for Agriculture and Rural Development (DGADR) relating to registrations in the POS (TPA) terminal no. ...;
Confrontation of the data collected from SAF-T files with the registrations made in the POS (TPA) terminal no. ... .
- From the confrontation of data collected from SAF-T files with the registrations made in the POS terminal no. ..., the following is determined:
4.1 The quantity of colored and marked diesel sold and not registered in the electronic control system in violation of the provisions of paragraph 5 of article 93 of the Code of Excise Taxes (CIEC) and paragraphs 4 and 6 of Ordinance no. 361-A/2008, of 12/05, the determined quantity of which is subject to tax on petroleum products, resulting from the difference between the taxation level applicable to road diesel and the rate applicable to colored and marked diesel.
[…]
4.2. Colored and marked diesel sold without the transaction being documented with the issuance of an invoice in the name of the owner of the electronic card, in violation of the provisions of paragraph 5 of article 93 of the CIEC and paragraph 8 of Ordinance 361-A/2008 of 12 May, the determined quantity of which is subject to tax on petroleum products, resulting from the difference between the taxation level applicable to road diesel and the rate applicable to colored and marked diesel.
[…]
6 – Determination of Results
For the determination of the final result the sum of colored marked diesel liters, by period, was considered, as shown in Tables II to XXXVII
i. Liters of colored marked diesel sold that were not registered in the electronic control system, POS terminal no. ...;
ii. Liters of colored marked diesel sold/output for which the corresponding invoices in the name of the electronic card holders were not issued;
iii. Liters of colored marked diesel sold to non-holders of the electronic card.
[…]
Summary by Categories:
Summary by Categories
Category Designation Amount
592 ISP 106,229.65 €
504 CSR = (CSR-Ret) 53,055.97 €
506 Ret. No. 2 art. 5 1,082.77 €
Total 160,368.40 €
[…]" - cf. RIA
Q. The Claimant was notified, by letter no. ..., of 26.03.2018, of the Customs House of..., to proceed, within 15 days from notification, to payment of the tax values referenced in the table of the previous paragraph, in the amount of € 160,368.40, as well as the corresponding compensatory interest in the amount of € 8,178.65, totaling the value to pay of € 168,547.04, in accordance with the "I.L." payment slip no. .../..., of 26.03.2018, issued by the Customs Delegation of ... and attached to the said letter – cf. document 1 attached with the ppa.
R. The Claimant, in disagreement with the tax assessment act identified in the previous paragraph [I.L. no. .../...], presented to the CAAD on 9 July 2018 the request for constitution of the Collective Arbitral Tribunal that gave rise to the present proceeding.
A.2. Unproven Facts
The allegation was not proven that there are no sales of colored and marked diesel without registration of the microchip card (e.g. articles 5 and 26 of the ppa).
Neither was it proven that the colored and marked diesel invoiced by the Claimant to entities that are not holders of the microchip card was done so in error by the employee (e.g. articles 102, 103, 106 and 108 of the ppa), nor that such diesel was actually sold to microchip card beneficiaries. On the contrary, it appears from the party's statement and the employee's testimony that the most significant situation, relating to F..., corresponded to a voluntary irregularity on the part of the customer, as the consumption was for an establishment of which the customer was the owner (aviary) and the customer did not possess the microchip card, only her husband. On the other hand, in general, it was the manager of the Claimant and not the employee who dealt with the matter.
Similarly, the reason for the invoicing of colored and marked diesel to the Claimant, which does not have a microchip card, was not proven, nor that it was an oversight by the employee (article 106 of the ppa).
There are no other alleged facts that should be considered unproven that are relevant for the decision.
A.3. Reasoning for Proven and Unproven Facts
The pertinent facts for judgment of the case were selected and determined according to their legal relevance, in light of the plausible solutions of the legal questions, in accordance with the joint application of articles 123, paragraph 2, of the Code of Tax Procedure and Process ("CPPT"), and 596, paragraph 1 and 607, paragraph 3 of the Code of Civil Procedure ("CPC"), by reference to article 29, paragraph 1, letters a) and e) of the RJAT.
