Summary
Full Decision
ARBITRAL DECISION
I. - REPORT
A - PARTIES
A… - …, LDA, a limited liability commercial partnership, legal entity no. …, with registered office at …, …, hereinafter referred to as "Claimant", filed a request for constitution of an arbitral tribunal, pursuant to the provisions of article 2.º, subsection a), number 1 and articles 10.º and following of Decree-Law no. 10/2011, of 20 January (Legal Framework for Arbitration in Tax Matters, hereinafter referred to as "RJAT"), with a view to adjudicating the following claim against it by the Tax and Customs Authority (which succeeded, among others, to the General Tax Office), hereinafter referred to as "Respondent" or "TA".
B - CLAIM
1 - The request for constitution of the arbitral tribunal was accepted by His Excellency the President of CAAD on 24 July 2014 and notified to the TA on 28 July 2014.
2 - The Claimant did not proceed to appoint an arbitrator, whereby, pursuant to the provisions of article 6.º, number 1 of the RJAT, the undersigned, on 10-09-2014, was designated by the Deontological Board of the Centre for Administrative Arbitration as arbitrator of a Single Arbitral Tribunal, having accepted in accordance with the legal provisions.
3 - The Parties were, on 10-09-2014, duly notified of such designation, having expressed no objection to it, pursuant to the combined provisions of subsections a) and b) of article 11.º, number 1, and articles 6.º and 7.º of the Deontological Code.
4 - In these circumstances, in accordance with the provisions of article 11.º, subsection c), number 1 of Decree-Law no. 10/2011, of 20 January, in the wording introduced by article 228.º of Law no. 66-B/2012, of 31 December, the arbitral tribunal was regularly constituted on 16-10-2014.
5 - On 07 April 2015, the meeting referred to in article 18.º of the RJAT took place, of which minutes were drawn up and filed with the case, both parties then waiving the presentation of written arguments, the Claimant being notified to file information regarding the dates of registration of the vehicles in question in the case file and regarding the breakdown of the economic value of the claim, and the Respondent being notified to file supplementary information on the evidence previously submitted.
6 - The Claimant now requests that this Arbitral Tribunal:
a) - Declare the illegality and consequent annulment of the acts of assessment relating to the Single Vehicle Circulation Tax (hereinafter referred to as "IUC"), concerning the years 2008 to 2012, relating to the vehicles identified in the case file and which are here given as fully reproduced;
b) - Condemn the TA to reimbursement of the tax that may be coercively and wrongfully paid;
c) - Declare the annulment of the administrative penalties associated with the non-payment of the amounts corresponding to the IUC assessments referenced in the present case;
C - CAUSE OF ACTION
7 - The Claimant, in the basis of its request for arbitral decision, asserts, in summary, the following:
8 - That it is a commercial partnership, whose principal activity consists of civil construction, the sale and transport of construction materials, decoration materials and tools and equipment for civil construction.
9 - That it sold four motor vehicles to the Dutch commercial company B…, with registrations ...-...-...; ...-...-...; ...-...-... and ...-...-..., registrations that regarding the one identified by ...-...-..., should be considered as referring to ...-...-..., as appears from the case file, which undoubtedly results from a manifest clerical error.
10 - That the first three vehicles, that is, those bearing registrations ...-...-...; ...-...-... and ...-...-... were sold on 30-06-2010, and the vehicle with registration ...-...-... was sold on 23-07-2007.
11 - That it was not notified by the TA of the ex officio IUC assessments for the years 2008 to 2013, although it is aware that tax enforcement proceedings have been instituted in which the amounts corresponding to the said assessments and the corresponding administrative penalties are being enforced, for non-payment of such amounts.
12 - That, in the year to which the IUC assessments aforementioned relate, it was no longer the owner of the motor vehicles with registrations ...-...-..., ...-...-...; ...-...-... and ...-...-..., given that, prior to the date when the said tax became due, the ownership of the vehicles had already been transferred, in accordance with civil law, to company B…,
13 - That the acquiree of the mentioned vehicles did not promptly effect their registration in the Motor Vehicle Registration Office, whereby the same continued to appear in that registry as being the property of the Claimant.
