Summary
Full Decision
ARBITRAL DECISION (consult full version in PDF)
The arbitrators Counselor Carlos Fernandes Cadilha (arbitrator president), Prof. Doctor Francisco Nicolau Domingos and Master João Menezes Leitão (arbitrator members), appointed by the Deontological Council of the Centre for Administrative Arbitration to form the Arbitral Tribunal, agree as follows:
I - REPORT
1. A..., S.A., taxpayer no...., with registered office at ..., no...., ...-... Lisbon, dominant company of the Fiscal Group B..., subject in 2015 to the Special Regime for Taxation of Groups of Companies (RETGS), hereinafter referred to as the Claimant, presented on 10/09/2018 a request for constitution of tribunal and for arbitral decision, concerning the act of express dismissal of the administrative appeal (...2018...) and, in final terms, the underlying act of self-assessment of Corporate Income Tax (IRC) of the Fiscal Group B... relating to the fiscal year 2015, on the grounds that, in its opinion, it suffers from the defect of violation of law with respect to the assessment of autonomous taxation, in the amount of €397,447.93, on expenses and charges with vehicles allocated to the activity of companies of the Fiscal Group B... and on compensation for displacement in employees' own vehicles.
2. On 20/11/2018 the arbitral tribunal was constituted.
3. In compliance with the provisions of art. 17, nos. 1 and 2 of Decree-Law no. 10/2011, of 20 January (RJAT) the Respondent was notified on 20/11/2018 to, if it wished, present a response and request the production of additional evidence.
4. On 10/01/2019 the Respondent presented its response, in which it defends the lack of merit of the request for arbitral decision, in light of the legality of the act of express dismissal of the administrative appeal as well as, mediately, of the self-assessment of IRC for the fiscal year 2015.
5. On 13/02/2019 the meeting referred to in art. 18 of the RJAT was held, with the production of witness evidence requested by the Claimant and thus the following witnesses were heard, employees of Group B...: a) C..., certified accountant of the Claimant; b) D..., national responsible for the organization of distribution of A...; c) E..., currently responsible for the management of real estate and previously responsible for the management of the fleet of A...; and d) F..., current responsible for the management of the fleet of A....
6. The written final submissions, in which the parties maintained their initial positions, were presented by the Claimant on 27/02/2019 and by the Respondent on 15/03/2019.
POSITION OF THE PARTIES
7. The Claimant argues that the prerequisite of autonomous taxation does not exist with respect to motorcycles and service vehicles of the fleet of the Fiscal Group B..., nor as regards the kilometer allowances due for the use of motorcycles belonging to the L.... Or, in other words, it holds that the presumed prerequisite does not exist – promiscuous use and/or payment of kilometers exceeding actual use in service – of autonomous taxation on expenses and charges with passenger vehicles, motorcycles and motorbikes and on compensation for the use of a vehicle by the employee.
To support its annulment claim, it begins by alleging the need for the Fiscal Group B... to have an extensive and diversified fleet of vehicles, given the nature and territorial dispersion of its activity, e.g. postal distribution throughout the entire national territory.
Secondly, with respect to motorcycles, it indicates that their use follows an economic rationale, that is, given the typology of vehicles, they are those that best adapt to postal distribution routes, thus constituting, within the scope of the activity of the Fiscal Group, the transportation means par excellence.
In this way, it argues that it would be strange to penalize the Claimant for choosing a motorcycle for a certain route, rather than opting for other production vehicles – goods vehicles, which undoubtedly have higher costs for the company, but which would not, in general, be subject to autonomous taxation, under art. 88 of the Corporate Income Tax Code (CIRC), in the wording in force in 2015, because they qualify as "goods". The Claimant further observes that tax legislation should not determine or dictate business management criteria.
It invokes that motorcycles are not the only vehicles with exclusively business use, as this also applies to General Service Vehicles, necessary to maintain permanent contact between all organizational structures of the Fiscal Group that are dispersed throughout the national territory. It continues arguing that the existence of this specific fleet of vehicles has nothing to do with the particular interests of the A... employees, but with the nature of the social activity developed.
Therefore, it states that there is a set of rules and procedures implemented that aim to ensure this permanent availability for exclusive use within the scope of the activity developed, namely, the completion of the vehicle report (with identification of the activity and fuel consumption), with its delivery to the Claimant's facilities, after use; the use of the vehicle from Monday to Friday, preferably for long distances and the prohibition of use for more than five consecutive days.
In a second line it argues that there is no prerequisite for autonomous taxation with respect to kilometer allowances for the use of motorcycles of the L... themselves in postal distribution activity, as there is control of the kilometers effectively traveled in service and, consequently, allowances paid; as well as the calibration of the allowance to cover only fuel costs and motorcycle wear over the distance traveled in postal distribution service.
As regards the allowance, the postman incurs, on average, a cost of 0.154 euros per kilometer, a value higher than the 0.144 euros per kilometer subject to autonomous taxation.
From a normative point of view, it enumerates a list of arbitral decisions which, in its opinion, support a conclusion: autonomous taxation has materially underlying a presumption of partial business character of the expenses on which it is levied, a presumption that should be considered covered by the possibility of avoidance arising from art. 73 of the General Tax Law (LGT).
It further alleges that the interpretation of art. 88, nos. 3 and 4 of the CIRC (autonomous taxation on expenses and charges with vehicles) to the effect that the implicit presumption of only partial business character of expenses and charges with vehicles is not avoidable (conclusive presumption) is unconstitutional, for violation of the principle of equality, which requires treating the unequal unequally (save impracticability, which it argues is not the case) and, therefore, of the principle of tax capacity, taxation fundamentally of real income and proportionality, which equally imply the unequal treatment of what is unequal, which is prevented by fictions. That is, the violation of the following articles of the Constitution of the Portuguese Republic (CRP): 2, 13, 18, nos. 2 and 3, 103, no. 1 (just distribution) and 104, no. 2.
It concludes by requesting the reimbursement of 397,447.93 euros and the condemnation of the TA (Tax and Customs Authority) to the payment of compensatory interest, counted from the date of express dismissal of the administrative appeal, as it understands that the error underlying the tax act in question is manifest.
8. The Respondent presents a defense with the following grounds:
i) Autonomous taxation on charges related to representation expenses incurred within the business scope with motorcycles, light passenger vehicles allocated to the activity and cost allowances incurred
In its defense it begins by stating that the Tribunal cannot decide by recourse to equity and that the Claimant, in its request for arbitral decision, discusses the fairness, or lack thereof, of art. 88 of the CIRC, although it adds nothing about the literal element of the norm in favor of the understanding it formulated.
