Summary
Full Decision
ARBITRAL DECISION
I. - REPORT
A - PARTIES
The company A… BRANCH IN PORTUGAL, designated as "Claimant", with registered office at Rua…, …, in Lisbon, with the tax identification number…, claimant in the above-referenced tax procedure, came, invoking the provisions of articles 2, no. 1, sub-paragraph a) of the Legal Regime of Tax Arbitration, approved by Decree-Law no. 10/2011, of 20 January (hereinafter LRTA), and of articles 1 and 2 of Order no. 112-A/2011, of 22 March, to request the constitution of a single arbitral tribunal, with a view to the examination of the following claim which opposes it to the Tax and Customs Authority, hereinafter designated 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 28 September 2016 and, on that same date, notified to the TA.
2 - The Claimant did not proceed to appoint an arbitrator, so that, pursuant to the provisions of no. 1 of article 6 of the LRTA, the undersigned, on 30-11-2016, was designated by the Deontological Council of the Centre for Administrative Arbitration as arbitrator of a Single Arbitral Tribunal, having accepted in accordance with the legally provided terms.
3 - The Parties were, on 30-11-2016, duly notified of this designation, having not manifested any intention to refuse it, in accordance with the combined provisions of sub-paragraphs a) and b) of no. 1 of article 11 and of articles 6 and 7 of the Deontological Code.
4 - In these circumstances, in accordance with the provisions of sub-paragraph c) of no. 1 of art. 11 of Decree-Law no. 10/2011, of 20 January, as amended by art. 228 of Law no. 66-B/2012, of 31 December, the arbitral tribunal was regularly constituted on 19-12-2016.
5 - On 03 March 2017, the Arbitral Tribunal, pursuant to art. 16, sub-paragraph c) of the LRTA (Decree-Law no. 10/2011, of 20 January), and having regard to the content of the order issued on 21 February 2017, considered it unnecessary to hold the meeting provided for in article 18 of the said legal instrument.
6 - The now Claimant requests that this Arbitral Tribunal:
a) - Declare the illegality of the order of 20-06-2016 of the (Acting) Head of the Administrative Justice Division of the Finance Directorate of Lisbon, which rejected the gracious complaint no. … - 2015…;
b) - Declare the illegality and consequent annulment of the assessments relating to the Unique Circulation Tax (hereinafter designated as UCT) and the compensatory interest (CI) associated therewith, referring to the years 2013 and 2014, as identified in the case file, concerning the vehicles, equally identified in the case file, which are hereby given as fully reproduced;
c) - Condemn the TA to refund the amount of € 5,282.90, corresponding to the total amount paid as UCT and CI, referring to the years and vehicles aforementioned;
d) - Condemn the Tax and Customs Authority to payment of both indemnificatory interest relating to the amounts unduly assessed and paid, and the costs of the proceedings.
C - CAUSE OF ACTION
7 - The Claimant, in the substantiation of its request for arbitral pronouncement, states, in summary, the following:
8 - That it is a financial institution which, within the scope of its corporate purpose, carries out operations permitted to Banks, with the exception of receipt of deposits, entering into with its customers Long-Duration Contracts (ALD); Short-Duration Lease Contracts (renting) and Financial Leasing Contracts (leasing);
9 - That, in that context, it entered into with its customers contracts for the lease of vehicles with promise of purchase and sale and financial leasing contracts, vehicles which it acquires, as new vehicles, from the national importers of … and …, and which, upon termination of such contracts, are sold to the corresponding lessees or to third parties;
10 - That it became aware, on the Tax Authority Portal, of the documents for collection of UCT and CI identified in the case file, referring to assessments of UCT for the years 2013 and 2014, whose total value amounted to € 5,282.90;
11 - That although it was surprised by the said assessments, and while disagreeing with them, it proceeded to payment of the respective amounts, since it is its prerogative to maintain a tax situation duly regularized;
12 - That it lodged a Gracious Complaint against 128 assessments of UCT, with the total value of € 5,282.90, relating to the years 2013 and 2014, concerning the vehicles identified in the case file, having then instructed such Complaint, in particular, with a dossier concerning each of the vehicles in question, integrated with both copies of the financial leasing contracts and operational leasing contracts with promise of purchase and sale, as well as invoices for the sale of the vehicles, as well as the identification of the vehicles disposed of before the date of the exigibility of the tax;
13 - That the Gracious Complaint was, by order of 20-06-2016 of the (Acting) Head of the Administrative Justice Division of the Finance Directorate of Lisbon, subject to rejection;
14 - That in all the contracts which it entered into, of financial leasing and of lease of vehicles without driver with promise of purchase and sale, the users of each of the vehicles are clearly identified, to whom, or to third parties, upon termination of the contracts, it transferred the ownership of such vehicles at a residual value;
15 - That on the dates of the exigibility of the UCT, concerning the vehicles in question in the case file, it was no longer, in some cases, the owner and, in other cases, was financial lessor or lessor in operational leasing contracts with promise of purchase and sale, not being, in any of the cases, the passive subject of the said tax;
