Summary
Full Decision
ARBITRAL TAX DECISION
1 REPORT
1.1 – ..., with NIP: ... (doc. 1), Claimant in the tax procedure, above and with marginal reference, hereinafter referred to as the "Petitioner", came, invoking the provisions of numbers 1 and 2 of article 10 of Decree-Law no. 10/2011 of 20 January (hereinafter RJAT), of article 99 of the Code of Tax Procedure and Process (CPPT) and of number 1 of article 95 of the General Tax Law (LGT), to request the establishment of a Single Arbitral Tribunal, seeking a petition to challenge the tax acts contained in the self-assessments made by the Petitioner, in the following terms:
- The annulment of the tax assessment acts for the Unique Vehicle Circulation Tax (hereinafter referred to as IUC), made by the Tax and Customs Authority (hereinafter AT), concerning the years: 2009 to 2014 as per document no. 4), which is an integral part of the Petition for Tax Arbitral Opinion.
- The request for reimbursement of the total amount of € 30,791.12, which includes the corresponding compensatory interest, unduly paid by the Petitioner.
- The Petitioner considers that it also has the right to compensatory interest provided for in articles 43 of the LGT and in article 61 of the CPPT, both pursuant to article 29 of the RJAT.
1.2 Pursuant to the provisions of item a) of no. 2 of article 6 and of item b) of no. 1 of article 11 of Decree-Law no. 10/2011 of 20 January, in the wording introduced by article 228 of Law no. 66-B/2012 of 31 December, the Deontological Council appointed Maria de Fátima Alves as sole arbitrator, who communicated acceptance of the appointment within the applicable period:
- On 30-01-2017, the parties were duly notified of this appointment and did not manifest any intention to reject the arbitrator's appointment, pursuant to the combined provisions of article 11 no. 1 items a) and b) of the RJAT and of articles 6 and 7 of the Deontological Code;
- Therefore, the arbitral tribunal was constituted on 19-02-2017, as prescribed in item c) of no. 1 of article 11 of Decree-Law no. 10/2011 of 20 January, in the wording introduced by article 228 of Law 66-B/2012 of 31 December.
1.3 The Petitioner, in the substantiation of its petition for arbitral opinion, states, in summary, the following:
- The self-assessments challenged in the proceedings were made by the Petitioner and paid in full, despite the fact that it disagreed with them, through documents extracted from the Tax Authority Portal (docs. no. 4 and no. 5), attached to the proceedings.
- Now, the Petitioner is a Financial Institution, specialized in the automobile sector, and therefore enters into contracts with its clients for Long-Term Rental (ALD), Short-Term Rental contracts (renting) and Financial Leasing contracts (leasing) of motor vehicles.
- Resulting from this context, that in the course of its commercial activity, it enters into contracts of diverse nature with its clients, of which the most notable are vehicle rental contracts without driver "with or without promise of purchase and sale, leasing contracts and financing contracts".
- The Petitioner further states that when acquiring new vehicles from national importers: ... and ..., it makes financial leasing (leasing), long-term rental (ALD), renting (AOV) or operational leasing of those same vehicles in favor of third parties.
- Furthermore, "after the end of the contracts, as a rule," it proceeds to transfer the ownership of the vehicles to the corresponding lessees or to third parties for a residual value".
- Being that, as regards the vehicles in question, the Petitioner either had leased those vehicles in favor of third parties or was not the owner of the disputed vehicles, as it had already sold them to the respective lessees or to third parties, as it alleged and demonstrated in the Administrative Complaint, attached to the proceedings, as doc. no. 5".
- It reinforces the fact that it was not a taxpayer on the date of the tax obligation, as can be seen "from the copies of the contracts and sales invoices that evidence the sale of the respective vehicles, contained in document no. 6, dossier relating to each of the disputed vehicles and which is an integral part of the proceedings.
- Those invoices, which are sent automatically after their issuance to the respective clients, thus transferring the ownership of the vehicles to their proper owners.
- A situation which also occurs within the scope of leasing contracts, as it removes the Petitioner's liability for payment of the respective IUC, pursuant to article 3 of the CIUC, as these are the owners of the vehicles by virtue of the leasing contract.
