Summary
Full Decision
ARBITRAL DECISION
I. - REPORT
A - PARTIES
The company A - ..., LDA, legal entity no. …, with headquarters in … Oeiras, hereinafter designated as "Claimant", presented a request for establishment of an arbitral tribunal, pursuant to paragraph a) of article 2.º, no. 1 and articles 10.º et seq. of Decree-Law no. 10/2011, of January 20 (Legal Regime for Arbitration in Tax Matters, hereinafter designated as "RJAT"), with a view to the appreciation of the following claim opposing it to the Tax and Customs Authority (which succeeded, among others, the General Directorate of Taxes), hereinafter designated as "Respondent" or "AT".
B - CLAIM
1 - The request for establishment of the arbitral tribunal was accepted by His Excellency the President of CAAD on July 2, 2014 and notified to the AT on July 3, 2014.
2 - The Claimant did not proceed with the appointment of an arbitrator, and therefore, pursuant to article 6.º, no. 1 of the RJAT, the undersigned was designated on 18-08-2014 by the Deontological Council of the Administrative Arbitration Centre as arbitrator of a Singular Arbitral Tribunal, having accepted under the legally provided terms.
3 - The Parties were, on 18-08-2014, duly notified of this appointment and did not express any objection to it, in accordance with the combined provisions of paragraphs a) and b) of article 11.º, no. 1, and articles 6.º and 7.º of the Deontological Code.
4 - In these circumstances, in compliance with paragraph c) of article 11.º, no. 1 of Decree-Law no. 10/2011, of January 20, as amended by article 228.º of Law no. 66-B/2012, of December 31, the arbitral tribunal was regularly constituted on 02-09-2014.
5 - On February 16, 2015, the Arbitral Tribunal, pursuant to article 16.º, paragraph c) of the RJAT, issued an order exempting the hearing provided for in article 18.º of the same act, taking into account, both the circumstance that the object of the dispute relates fundamentally to matters of law, and the absence of exceptions to be appreciated and decided, and the understanding reached between the parties on this matter, the latter having not requested any autonomous evidentiary proceedings, with the pertinent documents forming part of the record and the administrative proceedings being attached to the file.
6 - The present Claimant requests that this Arbitral Tribunal:
a) - Declare the annulment of the decisions denying the gracious complaints nos. … 2014…; … 2014… and … 2014….
b) - Declare the consequent annulment, both of the acts of assessment relating to the Single Circulation Tax (hereinafter designated as IUC), and of the acts of assessment of the compensatory interest associated with it, recorded in the assessment notifications referenced in the file, relating to the years 2009, 2010, 2011, 2012 and 2013 and concerning the vehicles identified in the file, which are hereby given as fully reproduced;
c) - Condemn the Tax and Customs Authority to the reimbursement of the amount of € 46,952.11, which it indicates as the value of the claim, whose breakdown is as follows:
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€ 36,556.76, referring to the total amount paid, both as IUC and as compensatory interest, referring to the assessments and vehicles previously referenced;
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€ 10,395.35, referring to the total amount paid as penalties.
d) - Condemn the Tax and Customs Authority to the payment of indemnification interest for the payment of amounts wrongfully assessed and paid.
C - GROUNDS OF CLAIM
7 - The Claimant, in the substantiation of its request for arbitral pronouncement, states, in summary, the following:
8 - That it is a commercial company, whose principal activity is focused on the purchase, sale and rental of machinery and motor vehicles, offering, in these circumstances, to its clients various solutions, within the scope of long-term rental and the sale of motor vehicles.
9 - That it was notified of assessments of IUC and corresponding compensatory interest, as identified in the file, relating to the years 2009, 2010, 2011, 2012 and 2013 and concerning the vehicles identified in the file.
10 - That in order to avoid future tax enforcement proceedings, as well as the costs inherent to the provision of guarantees for the suspension of the corresponding proceedings, it proceeded to payment of the amounts relating to the IUC, compensatory interest and penalties in the total amount of €46,952.11, which results from the sum of the amount of €36,556.76 referring to IUC and compensatory interest and the amount of €10,395.35 relating to the payment of penalties.
11 - That it filed gracious complaints against the aforementioned assessments, with the AT opting for their denial, which was notified to it, on April 14, 2014, with respect to gracious complaints nos. … 2014… and … 2014… and, on April 16, 2014, regarding gracious complaint no. … 2014….
12 - That when it filed the aforementioned gracious complaints and also within the scope of the corresponding prior hearings, it proceeded to demonstrate that the transmission of the vehicles to third parties occurred at moments prior to the dates of the tax obligation, as results both from the invoices of sale of those vehicles, and from the sale of salvage goods, whose copies, then, it presented, and which now form part of the file.
13 - That all vehicles referenced in the request for arbitral pronouncement were sold to third parties, either as used vehicles or as salvage goods, on dates prior to those relating to the obligation of assessment of the respective IUC.
14 - That the vehicles are indeed registered in the name of the Claimant, given that their acquisition by third parties was not registered in the name of the corresponding acquirers, but such registration constitutes only a presumption, of which the right exists and belongs to the holder registered in the precise terms defined in the registration, which may be rebutted.
15 - That the purchase and sale contract of motor vehicles has real nature, resulting such effect from the contract itself, not being dependent on any subsequent act, namely registration.
16 - That automobile registration does not have constitutive nature, being intended only to publicize the registered act, having thus a declarative nature, and the tax legislation and, namely, the CIUC, cannot ignore the role of automobile registration.
17 - That fiscal law is more concerned with substance than form, and therefore one should pay attention to the invoices presented, which attest to the transmission of ownership of the vehicles in question, this being the understanding that best accords with the nature of the tax itself which is subordinated to the idea that taxpayers should be burdened to the extent of the cost they cause to the environment and the road network.
18 - That the expression "considering-se as tais" contained in no. 1 of article 3.º of the CIUC constitutes a legal presumption, which, in light of article 73.º of the LGT, is rebuttable, and therefore the Claimant cannot be considered the passive subject of the IUC assessed against it.
19 - That, with a view to rebutting the aforementioned presumptions, it presented, both within the scope of the gracious complaints and in the context of these proceedings, copies of all invoices of sale, both of used vehicles and of salvage goods, from which it is clear that the sales of the vehicles relate to dates prior to the fact generating the tax, and therefore at the time of the exigibility of the IUC the Claimant was no longer the owner of the vehicles, and therefore is not the passive subject of the tax.
D - RESPONSE OF THE RESPONDENT
20 - The Respondent, Tax and Customs Authority, (hereinafter designated as AT), presented its Response, on 06-10-2014, having also, on that same date, attached the Arbitral Decisions issued in the context of Proceedings nos. 150/2014-T and 220/2014-T, providing, on 30-10-2014, the attachment to the file of a copy of the tax administrative proceedings.
