CAAD Ruling on IUC Subjective Incidence and Tax Enforceability – Process 60/2016-T

ARBITRAL DECISION

1. REPORT

1.1

A…, Lda. (Claimant), legal entity no. …, with registered office at …, Street …, no. …, …, in …, in Paço de Arcos, filed on 02/02/2016 a request for arbitral ruling, in which it petitions for the annulment of 12 assessment acts relating to the Single Circulation Tax (IUC) and the corresponding compensatory interest, relating to the years 2011 and 2012.

1.2

His Excellency the President of the Ethics Council of the Administrative Arbitration Centre (CAAD) appointed, on 08/03/2016, as sole arbitrator the signatory of this decision.

1.3

On 20/04/2016 the arbitral tribunal was constituted.

1.4

In compliance with the provisions of article 17, paragraph 1 of the Legal Framework of Tax Arbitration (RJAT), the Tax and Customs Authority (AT) was notified, on 21/04/2016, to present its reply and request the production of additional evidence, if it so wished.

1.5

On 26/04/2016 the Claimant was requested to identify the assessment acts in question, their respective date of notification, registration, year of the tax, amount of the tax and corresponding compensatory interest, and also to attach all annexes indicated in the request for arbitral ruling.

1.6

On 06/05/2016 the Claimant acknowledged the existence of some "obvious clerical errors" in the request for arbitral ruling filed on 02/02/2016, having included the documents that were missing.

1.7

Consequently, the arbitral tribunal determined certain corrections to the request for arbitral ruling filed on 02/02/2016 and, likewise, the attachment of Annexes I and II supplementing the documents indicated in the request for arbitral ruling.

1.8

On 16/05/2016 the AT presented its reply.

1.9

The arbitral tribunal on 18/05/2016 decided to dispense with the holding of the meeting referred to in paragraph 1 of article 18 of the RJAT, on the basis of the principle of autonomy of the arbitral tribunal in the conduct of proceedings, inviting both parties to present optional written submissions, if they so wished, and scheduled the date for rendering the final decision.

1.10

On 30/05/2016 the Claimant presented optional written submissions.

1.11

The AT did not present optional written submissions.

2. PROCEDURAL MATTERS

The arbitral tribunal was regularly constituted and is materially competent.

The parties have legal personality and capacity and are legitimately represented, with no defects in representation occurring.

There are no nullities, exceptions or preliminary issues that prevent knowledge of the merits and that must be addressed ex officio.

The request for constitution of the arbitral tribunal was filed within the period provided for in subparagraph a) of paragraph 1 of article 10 of the RJAT, and is therefore timely.

The conditions are therefore met for the final decision to be rendered.

3. POSITIONS OF THE PARTIES

There are two opposing positions: that of the Claimant, set out in the request for arbitral ruling (and in subsequent submissions) and that of the AT in its reply.

In summary, the Claimant contends that:

a) The Claimant is a commercial company whose business purpose is the importation, commercialization, distribution of motor vehicles, parts, pieces, accessories or other complementary or related services, which include technical assistance services;

b) Within the scope of its commercial activity, the Claimant imports motor vehicles of the B… brand into Portugal, which are also sold by it to dealers, who form part of the distribution network, and it is these latter who, in turn, resell the vehicles to end consumers, their customers;

c) The Claimant alleges that, being a registered operator, the motor vehicles can be introduced into consumption by it through the issuance of Customs Vehicle Declarations (DAV);

d) With the issuance of the DAV, and after payment of the tax, the Claimant requests from the Institute for Mobility and Transport, I.P. (IMTT) the assignment of a registration certificate, which it only does when its dealer network informs it that it has entered into a purchase and sale contract for a particular vehicle;

e) The Claimant further notes the fact that obtaining a registration certificate requires presentation of the DAV, which is why the first registration is effected in the name of the Claimant;

f) The Claimant contends that, having regard to the provisions of articles 3, paragraph 1, and 6, paragraph 1, of the IUC Code, the taxable event of the IUC is constituted by ownership of the vehicle as attested by registration in national territory;

g) The Claimant contends, however, that, in the year of registration of the vehicle in national territory, the owner has 60 days to register the vehicle and, after this registration, the counting of the 30-day period for assessment and payment of the tax begins, so that between the moment the registration is assigned and the end of the period for assessment and payment of the tax, there is a period of 90 days, in accordance with the provisions of article 17, paragraph 1, of the IUC Code and article 42, paragraph 2, of the Motor Vehicle Registry Regulation (RRA);