- The Petitioner emphasizes the fact that it is "merely a lessor of motor vehicles" and therefore never drove any of the leased vehicles in the table it attaches as doc. 7, in its own account or in its own interest, and therefore the imposition of the IUC should only be applied to those causing damage to the road network and the environment, as established in the principle of equivalence, article 1 of the CIUC, which enshrines the polluter-payer principle.
- From which it follows that: the prejudice arising to the environment, resulting from the use of motor vehicles, should be borne by the real polluters, as they are the agents using them, who drive them in their own interest.
- Therefore, the Petitioner "was never the real polluter and causer of environmental damage", as it merely limited itself to leasing the disputed automobiles and to selling them, "in cases where the contracts had already ended", see docs. nos. 5, 6 and 7, attached to the proceedings.
- In light of the context described, at the time of the tax events, the Petitioner could not be considered a taxpayer of the tax, a fact which precludes any subjective liability for its payment.
1.4 The Respondent, the Tax and Customs Authority (hereinafter referred to as AT), presented a Response, from which it emerges that the contested tax acts do not suffer from any defect constituting a violation of law, pronouncing itself in favor of the non-merit of the case and the maintenance of the assessment acts in question, defending, summarily, the following:
-It alerts the Respondent to the fact that the value of the Petition does not conform to the value of the Administrative Complaint no. ...2015..., "which was partially denied" and whose value corresponds, at page 40 of the case file, to the sum of €31,532.31, whereas the Value of the Petition (PI) corresponds to the sum of € 30,791.12.
-In response to an arbitral order sent to the Petitioner by this Tribunal, the Petitioner came to the proceedings to clarify the divergence in values, alleging that the value of €31,532.31 corresponds to the value initially claimed in the preceding Administrative Complaint which concerned 476 IUC self-assessments, whereas the exact value (€30,791.31) is that which corresponds to the sum of 464 self-assessments actually challenged and to the economic utility of the Petition, see article 10 no. 2 item e) of the RJAT and article 97-A, no. 1, item a) of the CPPT, pursuant to article 29, no. 1 item a) of the RJAT.
By Exception
-The Respondent comes to allege the untimeliness of the Petition for Arbitral Opinion, which will be debated further below.
-By Objection
-It objects, within the scope of "error as to the assumptions and the consequent violation of articles 19 and article 3, both of the Unique Vehicle Circulation Tax Code":
- Alleging that the Petitioner makes an incorrect interpretation and application of the legal norms, which are subsumable to the case sub judice;
- It argues that, within the scope of the "exception" to article 3 of the CIUC, financial lessors must necessarily consider article 19 of the CIUC.
- Therefore, the Petitioner, by not complying with the specific obligation of article 19 of the CIUC, cannot exempt itself from the tax under article 3 of the CIUC, and therefore the Petitioner should be considered as a taxpayer of the IUC.
- Because, although the Petitioner "alleges having entered into financial leasing contracts, it is liable for the IUC because it did not communicate the existence of financial leasing to which article 19 of the CIUC refers;
- However, although article 19 of the CIUC refers back to article 3 of the same law, it must be considered that in the case sub judice, there is a specific analysis of the circulation of vehicles in public space which constitutes road and environmental damage caused by the respective users/polluters, who must be held responsible, according to the principle of equivalence provided for in article 1 of the CIUC (which will be developed in the proper chapter);
- The Respondent also challenges the facts made by the Petitioner, both within the scope of registration and within the scope of registration in national territory;
- Facts that call into question the exigibility of the unique vehicle circulation tax;
- It questions the truthfulness of the evidentiary means, leasing contracts and sales invoices, corresponding to the respective vehicles;
- As it does not consider them "apt to prove the conclusion of a bilateral contract;
- Now, perhaps by oversight, the Respondent does not consider that in this specific case, the purchase and sale of a vehicle has freedom of form, pursuant to article 219 of the CC, enabling the vehicle purchase and sale contract to be by verbal contract;
- And, as is known, the alteration of the title of the property right, acquired by verbal form of vehicle purchase and sale" is relevant for IUC purposes, from the date of transfer of the respective vehicles, as established in article 17-A of the CIUC;
- The Respondent argues that "the tax legislator, in articles 3 and 6 of the CIUC, clearly established the premises as to the generating fact of the tax and as to its exigibility, stating unequivocally that such fact is constituted by the ownership of the vehicle, as attested by the registration or registration in national territory";
- Being therefore irrelevant that the Petitioner has transferred, by sale, the ownership of the motor vehicles to "third parties";
- The Respondent, in light of the facts summarily set forth:
- Makes a general and objective interpretation of what is expressly stated in the articles it invokes, not considering the presumption of article 3 of the CIUC, thus dismissing article 73 of the LGT;
- Does not take into account the principle of "equivalence", provided for in no. 1 of the CIUC, as a corollary of the polluter/payer principle, with basis in no. 2 of article 66 of the CRP;
- Not relevantly considering the evidentiary means contained in the contracts and in the purchase and sales invoices, when it has them within its reach of its own authority, within the scope of IRC, as the Petitioner necessarily has an organized accounting system.
