Summary
Full Decision
ARBITRAL DECISION
I – REPORT
A) The Parties and Constitution of the Arbitral Tribunal
A..., Lda, Legal Entity No. ..., with registered address at Building ..., ..., Lot ..., ... floor - Lisbon, hereinafter designated as "Claimant", requested the constitution of a singular Arbitral Tribunal, pursuant to the provisions of article 2, no. 1, paragraph a) and article 10, no. 2, of Decree-Law No. 10/2011, of 20 January, hereinafter designated as "RJAT" and Regulatory Order No. 112-A/2011, of 22 March, seeking the declaration of illegality of the levies of the Unique Road Tax (IUC) described in the Schedule Attached to the present arbitral request, all referring to the tax periods from 2009 to 2012, described in the Table Attached to the arbitral request, which appear in the Administrative File of the records by the ATA, and which are hereby deemed to be fully reproduced for all legal purposes, in the total amount payable of €596.33, corresponding to €575.91 in tax and €20.42 in interest.
The request for constitution of the Arbitral Tribunal was presented by the Claimant on 14-07-2015, was accepted by the Honorable President of CAAD on 16-07-2015 and notified to the Tax and Customs Authority on the same date.
The Claimant opted not to appoint an arbitrator, whereupon, pursuant to the provisions of no. 1 of article 6 of the RJAT, the undersigned was appointed, on 28-08-2015, by the Deontological Council of the Center for Administrative Arbitration as singular arbitrator. The appointment was accepted and the parties were notified of the arbitrator's appointment, having manifested no intention to refuse the appointment.
Thus, in accordance with the provisions of paragraph c), of no. 1, of article 11, of Decree-Law No. 10/2011, of 20 January, as worded by article 228 of Law No. 66-B/2012, of 31 December (RJAT), the Singular Arbitral Tribunal was constituted on 18-09-2015. The ATA was notified on the same date to present its response within the legal period, in the terms and for the purposes of the provisions of nos. 1 and 2 of article 17 of the RJAT.
The ATA presented its response on 15-10-2015, which is hereby deemed to be fully reproduced, in which it requests the waiver of holding the meeting provided for in article 18 of the RJAT, as well as the presentation of submissions. On 19-10-2015 an arbitral order was issued notifying the parties of the intention to waive holding the meeting provided for in article 18 of the RJAT and the presentation of submissions, fixing a period of five days for the parties to pronounce themselves, if they so wish, on the content of the Order. By arbitral order of 28-10-2015, considering the parties' pronouncement, the holding of the meeting was waived and a deadline was set for the issuance of the arbitral decision up to 30-12-2015. The Claimant was also notified to proceed with payment of the subsequent arbitral fee by the date set for issuance of the arbitral decision.
By Request of 11-11-2015 the Claimant came to present and request the joining to the records of a set of documents, designated as accounting extracts, alleging that only on that date was it able to gather all the documents (accounting extracts) in question, which together with the second copies of invoices joined with the arbitral request are relevant for the discovery of the material truth at issue in the present records.
By order of 13-11-2015 the Request and documents referred to above were joined to the records and the ATA was ordered to be notified to pronounce on the same.
On 26-11-2015 the Respondent ATA came to pronounce, alleging in summary that:
a) The Claimant is subject to the civil procedural principle of preclusion, expressly provided for in the CPPT, which is translated into the recognition that a proceeding contains rigid procedural cycles, with specific purposes and separate from each other - it follows that when acts are not performed in the proper cycle, they are deemed precluded;
b) All facts and grounds of the action must be alleged at once, including those that may appear secondary, and offering the corresponding evidence, as follows from article 108, nos. 1 and 3 of the CPPT; as well as from paragraphs c) and d) of no. 2 of article 10 of the RJAT;
c) Therefore, already in the arbitral request the Claimant should have put forward all arguments (factual and legal), attached documentation and other evidentiary elements, in order to challenge the said levies.
d) In sum, permitting the admission of new facts, documents, grounds and elements by the Claimant would be synonymous with, by this means and at this procedural stage, permitting the extension of the deadline for presentation of the arbitral request, to which is added the fact that the Claimant has not proven the objective and subjective grounds for the late joining of the documents;
e) This joining is much later, both to the arbitral request and even to its notification of the Response presented by the ATA, and also to the notification of the arbitral order, dated 28/10/2015, which, in light of the parties' position, determined the waiver of the meeting provided for in article 18 of the RJAT, as well as the presentation of written submissions and determined the issuance of the decision for 30-12-2015;
f) Therefore, the late joining violates the provisions of that article 423 of the CPC by virtue of article 29 of the RJAT, which prevents the joining of the documents, whose withdrawal is hereby requested, as decided by order of 25/10/2012, issued in proceeding No. 75/2012-T:
g) It further alleged that, if the Tribunal were to consider the documents now joined, after the request for arbitral pronouncement, then, to the same extent, the request for indemnificatory interest should fail as well as the principal request, inasmuch as the documents joined do not have probative force to demonstrate the facts intended by the Claimant.