Thus, using the rules set forth in art. 9 Civil Code (CC), especially the presumption evident in art. 9, no. 3 of the same diploma, it cannot fail to conclude that the tax legislator in art. 88 of the CIRC only intended to refer to the types of vehicles identified there. That is, art. 88, nos. 3, 7 and 9 of the CIRC did not intend to exclude from the subjection to autonomous taxation charges related to vehicles, except in the situations described in the final part of nos. 3 and 6 of said normative.
Secondly, as regards the presumption of business character, it argues that it does not discern in the wording of nos. 3 to 6 of art. 88 of the CIRC any injunction that would permit withdrawal from the scope of autonomous taxation, provided that the demonstration of its full business character is made – a concept (business character) foreign to Tax Law.
The position set forth in some arbitral decisions, to the effect that subjection to the taxation provided for in art. 88 of the CIRC would depend on an option of the taxpayer to be formulated in the following terms: autonomous taxation could be viewed as a kind of consensual anti-abuse norm, in which the legislator proposes to the taxpayer one of three alternatives, namely: a) not deduct the expense; b) deduct but pay autonomous taxation, dispensing both itself and the TA from discussing the business character of the expense and c) prove the full business character of the expense and thus not bear the autonomous taxation, has no interpretive support.
To support this position it states that art. 88, no. 3 of the CIRC, unlike art. 23-A, no. 1, al. r) of the same diploma, does not fall within the qualification of special anti-abuse clauses, as a result of the configuration and purposes that are attached to it – obtaining fiscal revenue, moralization regarding the values of acquisition of certain vehicles and discouragement of the use of light passenger vehicles or mixed vehicles, motorcycles or motorbikes powered by fossil fuels, because of the negative externalities they cause. Therefore, the legislator did not establish any burden of proof reversal regime.
In summary, the legislator did not provide, either explicitly or implicitly, the possibility of avoiding autonomous taxation on vehicle charges by demonstrating the full allocation of vehicles to the activity developed.
Furthermore, it argues that, because art. 88 of the CIRC constitutes a norm of objective incidence, it does not incorporate any presumptions susceptible to being overturned by the production of evidence.
In the specific case of the business character of the expenses incurred, which, it reiterates, does not occur, since art. 88 of the CIRC also does not contain the expression "it is presumed" in its wording, nor does it proceed to taxation based on fictions of income or taxable matter.
But even if one admitted the possibility of overturning a hypothetical presumption of art. 88, nos. 3, 7 and 9 of the CIRC, through the proof of the "business character" of the expenses, the truth is that no material or concrete evidence was produced to that effect, also because the proof would have to be carried out vehicle by vehicle.
Furthermore, the document attached by the Claimant under no. 22 – service order on the use of General Service Vehicles – does not have the capacity to demonstrate the absolute impossibility of using light passenger vehicles for personal purposes.
ii) Unconstitutionality
It instead holds that art. 88, nos. 3 and 5 of the CIRC should be judged unconstitutional, for violation of the principles of legality (typicality and reserve of parliamentary law) and of legal protection and confidence (art. 103, nos. 2 and 3 of the CRP), when interpreted to contain in itself an avoidable presumption, under the terms and for the purposes of art. 73 of the LGT, capable of averting taxation on charges effected or borne by taxpayers who do not benefit from subjective exemptions and who carry on, as their main activity, commercial, industrial or agricultural activity, related to light passenger vehicles, light goods vehicles referred to in al. b) of no. 1 of art. 7 of the Vehicle Tax Code, motorcycles or motorbikes, whenever it is possible to prove their indispensability for the efficient functioning of the companies.
MATTERS TO BE DECIDED
In this sequence, having regard to the claims and positions of the Claimant and the Respondent contained in their procedural documents, described above, the following are the matters that the tribunal must examine (without prejudice to the fact that the solution given to a certain matter may prejudice the examination of another or other matters – cfr. art. 608, no. 2 of the CPC, applicable ex vi art. 21, no. 1, al. e) of the RJAT):
a) Whether the act of express dismissal of the administrative appeal with no. ...2018..., and the underlying act of IRC self-assessment, in the part relating to the autonomous taxation here examined, suffer from the defect of violation of law, due to error in the prerequisites, given that autonomous taxation on expenses and charges borne with motorcycles and General Service Vehicles and with kilometer allowances to L... has implicit a presumption susceptible to being overturned by demonstrating, as occurs in the case, their uses or exclusively business nature, that is, the non-existence of the presumed prerequisite of "promiscuous use" of vehicles or payment of kilometers exceeding actual use in service;
b) Whether the interpretation of art. 88, nos. 3 and 4 of the CIRC (autonomous taxation on expenses and charges with vehicles), to the effect that the implicit presumption of only partial business character of expenses and charges with vehicles is not avoidable (conclusive presumption) is unconstitutional;
c) Whether it is unconstitutional, for violation of the principles of legality and legal security and confidence, evident in art. 103, nos. 2 and 3 of the CRP, the interpretation that art. 88 contains an implicit avoidable presumption, since this implies admitting the exclusion of taxation of a legally determined and typified tax reality through a fictional avoidable presumption, to be concretized by probative indicia;
d) Whether the Claimant is entitled to reimbursement and compensatory interest.
PROCEDURAL SANITATION
The proceeding does not suffer from nullities, the arbitral tribunal is regularly constituted and is materially competent to examine and decide the claim, consequently verifying the conditions for issuing the final decision.
II – GROUNDS
MATTERS OF FACT
1. Facts with relevance for the examination of the case that are considered proven
1.1. The Claimant is the dominant company of the Fiscal Group B... subject in 2015 to the RETGS and which integrates the following companies: i) A..., S.A., taxpayer no....; ii) G..., S.A., taxpayer no....; iii) H..., S.A., taxpayer no....; iv) I..., S.A., taxpayer no....; v) J..., S.A., taxpayer no.... ; and vi) K..., S.A., taxpayer no....
1.2. On 24/05/2016 the IRC declaration, Model 22, of the Fiscal Group B... relating to fiscal year 2015 was filed.
1.3. The declaration referred to in 1.2. was replaced on 23/11/2017, with a value finally calculated of autonomous taxation of 1,582,425.50 euros, which remained unchanged in the replacement declaration delivered on 14/12/2017.
