Summary
Full Decision
ARBITRAL DECISION
The Arbitrator, Dr. Sílvia Oliveira, designated by the Ethics Council of the Administrative Arbitration Centre (CAAD) to form the Singular Arbitral Tribunal, constituted on 2 April 2019, decided as follows:
1. REPORT
1.1. A..., taxpayer nº..., resident at..., nº..., ..., in ... (hereinafter referred to as "Claimant"), filed a request for arbitral pronouncement and for the constitution of a Singular Arbitral Tribunal on 23 January 2019, under the terms of article 2, nº 1, paragraph a) and article 10 of Decree-Law nº 10/2011, of 20 January [Legal Framework for Arbitration in Tax Matters (RJAT)], in which the Tax and Customs Authority is requested (hereinafter referred to as "Respondent").
1.2. The Claimant petitions in the arbitral request that it be judged well-founded "(…) and, as a consequence, declare illegal the denial of the administrative complaint presented by the Claimant and the acts of assessment of the Single Circulation Tax identified, relating to the years 2015, 2016 and 2017, in the total amount of EUR 998.78".
1.4. The request for constitution of the Arbitral Tribunal was accepted by the President of CAAD on 24 January 2019 and notified to the Respondent on the same date.
1.5. Since the Claimant did not proceed with the appointment of an arbitrator, under the terms of article 6, nº 1 of the RJAT, the undersigned was designated as arbitrator on 13 March 2019 by the President of the Ethics Council of CAAD, the appointment having been accepted within the legally prescribed period and terms.
1.6. On the same date, the Parties were duly notified of this designation and did not manifest their will to refuse it, in accordance with the combined terms of article 11, nº 1, paragraphs a) and b) of the RJAT and articles 6 and 7 of the Ethics Code.
1.7. Thus, in accordance with the provisions of paragraph c) of nº 1 of article 11 of the RJAT, the Arbitral Tribunal was constituted on 2 April 2019, and an arbitral order was issued on the same date instructing the Respondent to, in accordance with article 17, nº 1 of the RJAT, submit a Reply, within a maximum period of 30 days and, if it so wished, request the production of additional evidence.
1.8. Additionally, it was also stated in that arbitral order that the Respondent should send to the Arbitral Tribunal, within the Reply period, a copy of the administrative file.
1.9. On 13 May 2019, the Respondent submitted its Reply, defending itself by way of exception and challenge and concluding that "(…) the exceptions invoked should be judged well-founded (…)" and "subsidiarily, should it be considered otherwise, the request for arbitral pronouncement should be judged unfounded, maintaining in the legal order the contested tax assessment acts and accordingly absolving the Respondent of the request".
1.10. By arbitral order dated 14 May 2019, both Parties were notified of an arbitral order with the following content:
"Following the Reply submitted by the Respondent on 13 May 2019 and the exceptions raised therein (…), the Claimant shall be notified to, within a period of 10 days, pronounce itself on the said matter of exception.
Additionally, (…) this Arbitral Tribunal verified that (…). Pertinently for the arbitral process, it is necessary to assess the (in)timeliness of the complaint lodged against the Single Circulation Tax assessments which are the object of the request (year 2015, 2016 and 2017), the issue being to determine whether the assessment of this tax constitutes a self-assessment carried out by the taxpayer or an act within the competence of the tax authorities, given that the periods for lodging the said administrative complaint will be different.
In these terms, taking into account that the deadlines for payment of the Single Circulation Tax assessments in dispute were, respectively, 30-11-2015, 30-11-2016 and 30-11-2017, in the case of it being considered that we are dealing with assessment acts, the period provided for lodging that complaint was, on 19-09-2018, widely exceeded for all the Single Circulation Tax assessments which are the object of the arbitral request and not only for the 2015 Single Circulation Tax assessment. (…) In these terms, both Parties shall be notified to, within the same period of 10 days, pronounce themselves on the content of this exception. (…)".
1.11. On 16 May 2019, the Claimant submitted a pleading in order to respond to the matter of exception raised by the Respondent as well as to the issue of the exception regarding the untimeliness of the request, raised by the Arbitral Tribunal in the order of 14 May 2019.
1.12. On 27 May 2019, the Respondent submitted a pleading in order to respond to the matter of exception raised by the Arbitral Tribunal in the order of 14 May 2019.
1.13. By arbitral order dated 28 May 2019, taking into account "the fact that the position of the Parties is fully defined in the proceedings and supported by the documentary evidence attached", this Arbitral Tribunal decided "under the principles of autonomy (…) in the conduct of proceedings, expedition, simplification and informality of proceedings (articles 19, nº 2, and 29, nº 2, of the RJAT), as well as taking into account the principle of limitation of useless acts provided for in article 130 of the Code of Civil Procedure (CPC), applicable by virtue of the provisions of article 29, nº 1, paragraph e) of the RJAT (…)", "to dispense with the holding of the meeting referred to in article 18 of the RJAT", "to determine that the proceedings continue with optional written pleadings, to be submitted within the successive period of 10 days", and "to set 3 July 2019 as the date for the pronouncement of the arbitral decision".
1.14. Additionally, in the said order, and following notification of the arbitral order dated 2 April 2019 (see above points 1.7. and 1.8.), the Respondent was notified again to, within a period of 5 days, attach to the file a copy of the administrative file.
1.15. Finally, the Arbitral Tribunal warned the Claimant that "(…) until the date of pronouncement of the arbitral decision, it should proceed with the payment of the subsequent arbitral fee, in accordance with the provisions of nº 3 of article 4 of the Regulations on Costs in Tax Arbitration Proceedings and communicate this payment to CAAD" (which it did on 25 June 2019).
1.16. On 29 May 2019, the Claimant submitted pleadings (within the period for written submissions), in order to "request (…) the possibility of presenting the following considerations" (in addition to those already provided in the pleading of 16 May 2019 – see above point 1.11.) relating to the question of untimeliness raised of its own motion by the Arbitral Tribunal, the Claimant having stated the provisions of article 70, nºs 4 and 5 of the Tax Code of Procedure and in summary referring that taking into account those provisions, "(…) the administrative complaint presented was not untimely (…)" because it understands that only after the "(…) date of publication of proceeding 507/2017-T of CAAD, became aware of facts that could (…) give support to the administrative complaint and (…) knowledge of the possibility of requesting an arbitral pronouncement from the (…) CAAD".
1.17. On 30 May 2019, the Respondent submitted a pleading stating that "(…) the pleading presented by the Claimant, by way of which it came to exercise new contradiction" "(…) is absolutely illegal" because the Respondent understands that "(…) the pleading now presented by the Claimant has no support whatsoever in light of article 3/4 of the Code of Civil Procedure or in any mirror rule of our legal order" and "(…) also constitutes an illegal expansion of the cause of action (given that it comes to allege factual matters that it never previously alleged) (…)", for which reason it requests its withdrawal.