16 - That the sales of the vehicles occurred precisely on the dates on which the corresponding invoices were issued, which document and demonstrate the sale of such vehicles at a moment prior to the date of the exigibility of the UCT, being that, after the completion of such sales, it never resumes ownership of the vehicles;
17 - That the UCT, although its objective is revenue raising, equally aims to tax the environmental costs that each individual causes to the community, the unification of these objectives being assured by the principle of equivalence established in art. 1 of the CIUC, which, being fundamental in the context of the taxation of UCT, makes clear that taxpayers should be burdened to the extent of the impacts they cause on the environment and road network, thus enshrining the polluter-pays principle;
18 - That the principle was established in the CIUC that whoever pollutes must pay, associating the tax with the environmental and road damage caused by the effective use of vehicles;
19 - That it was never the real polluter and causer of environmental damage, inasmuch as it merely leased the vehicles in question or sold them, in cases where the leasing contracts had already terminated;
20 - That no. 1 of art. 3 of the CIUC establishes a rebuttable legal presumption, and that, in light of the provisions of no. 2 of the said article, the financial lessees and the holders of contracts for the lease of vehicles without driver, with promise of purchase and sale, are the passive subjects of the tax;
21 - That, after the termination of the said contracts, it proceeds to transfer the ownership of the respective vehicles to the corresponding lessees or to third parties, transfer which is effected by mere effect of the contracts and which is supported in the respective sale invoices, on the dates of issuance of which the respective price is paid;
22 - That, in any of the mentioned contracts, entered into with its customers, although the lessor continues to be the owner of the vehicles, only the lessees and the holders of the purchase and sale option, in the case of contracts for the lease of vehicles without driver, with promise of purchase and sale, have the exclusive enjoyment of the vehicles, being the potential causers of road and environmental damage;
23 - That the registration of acquisition of motor vehicles has no constitutive value, inasmuch as it merely has as its objective the publicizing of the legal situation of the vehicles, constituting the same a presumption that the registration exists and belongs to the titleholder registered, being, however, such presumption rebuttable;
24 - That even in cases where the purchaser (new owner of the vehicle) does not effect the registration of his right of ownership, it is presumed that such right continues to be that of the seller, being able, however, such presumption to be rebutted;
25 - That to consider as passive subjects of UCT only the owners of the vehicles in whose names such vehicles are registered, not taking into account situations in which such registrations no longer coincide with the real owners or the real users thereof, constitutes a restriction which, in light of the purposes of the UCT, finds no basis for support;
26 - That the TA, contrary to what it was its duty to do, in light of the inquisitorial principle, did not undertake any action tending to the discovery of material truth, with respect to the real situation of the vehicles in question, demonstrating total disinterest in the pursuit of that truth, having limited itself to considering the information contained in the databases;
27 - That, in situations identical to those of the present case, the case law of CAAD has come to recognize the taxpayer's arguments, pointing in that direction, in particular, the Arbitral Decision issued on 20.05.2015, in Case no. 688/2014-T; the Arbitral Decision issued in case no. 374/2015-T; the Arbitral Award issued on 21.11.2014, in Case no. 250/2014-T; the Arbitral Award issued on 26.10.2015, in case no. 7/2015-T and the Arbitral Award issued in case no. 49/2015-T.
D - RESPONSE OF THE RESPONDENT
28 - The Respondent, Tax and Customs Authority, (hereinafter designated as TA), presented its Response, on 02-02-2017, in which it understands that the Claimant's claim cannot, at all, proceed, since the financial leasing contracts which it alleges to have been entered into were not communicated, in accordance with the terms established in art. 19 of the CIUC, and neither can the argument that the Claimant was not the passive subject of the UCT proceed in cases where it alleges it is no longer the owner of the vehicles on the dates on which the obligation to assess the said tax became due; (see arts. 8 to 28 of the Response)
29 - On the other hand, the Respondent considers that the Claimant makes an interpretation and application of the applicable legal norms, in the case, manifestly erroneous, in that,
30 - They reveal an understanding which incurs, not only in a biased reading of the letter of the law, but also in an interpretation which does not take into account the systematic element, violating the unity of the regime enshrined in the entire CIUC and, more broadly, in the entire legal-fiscal system, further resulting from an interpretation which ignores the ratio of the regime enshrined in no. 1 of article 3 of the CIUC; (see art. 30 of the Response)