By order of 15-12-2015 this Tribunal decided that:
a) From the provisions of paragraphs c) and d) of no. 2 of article 10 of the RJAT, it results that the arbitral request must contain "the identification of the request for arbitral pronouncement, constituting grounds of this request those provided for in article 99 of the Code of Procedure and Procedural Taxation and, as well, the exposition of the questions of fact and law subject of said request for arbitral pronouncement and the elements of evidence of the facts indicated and the indication of the means of evidence to be produced;"
b) It also follows from the provisions of article 108, nos. 1 and 3 of the CPPT, that the challenge must set forth the facts and the legal reasons which support the request" and that with the petition the challenging party will offer the documents of which it has available, will list witnesses and request any other evidence that does not depend on supervening occurrences;
c) Considering the procedural principles that guide arbitral proceedings, within the scope of which the principles contemplated in the CPPT are also applicable by referral, and further, when necessary, of art. 423 of the CPC, applicable by virtue of art. 29 of the RJAT, the presentation of the request by the Claimant appears to be untimely, since it occurs after the order of 28/10/2015, in which, with the parties' consent, the holding of the meeting provided for in article 18 of the RJAT was waived, as well as the presentation of submissions by the parties. In addition, the fact that the documents now joined are obviously pre-existing to the presentation of the arbitral request itself. From the request presented by the claimant for the joining of said documents, it cannot be ascertained what the grounds for this late joining are;
c) Thus, and in line with what has been the arbitral jurisprudence in this venue, the tribunal considers that, without disrespecting the principle of discovery of material truth, it must comply with other legal-procedural principles contained in the RJAT and in legislation applicable by referral thereof;
d) Thus, unless the reason invoked for the late joining is admissible, which does not appear to be the case, this Tribunal should not consider the content of said documents in the decision to be issued. The moment of presentation of the request for constitution of the arbitral tribunal is the appropriate moment for exposition of the questions of fact and law subject to the request for arbitral pronouncement and for presenting the elements of evidence of the facts invoked and indicating the means of evidence to be produced.
e) In this context, one cannot overlook that even if these were constitutive, modifying or extinctive supervening facts, their assertion could only be made until the submissions phase [as results from the provision of art. 86, no. 1, of the CPTA, subsidiarily applicable by virtue of the provision of art. 29, no. 1, paragraph c), of the RJAT], a phase which in the present proceeding must be deemed to begin with the proceeding for setting a date for oral submissions to be made.
f) For this reason, by a fortiori the possibility of asserting non-supervening facts after the presentation of the request for constitution of the arbitral tribunal is ruled out, therefore the joining of the documents was deemed untimely and ordered its withdrawal.
The deadline for issuance of the final decision, initially set for 30-12-2015 was extended by order issued on 29-12-2015, for an additional ten days.
B) THE REQUEST FORMULATED BY THE CLAIMANT:
The Claimant formulates the present request for arbitral pronouncement seeking the declaration of illegality, with the consequent annulment, of the levies of the Unique Road Tax, referring to the tax periods comprised between the years 2009 to 2012, itemized in the Table Attached to the Arbitral Request, in a total of 16 levies of unique road tax (8 IUC levies and 8 interest levies) due for the vehicles appearing in the respective levies and for the years 2013 and 2014, in the total amount of €596.33. – See the levies attached to the Arbitral Request which are hereby deemed to be fully reproduced.
All these levies are attached to the records, in annex to the Arbitral Request, with identification of the vehicle registration number to which they refer and the legal situation in which they are found, and were paid by the Claimant.
In summary, it bases its request, alleging the following:
a) The Claimant is an institution that pursues the activity of renting motor vehicles and provision of services associated with fleet management.
b) The Claimant the eight impugned levies, which it paid, but disagrees with all the impugned levy acts, inasmuch as it considers that it is not a taxpayer of IUC relative to the registrations in question, because the conditions for subjective incidence of the tax are not met. It alleges that it was no longer the owner of the motor vehicles appearing in the impugned levies, in none of the years in question, because it had already sold the said vehicles on a date prior to the occurrence of the taxable event.
c) The Claimant paid all the amounts levied by the ATA referring to the impugned levies;
d) As to the legal grounds of the request presented, the Claimant alleges that pursuant to the provisions of article 3, no. 1 and article 6 of the CIUC, the tax is considered due by the owner (or other holders of the vehicle equivalent thereto) on the first day of the vehicle's tax period. The claimant considers that, in light of the legal regime in force, resorting to the elements contained in the vehicle register, the legislator established, simultaneously, enshrines a norm of subjective incidence that establishes, merely, a legal presumption. It further invokes the principle of equivalence and numerous arbitral jurisprudence. It thus understands that the levies are based on an error regarding the conditions of fact and should be annulled.
e) It concludes by petitioning for the annulment of these IUC levies, in the total amount of €596.33, corresponding to €575.91 in tax paid unduly and €20.42 in undue compensatory interest, as well as the payment of indemnificatory interest for the deprivation of said amount, in accordance with article 43 of the LGT.
C – THE RESPONSE OF THE RESPONDENT
The Respondent ATA, duly notified for this purpose, presented timely its response in which, by exception and by challenge, it alleged, in summary, that:
a) As to the alleged sale of the vehicles before the taxable event, the Claimant did not attach to the records sufficient evidentiary elements from which the sale of the vehicles can be extracted; the invoices attached to the records, by themselves, are not documents of proof for the alleged sale. Since it did not prove the fulfillment of the obligation it will not be able to do so later inasmuch as all means of proof must be presented with the initial pleading.