h) The Claimant further contends in its request for arbitral ruling that article 18 of the IUC Code provides that in the absence of registration, after the 60-day period for registration has elapsed, the tax due in the year of registration is assessed against the taxpayer on the basis of the DAV;

i) In this manner, the Claimant concludes that if the ownership of the vehicles is transferred before the expiration of the period for registration of the vehicles and, before the tax is assessed and becomes due, it is possible to exclude the liability of the previous registered owner (the initial owner) of the vehicle;

j) The Claimant contends that, although in some cases, after the expiration of the sixty-day period for registration, it was still registered as the owner of the said vehicles, in fact they had already been transferred;

k) That is, according to the Claimant, after the expiration of the sixty-day period for registration, the vehicles had already been transferred to a third party (the dealer) who, in turn, transferred them to end consumers before the tax became due;

l) The Claimant contends that article 3 of the IUC Code thus establishes a rebuttable presumption, which is rebutted through the attachment of documentation proving the transfer of said vehicles before the end of the period for registration and, consequently, before the tax became due;

m) To this extent, at the date of assessment and maturity of the IUC assessments in question, the Claimant considered itself not to be the owner of the vehicles listed in the notifications and, likewise, not to be liable for payment of the tax;

n) The Claimant further alleges that the registration of motor vehicle ownership does not have a constitutive effect on ownership, but rather a declarative nature, and likewise that ownership of the vehicles is determined by effect of the contract, in accordance with article 897, subparagraph a) of the Civil Code;

o) In sum, the Claimant contends that there is an error of fact and law in the interpretation and application of the norms regarding the subjective scope of the IUC, and that therefore the annulment of the 12 assessment acts relating to the IUC for 12 vehicles identified by registration number and, likewise, of the corresponding compensatory interest should be determined.

On the other hand, the AT contends that:

a) The AT considers that the issuance of a registration certificate implies the presentation of a DAV by the Claimant and the payment of the corresponding Vehicle Tax (ISV), and automatically results in the registration of ownership of the vehicle under article 24 of the RRA[1] in the name of the entity that proceeded with its importation and request for registration, that is, the Claimant;

b) Therefore, the first registration of each vehicle is effected in the name of the importing entity, in this case the Claimant (which did in fact occur in the concrete case);

c) The AT contends that under article 24 of the RRA, the importer appears in the registry as the first owner of the vehicle and in that sense is, in accordance with the provisions of article 3 and article 6, both of the IUC Code, a taxpayer subject to the tax;

d) To this extent, as the Claimant is the importer of the vehicles it is incumbent upon it in that capacity to introduce them into consumption in national territory, through delivery of the DAV and corresponding payment of the ISV, the registration being issued and the first registration effected in its name;

e) According to the AT, the sale to its dealers before the assignment of the registration is manifestly irrelevant;

f) The tax legislator, in article 6 of the IUC Code, clearly established the premises regarding the taxable event of the tax, as well as its exigibility, unequivocally providing that such event is constituted by ownership of the vehicle, as attested by registration in national territory;

g) According to the AT, the tax legislator did not create a fiction that the tax would be due by the owner of the vehicle who was registered in the 60 days referred to in article 42, paragraph 2 of the RRA, which would be paid in the following 30 days in accordance with article 17 of the IUC Code;

h) Neither did the legislator create a fiction that importers, notwithstanding they proceed to sell the vehicles before the assignment of the registration certificate, could thus have the subjective scope of the IUC excluded;

i) Thus, as the Claimant filed the completed DAV, paid the ISV and requested the registration certificate, and concomitantly the vehicle was registered in its name, it inescapably satisfies the taxable event of the tax (objective/subjective scope), making it liable for payment in accordance with article 3 of the IUC Code;

j) At the moment of introducing the vehicle into consumption through the registration certificate requested by the Claimant, the latter doubly satisfies – registration and registry entry – the subjective scope of the tax;

k) On the other hand, article 18 of the IUC Code established as a rule the subjection to tax of the taxpayer who presented the customs declaration and requested the issuance of the registration, if the vehicle is not registered in the name of another person within the 60-day period referred to in the provisions of article 42 of the RRA plus the period for assessment and payment established in article 17 of the IUC Code;