14 - That the essential function of motor vehicle registration is merely to give publicity to the legal situation of the vehicles, such registration constituting a rebuttable presumption that the right exists and belongs to the owner registered in the precise terms in which the registration defines it.
15 - That the rule contained in article 3.º, number 1 of the CIUC establishes a presumption which, as it concerns a rule on the subjective scope of taxation, can only be rebuttable, always admitting proof to the contrary, in accordance with article 73.º of the LGT.
16 - That the means of proof presented, relating to the sale of the vehicles in question, are supported by documents, namely copies of the sales invoices and copies of the vehicle transport guides to the facilities of the acquiree, which have in their favour the presumption of truthfulness conferred on them by article 75.º of the LGT.
D - RESPONDENT'S ANSWER
17 - The Respondent, Tax and Customs Authority, (hereinafter referred to as TA), filed its Answer on 18-11-2014, having attached a copy of the Tax Administrative File on 17-11-2014.
18 - In the said Answer, the TA raises the exception of expiry of the right to bring the request for arbitral decision, while defending that the acts of IUC assessment impugned do not suffer from any illegalities, which, in summary and in essence, is set out in the following:
BY EXCEPTION
AS TO THE LACK OF COMPETENCE OF THE ARBITRAL TRIBUNAL RATIONE MATERIAE
19 - The Respondent, although in the systematisation of its answer, does not explicitly configure as an exception the lack of competence of the Arbitral Tribunal ratione materiae, the fact is that it refers to it in several articles of the said answer. Indeed,
20 - It is the Respondent's understanding that the arbitral proceedings, given the provisions of article 2.º of the RJAT, have as their central object the declaration of illegality of tax acts, stressing that the said administrative penalties applied in the context of a tax administrative offence procedure do not constitute, on the one hand, a tax act and, on the other, cannot be adjudicated and decided upon by the Arbitral Tribunal due to lack of competence ratione materiae.
AS TO THE EXPIRY OF THE RIGHT OF ACTION
21 - The Respondent understands that no proof is made, on the part of the Claimant, either as to the dates of the IUC assessments, or as to the dates set for their voluntary payment.
22 - The TA also considers that the Claimant, although it alleges not having been notified of the ex officio assessments relating to the years 2008 to 2012, nevertheless states that it is aware, both of the tax enforcement proceedings in which the ex officio assessments at issue in the case file are enforced, and of the respective administrative penalties.
23 - The TA further considers that, regarding the vehicles with registrations ...-...-..., ...-...-... and ...-...-..., the Claimant was duly notified of the respective IUC assessments, the periods for voluntary payment of which ended in the years 2012 and 2013, whereby the request for arbitral decision presented at CAAD on 22-07-2014, as far as the aforesaid vehicles are concerned, can only be considered untimely.
BY IMPUGATION
24 - The TA also understands that the allegations of the Claimant to the effect that it is not the passive subject of the IUC, given that, on the one hand, it considers that it sold the vehicles with registrations ...-...-..., ...-...-... and ...-...-... on 30-06-2010, and the vehicle with registration ...-...-... on 24-07-2007 and, on the other, it understands that the rule on subjective scope of taxation inscribed in article 3.º, number 1 of the CIUC admits that the person in whose name the vehicle is registered may demonstrate that it is not its owner on the date to which the tax relates, cannot at all proceed. Indeed,
25 - The tax legislator, in identifying in article 3.º, number 1 of the CIUC who are the passive subjects of the IUC, expressly and intentionally established that these are the owners of the vehicles, considering as such the persons in whose names the same are registered. (See article 17.º of the Answer)
26 - The said legislator did not use the expression "it is presumed" as it could have done, for example, in the following terms: "the passive subjects of the tax are the owners of the vehicles, it being presumed as such the natural or legal persons, of public or private law, in whose names the same are registered". (See article 18.º of the Answer)
27 - The wording of article 3.º of the CIUC does not clearly allow invoking, as the Claimant does, that we are faced with a presumption, given that it is a clear option of legislative policy adopted by the legislator, whose intention, within its freedom of legislative discretion, was that, for the purposes of the IUC, those who appear as such in the motor vehicle register should be considered owners.