b) But before that the Respondent alleges that, not being unaware of arbitral jurisprudence, it does not follow it, for in its understanding article 3, no. 1 of the CIUC does not establish a rebuttable presumption. Such understanding incurs a skewed reading of the letter of the law, as the adoption of an interpretation that does not attend to the systematic element, violating the unity of the regime enshrined throughout the CIUC and, more broadly, throughout the entire legal-fiscal system and further stems from an interpretation that ignores the ratio of the regime enshrined in the article in question, and as well, throughout the CIUC;
c) It argues around the question of the subjective incidence of the IUC, centering its allegation on the provisions of nos. 1 and 2, of article 3 of the CIUC, emphasizing that the legislator did not use the expression "are presumed", as it could have done, indeed, similarly to what occurs in other legal norms, exemplifying some situations provided for in law;
d) It thus understands that in cases where the legislator uses the expression "is considered", it is not establishing a presumption, but rather a legislative choice to consider as owners those who appear as such in the register; to understand that the legislator enshrined here a presumption would be unequivocally to make an interpretation against the law. The legislator expressly and intentionally established that those persons in whose names the same are registered are considered as owners, inasmuch as this is the interpretation that preserves the unity of the legal-fiscal system and any other interpretation would be to ignore the teleological element of interpretation of the law: the ratio of the regime enshrined in the article in question, and as well, throughout the CIUC; it reinforces this allegation by invoking that this is the understanding followed by the jurisprudence of our courts expressed in the judgment delivered by the Administrative and Tax Court of Penafiel, in the context of Proceeding No. .../13.0BEPNF;
e) It concludes that article 3 of the CIUC does not contain any legal presumption, and by the dismissal of the arbitral request, inasmuch as the tax acts in issue do not suffer from any defect of violation of law, insofar as in light of the provisions of article 3, nos. 1 and 2 of the CIUC and article 6 of the same code, it was the Claimant, in the capacity of owner, the taxpayer of the IUC, as attested by the Information regarding the history of ownership of the vehicles in question, issued by the Motor Vehicle Registry Authority;
f) In the view of the ATA, pursuant to the provisions of article 3 of the CIUC, the tax became due by the persons who appear in the register as owners of the vehicles;
g) Any other interpretation would be to ignore the teleological element of interpretation of the law, the systematic element, violating the unity of the regime and would further be an interpretation inconsistent with the Constitution;
h) The ATA alleges that, should this not be the understanding, it would still have to be considered that the evidentiary documents joined by the Claimant (second copies of invoices) are not susceptible to rebut the presumption of the register, given the unilateral nature of the invoice, therefore it is a document insufficient for the demonstration of the synallagmatic character of the purchase and sale contract; the fact that it can document a supposed transaction that may not actually occur, due to lack of acceptance by the counterparty; it invokes in this regard the arbitral jurisprudence set forth in the decisions issued in proceedings Nos. 63/2014-T, 130/2014-T; 150/2014–T, 220/2014-T, 339/2014-T and 79/2014-T, among others.
i) Even should this not be understood, given the documents attached to the records, it cannot be deemed proven that the ownership of the vehicles is not of the Claimant, because these are not susceptible of displacing the alleged presumption resulting from the motor vehicle register, whose databases reveal that the owner is the Claimant.
j) It concludes seeking the legality of the levies and the dismissal of the request, the tax levy acts impugned remaining in the legal order, absolving the Respondent of the request.
II - PROCEDURAL REQUIREMENTS
The Arbitral Tribunal is regularly constituted. It is materially competent, pursuant to article 2, no. 1, paragraph a) of Decree-Law No. 10/2011, of 20 January.
The Parties have judicial personality and capacity, are legitimate and are legally represented (See art. 4 and 10 no. 2 of DL No. 10/2011 and art. 1 of Regulatory Order No. 112/2011, of 22 March).
The joinder of claims, seeking the joint appreciation of the legality of the 16 IUC levies, referring to the years 2013 and 2014, despite constituting autonomous acts, referring to differentiated situations, meeting the conditions required by the provisions of no. 1, of article 3, of the RJAT and article 104 of the CPPT, the joinder is admissible. Thus, the joinder in the same arbitral request of claims for declaration of illegality of all tax levy acts of IUC and the respective compensatory interest associated therewith is accepted, given the identity of the tax and the appreciation of the tax acts in question depending on the appreciation of the same factual circumstances and the application of the same rules of law. This is the case of the present arbitral request. The legal requirements for the joinder of claims are thus met, pursuant to the provisions of articles 104 of the CPPT and article 3, no. 1 of the RJAT, considering the identity of the tax and the tribunal's competence, which is accepted by this Tribunal.
The proceeding does not suffer from defects that would invalidate it.
Having regard to the administrative tax proceeding, the documentary evidence attached to the records, it is now necessary to present the factual matter relevant to the understanding of the decision, which is established as follows.
III - FACTUAL FINDINGS
A) Facts Proven
As relevant factual matter, this tribunal deems the following facts to be established:
a) The Claimant is a commercial company that is engaged in the activity of renting motor vehicles and provision of services associated with fleet management;
b) The Claimant was notified of the eight official levies attached to the Arbitral Request, which are hereby deemed to be fully reproduced;
c) The Claimant paid all the amounts levied by the ATA, referring to the impugned levies;
d) As of the date of the taxable events the vehicles, identified in the impugned levies, appeared in the registral bases of the Motor Vehicle Register, the Claimant as their owner;
e) The Claimant issued second copies of the eight invoices, contained in the documents attached in annex to the arbitral request as documents Nos. 1 to 50, which are hereby deemed to be reproduced.
B) FACTS NOT PROVEN
There are no other facts not proven with relevance for the decision to be issued.
C) JUSTIFICATION OF FACTS PROVEN
The facts described above were deemed proven based on the documents attached to the records.
IV – QUESTIONS TO BE DECIDED AND LEGAL JUSTIFICATION
It is thus necessary to appreciate and decide the legal questions raised by the parties, considering the positions assumed and the arguments presented by both, and which are reduced to two, namely:
1st) The meaning and scope of the norm of subjective incidence provided for in article 3, no. 1 of the CIUC, namely to know whether this legal provision provides for a rebuttable presumption or, rather, a legal fiction, insusceptible, therefore, of being rebutted by evidence to the contrary;
2nd) The legal value of the registration of motor vehicles and the probative value of the documents attached to the records by the Claimant to rebut the presumption resulting from the motor vehicle register.
1st.) Regarding the Interpretation of article 3, no. 1 of the CIUC
The Claimant invokes that, with reference to the impugned levies that the ownership of the motor vehicles in question was transferred prior to the taxable event, therefore the conditions for subjective incidence provided for in article 3 of the CIUC are not met, and therefore it is not a taxpayer of IUC. It invokes that, as of the date of the taxable events, it was no longer the owner of said vehicles, which it had already sold on a date prior thereto and, as a consequence, the levies must be annulled because the factual conditions of subjective incidence of the tax are not verified.
