Summary
Full Decision
ARBITRATION DECISION
THE PARTIES
Claimant: "A…. - Financial Credit Institution, S. A. IN LIQUIDATION", Tax ID …, with registered office at …, …, …, …-… …
Respondent: Tax and Customs Authority
Subject Matter: Single Motor Vehicle Tax (IUC) – Alienation at the termination or during the term of a financial leasing contract
ARBITRATION DECISION
I - Object of the claim and procedural conduct
On 26 January 2015, the Claimant filed a request for arbitration, seeking:
i) A declaration of illegality of various Single Motor Vehicle Tax (IUC) assessment notices and corresponding default interest;
ii) Condemnation of the Tax Authority to payment of the costs borne by the Claimant in the form of arbitration fees; and
iii) Notification of the Tax Authority to attach to the case file the assessment notices relating to 3 vehicles.
By decision of the President of the Deontological Council (No. 1 of Article 6 of the Arbitration Regulations) the undersigned was designated as sole arbitrator. The arbitral tribunal was constituted on 31 March 2015.
The Tax and Customs Authority (hereinafter referred to briefly as the Authority) submitted its Reply on 6 May, also attaching a copy of the administrative proceedings.
In said reply, the Authority requested the correction of the procedural value. Arguing that the Claimant had considered as disputed a set of IUC assessment notices, which had already been annulled by the Authority as a result of the partial granting of administrative complaints filed by the Claimant.
On 14 May the Arbitral Tribunal notified the Claimant to clarify the request for arbitration, identifying the vehicles, the amount of IUC and the administrative complaint procedure in which the request for annulment was granted.
It was further notified that this information should be submitted by 25 May, with the Authority being granted a subsequent period to respond by 4 June.
On 12 June the Arbitral Tribunal again notified the Claimant to submit the information requested on 14 May.
Which the Claimant did on 16 June, correcting the procedural value to 22,491.22 €.
On 20 June the Arbitral Tribunal notifies the Authority to pronounce on the reduction of the procedural value. This was followed on 27 July with a new notification with the same object.
On 28 July the Authority confirmed the adjusted procedural value indicated by the Claimant.
On the same day, the Arbitral Tribunal notified the Parties of the waiver of the hearing provided for in Article 18 of the Arbitration Regulations, as well as of the waiver of the submission of pleadings, given that the evidentiary matters were properly established and no exceptions were raised, allowing for immediate consideration of the underlying legal question.
On 20 August the Arbitral Tribunal notifies the Parties to send the documentation which they had declared their intention to attach.
Specifically, the Claimant had not sent a copy of the invoice for the alienation of the vehicle with registration plate …-…-…. And the Respondent had not attached to the administrative file a copy of the IUC assessment notices for said vehicle.
On 8 September and 28 September the Respondent and Claimant, respectively, submitted the missing documentation.
The identity of the tax and the cause of action allows the consolidation of the disputed tax acts in a single request for arbitration. The merger operation registered in 2003 confers procedural legitimacy on the Claimant.
The Arbitral Tribunal was regularly constituted and is competent. The proceedings do not suffer from any nullity.
Once the assessment notices annulled by decision of the Authority in the examination of the administrative complaints filed by the Claimant have been excluded, we arrive at the following list of disputed tax acts and their respective values, in the total amount of 22,491.22 €:
[TABLE OF ASSESSMENT NOTICES - with years 2009-2012 and corresponding values in euros, preserved as structured in original]
II - Factual framework
It is proven, in light of the documentation submitted to the proceedings, that:
a) The Claimant engaged in the economic activity of financial leasing of motor vehicles;
b) Through a merger operation by acquisition, all assets and liabilities of "B… - Equipment Rental, S. A." were integrated into the patrimonial sphere of the Claimant. The latter having assumed the legal position of successor in the financial leasing contracts previously concluded;
c) The Claimant concluded various financial leasing contracts having as their object the motor vehicles identified in Annex XIX of the request for arbitration;
d) The motor vehicles were alienated to their respective lessees at the termination or during the term of the underlying financial leasing contracts;
e) The Claimant issued an invoice for each transaction of onerous transmission of the motor vehicle to its respective lessee;
f) Each invoice contains the number of the respective financial leasing contract, the vehicle registration number, the date of performance of the transaction and the identifying information of the seller and buyer (name or corporate designation, domicile and tax identification number);
g) The Authority issued self-assessed IUC assessments for the years 2009 to 2012, which were notified to the Claimant as the person liable for the tax;
h) The Claimant filed various administrative complaints, which were rejected on the grounds of the "paradigm shift in vehicle taxation" operated by the IUC. In which the taxable event is "constituted by ownership of the vehicle, as evidenced by the registration or registration in national territory". And verifying "in the Authority's database" that the registration is "assigned to the Claimant on the date on which the Authority proceeded to issue the payment documents" and the registration not being cancelled on that date, "the IUC is owed by the Claimant".