Neither proven nor unproven were allegations made by the parties and presented as facts, consisting of strictly conclusive affirmations, incapable of proof and the veracity of which must be determined in relation to the specific consolidated facts.
Regarding the proven facts, the conviction of the arbitrators was based on the positions assumed by the parties, critical analysis of the documentary evidence attached to the case and, where applicable, on the testimony of witnesses.
Regarding the statements of the party (B...) and its employee (witness C...), given the lack of distance from the interests of the Claimant, its contribution was relativized by the Tribunal.
On the other hand, regarding the essential fact that supplies registered in the electronic control system (of colored and marked diesel) exceeded those sold, the same already resulted from the analysis and confrontation of documents (RIA vs. document 3 attached with the ppa).
The testimony of D... (accountant for the Claimant) and E... (customer of the Claimant) proved to be objective but with limitations, insofar as they do not directly participate in the day-to-day business of the Claimant.
B. LAW
B.1. Regulatory Framework
The matter under discussion invokes the legal-tax regime of colored and marked diesel contained in the IEC Code, in particular the provisions of its article 93, which is transcribed in the applicable part:
"Article 93
Reduced Rates
1 - Colored and marked diesel, heating diesel and petroleum are taxed at reduced rates with the additives defined by order of the government member responsible for the finance area.
2 - Colored and marked petroleum can only be used for heating, lighting and in the uses provided for in paragraph 3.
3 - Colored and marked diesel can only be consumed by:
a) Stationary engines used for irrigation;
b) Vessels referred to in letters c) and h) of paragraph 1 of article 89;
c) Agricultural tractors, combine harvesters, single-axle tractors, power tillers, power scythes, self-propelled potato harvesters, pea harvesters, forage harvesters for silage, tomato harvesters, conditioning mowers, grape harvesters, trunk vibrators for fruit and olive harvesting and other equipment, including those used for aquaculture activity and fishing with the beach seine, approved by order of the government members responsible for the finance, agriculture and sea areas; (Text as amended by article 211 of Law no. 42/2016, of 28.12)
d) Rail passenger and freight transport vehicles;
e) Fixed engines;
f) Autonomous refrigeration engines, installed in heavy transport vehicles for perishable goods, powered by separate fuel tanks, and which have ATP (Perishable Transport Agreement) certification, in the terms to be defined by order of the government members responsible for the finance, agriculture and transport areas.
4 - Heating diesel can only be used as industrial, commercial or domestic heating fuel.
5 - Colored and marked diesel can only be acquired by holders of the electronic card instituted for purposes of controlling its allocation to the destinations referred to in paragraph 3, and the owner or legal manager of the fuel stations authorized for public sale shall be responsible for payment of the amount of tax resulting from the difference between the taxation level applicable to road diesel and the rate applicable to colored and marked diesel, in relation to the quantities they sell and which are not properly registered in the electronic control system, as well as in relation to the quantities for which the corresponding invoices in the name of the card holder are not issued. (Text as amended by article 207 of Law no. 82-B/2014, of 31.12)
6 - Sale, acquisition or consumption of the products referred to in paragraph 1 in violation of the provisions of paragraphs 2 to 5 are subject to the sanctions provided for in the General Regime of Tax Infractions and in special legislation.
7 - For the purposes of this article, fixed engines are understood to be engines designed for power generation and which, cumulatively, are installed on immovable platforms.
[…]"
The IEC Code is further supplemented by a set of regulatory provisions. With relevance to the case in question, it is worth noting those contained in Ordinance no. 117-A/2008, of 08.02, which updates and reviews the process of prior recognition of exemptions and reduced rates of ISP, and Ordinance no. 361-A/2008, of 12.05, concerning colored and marked diesel, approved still during the validity of the previous IEC Code and with reference to its article 74, whose maintenance results from the provisions of article 5 of Decree-Law no. 73/2010, of 21.06, which approved the new IEC Code.