1.5 The meeting provided for in article 18 of the RJAT was dispensed with, as these were questions already sufficiently debated, either in the proceedings or in jurisprudence, with this Tax Arbitral Tribunal understanding it unnecessary to have final arguments, dispensing with the examination of witnesses.
1.6 This Tribunal having set 12-05-2017 for the Final Decision, the same did not materialize due to the Arbitral Order sent to the Petitioner for it to pronounce itself on the exact value of the Petition for Arbitral Opinion, which was questioned by the Respondent.
2 ISSUES TO BE DECIDED
2.1 In light of what is set forth in the preceding numbers, relative to the statement of the parties and the arguments presented, the principal issues to be decided are the following:
- The allegation made by the Petitioner regarding the substantive illegality of the IUC assessment acts and the illegality of the acts regarding accessory interest, for the years 2009 to 2014, concerning the IUC on the vehicles above mentioned in the PI;
- The incorrect interpretation and application of the norms of subjective incidence of the unique vehicle circulation tax assessed and collected, which constitutes the central issue to be decided in the present proceedings;
- The preliminary exception raised by the AT;
- The legal value of the registration of motor vehicles.
3 FACTUAL GROUNDS
3.1 In matters of fact relevant to the decision to be rendered, this Tribunal considers as established, in light of the elements existing in the proceedings, the following facts:
- The Petitioner presented evidentiary elements contained in documents nos. 1, 2, 3, 4, 5, 6 and 7, attached to the PI, which are given as entirely reproduced for all legal purposes;
3.1.1 SUBSTANTIATION OF PROVEN ACTS
- The facts held as proven are based on the documents attached to the petition for arbitral opinion of the above-mentioned PI, which are given as entirely reproduced for all legal purposes.
3.1.2 UNPROVEN FACTS
- There are no facts held as unproven, as all facts deemed relevant for the appreciation of the merits of the case were proven.
4 LEGAL GROUNDS
4.1 The Tribunal is materially competent and is regularly constituted, pursuant to articles 2 no. 1, item a), 5 no. 2, item a), 6 no. 1, 10 no. 1, item a) and no. 2 of the RJAT:
- The parties enjoy juridical personality and capacity and are legitimate, pursuant to articles 4 and 10, no. 2, of the RJAT and article no. 1 of Ordinance no. 112-A/2011 of 22 March;
- The proceedings do not suffer from any nullities;
- There is a preliminary issue upon which the Tribunal must pronounce itself.
PRELIMINARY EXCEPTION
1º-The Tax and Customs Authority (AT), Respondent in the present proceedings, comes, within the scope of its Response presented pursuant to the provisions and for the purposes provided in article 17 of the RJAT, to invoke a peremptory exception, pursuant to article 576 no. 3 of the CPC, pursuant to article 29 of the RJAT, which imports the partial absolution of the AT of the Petition, as it prevents the legal effect of the facts argued by the Petitioner";
2º-Its allegation is based on the fact that the Petitioner "requested the establishment of the Arbitral Tribunal on 2016-10-06, being far beyond the period stipulated in item a) of no. 1 of article 10 of the RJAT, as to the assessment acts for the years 2009 to 2014, with the exception of the vehicles with the registration plates: ...-...-...; ...-...-... and ...-...-..., and therefore the petition is untimely".