31 - It refers that the tax legislator when establishing, in art. 3, no. 1 of the CIUC, who are the passive subjects of the UCT established expressly and intentionally that these are the owners (or in the situations provided for in no. 2 the persons mentioned therein), considering as such the persons in whose names such vehicles are registered; (see art. 41 of the Response)
32 - It emphasizes that the legislator did not use the expression "it is presumed" as it could have done, for example, in the following terms: "are passive subjects of the tax the owners of the vehicles, being presumed as such the natural or legal persons, of public or private law, in whose names such vehicles are registered"; (see art. 42 of the Response)
33 - It considers that the wording of art. 3, no. 1 of the CIUC corresponds to a clear choice of legislative policy adopted by the legislator, so that to understand that therein a presumption is enshrined would unequivocally be to make an interpretation contrary to law. (see arts. 51, 52 and 53 of the Response)
34 - It refers that the said understanding has already been adopted by the case law of our courts, transcribing, for this purpose, part of the judgment of the Administrative and Tax Court of Penafiel, issued in Case no. 210/13.OBEPNF; (see art. 55 of the Response)
35 - On the systematic element of interpretation, it considers that the solution advocated by the Claimant is untenable, finding the understanding espoused by it no legal support whatsoever; (see art. 57 of the Response)
36 - On the ignorance of the "ratio" of the regime, the TA considers that, in light of a teleological interpretation of the regime enshrined throughout the Code of the UCT, the interpretation advocated by the Claimant to the effect that the passive subject of the UCT is the effective owner, regardless of whether the property title does not appear in the vehicle registration, is manifestly erroneous; (see art. 80 of the Response)
37 - It adds that the CIUC undertook a reform of the regime of taxation of vehicles in Portugal, substantially altering the regime of motor vehicle taxation, the passive subjects of the tax now being the owners appearing in the property register;
38 - It adds that the invoices presented by the Claimant, as proof of sale of the vehicles, are not apt and do not reveal, by themselves, the will to enter into a synallagmatic contract such as that of purchase and sale; (see art. 99 of the Response)
39 - Finally, it refers that it was not the Respondent who gave rise to the lodging of the request for arbitral pronouncement, but rather the Claimant, and that consequently it is the Claimant which should be condemned in the arbitral costs "in accordance with art. 527, 1 of the New Code of Civil Procedure ex vi of art. 29, 1-e) of the LRTA", also emphasizing that the legal prerequisites allowing the assessment of indemnificatory interest are not met, the claim for which was formulated by the Claimant; (see arts. 131 to 133 of the Response)
40 - It considers, in conclusion, that, in light of all the arguments raised, the tax acts in dispute are valid and legal, and the request for arbitral pronouncement underlying the present case should be judged without merit, the tax acts of assessment being maintained in the legal order, and absolution of the Respondent entity from the claim thus occurring.
E - ISSUES TO BE DECIDED
41 - It is therefore necessary to examine and decide.
42 - In light of the foregoing, relative to the positions of the Parties and to the arguments presented, the main issues to be decided are those of knowing:
a) - Whether the norm of subjective incidence contained in article 3, no. 1 of the CIUC establishes or does not establish a presumption.
b) - What is the legal value of vehicle registration in the economy of the CIUC, particularly for purposes of the subjective incidence of this tax.
c) - If, on the date of the exigibility of the tax, a financial leasing contract or a contract for the lease of a vehicle without driver with promise of purchase and sale is in effect, for purposes of the provision in article 3, nos. 1 and 2 of the CIUC, the passive subject of the UCT is the lessee or the leasing entity, in whose name the ownership of the vehicle is registered.
d) - If, under the terms of a financial leasing contract or a contract for the lease of a vehicle without driver with promise of purchase and sale, on the date of the exigibility of the tax, the vehicle has already been previously disposed of although the right of ownership thereof continues to be registered in the name of its former owner, for purposes of the provision in article 3, no. 1 of the CIUC, the passive subject of the UCT is the former owner or the new owner.
e) - If the documents presented, relating to the leasing and sale of the vehicles identified in the case, are apt to prove the leasing and purchase and sale of such vehicles.
F - PROCEDURAL REQUIREMENTS
43 - The Arbitral Tribunal is regularly constituted and is materially competent, in accordance with sub-paragraph a) of no. 1 of article 2 of Decree-Law no. 10/2011, of 20 January.
44 - The Parties enjoy legal personality and capacity, are legitimate and are legally represented (see art. 4 and no. 2 of art. 10 of Decree-Law no. 10/2011 and art. 1 of Order no. 112/2011, of 22 March).
45 - The case does not suffer from defects that would invalidate it.
46 - Having regard to the documentary evidence attached to the case file, and the information recorded in the tax administrative case, it is now necessary to present the factual matter relevant to the understanding of the decision, as it is established in accordance with the terms mentioned below.