Special emphasis deserves Ordinance no. 361-A/2008, of 12.05, which, in this regard, establishes rules for the commercialization of colored and marked diesel and control mechanisms, namely:
"[…]
-
Colored and marked diesel can only be sold at fuel supply stations to beneficiaries of an exemption or rate reduction of ISP who are holders of microchip cards issued for this purpose by the DGADR, through which all transactions of colored and marked diesel are registered in the computer system managed by the Interbank Services Society (SIBS).
-
The sales referred to in the previous number are obligatorily registered in POS terminals at the moment they occur.
-
Supplies to equipment authorized to consume colored and marked diesel that cannot be effected at the fuel station location, namely some agricultural and forestry equipment and fixed engines, may be registered in a mobile POS terminal, at the moment and place of the respective supply.
-
The registration in the computer system, through POS terminals, of each supply made, does not dispense with the issuance of the respective invoice or equivalent document, issued in the name of the holder of the respective microchip card.
-
The registrations of the transactions referred to in paragraph 5 are sent on computer media by SIBS to the DGADR, which, in addition to the national coordination functions incumbent upon it, manages the database relating to colored and marked diesel and is responsible for the issuance, suspension or cancellation of cards.
-
Colored and marked diesel can only be supplied to the equipment provided for in paragraph 3 of article 74 of the CIEC, after verification by the competent entity of the requirements and conditions required in terms of applicable legislation and the granting to the respective beneficiaries of the card referred to in paragraph 5.
-
In case of typing errors or other anomalies found in the use of POS terminals, these must be immediately communicated, in writing, preferably by electronic mail, to the DGADR, so that the respective corrections may be made.
[…]"
Additionally worth noting is the provision of article 2 of Ordinance no. 117-A/2008, of 08.02, according to which:
"2. May benefit from exemption or the application of a reduced tax rate individuals or legal entities that, demonstrably, use petroleum and energy products subject to ISP in the activities or equipment provided for in the legal provisions referred to in the previous number, provided they meet the following conditions:
a) This activity is properly declared, in accordance with applicable tax legislation, except when dispensed by law or by the nature of the exemption;
b) Have their tax and contribution situation regularized;
c) Have complied with their declarative obligations in respect of income taxes and value added tax.".
Article 5 of Ordinance no. 117-A/2008 further provides that the "fiscal benefits realized through the use of colored and marked diesel are carried out obligatorily through the use of a microchip card".
Regarding the road service contribution or CSR, it was created by Law no. 55/2007, of 31.08, and, in accordance with its article 1, aims to finance the national road network in charge of EP – Estradas de Portugal, E.P.E.. This contribution constitutes the counterpart for the use of the national road network, as verified by fuel consumption (article 3, paragraph 1). In accordance with article 4, paragraphs 1 and 2 of Law no. 55/2007, the CSR "is levied on gasoline and road diesel subject to the tax on petroleum and energy products (ISP) and not exempt therefrom", with its value varying depending on the petroleum product used (gasoline or road diesel).
The CSR is owed by the tax subjects of ISP (article 5, paragraph 1) and, despite constituting revenue for EP – Estradas de Portugal (article 6), its levy and collection is incumbent upon the Directorate-General of Customs and Excise Taxes (now AT), with the provisions of the IEC Code applying to its levy, collection and payment. In summary, we are facing a levy owed by tax subjects of ISP that is levied on road diesel subject to ISP and not exempt from such tax.
In the situation under analysis, three distinct practices are imputed to the Claimant, which are examined below, namely:
(i) Failure to fulfill the obligation to register sales of colored and marked diesel in the electronic control system;
(ii) Failure to fulfill the obligation to identify purchasers of colored and marked diesel on invoices issued;
(iii) Sale of colored and marked diesel to non-beneficiaries / non-holders of the microchip card.
B.2. Analysis of Corrections: (i) Failure to Fulfill the Obligation to Register Sales of Colored and Marked Diesel in the Electronic Control System
It results from the evidence produced in the case that the supplies of colored and marked diesel registered by the Claimant in the electronic control system, through its automatic payment terminal POS no. ..., for the period in question (from 01.01.2014 to 29.09.2017), of 389,219.80 liters, were substantially higher (by approximately 60,000 liters) than the amount of purchases of such fuel from suppliers in the same reference period, and consequently from the sales made and invoiced to customers.