1.4. The totality of expenses and charges with vehicles of the Fiscal Group B... (or whose use was contractually assured by the Fiscal Group B...) and with kilometer allowances for the use of employee's own vehicle, subject to autonomous taxation in 2015, amounted to a total of 6,807,944.90 euros.
1.5. The autonomous taxation assessed with respect to these expenses and charges is 515,285.23 euros broken down as follows:
1.6. The challenge object of these proceedings is limited to the autonomous taxation of fiscal year 2015 that relates to expenses and charges with postal distribution motorcycles and certain light passenger vehicles (called General Service Vehicles) and to charges with kilometer allowances concerning motorcycles of the L... used in the postal distribution activity of Fiscal Group B....
1.7. The autonomous taxation here challenged was levied in fiscal year 2015 on expenses and charges in the amount of 4,965,249.33 euros.
1.8. This autonomous taxation amounted to 397,447.93 euros of which 140,239.59 euros concern charges with motorcycles for postal distribution, 144,744.95 euros concerning charges with General Service Vehicles (GSV) and 112,463.39 euros relating to kilometer allowances to L... for the use of their motorcycles in the postal distribution service of A..., as described in the table below:
1.9. The Claimant on 14/05/2018 presented an administrative appeal against said self-assessment, on the grounds that, in its opinion, autonomous taxation on charges and expenses with vehicles has implicit a presumption susceptible to being overturned.
1.10. The companies of Group B... define different postal distribution routes, with the consideration of a multiplicity of factors, such as the type of mail to be transported (including volume and weight), the number and frequency of stops, the type of geographical zone (urban or rural), the type of predominant construction (buildings or houses).
1.11. The social activity of postal distribution covers one million four hundred thousand households.
1.12. To ensure this purpose there are about 4,700 routes, with each route corresponding to a certain distance to be traveled by the postman, which requires the choice of an appropriate means of locomotion.
1.13. The choice is, as a rule, made based on the distance to be traveled, for shorter routes the L... move on foot or by bicycle, for routes of 10 to 40 kilometers they use low-displacement vehicles, up to 50 cubic centimeters and, for routes of 40 kilometers to 80 kilometers, they use motorcycles of higher displacement, up to 125 cubic centimeters.
1.14. About 2,000 routes are served by motorcycles, with displacement of 50 or 125 cubic centimeters.
1.15. The performance of routes using motorcycles is justified because they are the means of locomotion that, because of their characteristics, best adapt to this, namely, for their agility in traffic, ease of parking, low acquisition cost, simple and inexpensive maintenance and low fuel consumption.
1.16. In those routes where the companies of Group B... identified that the motorcycle is the most appropriate type of vehicle, the postman is given the possibility of using his own motorcycle in exchange for a "kilometer allowance", determined based on the kilometers estimated for the routes allocated to that postman.
1.17. The "kilometer allowances", in fiscal year 2015, were subject to taxation in the sphere of the L... under Personal Income Tax (IRS).
1.18. The calculation of payments to the L... for the use of own motorcycles is done based on a table between about 0.14 euros and about 0.26/0.27 euros per kilometer, depending on various factors, such as, for example, the distance to be traveled.
1.19. The motorcycles of the Claimant's fleet are allocated, as a rule, to a route and not to a postman, with the allocation of motorcycles being done based on Postal Distribution Centers (CDP), with rotation among various L... allocated to the same route.
1.20. There are mechanisms for controlling the use of motorcycles in the aforementioned fleet, such as those contained in the Procedures Manual for the Management of Light Vehicle Fleet, Motorcycles and Mopeds, designed to deter the L... from using them for personal purposes, namely their use is limited to the working hours of the Claimant's social activity and the mandatory daily completion of the motorcycle use control document, in which the route and respective kilometers traveled are identified, being filed for various years.
1.21. The Claimant has inspection services that make it very difficult to use motorcycles for personal purposes, and it is certain that, if improper use of the motorcycles is detected, there are consequences of a disciplinary nature for those who do so, as has occurred in the past.
1.22. The motorcycles are equipped with a cargo box, immovable and display the identification signs of the Claimant.
1.23. The fueling of motorcycles must be done exclusively through the fleet fuel program, which expressly identifies the vehicle associated.
1.24. It is mandatory to park the motorcycles in the Claimant's facilities in the CDPs, where they remain immobilized between the end of each working day and the beginning of the next day, with the keys of the motorcycles being handed over to security personnel.
1.25. The management structure of the Claimant is located in Lisbon, but there is decentralization not only in the continental territory, but also in the islands.
1.26. Therefore, the Claimant also has a fleet of General Service Vehicles (GSV), necessary to maintain contact between its various organizational structures existing throughout the national territory.
1.27. This fleet is intended to maintain contact between the various points of the organization and with clients.
1.28. Any employee of the Claimant can request a General Service Vehicle, justifying its use.
1.29. The General Service Vehicles are light passenger vehicles, as they are intended for the transport of persons and when traveling to a meeting 3 to 4 persons are transported.
1.30. As a rule, the General Service Vehicles are identified with the Claimant's logo, this only not happening in relation to one of the functions performed with the said vehicles, inspection, in relation to which it is advisable that this characterization does not exist.
1.31. For each of the directions of Group B... an allocation of General Service Vehicles is attributed, according to a pool organization.
1.32. The allocation of General Service Vehicles to a direction must be justified and authorized with a person in each direction responsible for authorizing or not.
1.33. In the norms on the use of General Service Vehicles are contained the obligation of parking the vehicle, the return of the key and vehicle report, being identified therein the day, the place of departure, the destination, the kilometers at departure and arrival and the time of departure and arrival.
1.34. At the end of each month, the vehicle report is sent to a first-line director, with a view to ensuring that there is a prudent and regulatory use of the General Service Vehicles.
1.35. The General Service Vehicles are not allocated to the use of any employee, but to the pool of each direction, from whom employees request the vehicles, with the allocation of a vehicle to an employee being random.
1.36. With monthly frequency, the Physical Resources and Security area of the Claimant or of Group B... analyzes the information collected and other relevant information (such as "via verde" statements), so as to identify deviations, such as the use of vehicles outside normal working hours (identified, for example, on the basis of the detail of the via verde), fuel consumption averages higher than expected in light of the destinations of the displacements and distances traveled not justified in light of the destinations of the displacements, and, should any deviation not be duly justified and, consequently, improper use of the GSV be suspected, an internal inquiry process is initiated, which may culminate in disciplinary proceedings.