28 - In this sense, it adds that such understanding was "already adopted by the Case law of our courts", transcribing for this purpose part of the judgment of the Administrative and Tax Court of Penafiel, handed down in Case no. 210/13.OBEPNF. (See article 28.º of the Answer)
29 - On the systematic element of interpretation, it considers that the solution advocated by the Claimant is intolerable, finding the understanding backed by it no support in the law. (See article 29.º of the Answer)
30 - Regarding ignorance of the "ratio" of the scheme, the TA considers that, the interpretation advocated by the Claimant is manifestly erroneous, in so far as what was intended to be established in the CIUC was to create a tax based on the taxation of the owner of the vehicle, as stated in the motor vehicle register. (See article 47.º of the Answer)
31 - It adds that the CIUC carried out a reform of the regime for taxation of vehicles in Portugal, substantially altering the regime for automobile taxation, with the passive subjects of the tax becoming the owners recorded in the property register, irrespective of the circulation of the vehicles on public roads. (See article 48.º of the Answer)
32 - The interpretation conveyed by the Claimant is, also, in the TA's view, in addition to what has already been stated, inconsistent with the Constitution, namely because it violates, among others, the principle of efficiency of the tax system, in so far as it results in an obstruction and increase in the costs of the competences attributed to the Respondent, with obvious detriment to the interests of the Portuguese State, of which both the Claimant and the Respondent are part. (See article 64.º of the Answer)
33 - It also states that the Claimant failed to produce adequate proof of the facts constituting the right which it alleges, the proof presented not being sufficient to effect conclusive proof of the transmission of the vehicles in question in the case file, given that the same is embodied in mere sales invoices for the vehicles.
34 - It further adds that the Claimant makes no proof of having made payment of the amounts it contests, whether at the level of the tax, or regarding interest or administrative penalties,
35 - It also states that it was not the Respondent who gave rise to the request for arbitral decision, but rather the Claimant, and consequently, the Claimant should be condemned to pay the arbitration costs "in accordance with article 527.º/1 of the New Code of Civil Procedure via article 29.º/1-e) of the RJAT".
36 - Finally, given all the argumentation it has put forward, it considers that, in view of the legal conformity of the tax acts in question, the request for arbitral decision should be judged unfounded, absconding, accordingly, the Respondent entity.
E - QUESTIONS TO BE DECIDED
37 - It behoves, therefore, to examine and decide.
38 - In view of the foregoing, relative to the positions of the Parties and the arguments presented, it is necessary to examine and decide on:
a) The exception of material incompetence of the Arbitral Tribunal;
b) The exception of expiry of the right of action;
c) The establishment, or not, of a presumption in the rule on subjective scope of taxation contained in article 3.º number 1 of the CIUC;
d) The legal value of motor vehicle registration in the framework of the CIUC, particularly for the purposes of the subjective scope of this tax;
e) If, at the date when the event giving rise to the tax occurred, the vehicle had already previously been alienated, although the right of ownership of it continues to be registered in the name of its former owner, the passive subject of the IUC, for the purposes of article 3.º, no. 1, of the CIUC, is the former owner or the new owner;
F - PROCEDURAL REQUIREMENTS
39 - The Arbitral Tribunal is regularly constituted and is materially competent, in accordance with article 2.º, subsection a), number 1 of Decree-Law no. 10/2011, of 20 January.
40 - The Parties possess personality and legal capacity, are legitimate and are legally represented (cf. article 4.º and number 2 of article 10.º of Decree-Law no. 10/2011 and article 1.º of Ordinance no. 112/2011, of 22 March).
41 - The case does not suffer from vices that would invalidate it.
42 - Taking into account the tax administrative file, a copy of which was sent by the TA, and the documentary evidence attached to the case, it behoves now to present the factual matter relevant to the understanding of the decision, which is set out in the following terms.
G - OF THE RAISED EXCEPTIONS
43 - Taking into account, on the one hand, the provisions of article 13.º of the Code of Administrative Court Procedure (CPTA) and considering, on the other, the provisions of articles 97.º, 576.º, 577.º, 578.º and 608.º of the CPC applicable here by virtue of article 29.º, number 1, subsection c), of the RJAT, the said exceptions should, before all else, be known, since their knowledge precedes that of any other matters.