Indeed, considering the total of 330,081.00 liters of colored and marked diesel acquired by the Claimant from suppliers in the reference period, as validated by the AT itself, which cross-referenced this information with such suppliers, and the 389,219.80 liters that the Claimant registered in the system as having been supplied, it appears that the Claimant cannot be imputed with the failure to register the supplies of colored and marked diesel, but precisely the opposite, the registration in excess of such supplies, given the quantities actually purchased and sold by the Claimant.
This circumstance is explained by the fact that the Claimant's customers request the registration of supplies in a volume exceeding the actual amount, with a view to securing the annual "quotas" for consumption of colored and marked diesel that are allocated to them, reminiscent of the previous regime, as now such limits are only indicative and not prohibitive as was the case in the past. Thus, customers prefer to register consumption in excess for fear that, should they consume lower values, their "quotas" would be reduced, to which the Claimant accedes.
At this point, the reasoning of Arbitral Decision no. 81/2013-T, of 05.12.2013, is enlightening, which states that "beneficiaries can now purchase at the Authorized Supply Stations, at the respective price (which is much lower than road diesel) all the quantities they need (the quota contained in the electronic card is, now, indicative and not prohibitive, as happened in the previous system), in normal circumstances, the regularity of such sale is only proven if there is registration in the electronic control system for the same, given that this registration must be done in the presence of the card holder, through the entry of the secret code, which only he knows, and which gives access to the said control system."
Furthermore, the fact that, as a rule, the microchip card must be passed through the TPA before supply also contributes to the registration in excess of colored and marked diesel supplies. In this way, what is registered is not the value of exact consumption, but an estimate of it, so to avoid failures or insufficient supplies to fill the tanks, it is usual for the customer to indicate a higher value at the moment of registration, which is not correctable in the TPA.
In any case, regardless of the motivations for such registration in excess, it is unequivocal that the Claimant registered in the system managed by the DGADR the supplies of colored and marked diesel made to its customers, even in a quantity higher than what they were. These customers are properly identified, through their name, the number of the microchip card used, the beneficiary number and the day and time the card was "passed", which should correspond to that of the supply of the colored and marked diesel.
Thus, contrary to what the AT alleges as the basis of its correction, the problem that arises is not one of failure to fulfill the obligation to register in the electronic control system by the Claimant, but that of the timing of such registration, it having been identified that, by virtue of the "bulk" registration that the Claimant practices with various customers, many supplies are reported after their execution, on a weekly, monthly or other basis. Thus, the central question lies in determining whether the registration was made at the moment it should have been and, if it was not, what are the consequences of this temporal delay in the sphere of the Claimant.
As just mentioned and as shown in the evidence, it is frequent that the Claimant proceeds to register supplies of colored and marked diesel in the electronic control system days or weeks after their execution. If in some cases this occurs by voluntary choice of the parties involved, as the Claimant's customers (farmers who travel with their tractors) do not always carry the "green card" when they supply colored and marked diesel, regularizing the situation at a later time; in other cases, it derives from circumstances of force majeure, for reasons of a technical nature related to the irregularity of the internet network serving the establishment, as often, given the remote location of the fuel station, the network connection is deficient and the terminal becomes inoperational, especially when certain weather conditions are present, preventing the contemporary registration of operations, which is necessarily done at a later time. Moreover, the problem is frequent, being capable of affecting the Claimant's activity in a significant manner and not only sporadically.
The solution hinges on the interpretation of the provisions of article 93, paragraph 5 of the IEC Code, specifically regarding the expression "are properly registered in the electronic control system". It is important to note first that this article 93, paragraph 5 of the IEC Code establishes nothing regarding the moment of such registration. What this provision provides or requires is that the quantities of colored and marked diesel that are sold "are properly registered in the electronic control system", so that the condition of responsibility of the owner or manager of the authorized fuel station for sale of such fuel does not operate.