With relevance to the assessment of the merits, there are no unproven facts.
III - Summary of the grounds of law invoked by the parties
A. The Claimant's position
The request for arbitration aggregates various IUC additional assessment notices and corresponding default interest, inasmuch as they share the same illegality. Specifically, that during the pendency or termination of a financial leasing contract, the person liable for IUC is not the lessee, but rather the lessor.
And given that the disputed additional assessments have a common factual framework and are based on the same grounds of law, a single request for arbitration was structured.
The Claimant cannot be imputed the subjective incidence of IUC in the period between 2009 and 2012.
The motor vehicles to which the tax assessment relates were acquired by the Claimant in the context of concluding financial leasing contracts with its customers.
At the termination or still during the term of these financial leasing contracts, the lessees acquired ownership of the vehicles. From which moment the Claimant ceased to be the legal owner of these vehicles.
The Claimant signed the form for registration of vehicle ownership, subsequently forwarding it to the lessees so that they could update the registration of the vehicles that passed into their ownership. And the inertia of the lessees, who did not sign and submit the request to update the ownership registration, cannot be relied upon against the Claimant.
It is to the lessee - and not to the Claimant - that the IUC Code assigns the status of person liable for the tax.
Article 3 of the IUC Code contains a legal presumption, by considering as owners the natural or legal persons in whose name the vehicles are registered.
This presumption follows in the wake of precedent Motor Vehicle Tax, Haulage Tax and Municipal Vehicle Tax. In which the legislator had established a presumption of registered property ownership "subject to proof to the contrary".
The IUC, as successor to said taxes, maintained this rebuttable presumption despite differences in the wording of the statutory text. So that the expression "considering such" embodies a legal presumption.
And it was precisely for the purpose of rebutting this presumption that the Claimant exercised the right to prior hearing. Having presented the invoices issued following the onerous transmission of the vehicles to their respective lessees. Invoices which expressly identify the lessees (namely, their tax identification number).
So that on the date of the exigibility of the IUC assessed by the Authority, the Claimant had already ceased to be owner of the vehicles.
Vehicle registration has merely declarative nature, so as to allow its enforceability against third parties who have acquired, from the same grantor, an incompatible right. And insofar as the Authority cannot be considered, for registration purposes, as a third party, the transmission of ownership, registered or not, may be invoked.
Once the alienation of the vehicles at the termination or during the term of the financial leasing contract has been effected, the subjective incidence of IUC cannot be imputed to the Claimant.
B. The Respondent's position
The IUC Code presented an innovative element, embodied in the incidence of the tax on vehicle owners, "considering such the natural or legal persons, of public or private law, in whose name the same are registered".
The literal element is clear and direct. By using the expression "considering such" (instead of "presuming such") the tax rule makes clear the absence of a presumption. The owner is not entitled to present evidence to the contrary, given that there is no presumption capable of rebuttal.
The legal and tax system accepts other analogous situations, in which the legislator establishes rules of incidence, objective or subjective, according to a given abstract factuality. And without taxpayers being entitled to, by means of suitable evidentiary elements, overcome the rule of incidence.
Precisely because we are not dealing with the figure of presumption, at risk of emptying the useful effect of the legal rule.