21 - In the aforementioned Response, the AT understands that the allegations of the Claimant cannot proceed at all, given that they make a notoriously erroneous interpretation and application of the legal norms applicable to the case, insofar as, first of all,
22 - They translate an understanding that incurs not only in a biased reading of the letter of the law, but also in an interpretation that does not consider the systematic element, violating the unity of the regime enshrined in the entire CIUC and, more broadly, in the entire legal-fiscal system, and also results from an interpretation that ignores the ratio of the regime enshrined in no. 1 of article 3.º of the CIUC. (See articles 7.º and 8.º of the Response)
23 - It states that the tax legislator in establishing, in article 3.º, no. 1 of the CIUC, who are the passive subjects of the IUC established expressly and intentionally that these are the owners (or in the situations provided for in no. 2 the persons mentioned there), considering as such the persons in whose names they are registered. (See article 13.º of the Response)
24 - It emphasizes that the legislator did not use the expression "presumed" as it could have done, for example, in the following terms: "the passive subjects of the tax are the owners of the vehicles, presumed as such the natural or legal persons, of public or private law, in whose names they are registered". (See article 14.º of the Response)
25 - It considers that the wording of article 3.º of the CIUC corresponds to a clear option of legislative policy adopted by the legislator, and therefore to understand that a presumption is enshrined there would unequivocally be to make an interpretation contrary to law. (See articles 23.º and 25.º of the Response)
26 - It refers that the aforementioned understanding has already been adopted by the Jurisprudence of our courts, transcribing, for this purpose, part of the sentence of the Administrative and Fiscal Court of Penafiel, issued in Proceedings no. 210/13.OBEPNF. (See articles 26.º and 27.º of the Response)
27 - On the systematic element of interpretation, it considers that the solution proposed by the Claimant is intolerable, finding the understanding espoused by the latter no legal support. (See article 36.º of the Response)
28 - On the ignorance of the "ratio" of the regime, the AT considers that, in light of a teleological interpretation of the regime enshrined throughout the IUC Code, the interpretation proposed by the Claimant, to the effect that the passive subject of the IUC is the effective owner regardless of not appearing in the automobile registration the registration of such quality, is manifestly erroneous, insofar as it is the very ratio of the regime enshrined in the CIUC that constitutes clear proof that what the tax legislator intended was to create a tax based on the taxation of the owner of the vehicle, as it appears in the automobile registration. (See articles 59.º and 60.º of the Response)
29 - It adds that the CIUC carried out a reform of the regime of taxation of vehicles in Portugal, substantially altering the regime of automobile taxation, the passive subjects of the tax becoming the owners appearing in the property register, regardless of the circulation of the vehicles on the public road. (See article 62.º of the Response)
30 - In this sense, it refers this to be the understanding inscribed, namely, in recommendation no. 6-B/2012 of 22-06-2012, from the Ombudsman directed to the Secretary of State for Public Works, Transport and Communications.
31 - The interpretation conveyed by the Claimant shows itself, also, beyond what has already been stated, in disconformity with the Constitution, specifically because, among others, it violates the principle of efficiency of the tax system, which has constitutional dignity, violation which would translate into an obstruction and increase in cost of the competences attributed to the Respondent, with obvious prejudice to the interests of the Portuguese State, of which both the Claimant and the Respondent form part. (See article 75.º of the Response)
32 - It adds that invoices as documents unilaterally issued by the Claimant do not clearly constitute sufficient proof to "undermine the (supposed) legal presumption established in article 3.º of the CIUC". (See articles 82.º and 83.º of the Response)
33 - It further states that, in view of the report of the tax inspection carried out on the Claimant, the aforementioned invoices and cash sales presented do not appear authenticated, nor is it proved that the values therein have been recorded in accounting. (See article 93.º of the Response)
34 - Finally, it states that it was not the Respondent who gave rise to the request for arbitral pronouncement, but rather the Claimant, and consequently the Claimant should be condemned to pay the arbitral costs "pursuant to article 527.º/1 of the New Code of Civil Procedure by virtue of article 29.º/1-e) of the RJAT", also emphasizing that the legal requirements are not met to consider illegal the assessment of indemnification interest, whose request was formulated by the Claimant.
35 - It considers, to conclude, that in view of all the argument exposed, the tax acts in question are valid and legal, and the request for arbitral pronouncement underlying these proceedings should be judged to be without merit, with the tax assessment acts impugned remaining in the legal order, absolution being pronounced accordingly with respect to the Respondent entity from the claim.
E - ISSUES TO BE DECIDED
36 - It is necessary, therefore, to appreciate and decide.
37 - In view of the foregoing, relative to the positions of the Parties and the arguments presented, the main issues to be decided are whether:
a) The Arbitral Tribunal is materially competent to appreciate the request for reimbursement of amounts paid by the Claimant as penalties.
b) Whether the norm of subjective incidence contained in article 3.º no. 1 of the CIUC establishes or not a presumption.
c) What is the legal value of automobile registration in the context of the CIUC, particularly for purposes of subjective incidence of this tax.
d) If, on the date of the occurrence of the fact generating the tax, the vehicle had already been previously alienated, although the right of ownership thereof remains registered in the name of its previous owner, for purposes of article 3.º, no. 1, of the CIUC, is the passive subject of the IUC the previous owner or the new owner.
F - PROCEDURAL REQUIREMENTS
38 - The Arbitral Tribunal is regularly constituted and materially competent, pursuant to paragraph a) of article 2.º, no. 1 of Decree-Law no. 10/2011, of January 20.
39 - The Parties enjoy legal personality and capacity, are legitimate and are legally represented (see article 4.º and no. 2 of article 10.º of Decree-Law no. 10/2011 and article 1.º of Ordinance no. 112/2011, of March 22).
40 - The proceedings are not affected by vices that invalidate them.
41 - Taking into account the tax administrative proceedings, a copy of which was attached to the file by the AT, and the documentary evidence forming part of the case, it is now necessary to present the factual matter relevant for understanding the decision, as is established in the terms mentioned below, but it is important, first of all, to know about the tribunal's competence regarding the request for reimbursement of amounts paid by the Claimant as penalties.
G - ON THE REIMBURSEMENT OF AMOUNTS PAID AS PENALTIES
42 - Taking into account, on the one hand, the provisions of articles 97.º, 577.º and 578.º of the CPC and considering, on the other, the provision of article 13.º of the Code of Procedure in the Administrative Courts (CPTA), applicable here by force of article 29.º, no. 1, paragraph c), of the RJAT, it is necessary to know, in the first place, the question related to the request for reimbursement of amounts paid as penalties, insofar as the same raises the question of whether the arbitral tribunal has, or does not have, competence for this purpose, given that, in light of the aforementioned norm of the CPTA, its knowledge precedes that of any other matter.
43 - The Claimant, in its request for arbitral pronouncement, in addition to requesting reimbursement of amounts paid relating to the IUC and compensatory interest relating to the years 2009, 2010, 2011, 2012 and 2013, concerning the vehicles identified in the file, also requested reimbursement of the amount of € 10,395.35, which it paid relating to the penalties associated with such assessments.
44 - The amounts related to the aforementioned penalties, while it is certain that they fall within the concept of revenues of a tax nature, as is commonly understood, it is no less certain that, while sanctions of an administrative nature, they are not to be confused with taxes, and do not fall, from the outset, within tax legal relationships.
45 - It is known that the tax legal relationship, as particularly results from the provisions of nos. 2 and 3 of article 1.º of the LGT and article 30.º of this same act, implies, in addition to the active and passive subjects of that relationship, that its object concerns the assessment and collection of taxes.