In the case, the said quantities were in fact registered in the system, with all the required details that allow identification of who bought, with which card and in what quantity.
The system described seems to adequately ensure the control of colored and marked diesel sold and whether the same is commercialized to beneficiaries of the microchip card. It appears that, having the Claimant registered all the quantities supplied in the electronic control system, i.e., by appropriate means (TPA/POS), with the passage of valid microchip cards and the identification of the respective beneficiaries, the requirements on which article 93, paragraph 5 of the IEC Code makes the responsibility of the fuel station owner depend for the difference in taxation for road diesel cannot be considered fulfilled.
The term "properly" used by the provision under interpretation appeals to the manner in which the registration is made and not to its temporality, i.e., to the moment when it is made (which would have an underlying adverb of time and not of manner), and therefore an interpretation such as that of the Respondent, which extrapolates therefrom that only registration simultaneous with the supply can be considered as "properly" performed, must be considered inapplicable.
The understanding of the AT appears to be devoid of legal support and would put in question, in particular, situations of force majeure, such as for example, in the case of technical difficulties in accessing the network, and the possibility of carrying out the activity under such conditions, without, however, this being justified (in the sense of being necessary) from the perspective of the objective of fraud control that is intended to be protected, and therefore it would always prove to be a disproportionate requirement (cf. article 18 of the Constitution). In truth, the public benefit that is intended to be ensured [fraud control] does not necessitate such a compression of the right to free economic initiative provided for in article 61, paragraph 1 of the Constitution, as would result from the limitations on the commercialization of green fuel whenever there were problems accessing the network and the impossibility of immediate registration in the electronic control system.
In these terms, the interpretation advocated conforms to the parameters contained in articles 9 of the Civil Code and 11 of the General Tax Law ("LGT"), with support in the grammatical element, which makes no reference to the moment of registration, and in the teleology or principal objective protected by the provision, which is to prevent fraud. In truth, the provision aims to avoid the supply of colored and marked diesel to people who are not holders of the electronic card instituted for purposes of controlling the allocation of the product to the destinations provided for in article 93, paragraph 3 of the IEC Code, a condition which in the concrete situation does not verify, as emphasizes Arbitral Decision no. 23/2015-T, of 14 July 2015, "[i]n the case of the records, as well as in all cases where supplies were registered in the computer system in accordance with the reality of the facts, although not at the moment of supply, the purpose of art. 93, paragraph 5 of the CIEC is achieved."
In line with the Claimant's position, the registration of sales and, as will be seen below, also the issuance of invoices with the identification of purchasers, constitute requirements ad probationem, means of proof that can be replaced by others, and not essential elements of (or conditions for) the grant of the benefit of reduction in the rate of diesel. Ad substantiam is the holding of the microchip card, without which no supply can be made, and this was ensured in the situation in question.
It is worth noting that article 93, paragraph 5 of the IEC Code does not provide for an autonomous rule of incidence that would establish a new taxable event generating taxation, nor a sanctioning provision that provides and establishes a specific sanction for the delay in fulfillment of the tax obligation as auxiliary (the registration of operations in the electronic control system). It is, as will be seen better below, a provision that establishes a case of tax responsibility that presupposes, from the outset, the pre-existence of an original tax obligation that is not itself defined.
The position taken does not ignore that paragraph 6 of Ordinance no. 361-A/2008 establishes the obligation for colored and marked diesel sales to be "registered in POS terminals at the moment they occur". However, this is an instrument of a regulatory nature that creates an auxiliary tax obligation and not one that creates a principal tax obligation.
Moreover, if it were intended to accomplish more than this, the provision would be invalid, for violation of the principle of legality, as stated in the Decision of the Constitutional Court no. 176/2010, of 05.05 (albeit with respect to another ordinance, which has since been repealed), from which the following excerpt is drawn:
"It is unquestionable that the principle of tax legality requires that it be the law, or a decree-law issued pursuant to legislative authorization, that creates taxes and also defines their essential elements (article 165, paragraph 1, letter i), and paragraph 2, of the Constitution).