l) The AT further invokes that the understanding advocated by the Claimant to exclude the subjective scope and taxation of the IUC, in the event of selling the vehicle before the assignment of the registration, in addition to having no legal basis violates the constitutional principles of legality and tax justice, and of contributory capacity;

m) The AT further invokes the absence of proof of the transfer of the vehicles in question, since the Claimant did not attach proof of the motor vehicle registration request, in order to determine who appears as the seller of the vehicle, bearing in mind that, as stated by the Claimant itself, with the issuance of the invoice the property is transferred;

n) Indeed, although the corresponding invoices were not attached to the case file, the AT considers that these documents are not suitable to prove the purchase option by the lessees, since they are merely documents unilaterally issued by the Claimant and, as such, are not capable of proving the conclusion of a bilateral contract such as purchase and sale, as such documents do not reveal in themselves an essential and unequivocal declaration of intent (acceptance) by the purported acquirers.

4. FACTUAL MATTERS

4.1 FACTS CONSIDERED AS PROVEN

In light of the documents submitted to the proceedings, it is found as proven that:

4.1.1

The Claimant was notified of 12 IUC assessment acts, relating to the years 2011 and 2012, by the Finance Service of Oeiras - …, in September 2015, in the amount of € 2,039.12 in order to exercise its right to prior hearing, if it so wished.

4.1.2

The Claimant exercised its right to prior hearing, in accordance with which it considered that at the date of assessment and maturity of the tax, the vehicles were no longer registered in its name, and therefore should not be considered a taxpayer subject to the IUC.

4.1.3

The Claimant was notified of the response to its right to prior hearing, in accordance with which the right to prior hearing was not granted.

4.1.4

The Claimant was notified of the IUC assessment statements, relating to the years 2011 and 2012, by the Finance Service of Oeiras - …, in November and December 2015, in the amount of € 2,039.12, namely:

4.1.5

It is further found as proven the process of transfer of ownership to the end consumer of each of the 12 vehicles, on which IUC was assessed and the corresponding compensatory interest, insofar as sufficient documentation was attached (cf. sales invoice to the dealer, sales invoice from the dealer to the end consumer and vehicle delivery report).

4.2 FACTS NOT CONSIDERED AS PROVEN

There are no facts with relevance to the decision that have not been found as proven.

5. THE LAW

5.1 SUBJECTIVE SCOPE OF THE IUC

In accordance with the provisions of article 3, paragraph 1 of the IUC Code, "the taxpayers of the tax are the owners of the vehicles, such being understood as natural or legal persons, of public or private law, in whose name they are registered."

Now, the resort to motor vehicle registration as a structuring element of the functioning of this tax is evident throughout the entire IUC Code.

Reference should also be made to the content of article 6 of the IUC Code, relating to the definition of the taxable event of the tax obligation, in accordance with which this "(…) is constituted by ownership of the vehicle, as attested by registration in national territory."[2]

From this provision, it equally follows that vehicles which are not, nor should be, subject to registration in Portuguese territory are only subject to this tax if they remain therein for a period exceeding 183 days.[3]

It is therefore a norm which, by resorting to the registration element, simultaneously establishes the taxable event of the tax and its respective fiscal connection.

It is also from the elements of motor vehicle registration that the moment of commencement of the taxation period is derived,[4] as well as, in general, all the elements necessary for the assessment of the tax in question, such as, in particular, the case of engine displacement, age of registration, type of fuel and level of carbon dioxide (CO2) emissions.[5]

However, from the dependence of the IUC taxation regime on motor vehicle registration, it cannot be concluded that the norm regarding subjective scope, in the part in which it considers as owner the person in whose name the vehicle is registered, constitutes a mere (legal) presumption of scope.

It is therefore necessary to resort to other interpretative elements, in particular, to its legal notion.

Having regard to the literal wording of article 3, paragraph 1 of the IUC Code, it is necessary to analyze, in particular, the expression "such being understood as" (considerando-se como tais), especially from the perspective of the provisions of article 9, paragraph 2 of the Civil Code, when it establishes that the possible sense of a law cannot include a legislative thought that does not have in the respective wording a minimum of verbal correspondence, albeit imperfectly expressed.

It is true that the current text did not use the term "are presumed" (presumem-se), unlike what was contained in the defunct Motor Vehicle Tax Regulation.[6]

Could the fact that the legislator opted for the expression "such being understood as" ("considerando-se") make it impossible for us to be dealing with a legal presumption?