46 - The scope of the competence of tax arbitral tribunals comprises, precisely, the claims that fall within the aforementioned tax legal relationship. The provision of no. 1 of article 2.º of the RJAT, as amended by Law no. 64-B/2011, of December 30, establishes that the competence of the aforementioned tribunals comprises: a) The declaration of illegality of acts of assessment of taxes, self-assessment, withholding at source and payment on account; b) The declaration of illegality of acts of determination of taxable matter, acts of determination of collectible matter and acts of fixing patrimonial values, which evidences the absence of competences of the tax tribunals for purposes of appreciation of decisions relating to the application of penalties, in the context of the aforementioned unlawful acts.
47 - What the law manifestly privileged, with respect to the core of the competences of arbitral tribunals in tax matters, was the judgment of cases which in administrative and fiscal courts take the procedural form of judicial challenge, in accordance with paragraph a) of article 101.º of the LGT and paragraphs a) to f) of no. 1 of article 97.º of the CPPT, it being noted that even in this domain there are limitations, as results, namely, from the provision of article 2.º of Ordinance no. 112-A/2011, of March 22.
48 - In this regard, Jorge Lopes de Sousa refers, in Commentary on the Legal Regime for Tax Arbitration, included in the Guide to Tax Arbitration, Almedina, March, 2013, p. 105 that thus "[…] outside the competence of these arbitral tribunals remains the appreciation of disputes generated in tax enforcement proceedings or in tax contraordination proceedings".
49 - Thus, the claim filed by the Claimant for reimbursement of amounts paid as penalties and annulment of such penalties does not fall within the scope of arbitrable claims, and this tribunal cannot know it.
50 - In these circumstances, this Arbitral Tribunal cannot know, ratione materiae, of the invalidity of the decisions relating to the application of the penalties and of the request for reimbursement of the amount of € 10,395.35 paid by the Claimant for this purpose.
II - SUBSTANTIATION
H - SUBSTANTIATION OF FACT
51 - As to relevant matters of fact, this tribunal takes as established the following facts:
52 - The Claimant is a commercial company, whose principal activity is focused on the purchase, sale and rental of machinery and motor vehicles, offering, in these circumstances, to its clients various solutions, within the scope of long-term rental and the sale of motor vehicles.
53 - The Claimant was notified of assessments of IUC and compensatory interest associated with it, relating to the years 2009, 2010, 2011, 2012 and 2013, concerning the vehicles identified in the file, having proceeded both to payment of the tax and of the aforementioned interest, in the amount of € 36,556.76.
54 - The Claimant filed gracious complaints against the aforementioned assessments, which were denied, which was notified to it on April 14, 2014, with respect to gracious complaints nos. … 2014… and … 2014… and on April 16, 2014, regarding gracious complaint no. … 2014….
55 - The gracious complaints, after being substantially analyzed, in the Finance Service of Oeiras 2, that is, after reappreciation of the legality of the assessment acts in question, culminated in the maintenance of the IUC assessments in question, reaffirming the legality of these assessment acts, sustaining themselves in the circumstance that "IUC is levied on the ownership of vehicles, as attested by the registration and not on the use or enjoyment thereof", as provided in no. 1 of article 6.º of the CIUC and in the will of the tax legislator, which "intentionally and expressly wished that those in whose names they are registered be considered as owners of the vehicles".
56 - The vehicles referenced in the request for arbitral pronouncement were sold to third parties or declared as loss with cancellation of the registrations, with the acquirers of such vehicles not having proceeded, opportunely, to their respective registrations, with the same having remained registered in the name of the Claimant.
57 - The Claimant, as proof of the aforementioned sales and to rebut, namely, the presumption which it understands to be established in no. 1 of article 3.º of the CIUC, presented, both when it filed the gracious complaints and also within the scope of the corresponding prior hearings and in the context of these proceedings, copies of all invoices of sale of the used vehicles and of the sale of salvage goods.
58 - On the dates relating to the facts generating the tax and its exigibility, to which the IUC assessments in question in these proceedings relate, the ownership of the vehicles in question belonged to other persons, as identified in the file.
SUBSTANTIATION OF FACTS PROVED
59 - The facts taken as proved are based on the documents mentioned, with respect to each of them, insofar as their correspondence with reality was not questioned.
FACTS NOT PROVED
60 - There are no facts taken as not proved, given that all facts considered relevant for appreciation of the claim were proved.
I - SUBSTANTIATION OF LAW
61 - The factual matter is established, it now being necessary to proceed with its legal subsumption and determine the law applicable to the underlying facts, in accordance with the issues to be decided enumerated in no. 37.
62 - The essential and decisive issue in the present case, relative to which there are absolutely opposed understandings between the Claimant and the AT is translated into whether the norm of subjective incidence contained in no. 1 of article 3.º of the CIUC establishes or not a rebuttable presumption.
63 - The positions of the parties are known. Indeed, for the Claimant, the expression "considering-se as tais" contained in no. 1 of article 3.º of the CIUC constitutes a rebuttable legal presumption, allowing persons registered in the registration as owners of the vehicles to present evidentiary elements intended to demonstrate that such ownership is inscribed in the legal sphere of other persons, to whom such ownership has been transferred.
64 - The Respondent, for its part, considers that the interpretation defended by the Claimant is manifestly erroneous, insofar as it is the very ratio of the regime enshrined in the CIUC that constitutes clear proof that what the tax legislator intended was to create a tax based on the taxation of the owner of the vehicle, as it appears in the automobile registration, and article 3.º of the CIUC does not contain any legal presumption.
J - INTERPRETATION OF THE NORM OF SUBJECTIVE INCIDENCE CONTAINED IN NO. 1 OF ARTICLE 3.º OF THE CIUC
65 - It should be noted, first of all, that it is agreed understanding in doctrine that in the interpretation of tax laws the general principles of interpretation apply fully. This is an understanding which has, moreover, acceptance in article 11.º of the General Tax Law.
66 - It is commonly accepted that, with a view to the apprehension of the meaning of the law, interpretation has recourse to various means, it being important, first of all, to reconstruct the legislative thought through the words of the law, which means to seek, from the outset, its literal sense. The referred sense, as is also agreed, corresponds to the lowest degree of interpretative activity, it being important, therefore, to assess and measure it in light of other criteria, intervening in this regard the so-called elements of a logical nature, whether of rational (or teleological) sense, of a systematic character or of a historical order.
67 - Regarding the interpretation of tax law, it is fitting to recall, as jurisprudence has indeed been pointing out, namely in the Decisions of the Supreme Administrative Court of 05/09/2012 and 06/02/2013, proceedings nos. 0314/12 and 01000/12, respectively, available at: www.dgsi.pt, the importance of the provision of article 9.º of the Civil Code (CC), as a fundamental precept of legal hermeneutics, which, in this context, cannot fail to be considered.
68 - The interpretative activity is not, therefore, avoidable with respect to the resolution of the doubts raised by the application of the legal norms in question.