For this purpose it alleges, in summary, that article 3 of the CIUC establishes an implicit presumption of ownership of the vehicles in favor of those in whose names they are registered, a presumption which, by virtue of the application of the general rule provided for in article 73 of the General Tax Law, is rebuttable by evidence to the contrary. Already for the Respondent, article 3 of the CIUC does not establish any implicit presumption, but a true norm of incidence based on a legal fiction, non-rebuttable.
Now, with regard to this question, there is already abundant arbitral jurisprudence emanating in recent years, from which we highlight the decisions issued in proceedings Nos. 14/2013-T, of 15 October, 26/2013-T of 19 July, 27/2013-T, of 10 September, 217/2013-T of 28 February and, more recently, in the decisions issued in proceedings 286/2013-T, of 2 May 2014, 293/2013-T, of 9 June 2014, 46/2014-T of 5 September, 246 and 247/2014-T, of 10 October, among others. The Claimant, for its part, alleges that arbitral jurisprudence is not uniform nor does it constitute precedent. Let us see then.
On this question the arbitral jurisprudence is uniform and in the sense of considering that article 3, no. 1 establishes a rebuttable presumption. Furthermore, it is in harmony with the most recent jurisprudence of our higher courts, namely, of the Central Administrative Court South (TCAS) of 19-03-2015, issued in proceeding No. 08300/14.
But let us see what, according to the principles of legal hermeneutics, should be the meaning and scope of the provisions of article 3 no. 1 of the CIUC.
No. 1 of article 3 of the CIUC provides:
"The taxpayers of the tax are the owners of the vehicles, considering as such the natural or legal persons, of public or private law, in whose names the same are registered."
From a simple reading of this norm it can be verified, without great difficulty, that the crux lies in the expression "considering" used by the legislator. Should it be understood that the legislator intended to establish an implicit presumption or a true legal fiction?
It is important to consider some reference concepts to find the most appropriate answer to this question, such as the provision of article 349 of the Civil Code, according to which "presumptions are the inferences that the law or the judge draws from a known fact to establish an unknown fact."
Already according to no. 2 of article 350 of the Civil Code, legal presumptions can be rebutted by evidence to the contrary, except in cases where the law prohibits it.
Furthermore, as regards specifically the presumptions of tax incidence, according to article 73 of the General Tax Law, these always admit evidence to the contrary.
A different situation, to which the legislator sometimes resorts, is the one designated as "legal fictions", which consist "in a legal process that considers a situation or a fact as distinct from reality in order to attribute legal consequences to it".
According to the thesis repeatedly defended by the Respondent ATA in various proceedings identical to the one discussed in the present records, the fact that article 3, no. 1, of the CIUC establishes that those are "considered" as owners, rather than "are presumed" as owners, reveals that the legislator, within its freedom of legislative shaping, expressly intended to determine that the persons in whose names the vehicles are registered are considered, without admissibility of any evidence to the contrary, as owners thereof. And, further according to the Respondent, if the legislator intended to create a presumption and not a legal fiction, it would have written, as it does in various other statutes, that they are presumed to be owners and not that they are considered to be owners.
Well, this Tribunal cannot subscribe to such understanding. And, it must not be said that this is a position only reflected in the successive arbitral proceedings that have addressed this issue. In truth, this same position was recently upheld by the Central Administrative Court South, by Decision issued on 19-03-2015, in proceeding No. 08300/14, in which it is stated that "(…) the cited article 3, no. 1, of the CIUC enshrines a legal presumption that the holder of the motor vehicle register is its owner, and such presumption is rebuttable by virtue of art. 73 of the LGT." And, the same Decision adds that "the rebuttal of the legal presumption obeys the rule contained in article 347 of the Civil Code, whereby full legal evidence can only be contradicted by means of evidence that shows the fact to be untrue."
In truth, as has already been emphasized in various arbitral decisions issued, the analysis of the historical and teleological elements, in addition, naturally, to the literal element, of legislative interpretation, lead to the logical conclusion that the legislator did not intend to establish any legal fiction but only and solely a presumption, rebuttable by evidence to the contrary in accordance with the terms and for the purposes of the provision of article 73 of the General Tax Law. Being a norm of tax incidence any other understanding would be clearly contrary to the principles governing the tax legal relationship.
As to the historical element, it is important to note that the CIUC had its genesis in the creation, through DL 599/72, of 30 December, of the tax on vehicles, which already expressly enshrined that the tax was due by the owners of the vehicles, presumed to be such the persons in whose names the same were registered or enrolled.
Similarly, article 2 of the Regulation of Circulation and Hauling Taxes (approved by Decree-Law No. 116/94) established that: "the taxpayers of the circulation tax and the hauling tax are the owners of the vehicles, presumed to be such, until proof to the contrary, the natural or legal persons in whose names the same are registered".
However in the CIUC, the legislator substituted the expression "is presumed" for the expression "is considered", which in the perspective of the Respondent translated the enshrining of a legal fiction, non-rebuttable. We do not consider that this is so. In truth, in the current version of the Code only the verb changed, the legislator now opting for the expression "considering". It is certain that, between the previous legislative versions and the current one, the LGT came into force, which expressly enshrined the principle contained in article 73, from which it results that in the matter of tax incidence any presumption always admits evidence to the contrary. Therefore, it becomes indifferent the adoption of an express or implicit presumption, inasmuch as one as the other are equally rebuttable.
As already appears in various arbitral decisions, now reinforced by the Jurisprudence of the Superior Courts, we are before a rebuttable presumption.