There is also a coincidence between the literal element and the spirit of the legislator: to consider as person liable the owner in whose name the vehicle was registered.
This framework was already endorsed by the Administrative and Tax Court of Penafiel (case no. 210/13.0BEPNF), which decided that "the ownership and actual possession of the vehicle is irrelevant to the verification of the subjective incidence and objective verification and the taxable event of the tax".
Because "regardless of whether registration of the right of property in the vehicle registration is mandatory (…) and the claimant having sold the motor vehicle (…) what is at issue is the determination of the taxable event and the determination of its subjective incidence, which are established by the right of property of the vehicle as evidenced by the registration or registration in national territory".
"The sale of the vehicle (…) is irrelevant. For the assessment of IUC (…) and determination of the person responsible for its payment, the only relevant facts are the maintenance of the registration and vehicle registration in national territory and the registration of the right of property in the Vehicle Registration Office regardless of its effective alienation. The alienor has the duty, at the moment of alienation, to proceed to register the sale for the new acquirer, being the only way to ensure that the registration is carried out for the new acquirer".
All in accordance with No. 1 of Article 6 of the IUC Code, which fulfils the taxable event of the tax obligation by reference to ownership of the vehicle, as evidenced by the registration or registration in national territory.
Only legal situations that are the object of registration give rise to the birth of the tax obligation.
IUC is considered exigible on the first day of the taxation period referred to in No. 2 of Article 4, which denotes its direct relationship with the issuance of the registration certificate.
So that the failure to update the registration, in accordance with the provisions of Article 42 of the Vehicle Registration Regulations, shall be imputable in the legal sphere of the person liable for IUC and not in that of the Portuguese State, as the person entitled to this Tax.
Otherwise, the Authority would be constantly and, in the limit indefinitely, confronted with a continuum of operations (unregistered) of alienation of vehicles by taxpayers to whom the self-assessed IUC assessment was notified. To the point where the assessment of the tax within its period of limitation could be compromised.
Even admitting that the absence of registration does not affect the status of owner, it is beyond question that the tax legislator intended, intentionally and expressly, that those considered as owners be lessees, acquirers with reservation of ownership or holders of the right to purchase option in long-term leasing, the persons in whose name the vehicles are registered.
The literal element finds echo in the teleological element: the legislator intended to create an IUC based on the taxation of the vehicle owner as recorded in the vehicle registration. This was the fundamental vector of the reform of vehicle taxation.
As can be verified by transcription of the parliamentary session of 13 March 2008.
Accepting the grounds put forward by the Claimant would imply an action contrary to law, but equally contrary to the Constitution. By violation of the principles of good faith, legal certainty, efficiency of the tax system and proportionality.
Indeed, the interpretation proposed by the Claimant devalues the registration reality, making minimum control impossible on the part of the Respondent, being offensive to the basic principles of good faith and legal certainty that should inform any legal relationship.
The efficiency of the tax system is prejudiced by the increase in control costs that would be borne by the Respondent, which would always have to be balanced against the revenues generated by IUC.
The principle of proportionality is violated, inasmuch as the Claimant has the legal mechanisms necessary and appropriate to safeguard its tax capacity (e.g., vehicle registration), which were not exercised in a timely manner.
Furthermore, the Claimant failed to prove the onerous transmission of ownership of the vehicles.
Indeed, the presentation of an invoice "is not, by itself, sufficient to provide conclusive proof of the transmission of the vehicles", since we are dealing with a document unilaterally issued by the Claimant.
Not allowing to ascertain the conclusion of a contract of sale.
As stated in the judgment of the Central Administrative Court of the South of 19 March 2015 (case no. 08300/14), "since IUC is legally configured to operate in integration with vehicle registration, it is not sufficient for the opposing party to present mere counter-proof (…) on the contrary, it must show that the fact presumed is not true, and in such a way that there remains no uncertainty that the facts resulting from the presumption are not real".
"The invoice must be viewed as an accounting document (…) not proving payment of the price by the same buyer and, consequently, proof that the purchase and sale was concluded".
Finally, it is important not to overlook the failure by the Claimant to comply with the filing obligation imposed in No. 3 of Article 19 of the IUC Code.