1.37. In those cases in which the Claimant wishes to confer on its employees the possibility of personal use of vehicles - Personal Use Vehicles (VUP) - it ensures that such use is contained in a written agreement, with the use being taxed in the sphere of the employees.
1.38. The Claimant on 27/06/2018 was notified of the dismissal of the administrative appeal no. ...2018..., which was based, in essence, on the following essential grounds:
i) "autonomous taxation is levied both on deductible charges and on non-deductible charges" and "does not serve only one objective, but several, with two being noteworthy: - Some aim to prevent erosion of the taxable base in the context of IRC, by levying taxation on charges that may be deducted by IRC taxpayers, but which, if deducted, translate into an increase in taxation, thus intending to serve as a disincentive to such expenses; - Others aim to penalize behavior presumptively evasive or fraudulent";
ii) In concrete terms, with respect to autonomous taxation that is levied on deductible expenses, they aim to compensate, in this way, for the loss of fiscal revenue that the realization and deduction of such expenses would occasion in its absence";
iii) "the tax legislator frequently resorts to the technique of presumptions, inspired by rules of common experience, science and others so as thereby to guarantee more efficiently the regular and prompt perception of taxes and, at the same time, reduce tax evasion and fraud", a resort to which "must be reconciled with the possibility of its avoidance, which is demanded by the principle of equality"; however, "none of what we have just stated applies to autonomous taxation, none of the aforementioned legislative techniques is used by the legislator in the institute of autonomous taxation";
iv) "going through article 88 of the CIRC, nowhere in it is the establishment of any explicit or implicit presumption observed", there being "no element either in the letter of the relevant normative on autonomous taxation, or in the purposes to be achieved with this form of taxation, that enables concluding that one is faced with norms of tax incidence that establish a presumption";
v) "the subjection to autonomous taxation of expenses incurred with vehicles is beyond their recognition as a cost necessary for the obtaining of income, because (...) even if expenses with vehicles are not deductible they will be subject to the scope of autonomous taxation", and "the legislator did not establish the need to verify any requirements (lack of business character of the expense) for autonomous taxation of expenses with vehicles, with this having to occur whenever any of the facts perfectly and exhaustively provided for in the norm exists" and "perfectly identified the situations of derogation from the application of the norm in question, when established in no. 6 of art. 88 the cases that were excluded from the scope of no. 3";
vi) "in the case of expenses with allowances and charges with compensation for displacement in the employee's own vehicle (...) the legislator aimed to precisely delimit the charges that could be considered deductible from those that could not reach such effect due to lack of requirements provided for in law, with taxation only applying to the former, that is, those considered fiscally deductible", therefore "if the legislator intended, in the case of the expenses in question, to autonomously tax only those that were considered fiscally deductible, it cannot be accepted as valid the thesis (...) to the effect of not autonomously taxing expenses in which the respective full business character is demonstrated", because "if the legislator wanted to autonomously tax certain deductible expenses it would border on the absurd not to subject them to this taxation based on the argument of their "business character", that is, their deductibility".
1.39. The amount of the IRC self-assessment of 2015 was voluntarily paid by the Claimant on 31/05/2016.
1.40. The request for arbitral decision was presented on 10/09/2018.
2. Facts that are not considered proven
There are no other facts with relevance to the arbitral decision that have not been given as proven.
3. Grounds for the matters of fact considered proven
The matters of fact given as proven are based on documents attached to the initial petition (hereinafter, IP) used for each of the alleged facts and whose authenticity was not called into question and on witness testimony. In the following terms, as will be specifically set out in accordance with the provisions of art. 123, no. 2 of the Code of Tax Procedure and Process (CPPT), applicable ex vi no. 2 of art. 22 of the RJAT:
- fact no. 1.1 was given as proven based on the indication contained in the Annual Report and Accounts of 2015, item 41, attached as doc. no. 1 to the IP;
- the facts reported under nos. 1.2 and 1.3 were given as proven due to the model 22 declarations of Fiscal Group B... attached as docs. nos. 2 to 6 to the IP, in particular docs. 5 and 6, respective table 10, field 365;
- the facts reported under nos. 1.4., 1.5, 1.6., 1.7 and 1.8 were given as proven based on the indications contained in the certification object of doc. no. 9 attached to the IP and on the statements of witness C..., who confirmed those indications in terms that deserved credibility; the testimony of this witness, combined with that of witnesses D... and E..., was equally relevant to give as proven the factuality indicated in nos. 1.16, 1.17, 1.18 and 1.37;
- fact no. 1.9 is based on the stamped copy of the administrative appeal attached as doc. no. 7 to the IP;
- the facts indicated under nos. 1.10, 1.11, 1.12, 1.13, 1.14 and 1.15 were considered proven based on the indications contained in doc. no. 10 attached to the IP and on the statements of witnesses D... and F..., which deserved credibility;
- the factuality reported under nos. 1.19 and 1.20 was given as proven based on the Procedures Manual for the Management of Light Vehicle Fleet, Motorcycles and Mopeds attached as doc. no. 15 to the IP, by the specimen of Vehicle Report attached as doc. no. 16 and by the testimony of witnesses D... and F...;
- fact no. 1.21 was given as proven based on the testimony of witness D... and also because it constitutes recognition by the Claimant contained in art. 97 of the IP;
- facts 1.22, 1.23 and 1.24 were judged proven by the photographs attached as docs. nos. 12 and 14 to the IP, by the Procedures Manual for the Management of Light Vehicle Fleet, Motorcycles and Mopeds attached as doc. no. 15 to the IP and by the witness testimony of D...;
- facts 1.25, 1.26 and 1.27 were judged proven in light of the elements contained in doc. no. 19 to the IP and the witness testimony of E... and F...;
- the facts reported in 1.28, 1.29, 1.30, 1.31, 1.32., 1.33, 1.34 and 1.35 were given as proven based on documents nos. 20, 21, 22 and 23 attached to the IP and the testimony of witnesses E... and F...;
- the factuality presented in 1.36 constitutes recognition of facts by the Claimant, contained in arts. 138 and 139 of the IP, having also been the subject of testimony by E...;
- the factuality referred to in no. 1.38 results from doc. no. 8 attached to the IP and from pages 194 et seq. of the administrative procedure of the administrative appeal attached to the proceedings;
- fact no. 1.39 is shown to be proven by the proof of payment attached as doc. no. 29 to the IP;
- fact 1.40 results from the relevant record contained in the CAAD computer system for procedural management.