Now, examining the Portuguese legal system, we find various examples of norms that establish presumptions using the verb "to consider" (considerar), many of which are used in the gerund ("considering" or even "considering as" - considerando or considerando-se).

Examples of this are the norms presented below. In the Civil Code, among others, articles 314, 369 paragraph 2, 374 paragraph 1, 376 paragraph 2 and 1629. In the Industrial Property Code, merely by way of example, article 98, where the term "considering" is also used in a presumptive context.

Also in the tax legal system, we can find the verb "to consider" with a presumptive sense.

According to Diogo Leite de Campos, Benjamim Silva Rodrigues and Jorge Lopes de Sousa, in annotation to article 73, paragraph 3 of the General Tax Law (LGT) "the presumptions in the matter of tax scope can be explicit, revealed by the use of the expression 'is presumed' or similar (…). However, presumptions can also be implicit in norms regarding scope, in particular objective scope, when certain values of movable or immovable property are considered as constituting taxable matter, in situations where it is not unfeasible to ascertain the actual value", then giving some examples of norms in which the verb "to consider" is used, such as, in particular, the case of article 21, paragraph 2 of the Personal Income Tax Code (IRC), when it establishes that "for purposes of determining taxable profit, the acquisition value of capital increases obtained for no consideration is considered as its market value, not being able to be less than that resulting from the application of the rules for determining the taxable value provided in the Stamp Tax Code".

The authors maintain, with respect to this article 21, paragraph 2 of the IRC Code, that "in addition to this norm showing that what is at issue in the taxation of capital gains is ascertaining the actual value (the market value), the limitation to the ascertainment of actual value derived from the rules for determining the taxable value provided in the Stamp Tax Code cannot fail to be considered as a presumption in the matter of scope, whose rebuttal is permitted by article 73 of the LGT".[7]

It can also be mentioned in this regard the provision in article 89-A, paragraph 4 of the LGT, in which a presumption is likewise established, without the term "is presumed" having been used, but rather "is considered".[8][9]

Given that the legal system must form a coherent whole, the examples above referred to, accompanied by the doctrine and case law indicated, by appeal to the systematic element, allow us to conclude that it is not only when the verb "to presume" is used that we are dealing with a presumption, but also the use of other terms or expressions can equally serve as the basis for presumptions, notably the term "is considered" (considera-se), thus demonstrating compliance with the condition established in article 9, paragraph 2 of the Civil Code.

Although it is true that the literal element, by itself, cannot be considered entirely decisive, when accompanied by other elements it is quite relevant and indicative of the true sense of the norm in question, pointing to the fact that the expression "such being understood as" is equivalent to the expression "are presumed as such".

Let us now make use of the rational or teleological element, which is of the greatest importance in determining the sense of the norm in question.

Under the heading "principle of equivalence" article 1 of the IUC Code establishes that "The single circulation tax is based on the principle of equivalence, seeking to burden taxpayers in proportion to the environmental and road cost that they cause, in realization of a general rule of tax equality".

With respect to the notion of the principle of equivalence, Sérgio Vasques argues that "In compliance with the principle of equivalence, the tax must be shaped in view of the benefit that the taxpayer derives from public activity, or in view of the cost that it imputes to the community through its own activity"[emphasis added].[10]

The author further contends that "(…) a tax on motor vehicles based on a rule of equivalence will be equal only if those who cause the same road wear and the same environmental cost pay the same tax; and those who cause different wear and environmental cost pay different tax also. Therefore, from what is said, it is understood that the realization of the principle of equivalence dictates special requirements with respect to the design of the taxable matter and the structure of the rates".[11]

On the other hand, "When a tax is envisaged as the counterpart of the cost caused by a specific group of taxpayers, one must look to them for indications of that cost. Thus, within the scope of the single circulation tax, instituted by Law no. 22-A/2007, of 29 June, the definition of the tax base and the structure of rates is also aimed at a rule of equivalence, seeking to 'burden taxpayers in proportion to the environmental and road cost that they cause, in realization of a general rule of tax equality'. And therefore, the IUC Code takes as fundamental elements, in fixing the respective rates, the engine displacement and the level of CO2 emissions of light vehicles, or the gross weight, number of axles, type of suspension and age of heavy vehicles, seeking, instead of contributory capacity, the 'polluting capacity' of each vehicle."[emphasis added].[12]