The Claimant did not prove that it had provided the data relating to the identification of users of the leased vehicles. A fact essential for the removal of the subjective incidence rule of IUC.
Regarding responsibility for payment of arbitration costs, this can only be attributed to the Claimant.
This is because competence for vehicle registration is not within the sphere of availability and management of the Respondent. Rather, it is assigned to other entities, notably the Institute of Registries and Notaries, which is responsible for transmitting to the Respondent the changes verified in the ownership of motor vehicles.
Furthermore, the Respondent cannot be imposed any mechanism for controlling the transmission of ownership of vehicles, since IUC is assessed in accordance with the registration information duly transmitted by the Institute of Registries and Notaries.
And since the Claimant failed to maintain the vehicle registration properly updated, this lack of diligence is exclusively imputable to it.
IV - On the law
The crux of the disputed question may be enclosed in the following question: does IUC configure a tax on ownership or on registration of ownership?
This entails the analysis of two prior and concurrent questions:
i) Does No. 1 of Article 3 of the IUC Code constitute a legal presumption capable of rebuttal?
ii) If so, what are the suitable and appropriate evidentiary means for rebutting the presumption?
From the Claimant's perspective, the vehicles were alienated to their respective lessees. And being the Claimant not owner of the vehicles, it does not satisfy the subjective incidence rule of the IUC Code.
For the Respondent, the IUC Code makes the incidence of the tax fall upon the owner in whose name the registration is effected. So that the transfer of ownership is only relevant after the consequent registration.
Even if it were admitted that the transfer of the vehicle would be capable of thwarting the assessment of IUC, the Respondent argues that the invoices issued by the Claimant constitute private, internal and unilateral documents. Not being apt to prove the transfer of ownership of a good.
Commencing the arbitration decision, it is important to first note the fact that the vehicles are acquired by the Claimant for purposes of concluding a financial leasing contract. Having the alienation of the vehicles occurred during the term or at the termination of such contract.
Which leads us to an additional question: is the person liable for IUC due during the term of a financial leasing contract the owner (lessor) or the user (lessee)?
Financial leasing, regulated by Decree-Law No. 149/95, of 24 June, consists of an agreement by which the lessor grants to the lessee, for a determined period, the provision and economic enjoyment of a good, movable or immovable, as consideration for the payment of periodic rent.
The said legislation grants the lessee the option to purchase the leased good after the agreed period, at a determined or determinable price by mere application of contractual criteria.
We thus have that the provision of the purchase option has mandatory character, granting the lessee the right to acquire the good, through the payment of a residual amount in light of the capital amortization previously effected. The option being able to be exercised during the term or at the termination of the contract.
On the accounting plane, financial leasing was governed, until 31 December 2009, by Accounting Directive No. 25, being regulated from that date onwards by Accounting and Financial Reporting Standard 9.
Accounting law defines leasing as an agreement in which, in substance, the lessor transfers to the lessee all risks and benefits inherent to the holding of a given asset, regardless of whether the title of ownership may or may not be transferred.
The said accounting standard sets out various factual situations whose verification determines the classification of a given lease as financial. The first of which consists in the existence of an agreement for transfer of ownership.
The legal and tax system fully accepts said legal and accounting frameworks, through the provision of No. 2 of Article 11 of the General Tax Law. Since there is no tax rule that makes the concept of financial leasing autonomous, the meaning and scope of this figure must be determined from the framework offered by accounting law and by the legal regime of financial leasing.
Article 3 of the IUC Code provides that:
"1 - The persons liable for the tax are the owners of vehicles, considering such the natural or legal persons, of public or private law, in whose name the same are registered.
2 - Equivalent to owners are financial lessees, acquirers with reservation of ownership, as well as other holders of purchase option rights by virtue of the leasing contract".
In light of the proven facts, it follows that the Claimant and its clients concluded financial leasing contracts. Whereby the lessees are holders of the right to purchase option of the vehicle, which may be exercised during or at the termination of the validity of the contract.