69 - In the view of FRANCESCO FERRARA, in Interpretation and Application of Laws, translation of MANUEL DE ANDRADE, (2nd ed.), Arménio Amado, Editor, Successor - Coimbra, 1963, p. 131, the aforementioned interpretative activity "[…] is unique [and] complex, of a logical and practical nature, as it consists in inducing from certain circumstances the legislative will", adding, ibidem, p. 130, that "Looking to the practical application of law, legal interpretation is of its nature essentially teleological".
70 - The purpose of interpretation, the aforementioned author also tells us, ibidem, pp. 134/135, is "[…] to determine the objective meaning of the law […]". The law, being the expression of the will of the State, is a "[…] will that persists autonomously, detached from the complex of thoughts and tendencies that animated the persons who contributed to its emanation". Hence the activity of the interpreter should be to "[…] seek not what the legislator wished, but what in the law appears objectively wished: the mens legis and not the mens legislatoris".
71 - For MANUEL DE ANDRADE, citing FERRARA, in Essay on the Theory of Interpretation of Laws, p. 16 (2nd ed.), Arménio Amado, Editor, Successor - Coimbra, 1963, "Interpretation seeks the voluntas legis, not the voluntas legislatoris […], and seeks the current will of the law, not its will at the moment of application: it is not, therefore, a will of the past, but a will always present as long as the law does not cease to be in force. It is to say that the law, once formed, becomes detached from the legislator, gaining autonomous consistency; and, more than that, becomes a living entity, which is not merely an inanimate body […]".
ON THE LITERAL ELEMENT
72 - It is within this framework that it is important to find an answer to the issues to be decided, particularly to the one aimed at knowing whether article 3.º, no. 1 of the CIUC establishes or not a presumption, beginning, from the outset, with the literal element.
73 - Being the literal element the first that should be used, in search of the legislative thought, it is, necessarily, where one should begin, seeking to attain the meaning of the expression "considerando-se as tais as pessoas" to which the aforementioned article 3.º, no. 1 of the CIUC alludes.
74 - No. 1 of the aforementioned article 3.º of the CIUC provides that "The passive subjects 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." (emphasis ours)
75 - The formulation used in the aforementioned article, it is important to note, first of all, resorts to the expression "considerando-se", which raises the question of whether such expression can be attributed a presumptive meaning, thus equating it with the expression "presumindo-se". These are expressions frequently used with equivalent senses, as is evident in various situations in the Portuguese legal order.
76 - In truth, there are countless norms that enshrine presumptions, using for this purpose the verb consider in various forms. It is not, therefore, difficult to identify situations, in various areas of law, in which the expression "considerando-se" or "considera-se" is used with a meaning equivalent to the expression "presumindo-se" or "presume-se", expressions to which, whether at the level of irrebuttable presumptions, or in the context of rebuttable presumptions, equivalent significance is conferred countless times.
77 - It not appearing pertinent to again reference examples revealing these situations, given that such examples are abundantly enumerated in some of the decisions of the tax arbitral tribunals, designedly in those issued in the context of Proceedings nos. 14/2013 - T, 27/2013 - T and 73/2013 - T, we hereby give the same as fully reproduced.
78 - In these circumstances, being the aforementioned expressions recurrently used with an equivalent purpose and significance, it can be concluded that it is not only the use of the verb "presume" that places us before a presumption, but also the use of other terms can serve as a basis for presumptions, as notably occurs with the expression "considerando-se", which, in our view, will be precisely what is verified in no. 1 of article 3.º of the CIUC.
It is thus an understanding which, not appearing to correspond to a biased reading of the letter of the law, as the AT considers, is shown to be in harmony with the provision of no. 2 of article 9.º of the CC, insofar as it ensures, to the legislative thought, the minimum verbal correspondence required there.
79 - In the literal perspective, in view of what has been left exposed, there is no doubt that the interpretation which considers established a rebuttable presumption in no. 1 of article 3.º has full support in the formulation enshrined there, in view of the aforementioned equivalence between the expression "considerando-se como tais" and the expression "presumindo-se como tais".
The linguistic element, as was previously referred to, being the first that should be used in search of the legislative thought, must, however, in order to find the true meaning of the norm, be submitted to the control of the other elements of interpretation of a logical nature. (whether such elements of a rational (or teleological) sense, of a systematic character or of a historical order).
80 - Indeed, as is derived from the work of MANUEL DE ANDRADE, previously cited, p. 28, "[…] the purely linguistic analysis of a legal text is only the beginning […], the first degree […] or the first act of interpretation. In other words, it only provides us with the probable legislative thought and will […] or, better, the grammatical delimitation of the possible consistency of the law […], the framework within which its true content resides".
81 - Thus, let us then see the rational (or teleological) element.
ON THE HISTORICAL AND RATIONAL (OR TELEOLOGICAL) ELEMENT
82 - Attending to elements of interpretation of a historical character, it is first fitting to recall what expressly comes out in the exposé of motives of the Bill no. 118/X of 07/03/2007, underlying Law no. 22-A/2007 of 29/06, when it there states that the reform of automobile taxation is concretized by way of the displacement of part of the tax burden from the moment of acquisition of vehicles to the circulation phase and aims to "form a coherent whole" which, although intended for the raising of public revenue, intends that the same be raised "in the measure of the environmental costs that each individual causes to the community", adding with regard to the tax in question and the different types and categories of vehicles, that "as a structuring and unifying element […] the principle of equivalence is enshrined, thus making clear that the tax, in its entirety, is subordinated 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 raison d'être of this tax figure".
83 - In this context, it seems clear that the logic and rationality of the new system of automobile taxation can only coexist with a passive subject of the tax, in the assumption that this, and no other, is the real and effective subject causing the road and environmental damage, as results from the principle of equivalence, inscribed in article 1.º of the CIUC.
84 - The aforementioned principle of equivalence, which informs the current Single Circulation Tax, has, at least in the part in which it specifically concerns the environment, underlying the polluter-pays principle, and embodies the idea inscribed in it that whoever pollutes must, for that reason, pay. The aforementioned principle has, moreover, in some way, constitutional standing, insofar as it represents a corollary of the provision of paragraph h) of no. 2 of article 66.º of the Constitution.
85 - What is aimed to be achieved by way of the aforementioned principle is to internalize negative environmental externalities, which, after all, in the case at bar, means nothing more than bringing about that the prejudices which accrue to the community, resulting from the use of motor vehicles, are assumed by their owners, as "economic - user" subjects, as costs that only they should bear.
86 - Returning to the aforementioned principle of equivalence, it will be said that the same has, in the context of the CIUC, an absolutely structuring role, in it being the foundation of the normative edifice of the Code in question. The aforementioned principle cannot, therefore, fail to constitute an end that is legally intended to be pursued, embodying, in that measure, a light of notable brightness that constantly and continuously cannot fail to illuminate the path of the interpreter.
87 - With respect to the aforementioned principle, it is fitting to note what Sérgio Vasques tells us, when, in Special Consumption Taxes, Almedina, Coimbra, 2001, p. 122, with respect to the technical realization of that principle he considers that "In obedience to the principle of equivalence, the tax must correspond to the benefit that the taxpayer derives from the public activity; or to the cost that the taxpayer imputes to the community by its own activity".