1.18. On 31 May 2019, the Respondent submitted a pleading requesting the attachment to the file of the administrative file.
1.19. By arbitral order of 19 June 2019, this Arbitral Tribunal decided that, regarding the pleading submitted by the Respondent on 30 May 2019, petitioning the withdrawal of the submission presented by the Claimant on 28 May 2019, that it "concerns its written pleadings, for which it had been notified by arbitral order of 28 May 2019 (…)" and that "with respect to the content alleged by the Claimant, this Arbitral Tribunal will form a conviction, in the arbitral decision, as to the proven facts taking into account not only the free appraisal of the positions assumed by the Parties and the content of the documents attached (including the administrative file), as well as all applicable legal norms", dismissing that request for withdrawal.
1.20. The Respondent did not submit, within the period granted for that purpose, any written pleadings.
2. CAUSE OF ACTION
2.1. The Claimant intends with the presentation of the request for arbitral pronouncement "(…) the declaration of illegality of the denial of the administrative complaint presented and consequent annulment of the Single Circulation Tax assessment acts, relating to the years 2015, 2016 and 2017, in the amount of EUR 998.78 (…)".
2.2. The Claimant begins by clarifying that "on 24 June 2015, (…) proceeded with the purchase and registration of a vehicle of the brand ..., model ..., with the registration number ...", and "the respective vehicle was acquired by the previous owner in the year 1999, in a (…) Member State (Germany), having obtained national registration resulting from the importation process in 2009".
2.3. The Claimant states that "(…) proceeded with the assessment of Single Circulation Tax nº 2015..., nº 2016 ... and nº 2017..., relating to the respective vehicle, to which Category B of Single Circulation Tax was assigned, in a total of EUR 998.78, relating to the years 2015, 2016 and 2017".
2.4. It continues by stating that "on 19 September 2018, (…) presented an administrative complaint to the Head of the Finance Service, of the assessment acts (…) identified" with the "(…) following grounds":
2.4.1. "The said vehicle, object of taxation, has been my property since the year 2015, having obtained national registration resulting from the importation process in 2009, being the first registration, obtained in a (…) Member State (…)", in 1999;
2.4.2. "The respective vehicle classified in Category B of Single Circulation Tax is not on equal footing with other vehicles of the same brand, model, engine displacement, combustion mode and age that have always had the same national registration and are classified in Category A of Single Circulation Tax", resulting from this "(…) higher taxation on this vehicle".
2.5. Indeed, according to the Claimant's argument, "(…) the vehicle in question is burdened with a value more than double that attributed to identical vehicles with first national registration".
2.6. The Claimant understands that "it would thus be violative of the law to support the understanding of the Finance Service that what matters is the date of registration in the Portuguese State, because if this were understood, the Portuguese State would be treating identical vehicles differently, but differentiating them based on the nationality of the first registration date".
2.7. And, according to the Claimant, "it is also this understanding that derives from the judgment of the Court of Justice of 17 April 2018, related to case C-640/17, where it is declared that article 110 of the TFEU must be interpreted as opposing the regulations of a Member State by virtue of which the Single Circulation Tax is established and levied on light passenger motor vehicles registered in that Member State without taking into account the date of first registration of a vehicle, when this was carried out in another Member State, with the consequence that the taxation of vehicles imported from another Member State is higher than that of similar non-imported vehicles".
2.8. The Claimant continues by stating that it was notified on 8 January 2019 of the decision denying the administrative complaint presented regarding the Single Circulation Tax assessments identified, a decision with which it does not agree.
2.9. Indeed, the Claimant understands that "(…) the request for annulment of the Single Circulation Tax assessment acts for the years 2015, 2016 and 2017 of the vehicle with registration number ... (…)" is proven and legitimate, requesting "(…) thus that everything can be and is corrected through this request and in the interest of desired Justice, assigning the appropriate Category A under Single Circulation Tax".
3. RESPONDENT'S REPLY
By Exception
3.1. The Respondent, in its Reply, raised the following exceptions:
a) Lack of passive standing of the Tax Authority;
b) Lack of jurisdiction of the Arbitral Tribunal ratione materiae;
c) Impropriety of the procedural means employed;
d) Lack of jurisdiction of the Arbitral Tribunal ratione materiae, in order to appreciate the Single Circulation Tax assessment of the year 2015;
e) Unsuitability of the procedural means with respect to the assessment of the year 2015;
f) Annulment in totum of the Single Circulation Tax assessments.
Lack of Passive Standing of the Tax Authority
3.2. In this regard, the Respondent argues that "(…) the request and the cause of action contained in the request for arbitral pronouncement, as configured by the Claimant, concern exclusively the classification of the vehicle in the Categories of Single Circulation Tax" and, "(…) in view of the request and the cause of action, it implies that there is a pressing interest in acting (contesting) on the part of the Institute of Mobility and Transport, I.P. (IMT), in this proceedings, insofar as only the IMT could have knowledge of the facts relating to the integration of vehicles in the different categories".
3.3. And, even though the Respondent recognizes that "(…) it falls to the Respondent entity to proceed with the issuance of Single Circulation Tax assessments, however the question as configured by the Claimant does not rest with the illegality of the assessment, stricto sensu, but, rather, with the classification of the vehicle in question under Category B", reiterating "(…) from the outset that the Respondent entity does not possess any attributes or competencies regarding the classification of the various categories of motor vehicles".
3.4. Thus, the Respondent concludes that "(…) it cannot be imputed to it any eventual error in the classification of Category B of the vehicle in question" but, "(…) should the alleged error subsist, it will always be imputable to the IMT (…)" reiterating "(…) the lack of standing of the (…) Respondent with respect to the request for classification formulated by the Claimant".
3.5. Should this not be the understanding, the Respondent comes to request "(…) the main intervention of IMT in order to contest this request for arbitral pronouncement with respect to the classification of the vehicle in Category B".
Lack of Jurisdiction of the Arbitral Tribunal ratione materiae
3.6. In this regard, the Respondent understands that "(…) although the Claimant raises the illegality of the Single Circulation Tax assessments, the request and the cause of action concern exclusively the incorrect classification of the vehicle under Category B", "and, in that endeavor, the Arbitral Tribunal is materially incompetent to settle the claim put forward by the Claimant, the legality or illegality of the act of classification of the vehicle in Category B, rather than Category A", given "(…) the scope of tax arbitral jurisdiction (…) delimited by the provisions of Art. 2 of the RJAT".
3.7. And, "(…) being materially incompetent to appreciate such request (…)", the Respondent considers that it is "(…) an exception that is dilatory and prevents the tribunal from knowing the merits of the case (…)".
