Summary
Full Decision
ARBITRAL DECISION
I. - REPORT
A - PARTIES
The company A..., SA, designated as "Claimant", with registered office at Rua..., Lot..., in Lisbon, with the corporate tax number..., challenger in the tax procedure above and herein referenced, came, invoking the provisions of Articles 2, no. 1, sub-paragraph a) of the Legal Framework for Tax Arbitration, approved by Decree-Law no. 10/2011, of 20 January (hereinafter RJAT), and of Articles 1 and 2 of Ordinance no. 112-A/2011, of 22 March, to request the constitution of a single arbitral tribunal, with a view to the appreciation of the following claim that opposes it to the Tax and Customs Authority, hereinafter designated as "Respondent" or "TA".
B - REQUEST
1 - The request for constitution of the arbitral tribunal was accepted by the Most Excellent President of CAAD on 09 September 2015 and, on that same date, notified to the TA.
2 - The Claimant did not proceed to the appointment of an arbitrator, and thus, under the provisions of no. 1 of Article 6 of the RJAT, the undersigned, on 13-11-2015, 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 13-11-2015, duly notified of this appointment, having manifested no will 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 compliance with the provisions of sub-paragraph 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 no. 66-B/2012, of 31 December, the arbitral tribunal was regularly constituted on 01-12-2015.
5 - On 15 April 2016, the Arbitral Tribunal deemed dispensable the holding of the meeting provided for in Article 18 of the RJAT, having then fixed 06-05-2016 as the date for hearing the summoned witnesses and for production of oral arguments, which, in reality, on that occasion, took place.
6 - The Claimant herein requests that this Arbitral Tribunal:
a) - Declare the illegality of the order of 22-06-2015 of the Head of the Tax Services of Lisbon..., in the part in which it rejected the gracious appeal no. ...2015...;
b) - Declare the illegality and consequent annulment of the assessments relating to the Single Vehicle Circulation Tax (hereinafter designated as IUC) 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 deemed fully reproduced;
c) - Condemn the TA to refund the amount of € 4,233.89, corresponding to the total amount paid for IUC and CI, referring to the years and vehicles aforementioned;
d) - Condemn the Tax and Customs Authority to the payment, both of indemnificatory interest relating to the amounts unlawfully assessed and paid, and of the costs of the proceedings.
C - CAUSE OF ACTION
7 - The Claimant, in the substantiation of its request for arbitral decision, states, in summary, the following:
8 - That it is a financial institution, specializing in the branch of automobile financing, in whose corporate purpose are inscribed, in particular, the conclusion with its customers of Long-Term Contracts (ALD), Short-Term Rental Contracts (renting) and Financial Leasing Contracts (leasing);
9 - That, in this context, it concluded with its customers vehicle rental contracts with promise of sale and purchase and financial leasing contracts, vehicles which it acquires, as new vehicles, from the national importers of B... and C...;
10 - That in the period between May and June 2014 it received notifications for prior hearing, concerning IUC assessments relating to the years 2013 and 2014, whose total value amounted to € 4,535.11;
11 - That although it was surprised by the aforementioned assessments and disagreed with them, it proceeded to the payment of the single vehicle circulation tax subject to assessment;
12 - That it filed a gracious appeal against 93 IUC assessments, with a total value of € 4,535.11, relating to the years 2013 and 2014, concerning 59 vehicles, having then instructed such appeal with a file regarding each of the vehicles under analysis, integrated both by copies of the financial leasing contracts and operational leasing contracts with promise of sale, and by the invoices for the sale of the vehicles;