Expressing the understanding followed by this Court in this regard, it was stated in Decision no. 127/2004:
«The principle of tax legality, which the 1976 Constitution has asserted in all its versions, is now contained in article 103, paragraph 2.
According to this, «taxes are created by law, which determines the incidence, the rate, tax benefits and the guarantees of taxpayers». The principle has two legal dimensions, both subsumed to its historical matrix of no taxation without authorization of Parliament, as representative of the people (principle of self-taxation): one reflected in the constitutional rule of reservation of law of the Assembly of the Republic or of a government decree-law issued under authorization of Parliament to which the creation of taxes must comply, currently contained in article 165, paragraph 1, letter i), of the CRP; another, embodied in the requirement of conformance, by the law, of the model elements of the tax type, thus encompassing objective and subjective incidence, the rate, tax benefits and the guarantees of taxpayers.
It is this second dimension that densifies the axiological foundations of our Tax Constitution and which materializes in the principles of universality, tax equality and ability to pay.
Now, the pursuit of such an ethical-political goal demands that the function of defining the elements from whose legal operationality the tax obligation emerges be reserved for the law.
Thus, the principle of tax legality, in its material or substantive sense, requires submission to the sub-principle of legal typicality of the elements from whose concurrence results the modeling of tax types or taxes or, in other words, of the essential elements of taxes, and which are, according to the very terms acquired from the science of taxation by our Fundamental Law, incidence, the rate, tax benefits and guarantees of taxpayers.»"
The institute of tax responsibility, which the LGT regulates in its articles 22 to 28, is unequivocally inserted within the field of conformance of tax incidence and the guarantees of taxpayers, and therefore does not dispense with a legislative act, in the sense of article 112 of the Constitution.
In summary, the registration of the sale of colored and marked diesel in the electronic control system, at a moment later than that provided for in Ordinance no. 361-A/2008 [moment of sale], constitutes an irregularity capable of generating administrative offense responsibility, in this case that provided for in article 109, paragraph 2, letter p) of the RGIT (by virtue of article 93, paragraph 6 of the IEC Code), for infraction of the commercialization rules. However, it does not constitute an autonomous taxable event of ISPPE incidence (and, by inherence, of CSR), nor does it give rise to the birth of tax responsibility in the sphere of the Claimant, for not fulfilling the conditions of the normative hypothesis that provides for such responsibility, in accordance with article 93, paragraph 5 of the IEC Code.
Having fully demonstrated the registration by the Claimant of the operations of supply of colored and marked diesel to its customers in the electronic control system, the correction made by the AT based on the alleged failure of such registration suffers from error in factual and legal assumptions and is therefore, in this segment, substantively flawed, alleged by the Claimant, generating annullability in accordance with and for the purposes of article 163 of the Code of Administrative Procedure ("CPA").
The validity and application of article 93, paragraph 5 of the IEC Code is not placed in question, specifically for unconstitutionality, with the solution reached by interpretation of the provision in question.
B.3. Analysis of Corrections: (ii) Failure to Fulfill the Obligation to Identify Purchasers of Colored and Marked Diesel on Invoices Issued
It is an uncontested fact that the Claimant issued invoices for the sale of colored and marked diesel without having identified the tax identification number of the purchaser and holder of the microchip card. Nevertheless, it was equally established that the sales were registered in the control system and that the respective purchasers were holders of said card, i.e., with access to the tax benefit, such that the reality and regularity of such supplies is not in question.
The question to be decided is, at this point, strictly one of law and concerns whether, in these concrete circumstances, the regime of tax responsibility introduced by LOE 2015, in article 93, paragraph 5 of the IEC Code, "in relation to quantities for which the corresponding invoices with the tax identification of the card holder are not issued", is applicable, or, if it is, whether this passes the test of its constitutional conformity.