It is also important to highlight, in this ground for the proven matters of fact, that the explanatory responses contained in nos. 1.20, 1.21 and 1.36 show evidence that, despite the inspection mechanisms and disciplinary sanctions provided for and applied, it is not possible to consider that, in any case, personal use of motorcycles or vehicles does not occur and that, therefore, it can be verified that the use of vehicles is, in permanent terms and exclusively, for purposes proper to the Claimant's business activity and in its service.
This very matter was stated by witnesses D... and E... who affirmed that, although the use of vehicles should be only for company purposes, it was not possible to guarantee that, at least marginally, personal use by employees could not occur, also because, precisely, the possibility of sanctions was provided for should this occur, which had already happened.
MATTERS OF LAW
1. Given the matters above indicated that respect charges borne by the Claimant (and its Fiscal Group) with motorcycles for postal distribution (in the amount of €140,239.59), with light passenger vehicles, called General Service Vehicles (in the amount of €144,744.95) and with compensation for displacements in own motorcycles (kilometer allowances) to the L... for mail distribution (in the amount of €112,463.39), the present proceeding, as regards the law applicable, concerns the provision of art. 88 of the CIRC, on "Autonomous taxation rates", in the wording applicable to the taxation period commenced on 1.1.2015, which is here under consideration (cfr. facts proven 1.2, 1.3, 1.4, 1.5, 1.6, 1.7 and 1.8), which resulted from the amendments made by Laws nos. 82-C/2014 and 82-D/2014, of 31.12, being relevant, directly or for reasons of systematic interpretation, the provisions contained in nos. 3, 5, 6, 9, 14, 17 and 18 of this art. 88, whose content is as follows:
"3 — Expenses effected or borne by taxpayers not benefiting from subjective exemptions and exercising, as their main activity, commercial, industrial or agricultural activity, related to light passenger vehicles, light goods vehicles referred to in al. b) of no. 1 of article 7 of the Vehicle Tax Code, motorcycles or motorbikes, excluding vehicles powered exclusively by electric energy, shall be autonomously taxed at the following rates:
a) 10% in the case of vehicles with an acquisition cost of less than €25,000;
b) 27.5% in the case of vehicles with an acquisition cost of €25,000 or more and less than €35,000;
c) 35% in the case of vehicles with an acquisition cost of €35,000 or more.
5 — Charges related to light passenger vehicles, motorcycles and motorbikes are considered to be, in particular, depreciation, rents or leases, insurance, maintenance and preservation, fuel and taxes incurred on their possession or use.
6 — Excluded from the provision of no. 3 are charges related to:
a) Light passenger vehicles, motorcycles and motorbikes, allocated to the operation of public transport service, intended to be rented in the normal exercise of the activity of the taxpayer; and
b) Motor vehicles with respect to which the agreement provided for in no. 9) of al. b) of no. 3 of article 2 of the Personal Income Tax Code has been entered into.
9 — Deductible charges relating to allowances and compensation for displacement in the employee's own vehicle, in service of the employer entity, not invoiced to clients, recorded under any title, except to the extent that Personal Income Tax is levied in the sphere of the respective beneficiary, as well as non-deductible charges under al. f) of no. 1 of article 45 borne by taxpayers presenting fiscal loss in the taxation period to which they relate are further autonomously taxed at the rate of 5%.
14 — The autonomous taxation rates provided for in this article are increased by 10 percentage points as regards taxpayers presenting fiscal loss in the period to which any of the tax facts referred to in the preceding numbers related to the exercise of a commercial, industrial or agricultural activity not exempted from IRC apply.
17 - In the case of plug-in hybrid light passenger vehicles, the rates referred to in als. a), b) and c) of no. 3 are, respectively, 5%, 10% and 17.5%.
18 - In the case of light passenger vehicles powered by LPG or CNG, the rates referred to in als. a), b) and c) of no. 3 are, respectively, 7.5%, 15% and 27.5%."
These being the provisions from whose application to the facts established here is in question, the subsequent legal examinations relate strictly to these norms of autonomous taxation on charges related to light passenger vehicles, light goods vehicles referred to in al. b) of no. 1 of article 7 of the Vehicle Tax Code, motorcycles or motorbikes, excluding vehicles powered exclusively by electric energy (nos. 3, 5, 6, 17 and 18 of art. 88 of the CIRC) and charges relating to allowances and compensation for displacement in the employee's own vehicle, in service of the employer entity, not invoiced to clients, recorded under any title, except to the extent that Personal Income Tax is levied in the sphere of the respective beneficiary (no. 9 of art. 88 of the CIRC).
Described the normative enunciations under consideration, let us then examine the matters above identified on which it falls to focus the examination of the merits.
1. As regards the characterization of autonomous taxation on expenses and charges borne with motorcycles and General Service Vehicles and with kilometer allowances as "implicit presumption susceptible to being avoidable"
2. The subject matter of autonomous taxation in the context of IRC has been the subject of various judicial pronouncements that have focused on various aspects of its legal-dogmatic configuration, such as its classification in terms of IRC or as distinct taxation, the characterization as instantaneous tax fact of its objects of incidence for purposes of application of law over time and observance of the principle of non-retroactivity, the relevance of the tax collected by such taxation for purposes of deduction of various tax benefits.
In the case sub judice, the central problematic placed before this Tribunal, on which there are also several arbitral pronouncements, although with diverse orientations, concerns the characterization of the legal provisions of nos. 3 and 9 of art. 88 of the CIRC as norms that establish implicit presumptions iuris tantum, susceptible, as such, of being avoidable in accordance with art. 73 of the LGT.
Thus, the Claimant argues that autonomous taxation that applies to vehicle expenses is based on the presumption of "promiscuous use, only possible, evidently, with the complicity of the company: a mix of business use, in service of the company, and particular use, in service of the personal and family life of the company employee" and that autonomous taxation on kilometer allowances to the L... who use their own motorcycles in postal distribution, in the part not subject to Personal Income Tax, is based on the "presumption that they would aim at more than reimbursing the employee for the charges incurred by him with the circulation of his motorcycle in service of the company".
3. As a point of departure for the clarification of this matter, it should be recalled that, according to the definition of art. 349 of the Civil Code, presumptions are inferences that the law or the judge draws from a known fact to establish an unknown fact. As such, a legal presumption (cfr. art. 350 of the Civil Code) is an inference made by law of an unknown fact from a known fact. Thus, legal presumption rules necessarily present in their structure an implication between two facts, that is, they establish that a certain known fact implies another unknown fact (cfr. TEIXEIRA DE SOUSA, Introduction to Law, Coimbra, 2012, p. 234).