II - REASONING
G - FACTUAL REASONING
47 - In matters of fact relevant to the present decision, this tribunal considers the following facts to be established:
48 - The Claimant is a financial institution, specialized in the branch of automobile financing, in whose corporate purpose is inscribed, in particular, the entering into with its customers of Long-Duration Contracts (ALD), Short-Duration Lease Contracts (renting) and Financial Leasing Contracts (leasing);
49 - In the context of its activity, it entered into, with its customers, financial leasing contracts and contracts for the lease of vehicles without driver with promise of purchase and sale;
50 - The unique circulation tax subject to assessment, with respect to the vehicles identified in the case file, was paid by the Claimant;
51 - The Claimant lodged a Gracious Complaint against 128 assessments of UCT, with the total value of € 5,282.90, relating to the years 2013 and 2014, concerning 64 vehicles, having then instructed such Complaint with a dossier concerning each of the vehicles in question, integrated with both copies of the financial leasing contracts and lease contracts for vehicles without driver with promise of purchase and sale, as well as invoices for the sale of the vehicles;
52 - The Gracious Complaint, after being substantially analyzed, at the Finance Directorate of Lisbon - Administrative Justice Division, that is, after the reexamination of the legality of the assessment acts in question, was, by order of 20-06-2016 of the (Acting) Head of the said Division, subject to rejection;
53 - The Claimant, as proof of the said leasing contracts and of the mentioned sales, with a view, in particular, to rebutting the presumption which it understands to be established in no. 1 of art. 3 of the CIUC, attached, in particular, both copies of the mentioned contracts, as well as the invoices relating to the corresponding and alleged sales of the vehicles;
54 - In the contracts entered into by the Claimant, whether those of financial leasing, or those of lease of vehicles without driver with promise of purchase and sale, the users of the corresponding vehicles are identified;
55 - The sales of the vehicles identified in the case, occurring after the termination of the referenced contracts, are documented and supported, in particular, in the corresponding invoices attached to the case file;
56 - On the dates of the exigibility of the UCT, relating to the vehicles identified in the case, the Claimant was no longer its owner;
57 - The TA did not undertake, in particular in obedience to the inquisitorial principle, any action tending to the discovery of material truth, with respect to the real situation of the vehicles in question in the case.
REASONING OF THE FACTS PROVEN
58 - The facts given as proven are based on the documents attached to the case by the Claimant, the authenticity of which was not challenged by the Respondent, its adherence to reality not having been questioned.
FACTS NOT PROVEN
59 - There are no facts given as not proven, given that all facts considered relevant to the examination of the claim were proven.
H - LEGAL REASONING
60 - The matter of fact is established, and it is now necessary to proceed to its legal subsumption and to determine the law applicable to the underlying facts, in accordance with the issues to be decided set forth in no. 42.
61 - The decisive issue in the present case, with respect to which there are absolutely opposing understandings between the Claimant and the TA, translates into knowing whether the norm of subjective incidence contained in no. 1 of art. 3 of the CIUC establishes or does not establish a rebuttable presumption.
62 - The positions of the parties are known. Indeed, for the Claimant, the provision in no. 1 of art. 3 of the CIUC establishes a rebuttable legal presumption, understanding that, in light of the provision in no. 2 of the said article, the financial lessees and the holders of contracts for the lease of vehicles without driver, with promise of purchase and sale, are the passive subjects of the tax;
63 - The Respondent, for its part, considers that the tax legislator, when establishing in art. 3, no. 1 of the CIUC who are the passive subjects of the UCT, determined, expressly and intentionally, that these are the owners (or in the situations provided for in no. 2, the persons mentioned therein), considering as such the persons in whose names such vehicles are registered. (see art. 41 of the Response)
I - INTERPRETATION OF THE NORM OF SUBJECTIVE INCIDENCE CONTAINED IN NO. 1 OF ARTICLE 3 OF THE CIUC
64 - On this question, that is, whether the norm of subjective incidence contained in no. 1 of art. 3 of the CIUC enshrines a presumption, it should be noted that the established case law at CAAD points in the direction that the said norm enshrines a legal presumption. Indeed, from the first Decisions issued on this matter in the year 2013, among which may be mentioned, in particular, those issued in the context of Cases nos. 14/2013-T, 26/2013-T and 27/2013-T, to the most recent of which may be indicated the Decisions issued within Cases no. 69/2015-T and no. 79/2015-T, passing through numerous Decisions issued in the year 2014, of which are mentioned, by way of mere example, the Decisions issued in Cases nos. 34/2014-T, 120/2014-T and 456/2014 - T, all point to the understanding that no. 1 of art. 3 of the CIUC enshrines a rebuttable legal presumption.
In this regard, reference should also be made to the recent Decision of the Lisbon Tax Court, issued on 23-01-2017, in Case No. 463/13.4BELRS, where it is considered that the "[…] claimant succeeded in rebutting the presumption established in art. 3, no. 1 of the CIUC."
The understanding set forth in the Judgment of the Central Administrative Court of the South, issued on 19-03-2015, Case 08300/14, available at: www.dgsi.pt, should also be considered, which seconds the said case law, when it expressly states therein that art. 3, no. 1 of the CIUC "[…] enshrines a legal presumption that the titleholder of the vehicle registration is its owner, and that such presumption is rebuttable by virtue of art. 73 of the LGT".
This is an understanding in which we fully rely and which is hereby given, without further ado, as valid and applicable in the present case, it not being considered, therefore, necessary further developments, given the abundant reasoning set forth in the mentioned Decisions and in the said Judgment.