88 - Addressing specifically the IUC, the aforementioned author adds, op. cit., that "Thus, a tax on automobiles based on a rule of equivalence will be equal only if those who cause the same road wear and the same environmental cost pay the same tax; and those who cause different road wear and environmental cost, pay different tax also", adding that the realization of the aforementioned principle "[…] dictates other requirements still regarding the subjective incidence of the tax […]".
89 - In light of what has just been stated, it is clear that the taxation of real and effective polluters corresponds to an important end aimed by the law, in this case by the CIUC, an end which, in the words of Francesco Ferrara, in Interpretation and Application of Laws, 2nd Edition, Arménio Amado, Editor, Successor, Coimbra, 1963, p. 130, should always be before the eyes of the jurist, given that, as the aforementioned author there refers, "[…] legal interpretation is of its nature essentially teleological".
90 - Thus, it should be noted that, whether in light of the aforementioned historical elements, or in the light of elements of a rational or teleological character of interpretation which are left referenced, it is equally imperative to conclude that no. 1 of article 3.º of the CIUC can only enshrine a rebuttable presumption.
91 - It should yet be considered the systematic element of interpretation.
ON THE SYSTEMATIC ELEMENT
92 - On the systematic element BAPTISTA MACHADO tells us, in Introduction to Law and Legitimizing Discourse, p. 183, that "this element comprises the consideration of the other provisions which form the normative complex of the institute in which the norm to be interpreted is integrated, that is, which regulate the same matter (context of the law), as well as the consideration of legal provisions which regulate parallel normative problems or kindred institutes (parallel places). It also comprises the systematic place which is due to the norm to be interpreted in the global legal order, as well as its consonance with the spirit or intrinsic unity of the entire legal order".
93 - It is known that a legal principle, in this case the principle of equivalence, does not exist in isolation, but rather is linked by an intimate nexus with other principles that integrate, at the more global level, the respective legal order, in this case, with the other principles embodied in the system inscribed in the CIUC. In that sense, each article of a given legal instrument, in this case of the CIUC, will only be comprehensible if we situate it before the other articles which follow or precede it.
94 - As regards the systematization of the CIUC, environmental concerns were determinant for the aforementioned principle of equivalence to be inscribed, from the outset, in the first article of the aforementioned Code, which necessarily leads to the subsequent articles, insofar as they have foundation in such principle, being influenced by it. This occurred, designedly, with the taxable base, which became constituted by various elements, particularly those concerning levels of pollution, and with the rates of the tax, established in articles 9.º to 15.º, which were influenced by the environmental component, and naturally, also with the subjective incidence itself, provided for in article 3.º of the CIUC, which cannot avoid being influenced as referred.
95 - The systematic element of interpretation and the interaction between the various articles and principles that integrate the system inscribed in the CIUC also appeal to the understanding that what is established in no. 1 of article 3.º of the CIUC cannot fail to embody a presumption.
96 - No. 1 of article 9.º of the CC provides that the search for the legislative thought should "[…] especially take into account […] the unity of the legal system, the circumstances in which the law was elaborated and the specific conditions of the time in which it is applied", circumstances and conditions which, today more than ever, are matters of sensitivity regarding the environment and respect for questions related to it.
In this context, the considerations formulated on the aforementioned elements of interpretation, whether of a literal character or of a historical character, whether of a rational or systematic nature, all point to the sense that article 3.º, no. 1 of the CIUC establishes a presumption, which means that the passive subjects of the IUC being, in principle, the owners of the vehicles, considered as such the persons in whose names the same are registered, will be able, in the end, to be others.
It will be said, moreover, that the establishment of the presumption in the aforementioned norm will correspond to the only interpretation that is in harmony with the principle of equivalence previously mentioned.
97 - Still regarding the presumption which has been referred to and which is understood to be enshrined in no. 1 of article 3.º of the CIUC, it is fitting to note what comes written in the preamble of the recently published Decree-Law no. 177/2014, of December 15, when, referring to motor vehicles, considers that "The non-regularization of the property registration presents serious consequences, both for whoever remained owner in the registration, and for whoever acquired and did not promote the registration in its favor, as also for the various public entities which base their decisions on ownerships which they presume to be substantively true". (emphasis ours)
98 - Arriving here, it is fitting to recall the provision of article 73.º of the LGT, when it establishes that "The presumptions enshrined in the norms of tax incidence always admit contrary proof", (emphasis ours), which means that the legal presumption, which appears to be established in no. 1 of article 3.º of the CIUC, will necessarily be rebuttable.
99 - In this context, the passive subjects of the tax are, presumptively, the persons in whose names the vehicles are registered, that is, the referred passive subjects are, in principle, and only in principle, the persons in whose names such vehicles are registered.
100 - Indeed, if the owner in whose name the vehicle is registered comes, as occurs in the present case, to indicate and prove who were the owners of the vehicles in question, nothing justifies, in our understanding, that the previous owner be held responsible for payment of the IUC that becomes due.
101 - Moreover, this interpretation of no. 1 of article 3.º of the CIUC is the one that, in our opinion, best adjusts to the principles to which the AT must subordinate its activity, namely to the principle of inquiry, in order to discover material truth.
102 - With respect to the aforementioned principle of inquiry, it is fitting to allude to the teachings of Diogo Leite Campos, Benjamim Silva Rodrigues and Jorge Lopes de Sousa, in General Tax Law, Annotated and Commented, 4th Edition 2012, Encontro de Escrita, Lda, Lisbon, p. 488/489, when, in annotations to the cited article 58.º, they state that it is incumbent upon the administration a dynamic role in the collection of elements with relevance for the decision, adding that "[…] the lack of proceedings deemed necessary for the construction of the factual basis of the decision will affect it not only in the hypothesis that they are mandatory (violation of the principle of equality), but also if the materiality of the facts considered is not proved or if relevant facts, alleged by the interested party, are lacking from that basis, by insufficiency of proof which the Administration should have gathered […]".
The principle of inquiry, the aforementioned authors add, op. cit, "[…] has to do with the powers (-duties) of the Administration to proceed with the investigations necessary to the knowledge of the essential or determinant facts for the decision […]".
103 - The material truth, embodied, in the present case, in the circumstance that the vehicles identified in the request for arbitral pronouncement have, in their entirety, been sold by the Claimant, whether as used vehicles or as salvage goods, at a time prior to that of the exigibility of the tax, that is, to the date from which the tax creditor could avail itself, before the debtor, of its right to payment of the tax, was, in light of the elements inscribed in the administrative proceedings, within the knowledge of the AT.
104 - It should not be said, as the AT does, that the establishment of a presumption in article 3.º of the CIUC and the consequences resulting therefrom would offend the principle of efficiency of the tax system, insofar as they would lead, namely, to "obstruction of the performance of its services, […]". (See article 75.º of the Response)
The efficiency of the Administration in general, or of the AT in particular, in the current sense, will correspond to the capacity/working methodology oriented toward the optimization of the work executed or of the services provided, which will mean producing the maximum, in quantity and quality, with the minimum of costs, having nothing to do with the observance of legally enshrined principles and with respect for the rights of citizens, whether in the capacity of taxpayers or not.