According to the Claimant, there is no evidence of the validity of a legal provision that imposes, as a requirement for applying the regime of exemption or relief of colored and marked diesel, the issuance of invoices with the tax identification of the card holders. The constitutive requirements of this tax benefit are those on which the law makes depend the granting of the microchip card – a requirement ad substantiam – subject to an act of recognition (prior) by the DGADR.
In the Claimant's opinion, the registration of operations in the electronic control system and the obligation to issue invoices with the tax identification of the card holder constitute elements of control or verification – requirements ad probationem – and not material requirements of the benefit. It draws identical conclusion from the historical and systematic elements, for which it appeals to the synopsis of the evolution of the benefit contained in Arbitral Decision no. 81/2013-T, of 05.12.2013, arguing that the essential nature of the grant of the benefit has never been altered, which remains "even though the formalities provided for by law have not been observed".
The consequences of the said practice – of non-issuance of invoices with tax identification of purchasers for some of the supplies made by the Claimant – are limited, in the view of the Claimant, to possible administrative offense responsibility, in accordance with article 109, paragraph 2, letter p) of the RGIT, and cannot extend its effects to the application of a regime of responsibility for payment of the difference in tax that would be owed by the application of the road diesel regime, to the owner or operator of the fuel station (i.e., the Claimant), by force of the provisions of articles 93, paragraph 5 and 4, paragraph 2, letter h) of the IEC Code. This is because the fulfillment of the substantive requirements of the exemption of colored and marked diesel was demonstrated, and, likewise, that the formalities not complied with did not compromise the monitoring and control of operations, which are contained in the documents and accounting records, in the corresponding registration in the POS terminal no. ... (and, consequently, in the official system for monitoring benefits), and in the SAF-T files communicated to the AT which, despite not identifying customers, identify supplies of colored diesel invoiced.
It is worthwhile, first of all, to analyze the responsibility regime contained in article 93, paragraph 5 of the IEC Code and which constitutes a special case of responsibility for tax debts of others. The legal discipline in question does not contain the original definition of the tax obligation in the sphere of the tax subject in which ability to pay manifests itself. It is a safeguard regime, which intends to ensure, in its various manifestations that it assumes, specifically those provided for in articles 22 to 28 of the LGT, the effective payment of revenues that are owed to the tax creditor. As LIMA GUERREIRO notes, "specifically fiscal responsibility is, in fact, for the debts of others and not for one's own debts" (cf. LGT Annotated, Rei dos Livros Publisher, 2000, p.126) and, in the words of SALDANHA SANCHES, constitutes "a regime whose severity raises serious problems in the application of the principle of proportionality in relations between State and taxpayer" (cf. Manual of Tax Law, Coimbra Editora, 2007.
In this regard, SÉRGIO VASQUES notes that "the responsible party is bound to fulfill the tax obligation to the extent that the direct taxpayer does not prove capable of satisfying it and because the responsible party, by virtue of its functions, is in a position to influence its behavior or to monitor it in some way. The tax responsible party, thus observes Pasquale Russo, being extraneous to the tax event and responding in that exact sense for the debt of another, guarantees with its property the fulfillment of the tax obligation to the extent that the declaration of such fact or the preservation of the patrimony of the direct taxpayer depends on its action" (cf. Manual of Tax Law, Almedina, 2011, p. 349.
Once the problem has been contextualized within the mechanism of tax responsibility, which allows the tax obligation to be demanded from another party who is not the (original) tax subject of the tax legal relationship, by virtue of a special position which it holds or occupies in relation to the tax facts and/or its subjects, it seems to be necessary that the existence of the original tax obligation, on the basis of which the (derived) tax obligation [responsibility] arises, be verified. In other words, tax responsibility should only operate if the condition of precedence of the taxable event of the "original" tax obligation, typified in its objective and subjective requirements, in a legislative act, is verified.
In the situation submitted to this tribunal's consideration, it was demonstrated that despite the issuance of invoices not having observed the requirement of identification of the purchaser, which, it should be noted, constitutes an innovative requirement of LOE 2015, the commercialization of colored and marked diesel was carried out in compliance with the conditions legally established for the application of the regime of tax relief: the sale to holders of the microchip card, which were properly registered in the electronic control system.