13 - That the Gracious Appeal was, by order of 22-06-2015, of the Head of the Tax Services of Lisbon..., partially granted, in that only the assessments relating to the vehicles with the registration numbers ...-... -... and ...-... -... were annulled, with the refund of the corresponding tax, which reduced the total value of IUC paid to the amount of € 4,233.89;
14 - That in all contracts which it concluded, of financial leasing and rental of vehicles without driver with promise of sale, the users of the corresponding vehicles are clearly identified, to whom, or to third parties, after the end of the contracts, it transferred the ownership of such vehicles for a residual value;
15 - That on the dates of the due date of the IUC, concerning the vehicles at issue in the case file, in some cases, it was no longer its owner and, in other cases, was a financial lessor or lessor in operational leasing contracts with promise of sale, not being, in any case, the passive subject of the aforementioned tax;
16 - That the sales of the vehicles occurred precisely on the date on which the corresponding invoices were issued, which document and demonstrate the sale of these vehicles at a moment prior to the due date of the IUC;
17 - That the IUC, although having as its objective the raising of revenues, also aims to tax the environmental costs that each individual causes to the community, being the unification of these objectives ensured by the principle of equivalence established in Article 1 of the CIUC, which, being fundamental in the taxation of IUC, makes clear that taxpayers should be burdened in the measure of the environmental impact they cause to the environment and the road network, thus enshrining the polluter-pays principle;
18 - That the principle was instituted in the CIUC that whoever pollutes must pay, associating the tax with the environmental and road damage that are caused with the use of vehicles;
19 - That it was never the actual polluter and causer of environmental damage, in that it merely gave the vehicles in question for lease and sold them, in cases where the leasing contracts had already terminated;
20 - That no. 1 of Article 3 of the CIUC establishes a rebuttable legal presumption, and that, in view of the provisions of no. 2 of the aforementioned article, financial lessees and holders of vehicle rental contracts without driver, with promise of sale, are the passive subjects of the tax;
21 - That, after the termination of the aforementioned contracts, it proceeds to the transfer of the ownership of the respective vehicles to the corresponding lessees or to third parties, a transfer that occurs by mere effect of the contracts and that is supported in the respective invoices for sale;
22 - That, in any of the aforementioned contracts, concluded with its customers, although the lessor continues to be the owner of the vehicles, only the lessees and the holders of the option to buy and sell, in the case of vehicle rental contracts without driver, with promise of sale, have the exclusive use of the vehicles, being the potential causers of road and environmental damage;
23 - That the registration of the acquisition of motor vehicles has no constitutive value whatsoever, in that it merely aims to publicize the legal situation of the vehicles, constituting the same a presumption that the registration exists and belongs to the registered holder, being, however, such presumption rebuttable;
24 - That even in cases where the buyer (new owner of the vehicle) does not provide for the registration of his right of ownership, it is presumed that that right continues to belong to the seller, being able, however, such presumption to be rebutted;
25 - That to consider as passive subjects of IUC only the owners of vehicles in whose names the same are registered, not taking into account situations in which these no longer coincide with the actual owners or with the actual users thereof, constitutes a restriction that, in light of the purposes of the IUC, finds no basis of support;
26 - That the TA, contrary to what it was incumbent upon it to do, in light of the inquisitorial principle, did not undertake any diligence aimed at the discovery of material truth, regarding the actual situation of the vehicles at issue, limiting itself to considering the information contained in the databases.