Also to be cited in this regard, on presumptions in matters of tax incidence, the decision of the Constitutional Court no. 753/2014:
"Presumptions are inferences that the law or the judge draws from a known fact to establish an unknown fact. In the case of a legal presumption, the party in favor of whom the presumption lies is excused from proving the fact to which it leads, implying the reversal of the burden of proof (articles 349 and 350 of the Civil Code). The presumption is therefore a means of proof, with it falling to the party to make proof of the known fact (base of the presumption) so as to permit inference of the unknown fact (presumed fact). The recognition of the fact inferred from the inference can only be called into question through proof to the contrary, if the law permits it.
Presumptions in matters of tax incidence may be explicit, when revealed by the use of the expression 'it is presumed' or an expression of identical meaning, but may also result implicitly from the linguistic enunciation of the norm, which occurs when certain values of movable or immovable property are considered as constituting taxable matter on the assumption that these are the values that correspond to reality, dispensing with the determination of the real value or the value that has been declared by the taxpayer".
In this sequence, it should be emphasized then that, as a principle, legal presumptions may be avoidable through proof to the contrary (no. 2 of art. 350 of the Civil Code), that is, proof that the presumed fact is not true, therefore, proof of the fact contrary to the presumed (art. 347 of the Civil Code), with such demanding proof falling to those who do not have the legal presumption in their favor (art. 344, no. 1 of the Civil Code), with those in favor of whom the presumption lies "excused from proving the fact" to which it leads the presumption, being sufficient for them to simply prove the base fact.
Pointedly, without prejudice to what follows below, it is worth saying that, given the matters of fact given as proven above, it was not demonstrated the factuality contrary to the invoked presumed facts which would consist, in the Claimant's view, in the uses or exclusively business nature of expenses with vehicles and with kilometer allowances on which the autonomous taxation here examined was levied.
4. But let us proceed then, having present the characterization above given of legal presumption, to the examination of the relevant legal provisions of art. 88 of the CIRC, in its enunciation, content and reason for being.
As is explained in the decision of the Constitutional Court no. 197/2016, "autonomous taxation, although regulated normatively in the context of income tax, is materially distinct from taxation in IRC, in that it does not directly apply to the company's taxable profit, but to certain expenses that constitute, in themselves, a new tax fact (which refers not to the perception of income but to the realization of expenses). And, in that way, autonomous taxation has inherent in it the idea of discouraging a practice that, beyond affecting equality in the distribution of public burdens, may involve situations of lesser fiscal transparency, and is explained by a legislative intention to encourage companies to reduce as much as possible expenses that negatively affect fiscal revenue".
Thus, as is observed from the tenor of nos. 3 and 9 of art. 88 of the CIRC, autonomous taxation is characterized by applying to expenses effected or borne by taxpayers related to light passenger vehicles, light goods vehicles referred to in al. b) of no. 1 of article 7 of the Vehicle Tax Code, motorcycles or motorbikes and to deductible charges relating to compensation for displacement in the employee's own vehicle, in service of the employer entity, not invoiced to clients, recorded under any title, except to the extent that Personal Income Tax is levied in the sphere of the respective beneficiary, which thus constitute, as expenses, autonomous tax facts whose realization implies the assessment of the applicable tax according to the terms arising from the rates relating to the pertinent taxable matters consisting of the amounts of expenses effected or borne – to quote again the decision of the Constitutional Court no. 197/2016, "[e]xpense constitutes an autonomous tax fact, generating a tax to which the taxpayer is subject independently of whether or not he has obtained taxable income in IRC in the same taxation period. And, thus, the fact revealing tax capacity is the very realization of the expense".
The mechanism of autonomous taxation resulting from the normative enunciations in question thus translates into, simply, the association to the material bearing of certain expenses by the taxpayer, which constitutes the realization of the competent provision of tax incidence, of the consequence of the obligation to pay a tax, by application of the competent rate to the taxable matter determined, thus materializing the respective provision.
In this mechanism no condition for the application of the norm is discerned that depends on the demonstration, by inference, of another fact other than the actual realization of the expense itself.
Now, legal presumption rules, as they are directed to establishing a pragmatic or procedural truth, involve, in their content, an imposition, typically directed at the judge, of giving as proven a certain fact based on the realization of the base fact. The normative conformation of a legal presumption (iuris tantum) thus involves three elements: a base fact, a presumed fact and the nexus by which it is imposed to give as known the presumed fact based on the demonstration of the base fact, except when proof to the contrary is made. In legal presumptions, explicit or implicit, the normative structure involves an affirmation of fact by the legislator that is directed to connecting another fact, in order, clearly, to the final application of a certain legal regime (see, as an example, no. 4 of art. 6 of the Personal Income Tax Code, according to which: "Deposits in the accounts of the partners, written in commercial or civil companies in commercial form, when not resulting from loans, provision of work or exercise of corporate positions, are presumed to be made by way of profits or advance of profits").
Precisely, in the provisions of nos. 3 and 9 of art. 88 of the CIRC there is no establishment of any duty to give as proven a certain factuality – the duty to presume which is typical of legal presumptions – but simply, as referred to, the legal consequence of subjection to tax is established when a certain tax fact is realized, the realization of the legally provided expense.
This normative functioning alien to any presumptive scheme is further well evidenced by the fact that the legal factual species of autonomous taxation here in question are specifically molded in light of the nature, purpose or even the regime of vehicles to which the charges relate – thus, excluded are "vehicles powered exclusively by electric energy" (no. 3 of art. 88 of the CIRC), "light passenger vehicles, motorcycles and motorbikes, allocated to the operation of public transport service, intended to be rented in the normal exercise of the activity of the taxpayer" (al. a) of no. 6 of the same article) and "motor vehicles with respect to which the agreement provided for in no. 9) of al. b) of no. 3 of article 2 of the Personal Income Tax Code has been entered into" (al. b) of no. 6 of the same article) – as well as by the establishment of differentiated rates based on criteria and material characteristics that are relevant to the acquisition cost of the goods (no. 3 of art. 88 of the CIRC) and to the nature of vehicles, such as plug-in hybrid light passenger vehicles, light passenger vehicles powered by LPG or CNG (cfr. nos. 17 and 18 of art. 88 of the CIRC). Also as regards charges with compensation for displacement in the employee's own vehicle, to which no. 9 of art. 88 of the CIRC refers, the incidence of autonomous taxation is determined by the characteristics of the tax reality, namely, deductible charges, not invoiced to clients, recorded under any title, except to the extent that Personal Income Tax is levied in the sphere of the respective beneficiary.