Beyond which, as has been said above, being a norm of tax incidence, it would never be admissible the enshrining of a non-rebuttable presumption. As affirm, Diogo Leite Campos, Benjamim Silva Rodrigues and Jorge Lopes de Sousa, in the annotation to no. 3, of article 73, of the LGT, "the presumptions in the matter of tax incidence can be explicit, revealed by the use of the expression is presumed or similar (…). However, presumptions can also be implicit in norms of incidence, notably of objective incidence, when certain values of movable or immovable property are considered as constituting taxable matter, in situations where it is not impractical to ascertain the real value".
Furthermore, there are many examples of norms in which the verb "consider" is used to establish rebuttable presumptions, as occurs with the provision in no. 2 of article 21 of the CIRC, in article 89-A of the LGT or in article 40, no. 1 of the CIRS among others. This appears normal, namely, in the case of other tax norms in which the legislator used the formula "is considered" or "are considered", but attributing to it another meaning, since these are expressions which, depending on the context, can assume a plurality of meanings, without from which can be extracted the conclusion that the Respondent intends.
Taking into account that the legal system should form a coherent whole, the examples referred to above, as well as the doctrine and jurisprudence indicated, allow the conclusion that it is not only when the verb "presume" is used that we are before a presumption, but also the use of other terms or expressions, such as the term "is considered" can serve as a basis for presumptions. And, as stated above, being the literal element the first instrument of interpretation of the legal norm, in search of legislative thought, it is important to confront it with the other elements of interpretation, namely the rational or teleological element, the historical element and the systematic element.
It appears settled that, in the matter of tax incidence, presumptions can be revealed by the expression "is presumed" or by similar expression. By way of example, Jorge Lopes de Sousa refers that in article 40 no. 1 of the CIRS the expression "is presumed" is used, whereas in article 46, no. 2 of the same Code the expression "is considered" is used, there being no difference between one and the other expression, both meaning, after all, the same: a legal presumption.
Thus, notwithstanding the CIUC having opted for the expression "is considered" instead of the expression "is presumed", no substantive change is derived therefrom, both having the same meaning, namely, the enshrining of a rebuttable presumption.
If we attend to the teleological element, identical conclusion is imposed. In the statement of reasons of Legislative Proposal No. 118/X of 07/03/2007, underlying Law No. 22-A/2007, of 29 June, it is explicit the purpose of carrying out a "comprehensive and coherent reform of the taxes linked to the acquisition and ownership of motor vehicles" which results from the "compelling need to bring clarity and coherence to this area of the tax system and the need, more compelling still, to subordinate it to the principles and concerns of an environmental and energy order that today mark the discussion of automobile taxation."
(…) the two new taxes that are now created, the tax on vehicles and the unique road tax, constitute much more than the technical continuation of the figures created in the 70s and 80s that preceded them, aimed predominantly at raising revenue, indifferent to the social cost resulting from automobile circulation. They constitute something different, figures already of the century in which we live, with which it is intended, certainly, to raise public revenue, but to raise it to the extent of the cost that each individual causes to the community."
In this line of thought the legislator enshrined the principle of equivalence, inscribed in article 1 of the CIUC, as a fundamental principle in the functioning of the tax, "thus making clear that the tax, in its entirety, is subordinate to the idea that taxpayers should be burdened to the extent of the cost they cause to the environment and the road network, this being the reason for being of this tax figure. It is this principle that dictates the levying of vehicles based on their respective ownership and until the moment of scrapping".
The IUC, as a true environmental tax, elected as taxpayer the user, the polluter, in obedience to the polluter-pays principle. This consideration is particularly relevant, also, for a correct interpretation of the meaning and scope to be given to the provision in no. 2, of article 3 of the CIUC, referring to the case of lessees and other users of motor vehicles.
The structuring principle of the reform of automobile taxation is, precisely, the incidence of taxation on the true user of the vehicle, not being compatible with this principle with a "blind" reading of the letter of the law, which could lead, after all, to taxing those who are not owners and, thus, those who are not the subject causing the "environmental and road cost" caused by the vehicle, to which article 1 of the CIUC refers.
In this manner, considering the elements of interpretation of the law, referred to above, we are led to the conclusion that the expression "considering" has exactly the same meaning as the expression "presuming", and should thus be understood that article 3, no. 1, of the CIUC, enshrines a true presumption of ownership and not any fiction, and thus such presumption is rebuttable. Whereby, the taxpayer of the tax is, in principle, the owner, because the law presumes that he himself uses the asset. But if it is proven that it is not the owner who makes use of the vehicle, but a third party, as occurs with lessees, then it will be this person, the taxpayer of the tax. Thus, as to the subjective incidence of the tax, it is to be concluded that there are no changes relative to the situation previously in force in the scope of the Municipal Tax on Vehicles, Circulation Tax and Hauling Tax, as is moreover widely recognized by doctrine, a rebuttable presumption continuing to apply in this matter. This understanding is, further, the only one that appears adequate and consistent with the principle of material truth and justice, underlying tax relationships, with the objective of taxing the real and effective owner and not the one who, by circumstances of a diverse nature, is often nothing more than an apparent and false owner, by appearing in the motor vehicle register.
In this sense, also the arbitral decisions issued in proceedings Nos. 150/2014-T and 220/2014-T, confirm the same understanding already reflected in earlier arbitral decisions, among which, the one invoked in the records by the Claimant. Further on this matter, and in the same sense, the arbitral Decision No. 63-2014-T, of 15 September, states that: "(…) if the legislator had, as the Respondent contends, established in the law a non-presumptive qualification as to who is the owner of the vehicles (a legal fiction), it would thereby be establishing, through a different formulation, a rule altogether identical to the aforementioned hypothetical rule. It would be making the subjective incidence of the tax rest on a legal fiction, in complete disconnection from any economic substance as a basis for the subjective incidence. (…) And, if such is the case, it will necessarily be concluded also that article 3, no. 1, can only establish a presumption of ownership of the vehicle, even with all the negative consequences that this conclusion will certainly carry, in terms of efficiency of tax administration."