Impropriety of the Procedural Means Employed
3.8. In this matter, the Respondent understands that "(…) it is not a ground for judicial challenge or for a request for arbitral pronouncement to examine the incorrect classification of vehicle categories for Single Circulation Tax purposes", concluding that "(…) the request for arbitral pronouncement does not constitute the appropriate procedural means to examine the legality of the classification of the vehicle in Category B", concluding that this impropriety of the procedural means "(…) constitutes a dilatory exception that leads to the absolution of the Respondent entity (…)".
Lack of Jurisdiction of the Arbitral Tribunal ratione materiae, in Order to Appreciate the Single Circulation Tax Assessment of the Year 2015
3.9. The Respondent states that "(…) as results from the express denial of the administrative complaint, with respect to Single Circulation Tax of the year 2015 the Respondent entity argued for its untimeliness (…)".
3.10. Thus, the Respondent understands that "(…) the Arbitral Tribunal is materially incompetent to appreciate the legality of the assessment relating to the year 2015, insofar as the Respondent entity never pronounced itself on the legality of that act, but only and solely on its untimeliness", "(…) which constitutes a dilatory exception preventing the tribunal from knowing the merits of the case (…)".
Unsuitability of the Procedural Means with Respect to the Assessment of the Year 2015
3.11. In this matter, the Respondent states that "(…) if the Claimant did not accept the denial of the administrative complaint, which deemed untimely the 2015 assessment, it could have resorted to Administrative Action, in order to appreciate the illegality of the denial of the 2015 assessment for untimeliness".
3.12. But, "being certain that the Claimant never reacted or raised any argumentative line in order to refute the denial of the administrative complaint with respect to the 2015 assessment for untimeliness", the Respondent understands that "(…) the request for arbitral pronouncement does not constitute the appropriate procedural means, which constitutes a dilatory exception that leads to the absolution of the Respondent entity (…)".
Annulment in Totum of the Single Circulation Tax Assessments
3.13. In this matter, the Respondent understands that "(…) the Claimant does not seek the annulment for the years in question of the Single Circulation Tax assessments, but rather seeks the partial annulment as a function of the classification of the vehicle under Category A" for which reason it argues that "(…) should that tribunal argue for jurisdiction to settle this dispute in view of the request as configured by the Claimant, it can never determine the annulment in limine of the Single Circulation Tax assessments for the years in question".
By Challenge
3.14. In this regard the Respondent states that "(…) it results in obvious fashion that, when the vehicle was first brought into consumption in 2009 (…), the importer appears in the register as the first owner of the vehicle and in that sense is (…) the passive subject of tax, and Single Circulation Tax is assessed to it based on the Motor Vehicle Category that comes to be defined by the IMT".
3.15. And, since "(…) the taxable event under Single Circulation Tax (…) is assessed in accordance with Art. 6 of the Single Circulation Tax Code by registration or entry in national territory", "the attribution, when importing the vehicle from a Member State of the EU and the issuance of a registration certificate, constitutes (…) the taxable event of the tax being the same registered in its name, and from that date forward are met the prerequisites of the taxable event of Single Circulation Tax, as well as its chargeability, in view of the Category determined by the IMT".
3.16. "And this, as follows from the law, regardless of whether the vehicles have been registered before the entry into force of the Single Circulation Tax Code in the importing country", "because (…) the provisions of the Single Circulation Tax Code are applicable as of 01.07.2007, and the tax legislator has not established any safeguard clause for situations in which vehicles imported and brought into consumption after the entry into force of the Single Circulation Tax Code, but which have previously been registered, are exempt from tax".
3.17. Indeed, the Respondent reiterates that "from the exemptions established by the tax legislator under Single Circulation Tax in Art. 5, there is no apparent existence of any type of exemption for vehicles imported from the EU, after the entry into force of the Single Circulation Tax Code (…) and that have been brought into consumption after that date, notwithstanding the fact that the vehicle was registered in the importing country on a prior date".
3.18. The Respondent thus understands that "(…) the Single Circulation Tax assessments are in clear consonance with the law (…) and with compliance with the classification of the vehicle in Category B carried out by the IMT".
3.19. Thus, the Respondent concludes that "(…) the Single Circulation Tax assessment acts are not affected by any illegality, and the Respondent entity is manifestly unrelated to the classification of the vehicle under Category B, the assessment acts having been issued based on the information provided by the IMT", and the arguments presented by the Claimant are not supported.
3.20. Additionally, the Respondent states that "(…) the legal prerequisites conferring the right to compensatory interest are not met" (even though the Claimant does not request them in the arbitral request).
4. CASE MANAGEMENT ORDER
4.1. The Tribunal is materially competent to appreciate the requests with respect to the appreciation of the (il)legality of the denial of the administrative complaint presented, as well as with respect to the appreciation of the (il)legality of the Single Circulation Tax assessments relating to the years 2016 and 2017, being regularly constituted in accordance with article 2, nº 1, paragraph a), articles 5 and 6, all of the RJAT (see analysis of the exception of lack of jurisdiction of the Arbitral Tribunal ratione materiae, raised by the Respondent, in Chapter 6 - Preliminary Matters).
4.2. The parties have legal personality and capacity to be sued, are legitimate with respect to the request for arbitral pronouncement, in accordance with the provisions of articles 4 and 10 of the RJAT and article 1 of Regulation nº 112-A/2011 of 22 March, with the Respondent being duly represented and the Claimant pleading in its own right, in accordance with the provisions of articles 40 and 42 of the CPC, applicable by virtue of article 29 of the RJAT (see analysis of the exception of lack of passive standing of the Respondent, raised by this one, in Chapter 6 - Preliminary Matters).
4.3. The joinder of requests made by the Claimant is legal and valid, in accordance with the provisions of article 3, nº 1 of the RJAT, given that the well-foundedness of the requests depends essentially on the appreciation of the same factual circumstances and on the interpretation and application of the same principles or rules of law.
4.4. The request for arbitral pronouncement is untimely (see analysis of the exception of untimeliness of the request, raised of its own motion by the Arbitral Tribunal, in Chapter 6 - Preliminary Matters).
5. FINDINGS OF FACT
5.1. Preliminarily, and with respect to the findings of fact, it is important to note that the Tribunal does not have to pronounce on everything that was alleged by the Parties, it being its duty, rather, to select the facts that matter for the decision and to discriminate the proven facts from the unproven ones [cf. article 123, nº 2, of the Tax Code of Procedure (CPPT) and article 607, nºs 3 and 4, of the CPC (applicable by virtue of article 29, nº 1, paragraphs a) and e) of the RJAT].
5.2. Thus, the facts relevant to the judgment of the case are chosen and delineated based on their legal relevance, which is established in attention to the various plausible solutions of the question(s) of Law.
Of the Proved Facts
5.3. On 24 June 2015, the Claimant purchased and registered a used motor vehicle of the brand ..., model ..., with the registration number....