In this way, one cannot presume in the concrete case that the formal irregularity committed in the issuance of the invoice (omission of identification of the purchaser) compromised the partial exemption of which colored and marked diesel benefits, the breaking of which [of the exemption] is the basis for the responsibility regime of article 93, paragraph 5 of the IEC Code.
Indeed, it is understood that such a responsibility regime is not applicable because, despite the irregularity, the absence of fraud was demonstrated and the complete maintenance of the substantive requirements of the exemption provision – the sales having been made to recipient beneficiaries, holders of the microchip card, properly registered – with the consequent non-existence of the original tax obligation that could underpin responsibility as a mechanism to safeguard the interests of the tax creditor.
In conclusion, this Arbitral Tribunal considers that the implicit and necessary requirements of the tax responsibility regime provided for in the final part of article 93, paragraph 5 of the IEC Code are not fulfilled, due to the non-existence of the original tax obligation that would have to be underlying or may be presumed, with the correction made by the AT in this regard suffering from legal error, with the consequent annullability of the tax assessment act in the corresponding part.
The questions of unconstitutionality invoked by the Claimant in the submissions are not raised in the interpretation endorsed of the cited article 93, paragraph 5, and therefore the examination of these is rendered unnecessary by the legal solution applied.
B.4. Analysis of Corrections: (iii) Sale of Colored and Marked Diesel to Non-Beneficiaries / Non-Holders of the Microchip Card
Regarding the colored and marked diesel sold by the Claimant to entities that were not holders of the mandatory microchip card, the latter presented no acceptable justification that would allow such sales to be qualified as having been made to other entities.
Indeed, in the case of invoicing issued in the name of the Claimant itself, one cannot even speak of a sale, but rather of self-consumption, due to the lack of the subjective bilaterality indispensable for characterizing the sales contract.
As the holding of the microchip card constitutes a substantive condition for the application of the tax regime of colored and marked diesel, the commercialization / allocation of such fuel to entities that are not holders of such card and beneficiaries of the regime violates the provisions of articles 93, paragraph 5 of the IEC Code, and therefore the correction made by the AT is, in this matter, due and valid, with the defects pointed out by the Claimant being inapplicable.
Finally, it should be noted that the relevant questions submitted to this Tribunal's consideration were known and examined, while those whose decision was rendered unnecessary by the solution given to others were not, such as those relating to the unconstitutionality of a given interpretation of article 93, paragraph 5 of the IEC Code.
IV – DECISION
For these reasons, the arbitrators of this Arbitral Tribunal agree to:
(a) Judge partially granted the arbitral claim for annulment of the tax assessment act no. 2018/..., previously identified, covering ISPPE, CSR and compensatory interest, regarding the corrections based on the alleged failure to register sales of colored and marked diesel in the electronic control system (273,033.88 liters) and on the failure to identify the holders of the electronic card in the invoices issued (227,339.75 liters);
(b) Judge unfounded the claim in the remaining part, which refers to the sale of colored and marked diesel to non-holders of the electronic microchip card (6,276.41 liters).
V – VALUE OF THE PROCEEDINGS
The value of the proceedings is fixed at € 168,547.04 (one hundred and sixty-eight thousand five hundred and forty-seven euros and four cents), in accordance with article 97-A, paragraph 1, a), of the Code of Tax Procedure and Process, applicable by force of letters a) and b) of paragraph 1 of article 29 of the RJAT and paragraph 2 of article 3 of the Regulation of Costs in Tax Arbitration Proceedings.
VI – COSTS
The arbitration fee is fixed at € 3,672.00 in accordance with Table I of the Regulation of Costs in Tax Arbitration Proceedings, to be borne in proportion to the respective outcome, € 3,626.00, charged to the Respondent, and € 46.00, charged to the Claimant.
Lisbon, 7 March 2019
The Arbitrator President
(Alexandra Coelho Martins)
The Auxiliary Arbitrator
(Luís M. S. Oliveira)
The Auxiliary Arbitrator
(Raquel Franco)
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