And during the period of validity of the financial leasing contract, the IUC Code invests the lessee, and not the lessor, in the position of person liable for the tax.
Thus being set aside, by express determination of the IUC Code, the primacy of registered ownership, whenever the same is accompanied by a financial leasing contract (or any other agreement by which the lessee has the option to purchase the vehicle).
In the disputed case, the Claimant seeks the annulment of the self-assessed IUC assessments, based on the transmission of legal ownership of the vehicles at the termination or during the term of the corresponding financial leasing contracts.
That is, the cause of action does not rest on the validity of a financial leasing contract. But rather on the transmission of the vehicle subject to such contract.
The relevance of the transmission of the vehicle during or at the termination of a financial leasing contract is precisely linked to the fact that the onerous transmission does not appear as an isolated and detached economic operation. Rather it appears as the corollary of the exercise, by the lessee, of the contractual option to acquire the vehicle. During the term or at the termination of the leasing.
In other words, the alienation of the vehicle occurs as an economic operation inherent to and arising from the financial leasing contract. Allowing the lessee to consolidate, through the exercise of the purchase option, the economic and legal ownership of the good.
However, it is undeniable that the exercise of the purchase option results in the cessation of the financial leasing contract. Not allowing - from the date of alienation of the vehicle - the invocation of No. 2 of Article 3 of the IUC Code.
The lessee, who was already, by virtue of No. 2 of Article 3 of the IUC Code, person liable for the tax, maintains that position once the purchase option is exercised, despite ownership remaining registered in the name of the lessor?
The answer is affirmative. This is the sense of the present arbitration decision.
Let us see with what grounds.
Principle of economic equivalence
The IUC Code, from Article 1 onwards, enshrines the principle of equivalence as a structuring rule of this tax. Embodied in the burden of negative externalities, of environmental and road nature, arising from the enjoyment of a good (motor vehicle) by determined persons liable for tax.
No. 1 of Article 3 identifies these persons liable for tax as the owners of vehicles, "considering such the natural or legal persons, of public or private law, in whose name the same are registered".
At first, we might consider that the IUC Code adopts the concept of "registration tax", making the tax fall on persons liable as they are identified for registration purposes.
However, the principle of equivalence is reaffirmed in No. 2 of Article 3, when it provides that "equivalent to persons liable are financial lessees, acquirers with reservation of ownership, as well as other holders of purchase option rights by virtue of leasing contract".
Imposing on lessors the obligation to identify "users of leased vehicles", as per Article 19 of the IUC Code.
Terms in which the reading of No. 1 of Article 3 requires to be combined with the ultimate objective of the legislation: to achieve that the tax burden falls on the beneficiaries of the use of motor vehicles, so as to address the negative externalities imposed on the community in the environmental and road planes.
To admit the contrary would imply accepting that IUC would burden the owners registered in the registry, freeing the real economic users of the goods.
Contrary to the principle of equivalence which, it is insisted, the IUC Code raises to the category of structuring rule and forming this tax.
Furthermore, the "concretization of a rule of tax equality" accepted in the final part of Article 1, constitutes precisely the corollary of the principle of equivalence. In this case, as forming the principle of tax capacity, which requires that the tax be supported by persons liable who reveal a benefit arising from the enjoyment of a good.
Thus is understood the extension of the personal incidence rule to lessees and users of goods under reservation of ownership. At risk that IUC fall on persons liable who do not cause environmental and road costs arising from the enjoyment of vehicles that they provided to third parties. In which case the personal assumption of taxation would be verified, materially and substantially, in the sphere of another.
This, if occurring, would collide frontally with the principle of equivalence.
Registration as legal presumption
It is beyond question that the IUC Code is based on the registration element, using it for purposes of fixing the taxable event and the subjective incidence, as well as for the instrumental purposes of self-assessment or self-assessed assessment of the tax.
But, as we saw with regard to the principle of equivalence, the dependence on vehicle registration is not absolute. Constituting a legal presumption. And, as such, capable of rebuttal.
The Respondent presented various examples in which the legislator resorts to fictions. Either for reasons of simplification or practicability, or as a way to avoid situations of potential fraud or tax evasion.