For all that has been set forth, this tribunal does not agree with the understanding set forth in the judgment delivered by the Administrative and Tax Court of Penafiel, in the context of proceeding No. .../13.0BEPNF, which has been repeatedly invoked by the Tax and Customs Authority, namely, when it states that "the ownership and effective possession of the vehicle is irrelevant for the verification of the subjective and objective incidence and the taxable event of the tax". In any case, the understanding expressed in this Judgment, far from representing a settled understanding on this question, came to be contradicted by the understanding recently expressed in the Decision of the TAC South, of 19-03-2015, already referred to above.
2nd. Legal value of the registration of motor vehicles and probative value of the documents attached to the records by the Claimant to rebut the presumption resulting from the motor vehicle register.
From all that has been set forth above, it is to be concluded that we are before a presumption resulting from the motor vehicle register. This is to say that it does not have constitutive effects of rights but only of publicity of the facts brought to the register and presumption that these facts are true. Thus, it must be permitted to the holder registered in the motor vehicle register the possibility of presenting evidentiary elements sufficient for the demonstration that the effective owner is, after all, a person different from the one appearing in the register, and who initially, and in principle, was presumed to be the true owner. Otherwise, one would accept the supremacy of the formal truth of the register over the material truth, and would be to admit the gross violation of the fundamental fiscal principles enunciated and, further, of the principle contained in article 73, of the LGT according to which there are no non-rebuttable presumptions in the matter of fiscal incidence. To all that has been left exposed above would be added the violation of the principles of legality, proportionality and justice, as well as that of the inquisitorial, enshrined, respectively, in articles 55 and 58 of the LGT. This interpretation is, further, in harmony with the principle enunciated in article 11, no. 3, of the General Tax Law, which establishes, in cases of doubt about the interpretation of tax norms that "the economic substance of the tax facts" and, on the other hand, with the principle of equality in the distribution of public burdens, which requires that the taxation of the generality of taxpayers, whenever possible, be based on the economic reality underlying the tax facts."
To an identical conclusion the Central Administrative Court South arrived in the aforesaid Decision of 19-03-2015. The presumption of ownership resulting from the motor vehicle register can be displaced "by means of evidence that shows the fact to be untrue."
Indeed, only thus is the principle of equivalence underlying the reform of the unique road tax fulfilled. On this question the position expressed in Arbitral Decision No. 286/2013-T, of 2 May 2014, is quite enlightening in stating:
"It is this principle (of equivalence) that dictates the levying of vehicles based on their respective ownership and until the moment of scrapping, the common use of a specific tax base, the revision of the framework of tax benefits in force and the allocation of a portion of revenue to the municipalities of their respective use. Now, to contend, as the Respondent does, that the legislator, in art. 3, no. 1 of the CIUC, fixed, whatever the technical means underlying it, the subjective incidence of the tax in the persons in whose names the vehicles are registered, with total independence of whether or not, in the relevant tax period, they are holders of the right of use of the vehicle, especially of its ownership, would imply disregarding that purpose which presides over the normativity of the tax, well manifest in the objective incidence and the tax base associated with the various categories of vehicles (cfr. arts 2 and 7 of the CIUC). For an inscription in the register, without correspondence with the underlying ownership, has no value in order to satisfy and comply with such purpose, for it is not the persons in whose names the vehicles are registered when they are not holders of rights over their use that cause environmental and road costs, but rather these environmental and road costs are caused by the effective users of the vehicles, in accordance with the relevant substantial legal situations, even if they do not appear, as they should, in the motor vehicle register. The register, in truth, in no way attests to or serves the principle of equivalence established in art. 1 of the CIUC. In any case, to assume that the element determining the subjective tax incidence is simple and exclusively the motor vehicle register also does not allow one to affirm a link with any manifestation of relevant tax capacity, which, as a rule, in taxes not strictly commutative, is essential, since there must exist, without prejudice to requirements of practicality, some effective link between the tax and a substantively relevant economic requirement capable of founding the tax. The reason for being of the tax figure thus rules out the idea that its incidence is tied strictly and exclusively to the registration itself of the ownership of the tax vehicles and not to the substantial situations that attribute the right of use of the vehicles (art. 3, nos. 1 and 2 of the CIUC) which the register is intended to give publicity to (cfr. art. 1 and art. 5 of Decree-Law No. 54/75, of 12 February, with subsequent amendments, which regulates the motor vehicle register)."
It remains, however, to know whether in the case of the records the Claimant has managed to demonstrate, because it was its burden of proof, that as of the date of the taxable events it was no longer the owner of the vehicles having sold them. Thus, it remains still to analyze the question of the means of proof attached to the records, for the full demonstration that the fact appearing in the register is not true.
The treatment of the previous questions already anticipates, in some way, the appreciation of this other one, which is related to knowing what the legal value of the motor vehicle register is. Pursuant to the provision in no. 1, of article 1 of DL 54/75, of 12 February, which instituted the Motor Vehicle Property Register, "the registration of vehicles has essentially as its purpose to give publicity to the legal situation of motor vehicles and their respective trailers, with a view to the security of legal commerce". Article 7 of the Code of Property Registration, supplementary legislation for the registration of automobiles, adds that "the definitive registration constitutes a presumption that the right exists and belongs to the registered holder, in the precise terms in which the registration defines it".
The registration of motor vehicle property (and not only) does not, therefore, have a constitutive nature, but merely a declarative one, permitting only the inscription in the register to presume the existence of the right and its ownership. Therefore, the presumption resulting from the register can be rebutted by evidence to the contrary, which, moreover, is in accordance with the understanding set forth in the appreciation of the previous questions. And this is so precisely because, pursuant to the provision of article 408 of the Civil Code, save the exceptions provided for in the law, the constitution or transfer of rights in rem over a determined thing is effected by mere effect of the contract, its validity not being dependent on the registration in the register.