OF THE EXCEPTION OF INCOMPETENCE OF THE ARBITRAL TRIBUNAL RATIONE MATERIAE
44 - The Respondent, as has already been referred to above, understands that the arbitral proceedings, given the provisions of article 2.º of the RJAT, have as their central object the declaration of illegality of tax acts, considering, therefore, that the administrative penalties applied in the context of a tax administrative offence procedure do not constitute, on the one hand, a tax act and, on the other, cannot be adjudicated and decided upon by the Arbitral Tribunal due to lack of competence ratione materiae.
Let us examine.
45 - The Claimant, in its request for arbitral decision, requests, both the annulment of the administrative penalties that were applied to it, arising from the non-payment of the IUC contained in the assessments identified in the case file, and the reimbursement of the tax that may be coercively and wrongfully paid.
46 - The scope of the competence of tax arbitral tribunals given the provisions of article 2.º, number 1 of the RJAT, in the wording given to it by Law no. 64-B/2011, of 30 December, 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 income, acts of determination of collectable amounts and acts of fixing property values.
47 - What the law manifestly privileged, regarding the competences of arbitral tribunals in tax matters, was the judgment of causes which in administrative and tax courts take on the procedural form of judicial review, in accordance with article 101.º, subsection a) of the LGT and subsections a) to f) of article 97.º, number 1 of the CPPT, it being noted that, even in this field, there are limitations, as results, in particular, from the provisions of number 2 of Ordinance no. 112-A/2011, of 22 March.
48 - In this regard, Jorge Lopes de Sousa states, in Commentary on the Legal Framework for Tax Arbitration, included in the Guide to Tax Arbitration, Almedina, March, 2013, p. 105 that "[…] thus, outside the competence of these arbitral tribunals is the examination of disputes generated […] in tax administrative offence procedures".
49 - The administrative penalties applied in the context of tax administrative offences, as sanctions of an administrative nature, are not to be confused with taxes, not being inscribed, given the provisions of numbers 2 and 3 of article 1.º of the LGT and article 30.º of the same statute, in tax-law relationships, which imply, in addition to the active and passive subjects of such relationship, that its object relates to the assessment and collection of taxes or the resolution of disputes arising therefrom, which evidences the absence of competences of tax tribunals for the purposes of examining decisions relating to the application of administrative penalties.
50 - Thus, the claim lodged by the Claimant for annulment of the administrative penalties that were applied to it for non-payment of the IUC, identified, both in the claim underlying the present case, and in the documents which, following the meeting referred to in article 18.º of the RJAT, form part of the case, does not fall within the scope of arbitrable claims, the tribunal being unable to know of it.
51 - In these circumstances, this Arbitral Tribunal not being competent ratione materiae to know of such claim, it is concluded that the exception in question, raised by the Respondent, is well-founded.
52 - In the framework of the examination of the competence of this tribunal ratione materiae, emphasis should also be placed on the claim formulated by the Claimant requesting the condemnation of the Respondent to reimbursement of the tax that may be coercively and wrongfully paid.
53 - The said claim cannot, in fact, be examined by this tribunal, since, given what has been stated about its competences, it does not behove it to examine and decide on the reimbursement of the amounts contained in the various tax enforcement proceedings referenced in the case file, which form part of the economic value of the case, as taxes, interest and costs to be coercively and promptly collected.
54 - On this matter, it is once again pertinent to refer to Jorge Lopes de Sousa, ibid., when he tells us that "[…] thus, outside the competence of these arbitral tribunals is the examination of disputes generated in tax enforcement proceedings […]".
55 - In these circumstances, this Arbitral Tribunal cannot know, ratione materiae, of the requested claim for reimbursement of the tax that may be coercively and wrongfully paid.
56 - Regarding the competence of this arbitral tribunal, it is also important to recall the situation of one of the vehicles referenced in the case, namely, the one identified with registration ...-...-....
57 - With regard to the mentioned vehicle, it should be noted that no documents were produced for the case file, neither by the Claimant, nor by the Respondent, which identify the acts of assessment which are aimed to be impugned, there being, therefore, neither in the documents initially included in the case, nor in those which were added to the case file, following the meeting referred to in article 18.º of the RJAT, any information, whether relating to Notifications for Prior Hearing or Notifications of IUC Assessments.