J - ACQUISITION OF OWNERSHIP OF THE VEHICLE AND THE VALUE OF REGISTRATION
65 - First and foremost, it should be added, given what is expressly stated below about the value of registration, that the purchasers of vehicles become owners of the same vehicles through the transmission of the respective ownership, with or without registration.
66 - There are three articles of the Civil Code which it is important to take into account, with respect to the acquisition of ownership of a motor vehicle. These are, first and foremost, art. 874, which establishes the notion of the purchase and sale contract, as being "[…] the contract by which ownership of a thing, or another right, is transmitted, in exchange for a price"; art. 879, in whose sub-paragraph a) it is established, as essential effects of the purchase and sale contract, "the transmission of ownership of the thing or the titularity of the right" and art. 408, which has as its heading contracts with real effect, and establishes in its no. 1, that "the constitution or transfer of real rights over a determined thing takes place by mere effect of the contract, save for the exceptions provided for in law". (emphasis ours)
We are, indeed, in the domain of contracts with real effect, which means that their execution brings about the transmission of real rights, in the case, motor vehicles, determined by mere effect of the contract, as expressly derives from the norm previously mentioned.
67 - With respect to the said contracts with real effect, it is fitting to note the teachings of Pires de Lima and Antunes Varela, when, in annotations to art. 408 of the CC, they say to us that "From these contracts called real (quoad effectum), for having as their immediate effect the constitution, modification or extinction of a real right (and not merely the obligations tending to that result) are distinguished the so-called real contracts (quoad constitutionem), which require the delivery of the thing as an element of their formation (see arts. 1129, 1142 and 1185) ".
We are thus faced with contracts in which the ownership of the thing sold is transferred, without more, from the seller to the purchaser, having, as its cause, the contract itself.
68 - Also from case law, specifically from the Judgment of the STJ no. 03B4369 of 19/02/2004, available at: www.dgsi.pt, it is derived that, in light of the provision in art. 408, no. 1 of the C. Civil, "the constitution or transfer of real rights over a determined thing takes place by mere effect of the contract, save for the exceptions provided for in law". This is the case of the contract of purchase and sale of motor vehicle (arts. 874° and 879, sub-paragraph a) of the C. Civil), which does not depend on any special formality, being valid even when executed in verbal form - in accordance with Judgment of the STJ of 3-3-98, in CJSTJ, 1998, year VI, Volume I, p. 117". (emphasis ours)
69 - Having the contract of purchase and sale, in light of what has been stated above, real nature, with the mentioned consequences, it is also necessary to consider the legal value of the vehicle registration subject to that contract, given that the transaction of the said good is subject to public registration.
70 - It establishes, indeed, no. 1 of art. 1 of DL no. 54/75, of 12 February, relating to the registration of motor vehicles, that "The registration of vehicles has essentially as its purpose the giving of publicity to the legal situation of motor vehicles and their trailers, with a view to the security of legal commerce". (emphasis ours)
71 - Being clear, in light of the said norm, what the purpose of registration is, there is not, however, clarity, within the scope of the said Decree-law, about the legal value of that registration, and it is important to consider article 29 of the mentioned legal instrument, relating to the registration of motor vehicle ownership, when it provides therein that "The provisions relating to land registration are applicable, with the necessary adaptations, to the registration of vehicles, […]". (emphasis ours)
72 - In this framework, in order that we may achieve the sought knowledge about the legal value of the registration of motor vehicle ownership, it is important to take into account what is established in the Real Property Register Code, approved by Decree-Law no. 224/84, of 06 July, when it provides in its article 7 that "the final registration constitutes a presumption that the right exists and belongs to the titleholder registered in the precise terms in which the registration defines it". (emphasis ours)
73 - The combination of the provisions of the articles mentioned above, particularly that established in no. 1 of art. 1 of DL no. 54/75, of 12 February and in art. 7 of the Real Property Register Code, allows us to consider, on the one hand, that the fundamental function of registration is to give publicity to the legal situation of vehicles, and on the other hand, to presume that the right exists and that such right belongs to the titleholder in whose favor it is registered, in the precise terms in which it is defined in the register.
74 - Thus, the final registration constitutes nothing more than the presumption that the right exists and belongs to the titleholder registered, in the exact terms of the register, but a rebuttable presumption, admitting therefore counter-proof, as derives from the law and case law has been pointing out, and to this end reference may be made to, among others, the Judgments of the STJ nos. 03B4369 and 07B4528, respectively, of 19/02/2004 and 29/01/2008, available at: www.dgsi.pt.
75 - The function legally reserved for registration is thus, on the one hand, to publicize the legal situation of goods, in the case of vehicles and, on the other hand, to allow us to presume that a right exists over those vehicles and that it belongs to the titleholder, as such registered in the register, which means that the registration does not have a constitutive nature of the right of ownership, but merely a declarative one, hence the registration does not constitute a condition of validity of the transmission of the vehicle from the seller to the purchaser.