5.4. The vehicle identified in the previous point was first registered in 1999 in another Member State (Germany).
5.5. Following a legalization process, the said vehicle was registered in Portugal in 2009 by the previous owner.
5.6. For Single Circulation Tax purposes, the said vehicle was classified in Category B of Single Circulation Tax.
5.7. The Claimant, for the years 2015, 2016 and 2017, effected payment of the following Single Circulation Tax assessments relating to the vehicle identified above:
YEAR ASSESSMENT Nº PAYMENT DEADLINE AMOUNT DATE OF PAYMENT
2015 2015 ... 30-11-2015 330.94 09-11-2015
2016 2016 ... 30-11-2016 332.59 09-11-2016
2017 2017 ... 30-11-2017 335.25 09-11-2017
TOTAL 998.78
5.8. On 19 September 2018, the Claimant presented an administrative complaint (nº ...2018...) relating to the assessment acts identified in the previous point, with the following grounds:
"(…). The respective vehicle classified in Category B of Single Circulation Tax is not on equal footing with other vehicles of the same brand, model, engine displacement, combustion mode and age that have always had the same national registration and are classified in Category A of Single Circulation Tax. From this fact results thus higher taxation on this vehicle. (…) Any vehicle of equal brand, model, engine displacement, combustion mode and age, which has always had national registration, and which for that reason is classified in Category A of Single Circulation Tax (…). Thus it results that the vehicle in question is burdened with a value more than double that attributed to identical vehicles with first national registration".
5.9. The Claimant was notified on 7 November 2018, through Office nº 2018 ..., of 31 October 2018, of the draft order denying the administrative complaint identified in the previous point, made on the basis of the following information:
"With respect to the year 2015 (…), the administrative complaint is untimely". With respect to the years 2016 and 2017, "(…) being the date of registration in Portugal – 2009/12/02, the vehicle is classified in Category B of taxation", concluding that it is "(…) to maintain the assessments now complained of, denying the (…) administrative complaint".
5.10. The Claimant was further notified through the said Office to exercise, if it wished, within a period of 15 days, the right to a prior hearing on the said decision to deny the complaint.
5.11. The Claimant presented on 7 November 2018 in the tax portal a hierarchical appeal but "given that the period for decision on the administrative complaint had not elapsed, the complainant could not presume tacit denial, for which reason it seems to us that the complainant intended to exercise the right to hearing for which it had been notified. Thus, the pleading was attached to the file and analyzed under the exercise of participation before the final order was pronounced".
5.12. Under the right to hearing referred to in the previous point, the Claimant came to reiterate that "it does not agree with the projected order", again referred to "the judgments rendered in proceedings of the CJEU and CAAD, where analogous questions were evaluated, and where the well-foundedness of the request was decided" and stated that "it does not seek the grant of the benefit provided for in Art. 5 of the Single Circulation Tax Code, but rather the classification in Category A of taxation".
5.13. The Claimant was notified on 8 January 2019 through Office nº 2018... of the order denying the administrative complaint presented, with the following grounds:
"(…) there being no new facts or elements capable of altering the sense of the draft order and given that the prerequisites for the classification of the vehicle in Category B of taxation are met, I deny the request".
Reasoning regarding the Facts
5.14. With respect to the proved facts, the conviction of the Arbitral Tribunal was based, in addition to the free appraisal of the positions assumed by the Parties (on factual matters), on the content of the documents attached by both Parties to the file, as well as on the analysis of the administrative file sent by the Respondent.
Of the Unproved Facts
5.15. No facts were found as unproved with relevance for the arbitral decision.
6. MATTERS OF LAW
6.1. With the findings of fact established, it is now necessary to determine the applicable law to the underlying facts, according to the questions to be decided.
6.2. In the proceedings, the requests formulated by the Claimant are to the effect that the order denying the administrative complaint presented regarding the Single Circulation Tax assessments identified be annulled, in the total amount of EUR 998.78, as well as the annulment of the said tax assessment acts on the ground that they are allegedly illegal.
Preliminary Matters
6.3. Preliminarily, considering that the Respondent raised various exceptions in its Reply and this Arbitral Tribunal of its own motion raised the exception of untimeliness of the request, it becomes necessary to begin by analyzing them because the well-foundedness of any of these exceptions will have consequences on the tribunal's knowledge of the merits of the arbitral request.
6.4. In the case, recall that the Respondent raised in its Reply the following exceptions:
a) Lack of passive standing of the Tax Authority;
b) Lack of jurisdiction of the Arbitral Tribunal ratione materiae;
c) Impropriety of the procedural means employed;
d) Lack of jurisdiction of the Arbitral Tribunal ratione materiae, in order to appreciate the Single Circulation Tax assessment of the year 2015;
e) Unsuitability of the procedural means with respect to the assessment of the year 2015;
f) Annulment in totum of the Single Circulation Tax assessments.
6.5. In accordance with the provisions of article 576, 1 of the CPC, "exceptions are dilatory or peremptory", and in accordance with its nº 2 "dilatory exceptions prevent the tribunal from knowing the merits of the case and result in the absolution of the instance or remission of the proceedings to another tribunal" and in accordance with its nº 3 "peremptory exceptions result in the total or partial absolution of the request and consist of the invocation of facts that prevent, modify or extinguish the legal effect of the facts pleaded by the plaintiff".
6.6. Article 577 of the CPC states that "dilatory exceptions are, among others, the following:
a) The incompetence, whether absolute or relative, of the tribunal;
b) The nullity of the entire proceedings;
c) The lack of legal personality or judicial capacity of any of the parties;
d) The lack of authorization or deliberation which the plaintiff should obtain;
e) The lack of standing of any of the parties;
f) The joinder of plaintiffs or defendants, when there is not the connection required in article 36 between the requests;
g) The subjective plurality subsidiary, outside the cases provided for in article 39;
h) The failure to appoint a lawyer by the plaintiff in the proceedings referred to in nº 1 of article 40, and the lack, insufficiency or irregularity of judicial representation by the representative who brought the action;
i) Lis pendens or res judicata".
6.7. Articles 578 and 579 of the CPC state (respectively) that "the tribunal must know of dilatory exceptions of its own motion, except for absolute incompetence resulting from the violation of a pact of exclusive jurisdiction or the preclusion of a voluntary arbitral tribunal and relative incompetence in cases not covered by the provisions of article 104" and "the tribunal knows of its own motion of peremptory exceptions whose invocation the law does not make dependent on the will of the interested party".
6.8. In the previous version of the CPC, the legislator imposed, in article 510, that knowledge of dilatory exceptions should be effected in accordance with the order established in the previous article 288 (current article 278), both of the CPC.