There is further evidence of the objective and unconditional mechanism of application of autonomous taxation the fact that autonomous taxation rates are increased by 10 percentage points with respect to taxpayers presenting fiscal loss in the period to which the competent tax facts apply related to the exercise of a commercial, industrial or agricultural activity not exempted from IRC (no. 14 of art. 88 of the CIRC)
In summary, the norms of incidence in question are not based on the demonstration, by inference of other facts, of certain presumed facts, which may be overturned on the basis of proof to the contrary, but operate objectively in light of the elements of the factual species taken as tax prerequisites, whereby, when their material realization is verified, autonomous taxation applies at the applicable rates.
It may be added, furthermore, that, for the same reasons, it is also out of the question to discern in such provisions a legal fiction, that is, the "fictional assimilation of different factual realities, for the purpose of subjecting them to the same legal regime" (BAPTISTA MACHADO, Introduction to Law and to Legitimizing Discourse, Coimbra, 2014, p. 108), since, as clarified by TEIXEIRA DE SOUSA, op. cit., pp. 235-236, "[t]hrough legal fictions the legislator fictions that two distinct realities are identical, that is, the legislator equates one reality to another reality to permit the application to both of the rule that regulates one of these realities", which must be clearly distinguished from presumptions even if inilidible, because "legal fictions are based on a relationship of equation between distinct realities; inilidible presumptions are based on a relationship of implication between a known fact and a presumed fact".
5. The normative enunciations thus described further show that it is not possible to sustain that it is solely, with such provisions, a matter of countering a so-called "partial business character" presumed, which would constitute the ratio of these autonomous taxation.
Indeed, the hierarchization of the applicable rates and even the exclusion of taxation effected between vehicles with common fossil fuels, LPG or CNG, plug-in hybrids and electric, reveals a clear extra-fiscal purpose, of environmental concern, with discouragement of the acquisition and expenses with vehicles of greater polluting impact.
In this way, the ratio that illuminates these autonomous taxation is complex and multiple, and may be assessed in the following elements, which should be considered together:
- prevent, for reasons of fiscal revenue collection, that, through unlimited assumption of charges, the revenue relating to taxation of taxable profit be affected;
- discourage, for reasons of extra-fiscal policy, certain expenses that, by their nature or purpose, are deemed socially inconvenient, generating negative externalities (Pigouvian taxes);
- counter ex ante the realization of expenses that, by their own consistency, may be diverted to non-business consumption or are normally linked to evasive or even fraudulent behavior.
One can thus say, as is observed, for example, in the arbitral decision handed down in process no. 641/2017-T, the following: "The logic of autonomous taxation seems to be this. The company reveals financial availability to effect expenses that involve situations of lesser fiscal transparency and negatively affect fiscal revenue. In that circumstance, the taxpayer should be in a position to bear an additional fiscal burden with respect to those same expenses (which could be avoided) and which is intended to compensate for the fiscal advantage resulting from the reduction of taxable matter by effect of the realization of such expenses".
6. It should further be stated, for full clarification of this matter, that it appears that, at the base of this reading of the provisions of art. 88 of the CIRC as implicit presumptions susceptible of avoidance, under art. 73 of the LGT, there lies an unacceptable methodological confusion between norms that establish presumptions (presumption norms, legal presumptions in the proper sense) and norms based on a presumption (which do not establish a presumption susceptible to proof to the contrary).
It is worth citing, in this regard, the passage, very clarifying, of JOSEP AGUILÓ REGLA, Presumptions in Law in Yearbook of Philosophy of Law, vol. XXXIV (2018), p. 222 (our translation):
"There are norms (very many norms) that are not presumption norms, that is, that are not formulated (nor would anything be gained by formulating them) with an 'it will be presumed or must be presumed' and that, nevertheless, one may well say are based on a (or that underlies a) theoretical 'it is presumable' and. That is, the legislator made a presumption, but did not dictate a presumption norm. Think, for example, of the norm that establishes that majority is reached at age 18. No one would say, it seems, that this is a presumption norm; however, probably everyone would accept that it is based on a theoretical 'it is presumable'. This norm is explicable from the combination of a theoretical 'it is presumable' and a value judgment; that is, from the combined acceptance of a theoretical presumption statement such as 'when a person has reached age 18 it is presumable that he has reached a certain degree of intellectual and moral development' and a value judgment that considers that degree sufficient to acquire the legal status of majority. There are, as I have said, very many norms, both constitutive and regulative, that are explicable from the combined acceptance by the legislator of a theoretical 'it is presumable' and a certain value judgment. If, as a consequence of that, we proceed to consider that all such norms are presumption norms, it would result that this notion would become totally imprecise since in practice the totality of legal norms would become presumption norms. The notion of presumption norm would cease to be theoretically relevant. Thus, one thing is a 'presumption norm' (which obliges to presume) and quite another 'a norm based on a presumption' (which does not oblige to presume).".
In truth, a presumption may be only the background to a rule as the reason that led to the formulation of a certain legal factual species, in which case one is faced with a "motivating presumption" (motivatorischen Vermutung), which is entirely distinct from a presumption rule, which is a probative rule (see JOACHIM VOGEL, The constitutional limits to the presumptions of German economic criminal law in Luis Arroyo Zapatero/ TIEDEMANN, Klaus (ed.) Studies in Economic Criminal Law, Cuenca, pp. 44 and 50 et seq.).
Precisely, one cannot confuse what are reasons of legislative policy with the technical-legal instrument of legal presumptions in the proper sense, as is duly accounted for in the aforecited Constitutional Court decision no. 753/2014. But let us cite also the Constitutional Court decision no. 139/2016, whose orientation, although to another purpose (no. 3 of art. 31 of the EBF), can perfectly, mutatis mutandis, be transposed to the present case:
"Also here the norm does not function as a means of proof of any fact, although the avoidance of a hypothetical fraud may have been the reason of legislative policy that led the legislator to limit the application of the benefit in the terms already pointed out. Hence, in the present case, we should equally conclude by the non-verification of a presumption in the proper sense.