105 - In the technical sense, it will be said that the principle of efficiency of the tax system is commonly held, in the domain of tax procedure, as a corollary of the principle of proportionality, which as is known, imposes an adequate proportion between legal purposes and the means chosen to achieve those purposes, or, as Diogo Leite Campos, Benjamim Silva Rodrigues and Jorge Lopes de Sousa refer, in General Tax Law, Annotated and Commented, 4th Edition 2012, Encontro de Escrita, Lda, Lisbon, p. 488, in the annotations to article 55.º of the LGT, it is a principle that obliges "[…] the tax administration to abstain from the imposition on taxpayers of obligations which are unnecessary to the satisfaction of the purposes which it aims to pursue".
In this context, the aforementioned principle of efficiency of the tax system will mean the capacity to achieve the legally fixed objectives in reason of the available means, or better, with the minimum of means, which will also have nothing to do with respect for the rights of citizens, nor with the need for observance of the principles to which the tax administration must subordinate its activity, designedly that of inquiry and that of discovery of material truth, and obviously the application of the aforementioned principle of efficiency cannot be done to the prejudice of the rights of citizens.
L - ON THE ACQUISITION OF OWNERSHIP OF THE VEHICLE AND ON THE VALUE OF REGISTRATION
106 - First of all, it should be added, in light of what will be explicitly stated below on the value of registration, that the acquirers of vehicles become owners of those same vehicles by way of the celebration of the corresponding purchase and sale contracts, with registration or without it.
107 - There are three articles of the Civil Code which it is important to take into account, with respect to the acquisition of ownership of a motor vehicle. They are, first of all, article 874.º, which establishes the notion of a purchase and sale contract, as being "[…] the contract by which the ownership of a thing, or another right, is transmitted, by means of a price"; article 879.º, in whose paragraph a) it is established as essential effects of the purchase and sale contract, "the transmission of the ownership of the thing or of the title of the right" and article 408.º, which has as heading contracts with real effect, and establishes in its no. 1, that "the constitution or transfer of real rights over a determined thing takes place by mere effect of the contract, save for the exceptions provided for in law". (emphasis ours)
We are, indeed, in the domain of contracts with real effect, which means that their celebration produces the transmission of real rights, in this case, motor vehicles, determined by mere effect of the contract, as expressly results from the norm previously mentioned.
108 - With respect to the aforementioned contracts with real effect, it is fitting to note the teachings of Pires de Lima and Antunes Varela, when, in annotations to article 408.º of the CC, they tell us that "From these so-called real contracts (quoad effectum), for having as an immediate effect the constitution, modification or extinction of a real right (and not merely the obligations tending to that result) are distinguished the so-called real contracts (quoad constitutionem), which require the delivery of the thing as an element of their formation (see articles 1129.º, 1142.º and 1185.º)".
We are thus before contracts in which the ownership of the thing sold is transferred, without more, from the seller to the buyer, having as a cause the contract itself.
109 - Also from jurisprudence, designedly from the Decision of the Supreme Court of Justice no. 03B4369 of 19/02/2004, available at: www.dgsi.pt, it is extracted that, in light of the provision of article 408.º, no. 1, of the Civil Code, "the constitution or transfer of real rights over a determined thing takes place by mere effect of the contract, save for the exceptions provided for in law". This is the case of the contract of purchase and sale of a motor vehicle (articles 874.º and 879.º paragraph a) of the Civil Code), which does not depend on any special formality, being valid even when celebrated in verbal form - in accordance with Decision of the Supreme Court of Justice of 3-3-98, in CJSTJ, 1998, year VI, Volume I, p. 117". (emphasis ours)
110 - Having the contract of purchase and sale, in light of what has been left stated, a real nature, with the aforementioned consequences, it is necessary to consider, also, the legal value of the automobile registration which is the object of that contract, insofar as the transaction of the aforementioned good is subject to public registration.
111 - It establishes, indeed, in no. 1 of article 1.º of Decree-Law no. 54/75, of February 12, relating to the registration of motor vehicles, that "The registration of vehicles has essentially as its purpose to publicize the legal situation of motor vehicles and their trailers, with a view to the security of legal commerce". (emphasis ours)
112 - It becoming clear, in light of the aforementioned norm, what the purpose of registration is, there is, however, no clarity, within the scope of the aforementioned Decree-Law, on the legal value of that registration, it being important to consider article 29.º of the aforementioned legal act, relating to the registration of automobile property, when it there provides that "There are applicable, with the necessary adaptations, to the registration of automobiles the provisions relating to land registration, […]". (emphasis ours)
113 - In this context, in order for us to achieve the sought knowledge on the legal value of automobile property registration, it is important to take into account what is established in the Code of Land Registration, approved by Decree-Law no. 224/84, of July 6, when it provides in its article 7.º that "the definitive registration constitutes a presumption that the right exists and belongs to the holder registered in the precise terms in which the registration defines it". (emphasis ours)
114 - The conjunction of the provisions in the articles previously mentioned, particularly the one established in no. 1 of article 1.º of Decree-Law no. 54/75, of February 12 and in article 7.º of the Code of Land Registration, permits to consider, on the one hand, that the fundamental function of registration is to publicize the legal situation of vehicles, allowing, on the other hand, to presume that the right exists and that such right belongs to the holder in favor of whom the same is registered, in the precise terms in which it is defined in the registration.
115 - Thus, the definitive registration constitutes nothing more than the presumption that the right exists and belongs to the registered holder, in the exact terms of the registration, but a rebuttable presumption, admitting therefore, contrary proof, as results from the law and jurisprudence has been pointing out, and for this purpose, see, among others, the Decisions of the Supreme Court of Justice nos. 03B4369 and 07B4528, respectively, of 19/02/2004 and 29/01/2008, available at: www.dgsi.pt.
116 - The function legally reserved to registration is thus, on the one hand, to publicize the legal situation of the goods, in this case, of vehicles and, on the other hand, to allow us to presume that the right over those vehicles exists and that the same belongs to the holder, as such registered in the registration, which means that registration does not have a constitutive nature of the right of ownership, but only a declarative one, hence that registration does not constitute a condition of validity of the transmission of the vehicle from the seller to the buyer.
117 - Thus, if the buyers of vehicles, as their "new" owners, do not promote, from the outset, the adequate registration of their right, it is presumed, for purposes of no. 1 of article 3.º of the CIUC and the provision of article 7.º of the Code of Land Registration, that the vehicles continue to be the property of the person who sold them and who remains their owner in the registration, such person being the passive subject of the tax, in the certainty, however, that such presumptions are rebuttable, whether by force of the establishment in no. 2 of article 350.º of the CC, or in the light of the provision of article 73.º of the LGT. Hence that, from the moment in which the presumptions in question are removed, through proof of the aforementioned sales, the AT cannot persist in considering as the passive subject of the IUC the seller of the vehicle, who in the registration continues to appear as its owner.
M - ON THE MEANS OF PROOF PRESENTED
118 - The written form not being legally required for the contract of purchase and sale of motor vehicles, the proof of the corresponding sale can be made by any means, namely by way of documents, in which are included, designedly, the invoices relating to the sales of the vehicles.