In the case of a purchase and sale contract for a motor vehicle, the law not providing for any exception thereto, the contract has real effectiveness, with the purchaser becoming its owner, independently of the register, as well as the holder registered in the register ceasing to be the owner, notwithstanding that it may still appear, for some time or even a very long time, in the register as such. It should further be noted that the transfers effected are opposable to the Respondent, despite the provision in no. 1, of article 5 of the Code of Property Registration, which provides: "the facts subject to registration only produce effects against third parties when registered." This is because the ATA is not a third party for purposes of registration, in the context provided for in the law. The notion of third parties for purposes of registration is enshrined in no. 4 of the same article 5: third parties, for purposes of registration, are those who have acquired from a common author rights incompatible with each other, which, manifestly, is not the case of the ATA.
The transfer of ownership of a movable asset, even if subject to registration, as occurs with a motor vehicle, operates by mere effect of the contract, in accordance with the terms provided for in article 408, no. 1, of the Civil Code. The purchase and sale contract has the nature of a real contract, that is, the transfer of ownership of the thing sold, or the transfer of the alienated right, has as its cause the contract itself. Motor vehicles are movable assets whose transfer of ownership does not obey any special formalism. In Portuguese law the fact that determines the transfer of ownership of a movable asset (even if subject to registration) is the contract expressed by the will of the parties. So much so is this the case that the buyer becomes the owner of the sold vehicle upon the conclusion of the purchase and sale contract, independently of the register, which assumes itself as a condition of effectiveness and opposability against third-party purchasers.
Thus, the proof of the existence of this purchase and sale contract can be effected by any means, an invoice being an accounting document suited for this purpose if accompanied by the means of payment that proves that the transaction was completed. It is convenient to clarify here that accounting extracts do not prove the effective occurrence of transactions, but rather confirmations of bank transfers, checks or the declarative document for the completion of the registration. To these means of proof are added, in the case of long-term car rental or automobile leasing companies, the presentation of the contracts concluded, of their beginning and end, and of the completion of the final payment or purchase option clause. This is because, the mere existence of such a contract also does not allow us to conclude whether the same reached its term, as initially contracted, and whether the transfer of ownership occurred to that concrete subject, namely, the lessee.
Having said this, it is important to note that the unilateral character of the invoice does not deprive it of the value of a fiscal document nor the possibility of being used as an evidentiary document which, combined with others, may allow for the conclusion that the transaction was completed. Invoices are documents that have particular legal and accounting force by virtue of the rules in force in the context of VAT and Income Tax, it being certain that Invoices document sales, transactions or service provisions that are presumed true by virtue of the presumption of veracity instituted in article 75 of the LGT. This rule is, moreover, a basic principle of accounting organization and fiscal organization essential to the security of the functioning of commercial transactions. But, being a presumption, nothing prevents the demonstration of its falsity or inadequacy in light of the legal requirements established in article 36 of the CIVA. This is also, in this case, a rebuttable presumption, in which case the burden lies with the ATA.
In the case of the records, the ATA questions the veracity of the second copies of the invoices attached to the records by the Claimant, which in its view reveal incongruities, diverse contents and, fundamentally, from them is not proven the transmission of ownership to a concrete and determined person, natural or legal.
In summary, since the presumption resulting from the register is rebuttable, it remains to analyze whether in the case in question, considering the elements of proof attached by the Claimant in the present records, such presumption was or was not rebutted.
Thus, the invoices presented by the Claimant benefit, as stated, from the presumption of veracity contained in article 75 of the LGT, provided they comply with the legal requirements and demonstrate the correspondence to the factual reality that the Claimant intends to demonstrate in the records: the transmission of ownership of the vehicles. Let us see, therefore, whether such proof has been achieved in the records, for upon this depends the correct decision to be issued.
As results from the factual matter proven in the present records, as of the date of the taxable events the vehicles identified in the impugned levies and attached to the arbitral request appeared in the motor vehicle register as being the property of the Claimant. Having regard to all that has been set forth above as to the applicable regime in this matter, it remains to analyze whether the Claimant presented sufficient and adequate means of proof to displace the presumption resulting from the motor vehicle register.
The means of proof attached to the records by the Claimant consist of eight (8) second copies of invoices relating to the vehicles in the impugned levies. The Claimant did not attach to the records copies of the declarations of sale of the vehicles which it alleges to have alienated prior to the occurrence of the taxable events, nor of the accounting or banking documents to prove that the invoices in question were accepted and paid by their recipients, so as to permit the conclusion that the transmission of ownership actually occurred. And, it must be said that, even the accounting extracts that it attempted to attach to the records belatedly would also not achieve that proof. This proof can be achieved with the attachment to the records of accounting and banking documents that prove the payments of the residual amounts by the holder of that contract or by the person appearing in the invoice and by the documentation then issued by the lessor for the purchaser to be able to register the vehicle. The Claimant did not achieve such proof.
The invoices, by themselves, do not permit the conclusion whether or not they were accepted and paid by their recipients and whether these were the effective purchasers of the assets. Such doubt could be clarified by the attachment of documents evidencing payment of the respective invoiced amounts or, better yet, by the attachment to the records of the declarations of sale issued to finalize the transactions and regularize the motor vehicle register. Now, from the second copies of invoices attached, it is not possible for this Tribunal to conclude whether as of the date of the occurrence of the facts such contracts were or were not in force, or whether the transmissions occurred or did not. Furthermore, in all the second copies of invoices attached to the records, there appears the expression "valid after good collection". This mention appears in all the documents attached to the records by the Claimant. Thus, it seems evident that the descriptors of the documents under analysis do not permit the conclusion, without more, of the existence of underlying purchases and sales, given the diversity of situations described and the absence of proof of payment of the invoices issued.