As results from the Civil Code, presumption constitutes a mechanism for, starting from a known fact, establishing an unknown fact.
Conversely, fiction consists in considering as identical, situations that are known to result from divergent factual frameworks. Or, in the opposite sense, considering as divergent situations that present a coincident factual framework.
It suffices to note the rule of subjection to Property Transfer Tax of promise contracts in which the parties agree on the possibility that the promisee may assign its contractual position. A situation which the Property Transfer Tax Code equates to the onerous transmission of real property.
This is not a presumption, but rather a fiction. In these cases, the legislator does not ignore that the mere possibility of assigning the contractual position, does not constitute an onerous transmission of property or lesser real rights. But knowing the divergence between the transmission of real rights and the mere provision for contractual assignment, it attributes identical effect in the context of Property Transfer Tax.
We align with the uniform jurisprudence of the Administrative Arbitration Center on this matter: No. 1 of Article 3 of the IUC Code does not configure a fiction. But, rather, a mere legal presumption.
The Constitutional Court, in its examination of the presumption iuris et iure enshrined in Article 26 of the Corporate Income Tax Code (judgment no. 211/03), emphasizes that "(…) the legislator in the name of reasons of efficiency of the Tax Administration and the fight against evasion and fraud in this domain appeals to presumptions as a technique to better surprise the factual reality arising from the various situations in life endorsed by criteria of normalcy by resorting in this way to known facts to affirm others that it does not know and thus overcome the evidentiary difficulties that the determination of taxable matter inevitably raises".
"However, this technical process must be reconciled with respect for the principle of equality which in turn must reconcile with the general principle of taxation according to the tax capacity of each (…)".
In the case at hand, there must be added the principle of equivalence, around which the legislator built the IUC.
In conclusion, the legislator, for purposes of the delineation of the subjective incidence rule of IUC, established a legal presumption of ownership based on the elements contained in the vehicle registration. Thus should the expression "considering such" be interpreted.
This conclusion is consonant with the principle-rule of the merely public nature of registration.
Rebuttal of the legal presumption of ownership
Article 73 of the General Tax Law provides that legal presumptions enshrined in tax incidence rules always admit proof to the contrary.
And to rebut the legal presumption, the Claimant presented copies of invoices issued to the lessees.
Was the ownership of the vehicle transferred before the exigibility of IUC?
The answer is affirmative.
And it is so fundamentally because the invoice appears as the document which, on the accounting and tax planes, documents the economic transaction provided for in the financial leasing contract. Notably, the exercise of the option to acquire the vehicle during the validity or termination of the financial leasing contract.
We are not, consequently, before a factual framework in which the invoice appears as an isolated document in time. Or even as a unique and detached economic transaction.
Rather, to the contrary, the invoice appears linked to the conclusion of a financial leasing contract for a motor vehicle. Being the invoice issued with respect to that same vehicle.
The economic ownership of the vehicle is entrusted to the lessee, who enjoys it by means of the payment of periodic rent. Which is the subject of invoicing and VAT assessment.
The purchase option is, for accounting and legal purposes, a characteristic proper to and inherent in the financial leasing contract. A characteristic which the tax system fully accepts.
The invoice issued by the Claimant appears as a consequence of the exercise of the purchase option of the vehicle, as provided for in the applicable legal regime and in the financial leasing contract.
In fact, it would be the absence of the invoice that would operate an effect diametrically opposite, i.e. the passage of the subjective incidence of IUC from the lessee to the lessor.
This, in so far as the termination of the financial leasing contract - without the vehicle being acquired by the lessee - would result in the maintenance of legal ownership in the patrimonial sphere of the lessor. And once the contractual relationship of financial leasing is terminated, the regime contained in No. 2 of Article 3 of the IUC Code would no longer be applicable.
It is this linking of the invoice - as a document that evidences the exercise of a purchase option of a vehicle under financial leasing - that undermines the interpretation of the invoice as an internal and unilateral document. Rather positioning it as an evidentiary element properly framed and supported by the prior conclusion of a financial leasing contract that grants a purchase option to the lessee.