6.9. However, although the legislator of the currently applicable CPC has not expressly maintained that order of knowledge of dilatory exceptions, the truth is that knowledge of procedural prerequisites should continue to be effected in accordance with a certain logical precedence.
6.10. Thus, in the case of various dilatory exceptions that determine absolution of the instance, the Judge should appreciate, first, those that concern the Tribunal (as is the case of absolute incompetence) and only afterwards those that refer to the parties, by order of "gravity" of the same.
6.11. On the other hand, in consonance with the provisions of nº 2 of article 608 of the CPC, "the judge must resolve all questions which the parties have submitted to his appreciation, excepted those whose decision is prejudiced by the solution given to others; it cannot occupy itself except with questions raised by the parties, except if the law permits or imposes it to know of its own motion of others" (emphasis added).
6.12. In this regard, it has been understood that, in these situations, it is important not to confuse questions posed by the parties with the arguments or reasons which they put forward in order to decide these questions in this or that manner.
6.13. Indeed, the questions submitted to the appreciation of the Tribunal are identified with the requests formulated, with the cause of action or with the exceptions invoked, provided they are not prejudiced by the solution of merit found for the dispute.
6.14. Different from the questions to be settled are the arguments, the legal reasons alleged by the parties in defense of their viewpoints, which do not constitute questions within the meaning of article 608, nº 2 of the CPC.
6.15. Mindful of these rules, let us first analyze the exception of lack of jurisdiction of the Arbitral Tribunal ratione materiae raised by the Respondent.
Exception of Lack of Jurisdiction of the Arbitral Tribunal ratione materiae
6.16. In this regard, as was the case in the previous CPC, the exception of lack of jurisdiction of the Arbitral Tribunal ratione materiae, by its very nature, must necessarily be the first dilatory exception to be known because from its appreciation follows the very jurisdiction of the Tribunal to decide the action, in obedience to the criteria of specialization of matters which the legislator understood to merit special configuration.
6.17. Indeed, as is well known, the dilatory exception of material incompetence of the tribunal, if it holds, prevents it from knowing the merits of the case, resulting in the absolution of the defendant from the instance [see articles 60, nº 2, 96, 97, 99, nº 1, 278, nº 1, para. a), 576, nºs 1 and 2 and 577, para. a), all of the CPC].
6.18. The jurisdiction of the tribunal, as we have seen, constitutes a procedural prerequisite and is thus one of the elements on whose verification depends the duty of the judge to pronounce a decision on the request formulated, granting or denying the claim put forward.
6.19. The jurisdiction of the tribunal, like any other procedural prerequisite, is assessed in relation to the object presented by the plaintiff (request and cause of action), with jurisdiction ratione materiae concerning the various types of tribunals, common or special, with the norms delimiting the jurisdiction of these tribunals being established in accordance with the matter or object of the dispute.
6.20. In the arbitral request, the Claimant seeks that the "(…) illegality of the denial of the administrative complaint presented and consequent annulment of the Single Circulation Tax assessment acts, relating to the years 2015, 2016 and 2017, in the amount of EUR 998.78 (…)" be declared.
6.21. In this regard, recall that the Claimant bases its claim by stating that the vehicle on which the Single Circulation Tax assessments fell, having been "(…) classified in Category B of Single Circulation Tax, is not on equal footing with other vehicles of the same brand, model, engine displacement, combustion mode and age that have always had the same national registration and are classified in Category A of Single Circulation Tax", resulting from this "(…) higher taxation on this vehicle".
6.22. And according to the Claimant "it would thus be violative of the law to support the understanding of the Finance Service that what matters is the date of registration in the Portuguese State, because if this were understood, the Portuguese State would be treating identical vehicles differently (…) differentiating them based on the nationality of the first registration date".
6.23. The Respondent in its Reply invoked the exception of material incompetence of the Arbitral Tribunal to know the legal claim formulated by the Claimant because it alleges that "(…) although the Claimant raises the illegality of the Single Circulation Tax assessments, the request and the cause of action concern exclusively the incorrect classification of the vehicle under Category B", "and, in that endeavor, the Arbitral Tribunal is materially incompetent to settle the claim put forward by the Claimant (…)", given "(…) the scope of tax arbitral jurisdiction (…) delimited by the provisions of Art. 2 of the RJAT" (emphasis added).
6.24. On the other hand, the Respondent further understands that the Arbitral Tribunal lacks jurisdiction ratione materiae to appreciate the Single Circulation Tax assessment of the year 2015 because "(…) as results from the express denial of the administrative complaint, with respect to Single Circulation Tax of the year 2015 the Respondent entity argued for its untimeliness (…)" and, in these terms, the Respondent understands that "(…) the Arbitral Tribunal is materially incompetent to appreciate the legality of the assessment relating to the year 2015, insofar as the Respondent entity never pronounced itself on the legality of that act, but only and solely on its untimeliness".
6.25. In defense against the exception of incompetence raised by the Respondent, the Claimant came to state, in summary, that "since it is readily apparent that vehicles of the same brand, model, year and combustion mode, having identical use, will produce identical environmental and road costs (…), it is not acceptable that they be taxed differently, with a distinction between vehicles with first national registration and used imports from other member states. There would thus be a violation of the law, of article 1 of the Single Circulation Tax Code. In accordance with art. 99 of the CPPT which establishes the grounds for judicial challenge, in similarity with that established between judicial challenge and request for arbitral pronouncement, one should conclude the jurisdiction of this Arbitral Tribunal ratione materiae".
6.26. With respect to the exception raised by the Respondent that the Arbitral Tribunal lacks jurisdiction ratione materiae to appreciate the Single Circulation Tax assessment of the year 2015, the Claimant came to state, in summary, that "(…) the Administrative Complaint was presented against (…) self-assessments of Single Circulation Tax of 2015, 2016 and 2017" and taking into account that "article 48, nº 1 of the General Tax Law defines that tax debts prescribe within a period of 8 years, and (…) that the right to assess taxes lapses within a period of 4 years if the taxpayer is not notified within that period", "(…) the Claimant in possession of the CJEU judgment and knowing that the law allows the Tax Authority to notify taxpayers up to a maximum period of 4 years, proceeded with the administrative complaint encompassing self-assessments since 2015 based on the said maximum period of 4 years, given that, for reasons of equity and transparency, it assumed that the same period would be applied to taxpayers".
6.27. In this matter, as to the analysis of the well-foundedness of the said exception, it should be stated that, in accordance with the provisions of paragraph a) of nº 1 of article 97 of the CPPT, "the tax judicial process comprises the challenge of the assessment of taxes, including parafiscal taxes and the acts of self-assessment, withholding at source and payment on account" (emphasis added).
6.28. And, as referred by Counselor Jorge Lopes de Sousa (in "Tax Code of Procedure", Volume II, Áreas Editora, Note 18 to article 97 of the CPPT, page 53 et seq.), "(…). From this article it is clearly apparent that, in cases where the act to be challenged is an assessment act (…), the appropriate means is the process of challenge. (…)".