76 - Thus, if the purchasers of vehicles, as their "new" owners, do not immediately promote the appropriate registration of their right, it is presumed, for purposes of art. 7 of the Real Property Register Code and of no. 1 of art. 3 of the CIUC, that the vehicles continue to be the property of the person who in the register remains its owner, such person being the passive subject of the tax, in the certainty, however, that such presumptions are rebuttable, either by virtue of the provision in no. 2 of art. 350 of the CC, or in light of the provision in art. 73 of the LGT. Hence, from the moment that the presumptions in question are displaced, by means of proof of the respective transmission, the TA cannot persist in considering as the passive subject of the UCT the transferor of the vehicle, who in the register continues to appear as its owner, but rather the former lessees, as purchasers of the vehicles.
L - THE PASSIVE SUBJECT OF THE UCT AT THE TIME OF DISPOSAL OF THE VEHICLE SUBJECT TO FINANCIAL LEASING CONTRACTS OR CONTRACTS FOR THE LEASE OF VEHICLES WITHOUT DRIVER WITH PROMISE OF PURCHASE AND SALE
77 - The transmissions of the vehicles in question in the case, had as acquirers the persons who, in the corresponding financial leasing contracts, or contracts for the lease of vehicles without driver with promise of purchase and sale, figured as lessees or as promissory purchasers, it being the case that the said sales occurred (all of them) before the dates relating to the exigibility of the UCT.
78 - The disposal of the vehicles referenced in the case occurred, in some cases, during the validity of the said contracts and, in others, after the termination of such contracts, being that, in either of the situations, that is, in those referring to the sales of the vehicles occurred still during the validity of the said contracts, or on dates after the end of such contracts, the dates of the mentioned sales are related to moments prior to those of the exigibility of the unique circulation tax, the payment thereof not being the responsibility of the Claimant, given that, in light of what has already been stated above, the same was not, then, in these circumstances, the passive subject of the tax.
M - MEANS OF PROOF PRESENTED
ON THE FINANCIAL LEASING CONTRACTS AND CONTRACTS FOR THE LEASE OF VEHICLES WITHOUT DRIVER WITH PROMISE OF PURCHASE AND SALE
79 - With respect to the financial leasing contracts and contracts for the lease of vehicles without driver with promise of purchase and sale, within the framework of which all the transfers of ownership of the vehicles to the former lessees were inscribed, it must be understood that such contracts are suitable means and with sufficient force to prove the quality of lessees. There are no elements whatsoever which allow understanding that the data recorded in such contracts do not correspond to the contractual truth, it also being certain that the law, in the case, no. 1 of art. 75 of the LGT, attributes to these documents a presumption of veracity.
ON THE INVOICES
80 - It not being legally required that the form be written for the transmission of the ownership of motor vehicles, the proof of that transmission may be made by any means, in particular by way of witness testimony or documentary, in the latter of which are included, in particular, the invoices relating to the sales of the vehicles.
81 - With respect to the invoices, as documentary evidence of the sale of motor vehicles, it cannot be left out of account the provision in no. 2, article 2, of Decree-Law no. 177/2014, of 15 December, in whose statute invoices are considered as documents which evidence the effective purchase and sale of vehicles.
82 - On the other hand, it is also important to recall the provision in sub-paragraph b) of no. 1 of art. 29; in no. 5 of art. 36 and in nos. 1 and 2 of art. 40, all of the CIVC, as amended by Decree-Law no. 197/2012, of 24 August, from which it is derived that only the invoice, the invoice-receipt and the simplified invoice embody recognized documents for purposes of the transmission of goods or the provision of services.
83 - The Claimant, as a means of proof that it proceeded to the sale of the vehicles, as identified in the present case, on a date prior to the date of the exigibility of the tax, attached, in particular, in addition to copies of the mentioned contracts, both the invoice-receipts relating to the alleged sales (as occurred with respect to the vehicles with the registration plates: …-…-…; …-… -…; …-…. -…;…-…. -…; …-…. -…; …-…. -…; …-…. -…; …-…. -…;…-…. -… ; …-…. -… ; …-…. -…; …-…. -…; …-…. -…; …-…. -…; …-…. -…; …-…. -…; …-…. -…; …-…. -…; …-…. -…; …-…. -…; …-…. -…; …-…. -…; …-…. -…;…-…. -… ; …-…. -…; …-…. -…; …-…. -…; …-…. -…; …-…. -…; …-…. -…; …-…. -…; …-…. -… and …-…. -…), as well as invoices and payment documents, invoices which, in some cases, display the reference to their processing by computer and, in other cases, the indication that they were processed by a Program subject to prior certification by the Tax and Customs Authority (TA), identified by Certified Program no. 436/TA.
84 - It should, moreover, be emphasized that nothing allows us to consider that any of such documents, in particular the invoices presented, as support for the sales of the vehicles in question in the case, do not have correspondence with the sales which, allegedly, were completed.