119 - As a means of proof that it proceeded to the sale of the used vehicles identified in the present proceedings, prior to the date of exigibility of the tax, the Claimant presented copies, both of the invoices of sale of the aforementioned used vehicles and of the salvage vehicles.
120 - On the invoices presented by the Claimant, as proof of sale of the vehicles in question, the AT, in addition to having attached to the file 2 Arbitral Decisions issued in Proceedings no. 150/2014-T and in Proceedings no. 220/2014-T, where such matter is touched upon, considers that the same, as documents unilaterally issued by the Claimant do not clearly constitute sufficient proof to "shake the (supposed) presumption established in article 3.º of the CIUC". (See articles 82.º and 83.º of the Response)
121 - It further states that the AT, as results from the inspection carried out on the Claimant, the aforementioned invoices and the cash sales presented by the Claimant do not appear authenticated, nor is it proved that the values therein have been entered in accounting. (See articles 93.º and 95.º of the Response)
122 - In sum, the AT understands that, neither the invoices, nor the cash sales, possess sufficient value with a view to rebutting the legal presumption contained in the registration, but, with all due respect, it is not right.
Let us see,
123 - First of all, in the context of the present proceedings, there is no record that any tax inspection was carried out on the Claimant.
124 - On the other hand, among the documents presented by the Claimant with a view to the proof of sale of the vehicles in question, there are no documents whatsoever relating to cash sales.
125 - Then, nothing permits to consider that the invoices presented, as support for the sales of the vehicles in question in the file and of the salvage goods, do not reflect and correspond to sales which, in reality, were concretized. Indeed,
126 - Regarding the probative value of invoices it is important to consider that they embody a "written document in which the things sold and delivered are itemized, their quality, quantity and price, and whose delivery the seller cannot refuse to the buyer, if the purchase and sale is commercial". (Legal Dictionary of Ana Prata, Almedina - Coimbra, 1990, 3rd Edition)
127 - The invoice, as referred in the annotations to article 476.º of the Commercial Code, Abílio Neto, Ediforum - Lisbon, 1991, 10th Edition, is the "document in which the seller makes the complete itemization of the merchandise he sells to the buyer and in which he indicates the expenses he has incurred, as well as the advantages he grants in prices and the conditions of delivery and payment".
128 - Prior to the amendments introduced in the VAT Code by Decree-Law no. 197/2012, of August 24, invoices or equivalent documents could, in the context of transfers of goods or provision of services, be issued, provided that they observed the legal requirements for invoices.
129 - From the provision of paragraph b) of no. 1 of article 29.º, no. 5 of article 36.º and nos. 1 and 2 of article 40.º, all of the CIVA, as amended by Decree-Law no. 197/2012, of August 24, it is extracted that only the invoice, the invoice-receipt and the simplified invoice embody documents recognized for purposes of the transfer of goods or provision of services.
130 - On the value of invoices as documents capable of proving the sales which support them, particularly those relating to motor vehicles, it is also fitting to recall the provision of Decree-Law no. 177/2014, of December 15, recently published, when, in nos. 1 and 2 of its article 2.º, it comes expressly to consider invoices as documents appropriate to make proof of the sale of vehicles.
131 - It will be said, thus, in light of the doctrine and what is legally established, that the invoice is the document in which, in addition to the mention of the names of the suppliers and the acquirers of things or services which are the object of a given legal transaction, should, designedly, be itemized those things or services, their quality and quantity, as well as their respective price and other elements included in the taxable value, as well as the applicable VAT rates and the amount of tax due, elements which, it should be noted, are observed in the invoices presented by the Claimant.
132 - The invoices attached to the file, as proof of the sale of the vehicles, taking into account the corporate purpose of the Claimant and its business activity, translated in the purchase and sale of vehicles and in the celebration of long-term rental contracts of motor vehicles, after which the ownership of the aforementioned vehicles was transmitted to the respective clients/acquirers, show themselves to be totally adjusted to the aforementioned business reality, being absolutely verisimilous the sale of the vehicles which the invoices presented aim to prove, no elements being identified which embody any simulated contract, rather permitting to conclude that we are before invoices which reproduce the real and true sale of the vehicles to the persons therein indicated.
133 - It will be said, even, that, in the case at bar, in light of the economic activity of the Claimant embodied and focused on the purchase, sale and long-term rental of machinery and motor vehicles, it will not be strange, quite the contrary, the transfer of ownership of the vehicles identified in the file.
134 - Thus, nothing permits to consider that the elements inscribed in the aforementioned invoices, namely those concerning the identification of the vehicles and of the clients/acquirers, as well as those concerning the dates of sale, prior to the date of exigibility of the corresponding IUC, are non-conformant with the reality that contractually occurred, everything indicating that they reflect and prove the facts therein mentioned, that is, the effective sale of the vehicles to the persons therein indicated as being their acquirers. Moreover,
135 - The invoices, being an indispensable commercial document are equally an essential accounting document, with relevant implications in the fiscal domain, it being necessary to note that, in the case at bar, having the Claimant, as it does, a business activity, the said invoices are subordinated to rigorous legal rules, whether of a commercial order, whether of an accounting and fiscal order.
136 - The documents in question in the file, being inscribed, naturally, in the context of commercial relations between two entities, in this case between the Claimant and the acquirers of the vehicles, aim, on the other hand, and in this case, to demonstrate, before the Tax Administration, the existence of the transactions in question, which confers upon them a dimension and qualitative value that is different, given that, when certain conditions are met, the tax legislation understood it proper to consider them as true.
137 - As has already been underlined, the tax legislation, designedly that which has been previously mentioned, recognizes credibility in the probative force of invoices, it being necessary to emphasize, because it is not a matter of minor importance, quite the contrary, it is a matter of fundamental importance, that, having such invoices been issued in accordance with commercial and tax legislation, which is not questioned by the Respondent, the law, in this case, no. 1 of article 75.º of the LGT, attributes to it a presumption of truthfulness.
138 - Thus being, in light of the presumption of truthfulness conferred, in the domain of tax legal relationships, to the facts inscribed in the aforementioned documents and being the transmission of the vehicles to their acquirers taken as true, it would be incumbent upon the AT, in light of the provision of article 75.º, no. 2 of the LGT, in the context of the founded and objective reasons which it had, to demonstrate that such sales, in reality, did not occur, it not being sufficient to affirm, as it does, that the "invoices as documents unilaterally issued by the Claimant do not clearly constitute sufficient proof to "shake the (supposed) legal presumption established in article 3.º of the CIUC"".
139 - The presumption established in the aforementioned article 75.º, no. 1 of the LGT, when it establishes that the aforementioned documents enjoy the presumption of truthfulness, implies, indeed, that if it is not demonstrated by the AT the absence of correspondence between the content of such invoices and reality, as it was not, their content should be considered true.
140 - The documents presented by the Claimant, as means intended to make proof of the transactions of the vehicles in question, enjoying thus the aforementioned presumption of truthfulness, appear with sufficient adequacy, in order to the demonstration of the aforementioned transactions, constituting, in our view, an appropriate and capable means of proof to rebut the presumption established in no. 1 of article 3.º of the CIUC.