There being, thus, no reason to doubt the suitability of invoices as evidentiary element of the transmission of ownership of the vehicle.
In this chapter, Article 75(1) of the General Tax Law stands out. Under which it is presumed "true and in good faith the statements of taxpayers presented pursuant to the terms provided for in law, as well as the data and calculations recorded in their accounting or records, when these are organized in accordance with commercial and tax legislation (…)".
The invoices presented by the Claimant - as documentary support of a purchase and sale carried out at the termination or validity of a financial leasing contract - are consistent with this legal presumption.
The invoices comply with the tax requirements contained in Article 35 of the VAT Code, insofar as they contain, in particular, the identification of the transferor and acquirer, the description of the operation, the applicable VAT rate and the amount of VAT assessed.
Each invoice also references the financial leasing contract (by the number which would have been assigned to it upon its conclusion).
And if it is true that invoices do not constitute contracts of sale, it is equally true that contracts of sale are governed by the principle of freedom of form.
Furthermore, ownership is transmitted with the conclusion of the contract of sale. From which there arise, inter alia, the obligations of delivery of the thing and payment of the price (Articles 874 and 879 of the Civil Code).
Payment of the agreed price does not constitute a requirement of validity or effectiveness of the contract of sale. So much so, that the price may be subsequently determined or determinable (Article 883 of the Civil Code).
Non-payment of the price entails the responsibility associated with breach of an obligation. So that it is not to the invoice that the burden of "proving payment of the price and, consequently, proving that the purchase and sale was concluded" falls, as the Respondent alleges.
By way of conclusion, the person liable for IUC in a financial leasing contract is the lessee. Being this party responsible for the assessment of IUC whose taxable event arises during the validity of the financial leasing contract.
Once that contract ceases and the lessee has exercised the option to acquire the vehicle, the same remains as person liable for IUC. And insofar as the acquisition occurs simultaneously with the termination or cessation of the contract, the taxable event continues to be verified in the sphere of the lessee (now owner).
It would, in truth, be devoid of sense that the legislator, after charging the subjective incidence of IUC to the lessee by virtue of the latter's detention of economic ownership of the good, disregarded the legal consolidation of that ownership as a consequence of the exercise of the purchase option. Returning the subjective incidence of IUC to a legal entity which, after the transmission, had ceased to be either lessor or owner of the vehicle.
The invoices, in addition to benefiting from a legal presumption as to the truth of their content, evidence the alienation of the vehicles, as a consequence of the exercise of the purchase option that characterizes the financial leasing contract.
Once ownership is transferred, the subsequent taxable events occur at a moment when the person liable is the acquirer of the vehicle. Whereby on the date of exigibility of IUC (2009 to 2012) the Claimant was not person liable for the tax.
Finally, the Respondent alleges that the Claimant did not comply with the filing obligation provided for in No. 3 of Article 19 of the IUC Code, a fact which would determine the inapplicability of the subjective incidence rule provided for in No. 2 of Article 3 of the IUC Code.
However, the cause of action is located at the moment when the financial leasing contract ceases, by force of the transmission of legal ownership resulting from the purchase option provided for in the financial leasing contract.
Furthermore, the Claimant identified the lessees in the documentation attached to the request for arbitration.
And beyond the fact that the IUC Code does not establish the means and temporal moment of compliance with this filing obligation, it is certain that the Respondent could not, after the request for arbitration, be unaware of the identity of the lessees.
Costs
Responsibility for costs is allocated to the Respondent. Which had at its disposal the necessary elements to prevent the continuation of proceedings within 30 days following the date of knowledge of the request for constitution of the Arbitral Tribunal.
V - Decision
Terms in which this Arbitral Tribunal decides to judge as well-founded the request for annulment of the disputed assessment notices, in the amount of 22,491.22 €.
The procedural value is fixed at 22,491.22 €.
Costs owed by the Respondent in the amount of 1,224 €.
Let it be registered and notified.
Lisbon, 2 October 2015
The Singular Arbitral Tribunal
José Luís Ferreira
Frequently Asked Questions
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