Now, as regards the design of the taxable matter and the structure of rates, Sérgio Vasques further points out that "(…) in the context of the reform of the motor vehicle tax (…), the delimitation of the scope and the fixing of rates is suggested not only as a function of engine displacement, but also as a function of the weight of vehicles, the polluting potential and the safety levels presented. The new circulation tax proposed asserts itself to have the same underlying philosophy as the circulation and road haulage taxes: it is intended to compensate the right to circulate on public roads, that is, the harmful effects resulting from the circulation of vehicles"[emphasis added].[13]

Let us consider, for a moment, the explanatory memorandum that accompanied Bill no. 118/X, of 1 March 2007, which gave rise to Law no. 22-A/2007, of 29 June, which approved the Motor Vehicle Tax Code and the IUC Code.

In fact, in the mentioned explanatory memorandum, it is stated that "The reform to which this proposal gives rise results, therefore, from the imperative necessity to bring clarity and coherence to this area of the tax system and from the necessity, even more imperative, to subordinate it to the principles and concerns of an environmental and energy order which today mark the discussion of motor vehicle taxation".

Still in accordance with the aforementioned Bill, both taxes "constitute something different, figures already of the century in which we live, with which it is intended, with certainty, to raise public revenue, but to raise it in proportion to the cost that each individual causes to the community".

And this purpose (to raise public revenue in proportion to the cost that each individual causes to the community) is, moreover, clearly emphasized in Annex II of the aforementioned Bill when, with regard specifically to the IUC Code, it is stated "(…) as a structuring and unifying element (…) the principle of equivalence is established, thus making clear that the tax, as a whole, is subordinated to the idea that taxpayers should be burdened in proportion to the cost they cause to the environment and the road network, this being the reason for the existence of this tax figure".

Thus, and as regards the principle of equivalence, we are led to conclude that this is a structuring principle of the IUC.

As is, moreover, stated in the aforementioned Bill, vehicles should therefore be taxed as a function, namely, of their polluting potential and the safety levels presented.[14]

For all the above reasons and having regard, on the one hand, to the systematic place that the principle of equivalence occupies in the IUC Code, to the historical element embodied in Bill no. 118/X, of 1 March 2007 and, likewise, to the rational element underlying the reform of motor vehicle taxation referred to in the preceding paragraphs, it only makes sense to conceive of the expression "such being understood as", in the context of article 3 of the IUC Code, as revealing the presence of a rebuttable presumption.

5.2 THE NOTION OF PRESUMPTION

In light of the provisions of article 349 of the Civil Code, "presumptions are the inferences which the law or the judge draws from a known fact to establish an unknown fact".

Presumptions are therefore means of proof, having this function the demonstration of the reality of facts.[15]

Thus, whoever has a legal presumption in their favor is excused from proving the fact to which it leads.[16]

Nevertheless "legal presumptions may, however, be rebutted by contrary proof, except in cases where the law forbids it".[17]

As stated in the Supreme Court of Justice Judgment of Uniformization of Case Law relating to Case no. 002663, "the presumption represents the logical judgment by which, reasoning according to the causal link that binds some with other natural and human events, we can infer the existence or the manner of being of a particular fact which is unknown to us as a consequence of another fact or facts which are known to us."

The aforementioned Judgment further states that "legal presumptions are iuris et de iure, when they do not admit contrary proof; iuris tantum, when they can be set aside by proof that opposes them. In the first case, it prevents contrary proof; in the second, it reverses the burden of proof."

Now, "presumptions function as a way of overcoming the difficulties of proof, because they relate, for example, to facts which do not become objective because of their own nature, there being an appearance which deserves protection - enforceability against third parties of an action of simulation registered, being equally when it is more difficult to produce for those who would normally have to bear the burden of proof (relevatio ab onere probandi)."[emphasis added]

The Supreme Court of Justice concludes that "(…) iuris tantum presumptions constitute the rule, with iuris et de iure presumptions being the exception. In case of doubt, the legal presumption is iuris tantum, as it should not be considered, absent a reference in the law, that it was intended to prevent the production of contrary evidence, imposing a formal truth at the expense of the actual proven."[emphasis added]

In the case of presumptions regarding tax scope, these are always rebuttable.[18]

Thus, it cannot fail to be understood that the expression "such being understood as" (considerando-se como tais) used in paragraph 1 of article 3 of the IUC Code configures a legal presumption, which is rebuttable, in accordance with general principles and, in particular, by virtue of the provisions of article 73 of the LGT.