Reply of the Petitioner
3º It was the Petitioner itself who assessed and paid the disputed IUC in the proceedings, pursuant to no. 3 of article 16 of the CIUC, which states "the assessment of the IUC can also be made at any tax office, upon request of the taxpayer";
4º The Petitioner bases its defense on the doctrine established in article 16 of the CIUC which, as a rule, gives the taxpayer the initiative of the assessment of the tax, either in the form of self-assessment if the technical means used is the internet, or in the request (oral) for assessment at any Tax Office (see A. Brigas Afonso and Manuel T. Fernandes, in ISV and IUC, Annotated Codes, Coimbra Publisher, p. 218 and 219);
5º-The Petitioner further argues that the Administrative Complaint was presented against the self-assessments of the IUC within the period of two years stipulated in no. 1 of article 131 of the CPPT;
6º-That it, the Petitioner, took the initiative to self-assess and pay the respective IUC and compensatory interest, obtaining the respective payment documents via the internet, through the Tax Authority Portal, although it disagreed with such self-assessments and their payment (see docs. nos. 4 and 5 attached to the proceedings).
Given the facts summarily set forth, with basis in the evidentiary documents attached to the proceedings and duly analyzed, this Tribunal understands
The peremptory exception alleged by the AT regarding the untimeliness of the Petition for Arbitral Opinion to lack merit.
4.2 The petition, object of the present proceedings consists of the declaration of annulment of the IUC assessment acts, corresponding to the motor vehicles better identified in the proceedings;
4.2.1 Condemnation of the AT to reimbursement of the amount of tax relating to such assessments in the amount of € 30,791.12;
4.2.2 Condemnation of the AT to payment of compensatory interest on the same amount.
4.3 According to the understanding of the AT, it is sufficient that in the registration, the vehicle appears as the property of a particular person, for that person to be the taxpayer of the tax obligation.
4.4 The factual matter is fixed, as it appears in no. 3.1 above, being necessary now to determine the applicable law to the underlying facts, in accordance with the issues to be decided, identified in no. 2.1 above, it being certain that the central issue at hand in the present proceedings, regarding which there are absolutely opposed views between the Petitioner and the AT, consists in determining whether or not no. 1 of article 3 of the CIUC concerning the subjective incidence of the unique vehicle circulation tax enshrines a rebuttable presumption.
4.5 All analyzed and, taking into account, on the one hand, the positions of the parties in confrontation mentioned in points 1.3 and 1.4 above and, considering on the other hand that the central issue to be decided is whether or not no. 1 of article 3 of the CIUC enshrines a legal presumption of tax incidence, it is necessary in this context to weigh and render a decision.
5 ISSUE OF INCORRECT INTERPRETATION AND APPLICATION OF THE NORM OF SUBJECTIVE INCIDENCE OF THE IUC
5.1 Considering it to be accepted in the doctrine that in the interpretation of tax laws the general principles of interpretation are fully applicable, which will be only and naturally limited by the exceptions and particularities dictated by the law itself which is the subject of interpretation. This is an understanding which has come to be accepted in the General Tax Laws of other countries and which has also come to be established in article 11 of our General Tax Law, which has, moreover, been frequently emphasized by jurisprudence.
It is consensually accepted that, with a view to the apprehension of the sense of the law, interpretation makes use, a priori, in reconstructing the legislative intent through the words of the law, which means seeking its literal sense, valuing it and gauging it in light of other criteria, with the so-called elements of a logical, rational or teleological nature intervening and of a systematic order:
- With regard to the interpretation of tax law, jurisprudence must be considered, namely the Judgments of the STJ of 05-09-2012, case no. 0314/12, of 06-02-2013, case 01000/12, available at www.dgsi.pt, the importance of the provision of article 9 of the Civil Code (CC), as a fundamental element of legal hermeneutics;
- No. 1 of article 3 of the CIUC provides that "The taxpayers of the tax are the owners of the vehicles, being considered as such the natural or legal persons, of public or private law, in whose name the same are registered";
- The wording used in the aforementioned article makes use of the expression "considering" which raises the question of whether such expression can be attributed a presumptive sense, equating with the expression "presuming", these are expressions frequently used with equivalent meanings;
- As Jorge Lopes de Sousa teaches, in Code of Tax Procedure and Process, Annotated and Commented, volume I, 6th Edition, Area Publisher, SA, Lisbon 2011, p. 589, that in matters of tax incidence, presumptions can be revealed by the expression "it is presumed" or by similar expression, there being mentioned various examples of such presumptions, referring to the one contained in article 40, no. 1 of the CIRS, in which the expression "it is presumed" is used and the one contained in article 46 no. 2 of the same Code, in which the expression "is considered" is used, as an expression with an effect similar to that one and likewise embodying a presumption;
- In the legal wording set forth in no. 1 of article 3 of the CIUC, in which a presumption was enshrined, revealed by the expression "considering", of similar meaning and equivalent value to the expression "presuming", in use since the creation of the tax in question;
- The use of the expression "considering" was intended to establish a more marked and clear link between the taxpayer of the IUC and the effective owner of the vehicle, which is in line with the reinforcement given to the ownership of the vehicle, which came to constitute the generating fact of the tax, pursuant to article 6 of the CIUC;
- The relevance and interest of the presumption in question, which was historically revealed through the expression "presuming" and which now uses the expression "considering", resides in the truth and justice which, by this means, is conferred on tax relations and which embody fundamental tax values, allowing the real and actual owner to be taxed and not the one who, by circumstances of diverse nature, sometimes amounts to nothing more than an apparent and false owner. If the case were not so considered, not admitting and recognizing the presentation of evidentiary elements intended to demonstrate that the effective owner is, in fact, a person different from the one listed in the registration and who initially and in principle was presumed to be the true owner, those values would be objectively undermined.