6.29. However, as regards the jurisdiction of Arbitral Tribunals, in accordance with the provisions of article 2 of the RJAT, this comprises, for what this case is concerned, "the declaration of illegality of acts of assessment of taxes (…)" (emphasis added).
6.30. Additionally, article 95, nº 1 of the General Tax Law (LGT) provides that "the interested party has the right to challenge or appeal from any act that harms its rights and legally protected interests, in accordance with the forms of process prescribed by law", and may be harmful, by virtue of its nº 2, in particular "the assessment of taxes (…)" (emphasis added).
6.31. Thus, it follows from the legal framework transcribed above that, in general terms, the claim for a declaration of illegality of assessment acts may be the object either of judicial challenge or of a request for arbitral pronouncement.
6.32. Having come to this point, and in view of the above, this Arbitral Tribunal understands that it is generally competent to know of the claim formulated by the Claimant, that is, it has jurisdiction to evaluate and decide whether the Single Circulation Tax assessments, relating to the motor vehicle identified in the proceedings, are or are not affected by the defect of illegality.
6.33. In these terms, in view of the above, the dilatory exception of lack of jurisdiction of the Arbitral Tribunal ratione materiae invoked by the Respondent should fail, with respect to the request to appreciate the legality of the denial of the administrative complaint presented with respect to the Single Circulation Tax assessments of the years 2016 and 2017, as well as with respect to the request to appreciate the legality of the Single Circulation Tax assessments of those years.
6.34. However, the jurisdiction of the Arbitral Tribunal ratione materiae will be prejudiced with respect to the appreciation of the legality of the Single Circulation Tax assessment of the year 2015 because, in the administrative complaint proceeding, the Respondent never pronounced on the legality of that act but only on its untimeliness.
6.35. Indeed, in accordance with the provisions of article 97, nº 2, paragraph p) of the CPPT, as written by Counselor Jorge Lopes de Sousa, in the work cited (see above point 6.29.), "(…) judicial challenge will only be the appropriate procedural means when the act to be challenged actually contains an appreciation of an assessment act. If in the act practiced (…) no appreciation of the legality of an assessment act was reached, due to some obstacle to such knowledge [such as untimeliness (…)], the appropriate means of challenge will be a special administrative action (…), because it will concern an act that does not appreciate the legality of an assessment act" (emphasis added).
6.36. In these terms, in view of the above, the Arbitral Tribunal considers itself incompetent ratione materiae to know of the request to appreciate the legality of the Single Circulation Tax assessment of the year 2015.
Lack of Passive Standing of the Tax Authority
6.37. In this regard, the Respondent argues that "(…) the request and the cause of action contained in the request for arbitral pronouncement (…) concern exclusively the classification of the vehicle in the Categories of Single Circulation Tax" and, "(…) in view of the request and the cause of action, it implies that there is a pressing interest in acting (contesting) on the part of the Institute of Mobility and Transport, I.P. (IMT), in these proceedings, insofar as only the IMT could have knowledge of the facts relating to the integration of vehicles in the different categories" and that "(…) the Respondent entity does not possess any attributes or competencies regarding the classification of the various categories of motor vehicles", concluding by the "(…) lack of standing of the Respondent entity with respect to the request for classification formulated by the Claimant" (emphasis added).
6.38. Indeed, in substantive law, the concept of standing refers to the relationship between the subject and the object of the legal act, generally postulating the coincidence between the subject of the legal act and the holder of the interest put at issue by it.
6.39. As a procedural prerequisite (general), or necessary condition for the pronouncement of a decision on the merits, in adjective law the same concept expresses the relationship between the party in the proceedings and the object thereof (the claim or request) and, therefore, the position which the party must have so that it can take up the request, putting it forward or contesting it.
6.40. As in substantive law, it will be necessary to assess, as a rule, by the ownership of the interests at stake (in the proceedings), in accordance with the criterion stated in nº 1 and 2 of article 30 of the current CPC, that is, in function of the direct interest (and not indirect or derived) in bringing an action, expressed by the legal advantage that will result for the plaintiff from the well-foundedness of the action, and the direct interest (and not indirect or derived) in contesting, expressed by the legal disadvantage that will result for the defendant from its loss (or, considering the res judicata formed by the absolution of the request, by the legal advantage that will result for the defendant from it).
6.41. Still within the rule stated in the cited nº 1 and 2 of article 30 of the current CPC, the ownership of the interest in bringing an action and the interest in contesting is ascertained, whenever the request affirms (or denies) the existence of a legal relationship, by the ownership of the legal situations (right, duty, subjection, etc.) that integrate it.
6.42. Nº 3 of article 30 of the current CPC provides that "absent indication of the law to the contrary, those considered holders of the interest relevant for the purpose of standing are the subjects of the relationship as configured by the plaintiff".
6.43. In accordance with the prevailing thesis (as well synthesized by Lebre de Freitas, João Redinha and Rui Pinto), the ascertainment of standing is concerned only with the consideration of the request and the cause of action, independently of proof of the facts that integrate the latter.
6.44. Having made these legal considerations, it is necessary to analyze the requests formulated by the Claimant with the objective of assessing the passive standing of the Respondent in each of them:
6.44.1. Declaration of illegality of the order denying the administrative complaint presented;
6.44.2. Declaration of illegality of the Single Circulation Tax assessment acts identified in the proceedings.
6.45. In this regard, it will be important to answer some questions in order to better define who has an interest in being sued in the proceedings, taking into account the requests made by the Claimant.
6.46. Did the Respondent have standing to proceed with the Single Circulation Tax assessment of the years in question? And to proceed with its annulment?
6.47. As to the standing of the Respondent to be sued with respect to the requests referred to in point 6.44 above, giving an affirmative answer to the questions formulated in the previous point, it is necessary to analyze the arguments presented below.
6.48. In accordance with the provisions of article 2 of Law nº 22-A/2007 of 29 June (regulation approving the Single Circulation Tax Code), "the competence regarding the administration of Single Circulation Tax falls (…) to the Directorate-General of Taxes (…)", with this entity, in accordance with the provisions of article 5 thereof, "(…) having celebrated protocols with the IRN and IMTT (…), for the purpose of exchanging information necessary for the assessment and supervision (…) of Single Circulation Tax".
6.49. Additionally, in accordance with the provisions of article 16, nº 1 of the respective Code, "the competence for the assessment of Single Circulation Tax is of the Tax and Customs Authority (…)".
6.50. Thus, with respect to the requests formulated (see above point 6.44.) by the Claimant, the answers are affirmative to give to the questions formulated above in point 6.46 that the Respondent had standing to proceed with the Single Circulation Tax assessment of the years in question and, in these terms, with the competence to administer the tax, it will also have standing to proceed with the annulment of those assessments.