As referred to previously, the presumptions established in the norms regarding tax scope always admit contrary proof.

According to José Maria Fernandes Pires (Coordinator), Gonçalo Bulcão, José Ramos Vidal and Maria João Menezes, in annotation to article 73 of the LGT, "When they relate to norms regarding scope, presumptions are always relative"[emphasis added].[19]

Now, the presumptions regarding tax scope can be rebutted through the contradictory procedure proper as provided for in article 64 of the Tax Procedure Code (CPPT) or, alternatively, through the filing of a complaint or judicial challenge to the tax acts which are based on them.

In the case in question, the Claimant did not use the aforementioned proper procedure, so the present request for arbitral ruling constitutes the proper means to rebut the presumption regarding subjective scope of the IUC that supports the tax assessments whose annulment is the object of the present request.

Thus, once it has been concluded that article 3, paragraph 1 of the IUC Code establishes a rebuttable presumption, it is further necessary to analyze whether this presumption was actually rebutted by the Claimant.

To this extent, the person who is registered in the registry as the owner of the vehicle and, in that sense, who was considered by the Respondent as a tax subject, must demonstrate by means of available evidence that it is not the actual owner of the vehicle and, likewise, that ownership was transferred to another.

Now, in the case in question, the Claimant produced documentary evidence, as results from the presentation of sales invoices to the dealers, sales invoices from the dealers to the end consumers and vehicle delivery reports, and which demonstrate that at the date of the assessments it did not consider itself the owner of the vehicles in question.

However, the AT considered that this evidence would not be sufficient, on the ground that the Claimant had not attached "(...) to the case file proof of the motor vehicle registration request, in order to determine who appears as the seller of the vehicle, bearing in mind that as you note with the issuance of the invoice the property is transferred."

In fact, we consider that the sales invoices presented and the vehicle delivery reports enjoy a presumption of truthfulness and, in this sense, of suitability and sufficient force to rebut the presumption resulting from the assessments, in accordance with the provisions of article 75 of the LGT.

In this sense, we consider that the AT, in not having taken into account the documentary evidence submitted by the Claimant, is in error regarding the factual and legal premises, which determines the annulment of the corresponding assessment acts.

On the other hand, as regards the assessment and payment of the tax, article 17, paragraph 1 of the IUC Code establishes that, in the year of registration of the vehicle in national territory, the tax is assessed by the tax subject within 30 days after the end of the legally required period for its registration. Given that, in accordance with article 42, paragraph 2 of the RRA, in the case of initial registration of ownership, the vehicle must be registered within 60 days from the date of assignment of the registration.

That is, in the year of registration, it is only possible to determine the tax subject of the IUC after the expiration of the period for registration, that is, the 60-day period, counted from the registration, and therefore it is only at that moment that the tax becomes exigible.

Corroborating this same understanding, moreover, the IUC Code establishes in its article 18, paragraph 1, subparagraph a), under the heading "Official Assessment" that, "In the absence of registration of ownership of the vehicle effected within the legal period, the tax due in the year of registration of the vehicle is assessed and exacted: a) From the tax subject of the vehicle tax on the basis of the customs declaration of the vehicle, or on the basis of the supplementary declaration of vehicles on which the assessment of that tax is based, even if not due (...)".

In practice, in accordance with this legal provision, it is only in situations where the ownership of the vehicle is not registered within the legal 60-day period (article 42, paragraph 2 of the RRA) that the tax is exacted from the tax subject of the Vehicle Tax.

However, the tax subject of the Vehicle Tax (in the case in question, the registered operator) must not be confused with the tax subject of the IUC.

In truth, the law is quite clear: the tax subject of the Vehicle Tax only becomes liable for payment of the tax if it is not possible to determine the tax subject of the IUC after the legally established period for registration has elapsed.

In this manner, in situations where the tax subject of the Vehicle Tax succeeds in demonstrating that it transferred the vehicles in question to third parties before the end of the period for registration, it should be concluded that it has succeeded in rebutting the presumption established in article 3, paragraph 1 of the IUC Code.