5.2 There is also to be considered the principle of equivalence, inscribed in article 1 of the CIUC, which underlies the polluter-payer principle and which concretizes the idea contained therein that whoever pollutes must, for this reason, pay. The aforementioned principle has constitutional basis, insofar as it represents a corollary of article 66, no. 2, item h) of the Constitution, and also has basis in community law, both at the level of primary law, article 130-R of the Treaty of Maastricht (Treaty on European Union of 07-02-1992), where the aforementioned principle came to be included as support for Community Policy in the environmental field and which aims to hold responsible whoever contributes to the damage that accrues to the community resulting from the use of motor vehicles, as the owner-users of those vehicles should bear them as costs they alone must support.
5.3 In light of the facts described above, it is important to emphasize that the aforementioned elements of interpretation, whether those related to literal interpretation, supported by the words legally used, or those relating to logical elements of interpretation of a historical nature or of a rational order, all point to the sense that the expression "considering" has a meaning equivalent to the expression "presuming", it being understood that the provision of no. 1 of article 3 of the CIUC enshrines a legal presumption which, given article 73 of the LGT, which establishes that "The presumptions enshrined in the norms of tax incidence always admit proof to the contrary", will necessarily be rebuttable, which means that the taxpayers are, in principle, the persons in whose name such vehicles are registered. These persons, identified in these conditions, are to whom the AT must necessarily direct itself;
- But it will be, in principle, in that, in the context of mandatory prior hearing, given the provision of item a) of no. 1 of article 60 of the LGT, the tax relation may be reconfigured, validating the initially identified taxpayer or redirecting the proceedings towards the one who is, in fact, the true and actual taxpayer of the tax in question.
- The taxpayer has the right to be heard, through prior hearing (José Manuel Santos Botelho, Américo Pires Esteves and José Cândido de Pinho, in Code of Administrative Procedure, Annotated and Commented, 4th edition, Almedina, 2000, note 8 of article 100).
- The prior hearing, which must naturally be carried out at the moment immediately preceding the assessment procedure, corresponds to the venue and proper time to, with certainty and security, identify the taxpayer of the IUC.