The conclusion just drawn also serves to see in the proper light the purpose pursued by the Claimant which, in substance, amounts to no more than countering a presumption of fraud. Precisely because there is no presumed fact, the Claimant has nothing to (or can) counter and, in that measure, cannot be said to be limited in the demonstration of reality. On the contrary, the induced confusion between presumed facts and reasons of legislative policy would lead the Claimant – if its thesis were to prevail – substituting itself for the legislator, to transform those reasons or motivations into true legal criteria, thus managing to modify the objective scope of application of the tax benefit, against the sense and terms of the law that provided for it and beyond the legislator's will, a purpose to which, in light of all that has been stated, cannot be given coverage".
7. In these terms, the legal provisions that establish autonomous taxation object of nos. 3 and 9 of art. 88 of the CIRC, here under consideration, constitute norms of tax incidence that do not establish any presumption whose proof to the contrary should be admitted.
Excluded, therefore, the configuration of the normativity of nos. 3 and 9 of art. 88 of the CIRC as an implicit presumption, the matter of its avoidance under art. 73 of the LGT through the proof of the contrary fact is naturally set aside, which, as has been stated, in any case, also did not occur, given the factuality given as proven.
2. Matters of Unconstitutionality
8. The Claimant further raises the question of the unconstitutionality of the interpretation of art. 88, no. 3 of the CIRC to the effect that the implicit presumption of only partial business character of expenses and charges is not avoidable (conclusive presumption), for violation of the principle of equality, which requires treating the unequal unequally (save impracticability, which it argues is not the case) and, therefore, of the principle of tax capacity, taxation fundamentally of real income and proportionality, which equally imply the unequal treatment of what is unequal, which is prevented by fictions, which would translate into the violation of articles 2, 13, 18, nos. 2 and 3, 103, no. 1 and 104, no. 2 of the CRP.
It is well known that it falls to the Tribunal to examine all matters raised that, because they relate to the elements of the dispute, determined by reason of the claim or claims formulated and the cause or causes of action advanced, as well as any exceptions invoked in the defense, are relevant to the resolution of the object of the dispute, except when its examination is prejudiced by the solution given to other matters (art. 608, no. 2 of the CPC, applicable ex vi art. 21, no. 1, al. e) of the RJAT).
Precisely, the matter raised regarding the incompatibility with the Constitution of the provisions above dissected insofar as they are configured as inilidible presumptions or even legal fictions, is prejudiced in light of the solution above set out that there are no presumption or fiction norms in the legal provisions of art. 88 of the CIRC.
In the same way, in light of the solution set out, the matter raised by the Respondent regarding the unconstitutionality of the interpretation of art. 88 as an implicit avoidable presumption is prejudiced.
9. In any case, it should be recalled that the Constitutional Court has already had the opportunity to pronounce itself specifically on the constitutional conformity of autonomous taxation in the context of IRC in the aforementioned several times referred to decision no. 197/2016, in which it noted, in terms that can be applied to the case sub judice, that autonomous taxation:
- does not call into question the principle of taxation of companies according to real income and the principle of tax capacity, since "IRC applies to income obtained and profits directly attributable to the exercise of a certain economic activity, by reference to the annual period, and thus taxes the aggregation of all income obtained in the taxation period. On the contrary, in autonomous taxation in IRC (...) the tax-generating fact is the very realization of the expense, characterized as an instantaneous tax fact that appears isolated in time and generates a tax obligation of an occasional character", whereby "autonomous taxation does not interfere with the method designed to determine business results, nor does it imply that the taxable matter that will serve as the basis for taxation in IRC come to include profits or income that the company has not actually obtained";
- does not call into question the principle of tax capacity, since "expense constitutes an autonomous tax fact, generating a tax to which the taxpayer is subject independently of whether or not he has obtained taxable income in IRC in the same taxation period. And, thus, the fact revealing tax capacity is the very realization of the expense";
- "the measure is not arbitrary and finds sufficient material ground in the purpose of discouraging companies from realizing expenses (...) that, being excessive and not justified from the point of view of the business, have unfavorable effects for obtaining fiscal revenue";
- with regard to the appropriateness of the means used to pursue the purposes aimed at by the law, it being certain that "the control of the suitability or appropriateness of the measure, as a facet of the principle of proportionality, refers exclusively to the objective and formal capacity of a means to achieve a purpose and not to any substantial evaluation of the goodness or opportunity of the measure", it is verified that "objectively, the norm in question achieves the objective that the legislator set out, with it being entirely irrelevant that the same purpose could be achieved by another route, given that the choice of means intended to obtain a certain effect of fiscal policy falls within the margin of free legislative conformity";
- it cannot be seen how "the simple autonomous taxation of company expenses strictly within the fiscal system, aimed at meeting the financial needs of the State, calls into question the institutional guarantee of the private sector, and in what way this fiscal measure can represent an undue intervention of the State in the management of private companies" because in "taxing such expenses the State is not creating any obstacle to the freedom of organization and business management, but realizing the strictly financial objective of the fiscal system, which translates into the obtaining of revenue to finance public expenses".
10. In these terms, it is understood that the acts challenged in the proceedings, relating to autonomous taxation on the charges here examined, do not suffer from the defects of violation of law that are imputed to them, whereby the Claimant's claim is without merit, with the decision of dismissal of the administrative appeal being maintained.
3. Right to Reimbursement and Compensatory Interest
11. In light of the foregoing, having judged the claim for annulment of the dismissal of the administrative appeal challenged to be without merit, the remaining claims for return of sums paid and payment of compensatory interest are necessarily prejudiced.
III – DECISION
In these terms, it is decided:
a) To judge without merit the arbitral claim for declaration of illegality of the IRC self-assessment, relating to fiscal year 2015, as well as the decision of dismissal of the administrative appeal filed against the act of self-assessment;
b) To judge prejudiced the claims for reimbursement of sums paid and payment of compensatory interest.
VALUE OF PROCEEDINGS
The value of the proceedings is set at 397,447.93 euros, in accordance with art. 97-A of the Code of Tax Procedure and Process (CPPT), applicable by virtue of the provision of art. 29, no. 1, al. a) of the RJAT and art. 3, no. 2 of the Regulation of Costs in Tax Arbitration Proceedings (RCPAT).
COSTS
Costs to be borne by the Claimant, in the amount of €6,426, cfr. art. 22, no. 4 of the RJAT and Table I attached to the RCPAT.
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Lisbon, 20 May 2019
The Collective Arbitral Tribunal,
Carlos Fernandes Cadilha
(Arbitrator President)
Francisco Nicolau Domingos
(Arbitrator Member)
João Menezes Leitão
(Arbitrator Member)
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