58 - In these circumstances, there being no references whatsoever to the acts of assessment which the Claimant aims to impugn, the request for arbitral decision underlying the present case is, in this respect, lacking in subject-matter, whereby the arbitral tribunal constituted is materially incompetent to, regarding the assessments associated with this vehicle, examine and decide on the claim.
OF THE EXCEPTION OF EXPIRY OF THE RIGHT OF ACTION
59 - As has already been referred to above, the Respondent considers that, regarding the vehicles with registrations ...-...-...; ...-...-... and ...-...-..., the Claimant was duly notified, both of the notifications for prior hearing, and of the ex officio IUC assessments, the respective deadline dates for payment ending in the years 2012 and 2013, whereby the request for constitution of the Arbitral Tribunal did not observe the period provided for in article 10.º, number 1 of Decree-Law no. 10/2011, of 20 January.
Let us examine.
60 - First and foremost, it is important to note that, given the elements recorded in the Electronic System of Case Management (SGP), the request for constitution of an arbitral tribunal was presented at CAAD on 22-07-2014.
61 - On the other hand, one must take into account, given the documents included in the case file, whether those initially contained in the Administrative File (PA), or those included in the case following the meeting referred to in article 18.º of the RJAT, that the assessments notified to the Claimant relate only to the vehicles ...-...-... and ...-...-..., such assessments, as regards the first vehicle, relating to the years 2008; 2009; 2010; 2011 and 2012 and, as regards the second, to the year 2008.
62 - Regarding the notifications of assessments, it is important to recall that these, given the provisions of article 38.º of the CPPT, particularly those relating to assessments of periodic taxes, in which the IUC is inscribed, can, as provided in number 9 of the said article, be effected by way of electronic data transmission, which was, in this case, the format used in the notification to the Claimant, it should also be noted that, in accordance with the provisions of article 39.º, number 9 of the aforesaid Code, notifications effected by the said means are considered to have been made at the moment when the recipient accesses the electronic mailbox.
63 - The electronic mailbox, given the provisions of article 19.º, number 2 of the LGT, forms part of the fiscal domicile of the passive subject and, in accordance with article 19.º, number 9 of the said article, passive subjects of the Corporate Income Tax, as is the case with the Claimant, are obliged to have an electronic mailbox and to communicate it to the Tax Administration.
64 - The documents contained in the case file, related to the notifications of IUC assessments made to the Claimant, especially those which relate to the records inscribed in the history of the electronic mailbox, show that, regarding the vehicle with registration ...-...-..., the assessment relating to the year 2008, which had as the deadline for payment of the tax obligation the day 09-01-2013, was integrated into the ViaCTT electronic mailbox on 29-11-2012 and accessed by the Claimant on 29-11-2012, the date on which, as referred to above, it is deemed to have been notified.
65 - The notifications of the assessments relating to the years 2009; 2010; 2011 and 2012, likewise relating to the vehicle with registration ...-...-..., indicated as the deadline for payment of the tax obligation the day 21-11-2013, were integrated into the ViaCTT electronic mailbox on 23-10-2013 and accessed by the Claimant on 24-10-2013, the date on which it is deemed, by law, to have been notified.
66 - With regard to the vehicle with registration ...-...-..., the documents contained in the case file show only the existence of one IUC assessment, relating to the year 2008, which mentioned as the deadline for payment of the tax obligation the day 09-01-2013, notification of which was integrated into the ViaCTT electronic mailbox on 30-11-2012 and accessed by the Claimant on 30-11-2012, the date on which it is deemed to have been notified.
67 - In these circumstances, verifying, on the one hand, that the Claimant was notified of the assessments above indicated and that, on the other, the most recent deadline for payment of the tax obligation corresponds to the day 21-11-2013, it is verified that, the request for constitution of an arbitral tribunal having been presented at CAAD on 22-07-2014, the deadline for presentation of the request for arbitral decision for impugnation of the IUC assessments in question, which should, in accordance with the provisions of article 10.º, number 1, subsection a) of the RJAT, in conjunction with the provisions of article 102.º, number 1, subsection a) of the CPPT, be brought within the period of 90 days, counted from the day following the deadline for voluntary payment of the tax obligation, that is, from day 22-11-2013, ended on 28-02-2014.