6 ON THE LEGAL VALUE OF REGISTRATION
6.1 Regarding the legal value of registration, it is important to note what is established in no. 1 of article 1 of Decree-Law no. 54/75 of 12 February (amended several times, the last time by Law no. 39/2008 of 11 August), when it provides that "the registration of vehicles has essentially as its purpose to publicize the legal status of motor vehicles and their trailers, with a view to the security of legal commerce":
- Article 7 of the Vehicle Registration Code (CRA), applicable supplementarily to vehicle registration, by force of article 29 of the CRA, provides that "Definitive registration constitutes a presumption that the right exists and belongs to the registered owner in the precise terms in which the registration defines it";
- Definitive registration is nothing more than a rebuttable presumption, admitting therefore contrary evidence, as follows from the law and jurisprudence has been noting, which can be seen, among others in the Judgments of the STJ no. 03B4369 of 19-02-2004 and no. 07B4528, of 29-01-2008, available at: www.dgsi.pt;
- Therefore, the function legally reserved to registration is, on one hand, to publicize the legal status of the goods, in the case in question, of the vehicles and, on the other hand, it allows us to presume that the right exists on those vehicles and that it belongs to the registered owner, as such registered in the registration, it does not have a constitutive nature of the property right, but only a declaratory one, hence the registration does not constitute a condition of validity of the transfer of the vehicle from the seller to the buyer;
- The acquirers of the vehicles become owners of those same vehicles by means of the conclusion of the corresponding purchase and sale contracts, with registration or without it;
- In this context it is well to recall that, given the provision of no. 1 of article 408 of the CC, the transfer of real rights over things, in the case sub judice, motor vehicles, is determined by mere effect of the contract, and pursuant to the provision of item a) of article 879 of the CC, among the essential effects of the contract of purchase and sale, stands out the transfer of the thing;
- In light of the foregoing, it becomes clear that the legislative intent points in the direction that the provision of no. 1 of article 3 of the CIUC enshrines a presumption "juris tantum", consequently rebuttable, allowing thus that the person who is registered in the registration as owner of the vehicle can present evidentiary elements intended to demonstrate that such ownership is within the legal sphere of another person, to whom ownership was transferred;
- Which with regard to the facts in dispute, there exist, attached to the proceedings, documents which were proven by the Petitioner, both in the context of prior hearing and in the petition for arbitral opinion, configuring therefore the certainty that the subjective liability for the IUCs belongs to the respective owners/users of the vehicles, pursuant to no. 1 and 2 of article 3 of the CIUC.
7 THE PRESUMPTION OF ARTICLE 3 OF THE CIUC AND THE DATE ON WHICH THE IUC IS EXIGIBLE
7.1 DATE ON WHICH THE IUC IS EXIGIBLE
- The IUC is a tax of periodic taxation, whose periodicity corresponds to the year which begins on the date of registration or on each of its anniversaries, pursuant to nos. 1 and 2 of article 4 of the CIUC;
- It is exigible pursuant to no. 3 of article 6 of the aforementioned Code;
- It being important to note that, as to the assessment of the IUC charged to the Petitioner on the vehicles above mentioned, for the years 2009 to 2014, it is to be considered that at the time of the tax facts, the vehicles in question were in the legal sphere of the owners/users of the said vehicles, because they have the use and enjoyment of the said vehicles, and therefore pursuant to no. 1 and 2 of article 3 of the CIUC, they must be held responsible for the payment of the obligation of the said tax.
7.1.1 As to the burden of proof, article 342 no. 1 of the CC stipulates "those who invoke a right bear the burden of proving the constitutive facts of the right alleged";
7.1.2 Also article 346 of the CC (contrary proof) determines that "to the proof produced by the party bearing the burden of proof, the opposing party may offer contrary proof regarding the same facts, intended to render them doubtful; if it succeeds, the matter is decided against the party burdened with the proof." (As affirms Anselmo de Castro, A., 1982, ED. Almedina Coimbra, "Civil Procedural Law", III, p. 163, "where one of the parties bears the burden of proof, to the opposing party it suffices to offer contrary proof, this being proof intended to render doubtful the facts alleged by the first").
Thus, in the case of the proceedings, what the Petitioner must prove in order to rebut the presumption that flows either from article 3 of the CIUC or from the Vehicle Registration itself, is that the Petitioner was not the owner of the vehicles in question during the period to which the assessments pertain. What it proposes to prove, as results from the proceedings, is that the ownership of the vehicles did not belong to it in the periods to which the assessments pertain. Presenting thus the sales invoices and the vehicle leasing contracts contained in the documents attached to the Administrative Complaint and attached to the proceedings as documents nos. 4, 5, 6 and 7, which are given as entirely reproduced for all legal purposes.
7.2 REBUTTAL OF THE PRESUMPTION
- The Petitioner, as referred to in 3.1 above, concerning the facts proven, alleged for the purpose of setting aside the presumption, not to be a taxpayer of the tax at the time of the occurrence of the tax events, offering for that purpose the following documents;
- Sales invoices to the respective lessees and leasing contracts (see documents attached to the proceedings with nos. 4, 5, 6 and 7);
- Now, those documents enjoy the presumption of truthfulness provided for in no. 1 of article 75 of the LGT. Resulting from this, that at the date when the IUC was exigible, those holding the ownership of the motor vehicles were the legitimate owners and users and not the Petitioner.