Having reached this point, it must be concluded that the Claimant, as a registered operator, although it has, in the exercise of its commercial activity, imported the vehicles in question, proceeded to introduce them into consumption through the issuance of the DAV, paid the Vehicle Tax and requested, from the IMTT, the assignment of registration, is not a tax subject of the IUC, since it has succeeded in demonstrating, through the attachment of the means of evidence identified previously, that within the 60-day period for registration it transferred the vehicles to third parties.

That is, the Claimant has succeeded in demonstrating that the vehicles in question were transferred within the 60-day period for registration and, consequently, before the tax became due.

In light of the above, and as regards the exigibility of the tax, it is concluded that the ownership of the vehicles in question was transferred by means of a purchase and sale contract and, likewise, that at the date on which the IUC became exigible the Claimant was no longer the owner, as results from the documentary evidence submitted by the Claimant.

6. DECISION

In these terms and with the reasoning described above, the arbitral tribunal decides:

a) To find the request well-founded for declaration of illegality of the IUC assessments for the years 2011 and 2012, relating to all the vehicles whose registrations are identified in the case file, thus annulling the corresponding assessment acts; and

b) To order the AT to pay the costs of the present proceedings.

7. VALUE OF THE CASE

The value of the case is fixed at € 2,039.12 (two thousand thirty-nine euros and twelve cents), in accordance with article 97-A of the Tax Procedure Code (CPPT), applicable by virtue of subparagraphs a) and b) of paragraph 1 of article 29 of the RJAT and paragraph 2 of article 3 of the Regulation of Costs in Tax Arbitration Proceedings (RCPAT).

8. COSTS

Costs to be borne by the Claimant, in the amount of € 612 (six hundred and twelve euros), in accordance with Table I of the Regulation of Costs of Tax Arbitration Proceedings, in accordance with paragraph 2 of article 22 of the RJAT.

Notify.

Lisbon, 30 June 2016

The Arbitrator,

(Hélder Filipe Faustino)

Text prepared by computer, in accordance with the provisions of paragraph 5 of article 131 of the Civil Procedure Code (CPC), applicable by reference from subparagraph e) of paragraph 1 of article 29 of the RJAT.

The redaction of this decision is governed by the orthography prior to the Agreement of the Portuguese Language of 1990.

[1] Approved by Decree-Law no. 55/75, of 12 February and as amended by Decree-Law no. 178-A/2005, of 28 October.

[2] Cf. article 6, paragraph 1 of the IUC Code.

[3] Cf. article 6, paragraph 2 of the IUC Code.

[4] Cf. article 4 of the IUC Code.

[5] Cf. articles 7 and 9 of the IUC Code.

[6] In accordance with the wording of the then article 3, paragraph 1 of the Regulation of the Motor Vehicle Tax (approved by Decree-Law no. 143/78, of 12 June and repealed by Law no. 22-A/2007, of 29 June), "the tax is due by the owners of the vehicles, being presumed as such, until proof to the contrary, the persons in whose name they are registered or enrolled."[emphasis added]

[7] Cf. "Commented and Annotated General Tax Law", pp. 651 and 652.

[8] Op. cit., annotations 7 and 12 to articles 75 and 89-A of the LGT, respectively, pp. 667 and 782, and, likewise, the Judgments of 2 May 2012, Case no. 0381/12 and of 17 April 2013, Case no. 0433/13.

[9] According to José Maria Fernandes Pires (Coordinator), Gonçalo Bulcão, José Ramos Vidal and Maria João Menezes, "The standard income does not coincide with the amount spent, being determined in accordance with an income presumption, legally defined, deemed reasonable in view of the type and amount of the expenditure made. In the legal design of this paragraph 4 of article 89-A the legislator did not intend to tax rigorously the amount spent."[emphasis added], Op. cit., p. 945.

[10] Cf. "The Special Consumption Taxes", Almedina, 2000, p. 110 et seq.

[11] Op. cit., p. 122.

[12] Cf. Sérgio Vasques and Tânia Carvalhais Pereira, "The Special Consumption Taxes", Almedina 2016, p. 94 et seq.

[13] Op. cit., p. 124.

[14] See Sérgio Vasques, Op. cit., p. 124.

[15] Cf. article 341 of the Civil Code.

[16] Cf. article 350, paragraph 1 of the Civil Code.

[17] Cf. article 350, paragraph 2 of the Civil Code.

[18] Cf. article 73 of the LGT.

[19] Cf. "Commented and Annotated General Tax Law", Almedina, 2015, p. 810.