68 - Thus, it is concluded, as regards the vehicles with registrations ...-...-... and ...-...-... and the IUC assessments associated with them and referred to above, by the untimeliness of the request for constitution of the arbitral tribunal, the exception of expiry of the right of action raised by the Respondent thus proceeding which, being a dilatory exception, consequently determines that the Respondent be absolved of the claim.
OF THE NOTIFICATIONS FOR PRIOR HEARING
69 - The documents aforementioned, especially those which relate to the records inscribed in the history of the electronic mailbox, show, likewise, that the Claimant was the recipient of notifications for prior hearing, such that, as results from the operations contained in the said history, regarding the vehicle with registration ...-...-... and relating to the years 2009; 2010; 2011 and 2012, the corresponding notification for prior hearing was integrated into the ViaCTT mailbox on 27-07-2013 and accessed by the Claimant on 29-07-2013, the date on which it is deemed to have been notified.
70 - As regards the vehicle with registration ...-...-..., the notification for prior hearing regarding the IUC, relating to the years 2010; 2011 and 2012, was made, given the information contained in the history of the electronic mailbox, on 27-07-2013 and accessed by the Claimant on 29-07-2013, the date on which it is deemed to have been notified.
71 - We thus have that, regarding the two mentioned vehicles, the Claimant was the recipient of and took notice of notifications for prior hearing of IUC assessments relating to the years above indicated, it not appearing, however, in the case file any other elements relating to notifications of assessments, to which the said notifications for prior hearing refer.
72 - Regarding these assessments, the TA makes no proof that it notified the Claimant, while, for its part, the Claimant asserts that it was not notified of the same assessments, which allows it to be considered that the impugnation of these acts of assessment will only be possible when and if the same are notified, whereby the alleged by the Claimant to the effect of non-notification by the Tax Authority of the said ex officio IUC assessments raises the question of the ineffectiveness of the respective acts of assessment.
73 - Notification is an act subsequent and external to the act of assessment, being, consequently, autonomous in relation to the act of assessment, which, in tax matters, constitutes a condition of effectiveness. The absence of notification, as, in particular, results from article 36.º, number 1 of the CPPT, article 77.º, number 6 of the LGT and article 268.º, number 3 of the Constitution of the Portuguese Republic, does not, therefore, affect the validity of the assessment, but rather the effectiveness of the act concerned.
74 - In the case at hand, the Claimant, as already referred to, invokes the non-notification of the ex officio IUC assessments, which occurs in the context of the institution of various tax enforcement proceedings, as identified in the case.
75 - We are faced with a situation in which, on the one hand, there was no notification, as referred to above, of the IUC assessments relating to the vehicles with registrations ...-...-... and ...-...-... and, in which, on the other hand, tax enforcement proceedings have been instituted, namely for collection of debts arising from such assessments, notification of which the Claimant alleges not to be aware.
76 - The scope of the competence of tax arbitral tribunals, as has already been explained above, does not comprise the examination of the non-notification of the ex officio IUC assessments, invoked by the Claimant in its request for arbitral decision, it being important, in this regard, to appeal to other legal rules.
77 - The absence of notification of the assessment of the tax, within the period of expiry, constitutes, given what is provided for in article 204.º, number 1, subsection e) of the CPPT, grounds for opposition to enforcement, it being noted that the teachings of JORGE LOPES DE SOUSA, when, in Code of Tax Procedure and Process, 6th ed., Áreas Publisher, Lisbon, 2011, annotation to article 204.º, p. 485, states that the inclusion of "[…] subsection e) among the grounds for opposition to tax enforcement points in the direction that it was understood in the CPPT that the absence of notification affects the effectiveness of the act of assessment and not its validity, whereby it will be, in principle, in the opposition that such absence of notification should be invoked […]".
78 - The text contained in the said subsection e) of article 204.º, number 1 of the CPPT, in its literal dimension, points straightforwardly in the direction that the non-notification of the assessment of taxes within the period of expiry, as is the case in the case at hand, should be invoked in the context of opposition to tax enforcement.