6.51. Accordingly, the exception of lack of passive standing of the Respondent with respect to the requests formulated by the Claimant fails to hold, as does the request for main intervention of the IMT.
Exception of Untimeliness of the Request
6.52. Having analyzed the exception of lack of jurisdiction of the Arbitral Tribunal ratione materiae, as well as the exception of lack of passive standing of the Tax Authority, both raised by the Respondent, and none of them having rendered the knowledge of the entire arbitral request impossible, it is now necessary to analyze the exception of untimeliness of the request, raised of its own motion by the Arbitral Tribunal.
6.53. Considering that the untimeliness of the request constitutes a peremptory exception, in accordance with article 576 of the CPC (applicable subsidiarily by article 29 of the RJAT), which if it holds will result in the total or partial absolution of the Respondent with respect to the request presented, since it prevents the legal effect of the facts pleaded by the Claimant, the Arbitral Tribunal came to raise of its own motion that exception in the arbitral order dated 14 May 2019, because it understood that, given the factuality underlying the request, "(…) pertinently for the arbitral process, [it was] necessary to assess the (in)timeliness of the complaint lodged against the Single Circulation Tax assessments which are the object of the request (year 2015, 2016 and 2017), the issue being to determine whether the assessment of this tax constitutes a self-assessment carried out by the taxpayer or an act within the competence of the tax authorities, given that the periods for lodging the said administrative complaint will be different. In these terms, taking into account that the deadlines for payment of the Single Circulation Tax assessments in dispute were, respectively, 30-11-2015, 30-11-2016 and 30-11-2017, in the case of it being considered that we are dealing with assessment acts, the period provided for lodging that complaint was, on 19-09-2018, widely exceeded for all the Single Circulation Tax assessments which are the object of the arbitral request and not only for the 2015 Single Circulation Tax assessment. (…)".
6.54 Notified to pronounce itself on this possible exception, the Claimant came to state in a Pleading dated 16 May 2019 that "regarding Single Circulation Tax assessments 2016 and 2017, the Tax Authority itself, through Office nº 2018... (…) states that from the analysis of the admissibility requirements of the administrative complaint, it is found that (…) it was presented in time. The same office states that, regarding Single Circulation Tax 2015, as of the date of presentation of the complaint, the period of two years had already elapsed. However, as was (…) cited, articles 48 nº 1 and 45 nº 1 of the General Tax Law contemplate the possibility of the Tax Authority notifying regarding debts, in particular Single Circulation Tax, within a maximum period of 4 years. On that basis, having considered the principle of equity, the Single Circulation Tax assessments for 2015 were also referred to in the administrative complaint, given that the period of 4 years had not been exceeded".
6.55. Through a pleading dated 27 May 2019, the Respondent came to respond to the matter of exception raised by the Arbitral Tribunal in the order of 14 May 2019, stating, in summary, that "from the factuality contained in the proceedings, it is extracted that the Claimant, in the administrative complaint proceeding, comes to argue the illegality of the Single Circulation Tax assessment acts nº 2015..., 2016 ... and 2017 ... relating to the years 2015, 2016 and 2017. (…) the assessments in question are undoubtedly assessments issued by the Respondent entity, and not self-assessments with tax appraisal effected by the Claimant. And, in that endeavor, the period for presenting a complaint of the assessment acts is subsumed under the general period of 120 days, to which reference is made in the provisions of Art. 70 of the CPPT, and not the period of 2 years to which reference is made in the provisions of Art. 131 of the CPPT. (…) For which reason, given that the administrative complaint was presented on 19.09.2018, it is ascertained that it is clearly untimely and, in that endeavor, it is irremediably precluded the possibility of the Tribunal knowing of its legality. (…)" concluding that "(…) the exception of untimeliness should be judged well-founded and proven (…)".
6.56. Indeed, with respect to determining the possible untimeliness of the arbitral request, taking into account that the object of this request concerns the declaration of illegality of the "(…) denial of the administrative complaint presented by the Claimant and the Single Circulation Tax assessment acts identified, relating to the years 2015, 2016 and 2017 (…)", it becomes necessary to analyze whether the administrative complaint presented on 19 September 2018 against the Single Circulation Tax assessments identified in the proceedings was or was not timely presented.
6.57. For the purpose of the provisions in the previous point, it is important to first analyze and decide whether, in general terms, a Single Circulation Tax assessment should be configured as a "self-assessment", the responsibility of the taxpayer (in this case, the Claimant) or whether it should be configured as a tax act within the competence of the Respondent, that is, an "assessment".
6.58. In this regard, article 16, nº 1 of the Single Circulation Tax Code provides, as has already been stated, that it is within the competence of the Tax Administration to assess the tax but its nº 2 states that "the assessment of the tax is made by the passive subject itself through the Internet, under the conditions of registration and access to electronic declarations".
6.59. Thus, in the case, would we be dealing with an assessment operation or with a true "self-assessment" operation? We understand that, for the reasons presented below, it is an assessment operation.
6.60. In the case of Single Circulation Tax, the procedure for assessing this tax is based on the use, by the Tax and Customs Authority, of elements contained in the databases of vehicles and motor vehicle ownership.
6.61. As a rule, the assessment of this tax operates through the use of the internet, via the Tax Portal, under the conditions of registration and access to electronic declarations (article 16, nº 2 of the Single Circulation Tax Code), with the use of this means being mandatory for legal persons, except in cases where, due to lack of elements, the assessment cannot be carried out electronically (which will occur, in particular, in cases where the vehicle is not included in those databases, because it is not registered in Portuguese territory or whenever there is error or omission of a taxable vehicle in the database, which does not allow the passive subject to assess the tax via the internet – see article 16, nº 3 of the Single Circulation Tax Code).
6.62. However, reserving the cases referred to in the previous point, and whenever the passive subject is a natural person (as is the case of the Claimant), recourse to assessment through the tax portal (via the internet) may be set aside, and the assessment may be requested by the passive subject at any finance service office open to the public (see article 16, nº 3 of the Single Circulation Tax Code).
6.63. Taking as reference the elements contained in the database, relating to the identification of the vehicle and characteristics relevant to the objective definition of the tax scope and application of the corresponding tax rate as well as of subjective scope, the Single Circulation Tax assessment, previously effected by electronic means, is capable of being printed by the same means, through the issuance of the competent tax collection document which, in addition to other elements relevant for payment, also contains the demonstration of the respective assessment (see article 16, nº 4 of the Single Circulation Tax Code).
6.64. Thus, in normal situations, it is up to the passive subject to take the initiative to provoke the assessment, through the internet, in the manner referred to above or at any finance service office, if this possibility should not be viable as a consequence of error or omission of the database or whenever the use of that means is not mandatory.