141 - In light of what has just been stated, and taking into account, both the circumstance that the assessment acts impugned have been substantially analyzed, in the context of the corresponding gracious complaints, both the presumption established in no. 1 of article 3.º of the CIUC, both the transfer of ownership of the vehicles in question, by mere effect of the contract, prior to the date of exigibility of the tax, both the legal value of automobile registration in the context of the CIUC, the tax acts in question cannot merit our agreement, whether because there was not taken into account an appropriate interpretation and application of the legal norms of subjective incidence, which embodies an error in the legal presuppositions, whether because the aforementioned acts were based on a factual matter clearly divergent from the effective reality, which embodies an error in the factual presuppositions.
142 - In these circumstances, taking into account, on the one hand, that the presumption enshrined in article 3.º, no. 1 of the CIUC was rebutted and that, on the other, the vehicles in question in the present proceedings were sold prior to the date of exigibility of the tax, that is, to the moment in which the Tax Administration can demand the tax payment, it cannot be left unconsidered that, at the time of exigibility of the tax, in light of the provision of no. 3 of article 6.º, combined with no. 2 of article 4.º, both of the CIUC, the Claimant was not the passive subject of the tax in question.
143 - The AT, when it understands that the passive subjects of the IUC are, in the definitive, the persons in whose names the motor vehicles are registered, without considering that article 3.º, no. 1 of the CIUC embodies a presumption, nor taking into account the evidentiary elements which were presented to it, as results from the administrative proceedings, is proceeding to the illegal assessment of the IUC, based on the erroneous interpretation and application of the norms of subjective incidence of the Single Circulation Tax, contained in the aforementioned article 3.º of the CIUC, whether at the level of the provision or of the statement, which configures the practice of a tax act lacking in legality due to error in the factual and legal presuppositions, which determines the annulment of the corresponding tax acts, due to violation of law.
N - REIMBURSEMENT OF THE AMOUNT PAID AND INDEMNIFICATION INTEREST
144 - In accordance with the provision of paragraph b) of no. 1 of article 24.º of the RJAT, and in compliance with what is established there, the arbitral decision on the merit of the claim from which no appeal or challenge is possible binds the tax administration from the term of the deadline provided for appeal or challenge, such administration having to - in the exact terms of the success of the arbitral decision in favor of the passive subject and until the term of the deadline provided for the spontaneous execution of the sentences of the tax judicial courts - "Restore the situation that would have existed if the tax act which is the object of the arbitral decision had not been practised, adopting the acts and operations necessary for this purpose." (emphasis ours)
145 - These are legal commandments which are in total harmony with the provision of article 100.º of the LGT, applicable to the case by force of the provision of paragraph a) of no. 1 of article 29.º of the RJAT, in which it is established that "The tax administration is obliged, in case of total or partial success of complaints or administrative appeals, or of a judicial proceeding in favor of the passive subject, to the immediate and full reconstitution of the situation that would have existed if the illegality had not been committed, comprising the payment of indemnification interest, in the terms and conditions provided for in law." (emphasis ours)
146 - The case contained in the present proceedings raises the manifest application of the aforementioned norms, given that in the sequence of the illegality of the assessment acts referenced in these proceedings, there will, by force of these norms, have to be place for the reimbursement of the amounts paid, as title of tax and of compensatory interest, which in the case at bar is concretized in the amount of €36,556.76, as a way of achieving the reconstitution of the situation that would have existed if the illegality had not been committed.
147 - As to the indemnification interest, it appears manifest that, in light of the establishment in article 61.º of the CPPT and with the requirements of the right to indemnification interest met, that is, once the existence of error imputable to the services has been verified from which results payment of the tax debt in an amount greater than that legally due, as provided for in no. 1 of article 43.º of the LGT, the Claimant is entitled to indemnification interest at the legal rate, calculated on the amount of €36,556.76, which will be counted from the date of payment of the tax and corresponding compensatory interest, until the complete reimbursement of that same amount.
O - ARBITRAL COSTS
148 - With respect to arbitral costs, more specifically on the responsibility for their payment, which the AT, insofar as it did not give rise to the request for arbitral pronouncement, considers to be owed by the Claimant, "in accordance with article 527.º/1 of the New Code of Civil Procedure by virtue of article 29.º/1-e) of the RJAT", it is fitting only to note that, in light of the statutory provision of no. 2 of the aforementioned article 527.º of the CPC, the "[…] costs of the proceeding are caused by the losing party, in the proportion in which it loses", it being, then, what will apply in the case at bar.
CONCLUSION
149 - Within the circumstantial framework that has been referred to, the AT, in practicing the assessment acts in question in the present proceedings, founded on the idea that article 3.º, no. 1, of the CIUC does not enshrine a rebuttable presumption, makes erroneous interpretation and application of this norm, committing an error in the legal presuppositions, which constitutes violation of law.
150 - On the other hand, because the AT, at the date of the occurrence of the tax facts, considered the Claimant owner of the vehicles referenced in the present proceedings, considering it as such the passive subject of the tax, when such ownership, with respect to the vehicles in question, was no longer inscribed in its legal sphere, basing itself thus on a factual matter divergent from the effective reality, commits an error in the factual presuppositions, and therefore violation of law.
151 - The decisions of the AT which deny the gracious complaints identified in the file are equally, in these circumstances, lacking in legality and cannot remain in the legal order.
III - DECISION
152 - Therefore, in consideration of all that has been set out, this Arbitral Tribunal decides:
-
Annul the decisions issued in the context of the gracious complaints identified in the file, with the nos. … 2014…; … 2014… and … 2014….
-
Judge as having merit, as proved, on the grounds of violation of law, the request for arbitral pronouncement with respect to the annulment of the acts of assessment of IUC and compensatory interest to which the claim of the Claimant refers, relating to the years 2009 to 2013, as identified in the file, concerning the vehicles identified in the proceedings;
-
Annul, consequently, both the acts of assessment of IUC and the acts of assessment of compensatory interest associated with it, relating to the years 2009, 2010, 2011, 2012 and 2013, concerning the vehicles, as identified in the file.
-
Condemn the AT to pay the costs of the present proceedings.
VALUE OF THE CASE
In accordance with the provisions of articles 306.º, no. 2 of the CPC (formerly 315.º, no. 2) and 97.º - A, no. 1 of the CPPT and article 3.º, no. 2 of the Regulation on Costs in Tax Arbitration Proceedings the case is assigned a value of € 46,952.11.
COSTS
In accordance with the provision of article 12.º, no. 2, in fine, and article 22.º, no. 4, both of the RJAT, and article 4.º of the Regulation on Costs in Tax Arbitration Proceedings and Table I annexed thereto, the amount of the total costs is fixed at € 2,142.00.
Notify.
Lisbon, February 16, 2015
The Arbitrator
António Correia Valente
(The text of this decision was prepared by computer, in accordance with article 131.º, no. 5 of the Code of Civil Procedure (formerly 138.º, no. 5), applicable by reference from article 29.º no. 1 paragraph e) of Decree-Law no. 10/2011, of January 20 (RJAT), its wording being governed by the spelling prior to the Orthographic Agreement of 1990.)
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