85 - The invoices attached to the case file, as proof of the disposal of the vehicles, having regard to the corporate purpose of the Claimant, embodied in the leasing of motor vehicles and in the sale of such vehicles to its customers, at the end of the respective leasing contracts, show themselves to be totally adjusted to the mentioned business reality, the sale of the vehicles which the invoices presented aim to prove being absolutely plausible, no elements being identified which embody any simulated contract, rather allowing the conclusion to be reached that we are in the presence of invoices which reproduce the real and true sale of the vehicles to the persons indicated therein.
86 - The combination of the various documents presented allows the tribunal to understand, with a high degree of probability and plausibility, that the disposal of the vehicles in question to the corresponding lessees was completed. In this regard it is fitting to note what Jorge Lopes de Sousa writes, in Code of Tax Procedure and Process, Annotated and Commented, Volume II, 6th Edition, Áreas Editora, SA, Lisbon, 2011, p. 256, in annotations to art. 115 of the said Code, when citing ALBERTO DOS REIS, refers that sufficient proof leads to a judgment of certainty; not of logical, absolute, material certainty, in most cases, but of certainty sufficient for the practical needs of life, of certainty called historical-empirical. That is, what is formed on the basis of sufficient proof is, normally, a judgment of probability, but of probability elevated to such a high degree that it is as much as is needed for the reasonable demands of social security.
87 - In summary, the proof of the sale of the vehicles in question, from the attachment to the case of the mentioned documents, appears reasonable and proportional, above all, having regard to the corporate purpose of the Claimant, centered on the activity of financing operations for the acquisition of motor vehicles, and on the entering into of the corresponding financial leasing contracts and contracts for the lease of vehicles without driver with promise of purchase and sale, it not being, consequently, strange, indeed quite the contrary, that, as has already been noted, in the sequence of the mentioned contracts, the transfer of the ownership of the vehicles identified in the case to the corresponding lessees is completed.
88 - The invoices in question (copies), relating to the sales of the vehicles, insofar as they enjoy the presumption of veracity which is conferred upon them in no. 1 of art. 75 of the LGT, it being incumbent upon the TA, having regard to the provision in art. 75, no. 2 of the LGT, within the framework of the reasoned and objective grounds it had, to demonstrate that the information inscribed therein does not correspond to reality, allow the conclusion to be reached as to the real transfer of the titularity of the vehicles, constituting a sufficient means of proof for rebutting the presumptions in question in the case, that is, the presumption established in art. 7 of the Real Property Register Code and that enshrined in no. 1 of art. 3 of the CIUC, which means that, at the date on which the tax was exigible, the ownership of the vehicles in question had been transferred from the Claimant to the former lessees, the same not being the passive subject of the tax in question.
89 - It is also fitting to mention finally that, in situations identical to those of the present case, the case law of CAAD has come to lean in the direction of the Request for Arbitral Pronouncement underlying the present Case, identifying itself with such orientation, in particular, the Arbitral Decision issued on 20.05.2015, in Case no. 688/2014-T; the Arbitral Decision issued in case no. 374/2015-T; the Arbitral Award issued on 21.11.2014, in Case no. 250/2014-T; the Arbitral Award issued on 26.10.2015, in case no. 7/2015-T and the Arbitral Award issued in case no. 49/2015-T.
90 - In these circumstances, the vehicles referenced in the case as having been disposed of, within the framework of their respective financial leasing contracts and contracts for the lease of vehicles without driver with promise of purchase and sale, are considered as sold, in accordance with the terms already referred to, on dates prior to the dates of the respective UCT assessments, and accordingly, it must be considered that the Claimant, with respect to such vehicles, was not, at the date to which the assessments in question refer, the passive subject of the tax in question, and thus cannot be left unstated that the legal presumption enshrined in no. 1 of art. 3 of the CIUC has been rebutted.
91 - The TA, when it understands that the passive subjects of the UCT are, definitively, the persons in whose names the motor vehicles are registered, without considering that art. 3, no. 1 of the CIUC enshrines a presumption, nor taking into account the evidentiary elements which were presented to it, as results, in particular, from the tax administrative case, is proceeding to the illegal assessment of the UCT, with respect to the vehicles aforementioned, based on the erroneous interpretation and application of the norms of subjective incidence of the Unique Circulation Tax, contained in the said art. 3 of the CIUC, which configures the practice of tax acts lacking in legality due to error regarding the factual and legal prerequisites determining the annulment of the corresponding tax acts, for violation of law.