6.65. Notwithstanding, the reference to the circumstance that the assessment is made by the passive subject itself through the internet does not imply that there is a situation in which the assessment of the tax in question (determination of the amount of tax due based on the elements relevant to its quantification) is the competence of the passive subject, even though the assessment of the tax is, apparently, effected by the passive subject itself through the Internet, under the conditions of registration and access to electronic declarations (article 16, nº 2 of the Single Circulation Tax Code).
6.66. In truth, in the case of Single Circulation Tax, what happens is that the assessment operations are effected by electronic means managed by the Tax and Customs Authority, and it is not permitted to the passive subject to alter minimally any of the elements relevant to them.
6.67. However, the legislator's choice of intensive use of electronic means in the procedure for assessing this tax, resorting not only to the use of databases relating to the registration and recording of ownership of the vehicles subject to it but also to the electronic means made available to passive subjects as a means of fulfillment of the obligation, would not fail to raise some doubts as to functional competence to effect the assessment, in particular with respect to taxpayers' guarantees.
6.68. But this question was, from the outset, concisely resolved by the provisions of nº 1 of article 16 of the Single Circulation Tax Code, in accordance with which, let it be repeated, it is established that "the competence for the assessment is of the Tax and Customs Authority".
6.69. And, to dispel any doubts that might subsist, the said norm would be further subject to clarification, through Law nº 83-C/2013 of 31/12, in the sense that "for all legal purposes, the tax act practiced at the tax service of the residence or headquarters of the passive subject is considered".
6.70. In these terms, it is the Tax Authority which effects the determination of the amount to be paid by the passive subject which limits itself to printing the tax collection note of the amount determined, taking into account the dates for assessment and payment of the tax (see article 17 of the Single Circulation Tax Code), with the taxpayer performing no calculation operation of the tax to be paid.
6.71. Indeed, as referred by José Casalta Nabais, cited by the Respondent in its pleading dated 27-05-2019, "assessment lato sensu, that is, as the set of all operations intended to determine the amount of tax, comprises; 1) the subjective assessment intended to determine or identify the taxpayer or passive subject of the tax legal relationship, 2) the objective assessment through which the collectible or taxable matter of the tax is determined and, equally, the tax rate to be applied, in the case of plurality of rates is determined, 3) the assessment (stricto sensu) reflected in the determination of the collection through the application of the rate to the collectible or taxable matter, and 4) the (eventual) deductions from the collection".
6.72. Thus, we are not in the case of Single Circulation Tax dealing with a true "self-assessment" of tax, as happens for the purposes of VAT or corporate income tax (taxes in which the passive subject proceeds with all the operations leading to the determination of the tax to be paid or of the tax to be received), with the passive subject in the case of Single Circulation Tax limiting itself to printing the tax assessment note and proceeding with the payment of the amounts of Single Circulation Tax previously determined by the Tax Authority.
6.73. Indeed, not being dealing with "self-assessment" acts, but rather with assessment acts within the competence of the Tax Authority (Respondent), the period for an administrative complaint is that provided for in article 70, nº 1 of the CPPT, and thus the period of 2 years referred to in article 131 of the same Code is not applicable, contrary to what is stated in the Information attached to the order denying the administrative complaint presented by the Claimant.
6.74. In these terms, being assessments of tax, the period which the Claimant had to present the administrative complaint was 120 days counted from the end of the period for voluntary payment of tax payments, in accordance with the combined provisions of articles 68, 70 and 102 of the CPPT.
6.75. In the case, the Claimant presented on 19 September 2018 the administrative complaint nº ...2018... which encompassed the Single Circulation Tax assessments of the vehicle ... relating to the years 2015, 2016 and 2017, with the same having been denied with the following grounds:
"With respect to the year 2015 (…), the administrative complaint is untimely". With respect to the years 2016 and 2017, "(…) being the date of registration in Portugal – 2009/12/02, the vehicle is classified in Category B of taxation", concluding that "(…) the assessments now complained of are to be maintained, denying the (…) administrative complaint".
6.76. Indeed, given that the end of the period for voluntary payment of the said assessments was, respectively, 30-11-2015, 30-11-2016 and 30-11-2017, as of the date of lodging of the administrative complaint identified above (19-09-2018), the period of 120 days (counted in accordance with point 6.74 above) which the Claimant had to lodge the administrative complaint regarding the said Single Circulation Tax assessments had already been exceeded, being for this reason to be considered wholly untimely the said administrative complaint as to all the Single Circulation Tax assessments (2015, 2016 and 2017) and not only as to the 2015 Single Circulation Tax assessment.
6.77. In this regard, taking into account, in particular, the content of the Judgment of TCAN (proceeding nº 01584/09.3BEPRT) of 11-10-2017, in the sense that "only the timeliness of the administrative complaint opens to the complainant the possibility of discussing the legality of the challenged assessments, because the untimeliness of the complaint (…) leads to its necessary dismissal, since one then reacts against a decided or resolved case", as well as the content of the Judgment of TCAS (proceeding nº 07644/14) of 23-03-2017, in the sense that "with the administrative complaint out of time as of the date it was presented, in consequence and regardless of whether it was or was not decided, judicial challenge will also be untimely", the total untimeliness of the administrative complaint [not only as to the 2015 Single Circulation Tax assessment (as the Respondent defends in the order denying the same) but also as to the 2016 and 2017 Single Circulation Tax assessments] will have repercussions on the arbitral request for arbitral pronouncement (emphasis added).
6.78. Indeed, the timeliness of the request for arbitral pronouncement cannot be defended and justified on the basis of the denial of an untimely administrative complaint because, in that way, the path would be open to continue discussing the legality of tax acts with respect to which the respective periods of contestation have already ended.
6.79. Thus, contrary to what was provided for in the order of partial denial of the administrative complaint presented, it should have been considered as untimely with respect to the totality of the Single Circulation Tax assessments which were the object thereof (2015, 2016 and 2017).
6.80. From the matters referred to in the previous points it follows that the arbitral request presented by the Claimant relating to the Single Circulation Tax assessments of the years 2015, 2016 and 2017 should be declared untimely.
6.81. In these terms, this Arbitral Tribunal declares the exception of untimeliness of the request for arbitral pronouncement well-founded, absolving the Respondent of the arbitral request.
6.82. As a consequence of the previous point, the knowledge of the other exceptions raised by the Respondent becomes prejudiced (because it would prove useless).
Responsibility for Payment of Arbitral Costs
6.83. In accordance with the provisions of article 527, nº 1 of the CPC (by virtue of article 29, nº 1, paragraph e) of the RJAT), it should be established that the Party which gave cause to the costs shall be condemned to pay them, or, in the absence of a winner of the action, whoever derived benefit from the proceedings.
6.84. In
Frequently Asked Questions
Automatically Created