8 OTHER ISSUES RELATING TO THE LEGALITY OF THE ASSESSMENT ACTS
- With regard to the existence of other issues relating to the legality of the assessment acts, taking into account that it is inherent in the establishment of an order of knowledge of the defects, as provided for in article 124 of the CPPT, that if the petition for arbitral opinion is based on defects that prevent the renewal of the disputed assessments, knowledge of other defects is foreclosed, as it becomes pointless, it does not appear necessary to rule on the other issues raised.
- Whereby in this context, this Tribunal understands, without prejudice to better opinion, that article 19 of the CIUC "Accessory Obligations, Inspection and Counter-Ordinal Regime" do not fall within the competence of this Arbitral Tribunal.
9 REIMBURSEMENT OF TOTAL AMOUNT PAID
- Pursuant to the provision of item b) of no. 1 of article 24 of the RJAT and, in accordance with what is established there, the arbitral decision on the merits of the claim as to which no appeal or objection lies, binds the tax administration from the end of the period provided for appeal or objection, and the latter must, in the exact terms of the success of the arbitral decision in favor of the taxpayer and until the end of the period provided for the execution of sentences of tax judicial courts "Restore the situation that would exist if the tax act object of the arbitral decision had not been made, adopting the acts and operations necessary for that purpose"
- These are legal commands which are in complete harmony with the provision of article 100 of the LGT, applicable to the case, pursuant to item a) of no. 1 of article 29 of the RJAT, in which it is established that "The tax administration is obliged, in case of total or partial success of complaints or administrative appeals or judicial proceedings in favor of the taxpayer, to immediate and full restoration of the situation that would exist if the illegality had not been committed, with compensatory interest payable, under the terms and conditions provided by law";
- The case contained in the present proceedings raises the manifest application of the aforementioned norms, as following from the illegality of the assessment acts referenced in these proceedings, there must necessarily be reimbursement of the amounts paid, whether for the tax paid, or for the corresponding compensatory interest, as a way to achieve the restoration of the situation that would exist if the illegality had not been committed.
10 AS TO THE RIGHT TO COMPENSATORY INTEREST
- The declaration of illegality and consequent annulment of an administrative act confers on the recipient of the act the right to reintegration of the situation in which the recipient would find itself prior to the execution of the annulled act.
- In the context of tax assessment, its annulment confers on the taxpayer the right to restitution of the tax paid, increased by the corresponding compensatory interest and, as a rule, the right to compensatory interest, pursuant to no. 1 of article 43 of the LGT and article 61 of the CPPT.
- Therefore, the Petitioner has the right to compensatory interest on the amount of tax paid relating to the annulled assessments.
11 DECISION
In light of the foregoing, this Arbitral Tribunal decides:
- To hold the petition for declaration of illegality of the IUC assessment concerning the years: 2009 to 2014, regarding the motor vehicles identified in the present proceedings to have merit, and consequently annuls the corresponding tax acts;
- To hold the petition for condemnation of the Tax Administration to reimbursement of the amount unduly paid in the sum of 30,791.12 euros to have merit, condemning the Tax and Customs Authority to make such payments;
- The AT must also make payment corresponding to the amount due for compensatory interest on the tax paid relating to the annulled assessments, pursuant to no. 1 of article 43 of the LGT, pursuant to no. 2 of article 61 of the CPPT (Wording of Law no. 55-A/2010 of 31-12, entered into force on 2011-01-01.
VALUE OF THE CASE: In accordance with articles 306 no. 2 of the CPC and 97-A, no. 1 of the CPPT and article 3, no. 2 of the Regulation of Costs in Tax Arbitration Proceedings, the value of the case is fixed at € 30,791.12.
COSTS: In accordance with no. 4 of article 22 of the RJAT, the amount of costs is fixed at € 1,836.00 pursuant to Table I, attached to the Regulation of Costs in Tax Arbitration Proceedings, charged to the Tax and Customs Authority.
Notify the parties.
Lisbon, 26-05-2017
The Arbitrator
Maria de Fátima Alves
(the text of this decision was drawn up by computer, pursuant to article 131, no. 5 of the Code of Civil Procedure, applicable by referral from article 29, no. 1 item e) of Decree-Law 10/2011 of 20 January (RJAT), governed by its wording by current orthography)
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