N - REFUND OF THE AMOUNT PAID AND INDEMNIFICATORY INTEREST
92 - In accordance with the provision in sub-paragraph b) of no. 1 of art. 24 of the LRTA, and in conformity with what is established therein, the arbitral decision on the merits of the claim for which there is no appeal or contest binds the tax administration as from the end of the period laid down for appeal or contest, such administration being obliged to - in the exact terms of the acceptability of the arbitral decision in favor of the passive subject and until the end of the period laid down for the spontaneous execution of the sentences of the judicial tax courts - "Restore the situation that would have existed had the tax act subject to the arbitral decision not been committed, adopting the acts and operations necessary for such purpose." (emphasis ours)
93 - These are legal commands which are in total harmony with the provision in art. 100 of the LGT, applicable to the case by virtue of the provision in sub-paragraph a) of no. 1 of art. 29 of the LRTA, in which it is established that "The tax administration is obliged, in case of total or partial acceptability of complaints or administrative appeals, or of judicial proceedings in favor of the passive subject, to the immediate and full restoration of the situation that would have existed had the illegality not been committed, comprising the payment of indemnificatory interest, in accordance with the terms and conditions provided for in law." (emphasis ours)
94 - The case contained in the present case raises the manifest application of the mentioned norms, since in the sequence of the illegality of the assessment acts, referenced in this case, there must, by virtue of such norms, be refund of the amounts paid, both as tax and compensatory interest, as a way of achieving the restoration of the situation that would have existed had the illegality not been committed, amounts which in the case of the present case total € 5,282.90, corresponding to the assessments relating to the vehicles aforementioned.
95 - As for indemnificatory interest, it appears manifest that, given what is established in article 61 of the TCPP and that the requirements of the right to indemnificatory interest are met, that is, verified that there exists an error imputable to the services resulting in payment of the tax debt in an amount greater than that legally due, as provided for in no. 1 of art. 43 of the LGT, the Claimant is entitled to indemnificatory interest at the legal rate, calculated on the amount of € 5,282.90.
O - ARBITRAL COSTS
96 - In this regard, more specifically about the responsibility for payment of the arbitral costs, which the TA considers to be due by the Claimant, "in accordance with article 527, 1 of the CPC ex vi of art. 29, 1-e) of the LRTA", it is only fitting to note that, in light of that established in no. 2 of the said art. 527 of the CPC, the "[…] losing party bears the costs of the proceedings, in the proportion in which it loses", being, precisely, that which will be applied in the case of the present proceedings, and it should also be stated, regarding the value of the case, that the same, in light of the provision in no. 1 of art. 296 of the CPC, corresponds, in the case, to the value of 125 assessments, as identified in the case file and referenced in DOC 7, forming part of the Case, corresponds to the amount of € 5,282.90.
CONCLUSION
97 - In the factual framework which has been referred to, the TA, in committing the assessment acts which are the subject of the present case, based on the idea that article 3, no. 1 of the CIUC does not enshrine a rebuttable presumption, and that the Claimant is, in the cases provided for in no. 2 of the said article, the passive subject of the tax, makes an erroneous interpretation and application of this norm, committing an error regarding the legal prerequisites, which constitutes violation of law.
98 - On the other hand, because the TA, at the date of the occurrence of the tax facts, considered the Claimant to be the owner of the vehicles referenced in the present case, considering it as such the passive subject of the tax, when such ownership, with respect to the vehicles in question, was no longer inscribed in its legal sphere, basing itself, thus, on a matter of fact divergent from the effective reality, commits an error regarding the factual prerequisites, and therefore violation of law.
III - DECISION
99 - Accordingly, having regard to all that has been stated, this Arbitral Tribunal decides:
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To annul the decision issued within the framework of the Gracious Complaint referenced in the case file, with the no. … - 2015…;
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To judge the request for arbitral pronouncement well-founded, as proven, on the grounds of violation of law, insofar as it concerns the annulment of the assessment acts of UCT and compensatory interest to which the Claimant's request refers, relating to the years 2013 and 2014, which amount to € 5,282.90, as identified in the case file, concerning the vehicles identified in the case;
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To annul, consequently, both the assessment acts of UCT and the assessment acts of compensatory interest associated therewith, relating to the years 2013 and 2014, concerning the vehicles, as identified in the case file;
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To condemn the TA to refund the amount of € 5,282.90, relating to the UCT and compensatory interest which were paid, concerning the years 2013 and 2014, as well as to the payment of indemnificatory interest at the legal rate, calculated from the date of payment of the aforementioned amount, until the full refund thereof;
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To condemn the TA to pay the costs of the present case.
VALUE OF THE CASE
In accordance with the provision in articles 306, no. 2 of the CPC (ex-315, no. 2) and 97-A, no. 1 of the TCPP and in article 3, no. 2 of the Regulation of Costs in Tax Arbitration Proceedings, the value of the case is set at € 5,282.90.
COSTS
In accordance with the provision in article 12, no. 2, at the end, and in art. 22, no. 4, both of the LRTA, and in art. 4 of the Regulation of Costs in Tax Arbitration Proceedings and Table I, which is attached thereto, the amount of the total costs is set at € 612.00.
Notify.
Lisbon, 14 March 2017
The Arbitrator
António Correia Valente
(The text of the present decision was prepared by computer, in accordance with article 131, no. 5 of the Code of Civil Procedure (ex-138, no. 5), applicable by referral of article 29, no. 1, sub-paragraph e) of Decree-Law no. 10/2011, of 20 January (LRTA), governed by the spelling prior to the Orthographic Agreement of 1990.)
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