79 - Thus, this arbitral tribunal does not consider itself competent to examine and decide on the absence of notification of the assessment of the IUC, as is alleged by the Claimant.
80 - In these circumstances, as regards the examination of decisions relating to the application of the administrative penalties, it is concluded by the incompetence of this arbitral tribunal ratione materiae, whereby the exception of incompetence raised by the Respondent proceeds, the same being said, both as regards the request for reimbursement of the tax that may be coercively and wrongfully paid, formulated by the Claimant, and as regards the examination and decision on the non-notification of the IUC assessments, likewise invoked by the Claimant, which are associated with the notifications for prior hearing, regarding the vehicles with registrations ...-...-... and ...-...-....
81 - As regards the vehicles with registrations ...-...-... and …-…-… and the IUC assessments associated with them, it is concluded by the untimeliness of the request for constitution of the arbitral tribunal, the exception of expiry of the right of action raised by the Respondent thus proceeding which, being a dilatory exception, consequently determines that the Respondent be absolved of the claim.
82 - Regarding the vehicle with registration ...-...-..., it is concluded that the request for arbitral decision is lacking in subject-matter, which, being a peremptory exception, gives rise, in this part, to the absolution of the Respondent of the claim.
CONCLUSION
83 - In the circumstantial framework which has been referred to, taking into account the provisions of numbers 2 and 3 of article 576.º of the CPC, it is concluded in the direction both of the well-foundedness of the exception of incompetence of this arbitral tribunal ratione materiae, and of the well-foundedness of the exception of expiry of the right of action, and of the absence of subject-matter of the claim relating to the vehicle with registration ...-...-..., considering that, given the provisions of article 608.º, number 2 of the CPC, the examination of the remaining questions raised, both by the Claimant and by the Respondent, is therefore barred.
III - DECISION
84 - Thus, having regard to all the foregoing, this Arbitral Tribunal decides:
-
To judge well-founded the exceptions of incompetence of this arbitral tribunal ratione materiae, and of expiry of the right of action regarding the assessments relating to the vehicles with registrations ...-...-... and ...-...-..., as well as in relation to the annulment of the administrative penalties corresponding to the IUC assessments referenced in the present case, deciding, in consequence and in accordance with the provisions of article 576.º, numbers 2 and 3 of the Code of Civil Procedure, applicable by virtue of article 29.º, number 1, subsection e), of the RJAT, to absolve the Tax and Customs Authority, respectively, of the claim, and of the claim as regards the vehicle ...-...-....
-
To declare itself incompetent ratione materiae, having regard to the provisions of article 97.º, number 1 of the CPC, both as regards the reimbursement of the tax that may be coercively and wrongfully paid, and as regards the alleged unawareness of the notifications of the IUC assessments, abstaining, given the provisions of article 278.º, number 1 subsection a), of the Code of Civil Procedure, from knowing of the claim, as far as it relates to the non-notification of the assessments, absconding the Respondent of the claim.
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To condemn the Claimant to pay the costs of the present case.
VALUE OF THE CASE
In accordance with the provisions of articles 306.º, number 2 of the CPC (ex-315.º, no. 2) and 97.º - A, number 1 of the CPPT and article 3.º, number 2 of the Regulation of Costs in Tax Arbitration Proceedings, and having regard to the error verified in the sum of the various items that make up the value of the case, the same is fixed at € 9,387.06.
COSTS
In accordance with the provisions of article 12.º, number 2, at the end, in article 22.º, no. 4, both of the RJAT, and in article 4.º of the Regulation of Costs in Tax Arbitration Proceedings and the Table I, which is annexed to it, the amount of total costs is fixed at € 918.00.
Let it be notified.
Lisbon, 23 April 2015
The Arbitrator
António Correia Valente
(The text of the present decision was drawn up by computer, in accordance with article 131.º, number 5 of the Code of Civil Procedure (ex-138.º, number 5), applicable by referral of article 29.º number 1 subsection e) of Decree-Law no. 10/2011, of 20 January (RJAT), its wording governed by the spelling prior to the 1990 Orthographic Agreement.)
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