But such doubt could have been clarified and the proof of transmission of property would have been demonstrated, if the Claimant had attached to the records copies of the declarations of sale relating to each of the vehicles in question, which must have been issued and delivered to the respective purchasers for the conclusion of the transaction (since the lease may not lead to acquisition by the lessee appearing in the contract) and subsequent alteration of the property register, or the accounting document that would conclusively prove payment of the residual value of the contract. Certainly, if all such transmissions of ownership had occurred, the declarations of sale were duly completed and the documentary process conveniently concluded with the issuance of the receipt, inasmuch as financial entities do not as a rule send the documents that finalize the process to the new owner without first checking payment of the amount of the final invoice, residual amount and inherent charges. Indeed, this is why the documents attached to the records contain the indication of "valid after good collection". Of course, the Claimant, given its size and corporate structure, certainly has all processes properly organized and copies of all documents formalizing the transactions. It is not credible that it has only second copies of invoices.
As has already been said above, in the case of financing automobile acquisition through leasing contracts, ALD or of identical nature, the finalization of the process can lead to the acquisition of the vehicle by the holder of the contract itself or by a third party that this person designates, the Customer being able to opt not to pay the residual amount and opt to formalize a new contract for acquisition of a new vehicle, with the previous one remaining in the property of the financial entity. We do not know with sufficient degree of certainty what occurred in the cases stated in the present records.
In summary, this tribunal considers that invoices are a type of means of proof of the occurrence of transmissions of ownership if accompanied by something more that does not leave doubt about the completion of that concrete transaction with that purchaser that is identified in the document and with indication of the dates of conclusion and completion of the contract. Now, the Claimant has not attached other documents, beyond said second copies, from which it is proven that the transaction was concluded in those terms. It was incumbent on the Claimant to make such proof and had the opportunity to do so by timely attaching, with the presentation of the Arbitral Request, all that documentation. And even the documents presented belatedly would not have the virtue of achieving this demonstration.
There is abundant arbitral jurisprudence that has come to require that proof of transmission of ownership be effected by the attachment of the respective invoices accompanied by other elements that do not permit any doubt about the effective completion of the transaction.
This understanding was upheld, in essence, in the Decision TAC South of 19-03-2015. In this regard, moreover, recall the jurisprudence of the Decision TAC South, already mentioned above, in which it is stated that the proof cannot be achieved only with the invoice but can be complemented with any other from which the existence, payment or discharge of the transaction results.
As to the position already set forth in some arbitral decisions, according to which "an invoice is not apt to prove the conclusion of a synallagmatic contract such as a purchase and sale, as that document does not reveal by itself an essential and unequivocal declaration of will (i.e., acceptance) by the purported purchaser", it is important to note that the invoked lack of probative value must be duly contextualized and analyzed based on the constraints of the concrete case. It cannot slide into requirements of impossible or diabolical proof. Regarding the question of proof and the added difficulty of proof of negative facts, account should be taken, by virtue of the constitutional principle of proportionality, of a lesser evidentiary requirement on the part of the law applicator, giving weight to proofs less relevant and convincing than those that would be required if such difficulty did not exist, applying the Latin maxim "iis quae difficilitoris sunt probationis leviores probationes admittuntur".
These proof requirements must be accompanied by the necessary precautions imposed by the principle of proportionality, under penalty of imposition of proof requirements that would render impossible the displacement of the presumption, transforming it into an absolute and non-rebuttable presumption, which is wholly unacceptable. Thus, the requirements for proof for the displacement of the presumption cannot be so demanding that they result in a practical impossibility of rebutting the presumption or, in other words, only manage to achieve its rebuttal if the alienator proves to have made the registration itself, substituting for the purchaser themselves, inverting the normal rules of functioning of the register. That would be a solution equivalent to rendering the presumption non-rebuttable, which is considered unacceptable under the terms already set forth above.
In the case of the present records, nothing is required that the Claimant should not have in its accounting files, as well as documented in each individual file of each client or contract concluded.
Thus, this Tribunal understands that the Invoice accompanied by other elements (declarations of sale, contracts, receipts or others) permits, with reasonableness, to ascertain whether the transaction was completed or not. Requiring proof from the attachment of this type of documents appears reasonable and proportional, especially when the Claimant is a financial entity that carries on all its activities concentrated in financing operations for the acquisition of motor vehicles, which is characterized by the conclusion of written contracts, duly documented, from its beginning to its end. In the case of the present records, the truth is that the Claimant has not attached sufficient means of proof to displace the presumption resulting from the register, therefore the request formulated by the Claimant must be dismissed.
V - ON THE REQUEST AND THE RIGHT TO PAYMENT OF INDEMNIFICATORY INTEREST
In light of all the foregoing regarding the decision of the previous questions, knowledge of this request is rendered moot.
VI - DECISION
In light of the foregoing, this Arbitral Tribunal decides:
A) To judge the present arbitral request totally dismissed with the consequent absolution from the request formulated;
B) To condemn the Claimant in the costs of the proceeding.
VII - VALUE OF THE PROCEEDING: In accordance with the provisions of articles 305, no. 2 of the CPC, article 97-A, no. 1, paragraph a), of the CPPT and article 3, no. 2 of the Regulation of Costs in Tax Arbitration Proceedings, the value of the proceeding is set at €596.33.
VIII - COSTS: Pursuant to the provision of article 22, no. 4, of the RJAT and in accordance with Table I attached to the Regulation of Costs in Tax Arbitration Proceedings, the amount of costs is set at €306.00, to be borne by the Claimant.
Register and notify.
Lisbon, 8 January 2016
The singular arbitrator,
(Maria do Rosário Anjos)
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