D - RESPONSE OF THE RESPONDENT
27 - The Respondent, Tax and Customs Authority, (hereinafter designated as TA), submitted its Response, on 15-01-2016, in which it understands that the allegations of the Claimant cannot, at all, proceed, since there is exclusive responsibility of only one of the passive subjects who, by force of no. 1 of Article 3 of the CIUC, will, as a rule, be the owner of the vehicle, except in cases in which a financial leasing contract, sale with reservation of ownership or long-term vehicle rental has been concluded (and registered), in which, in view of the provisions of no. 2 of the aforementioned article, the passive subject of the IUC becomes one of the subjects indicated therein. (cf. Article 13 of the Response)
28 - On the other hand, it considers that the Claimant makes an interpretation and application of the legal norms, applicable to the case, notoriously wrong, in that,
29 - They translate an understanding that incurs, not only in a skewed reading of the letter of the law, but also in an interpretation that does not heed the systemic element, violating the unity of the regime established throughout the CIUC and, more broadly, throughout the entire legal-fiscal system, deriving also from an interpretation that ignores the ratio of the regime established in no. 1 of Article 3 of the CIUC. (cf. Article 19 of the Response)
30 - It states that the tax legislator, in establishing, in Article 3, no. 1 of the CIUC, who are the passive subjects of the IUC, established expressly and intentionally that these are the owners (or in the situations provided for in no. 2 the persons mentioned therein), considering themselves as such the persons in whose names the same are registered. (cf. Article 22 of the Response)
31 - It emphasizes that the legislator did not use the expression "it is presumed" as it could have done, for example, in the following terms: "the passive subjects of the tax are the owners of the vehicles, presumed to be as such the natural or legal persons, of public or private law, in whose names the same are registered". (cf. Article 23 of the Response)
32 - It considers that the wording of Article 3 of the CIUC corresponds to a clear choice of legislative policy adopted by the legislator, and that to understand that therein a presumption is enshrined would unequivocally be to carry out an interpretation contra legem. (cf. Articles 29, 30 and 31 of the Response)
33 - It refers that the aforementioned understanding has already been adopted by the Jurisprudence of our courts, transcribing, for this purpose, part of the judgment of the Administrative and Tax Court of Penafiel, rendered in Case no. 210/13.OBEPNF. (cf. Article 33 of the Response)
34 - On the systemic element of interpretation, it considers that the solution proposed by the Claimant is intolerable, finding the understanding endorsed by it no legal support whatsoever. (cf. Article 34 of the Response)
35 - On the ignorance of the "ratio" of the regime, the TA considers that, in light of a teleological interpretation of the regime established throughout the IUC Code, the interpretation proposed by the Claimant, to the effect that the passive subject of the IUC is the owner or the financial lessee, even if this quality does not appear in the vehicle registration, is manifestly wrong, in that it is the ratio of the regime established in the CIUC itself that constitutes clear proof that what the tax legislator intended was to create a tax based on the taxation of the owner of the vehicle, as appears in the vehicle registration. (cf. Article 49 of the Response)
36 - It adds that the CIUC carried out a reform of the regime for taxation of vehicles in Portugal, substantially altering the regime of motor vehicle taxation, with the passive subjects of the tax becoming the owners appearing in the property register, regardless of the circulation of the vehicles on the public road. (cf. Article 50 of the Response)
37 - The interpretation conveyed by the Claimant evidences that there is a violation of the Constitution, in that the same is translated into the violation of the constitutional principles of confidence and legal certainty, of the efficiency of the tax system and of proportionality. (cf. Articles 59 and 61 of the Response)
38 - It adds that the invoices presented by the Claimant, as proof of the sale of the vehicles, are not apt, by themselves, to prove the conclusion of a synallagmatic contract such as the purchase and sale. (cf. Articles 73 and 74 of the Response)
39 - Finally, it refers that it was not the Respondent who gave rise to the filing of the request for arbitral decision, but rather the Claimant, and consequently, the Claimant should be condemned in the arbitral costs "in accordance with Article 527 / 1 of the New Code of Civil Procedure ex vi of Article 29 / 1-e) of the RJAT", also emphasizing that the legal requirements allowing the assessment of indemnificatory interest have not been met, whose request was made by the Claimant.
40 - It considers, in conclusion, that, in view of all the arguments adduced, the tax acts in dispute are valid and legal, and the request for arbitral decision underlying this proceeding should be judged unsuccessful, maintaining in the legal order the tax assessment acts impugned, absolving, accordingly, the Respondent entity from the request.
E - ISSUES FOR DECISION
41 - It is therefore necessary to appreciate and decide.
42 - In view of the foregoing, regarding the positions of the Parties and the arguments presented, the main issues to be decided are whether:
a) - 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 the purposes of the subjective incidence of this tax.
c) - If, on the date of the due date of the tax, a financial leasing contract or a vehicle rental contract without driver with promise of sale is in force, for the purposes of the provisions of Article 3, nos. 1 and 2 of the CIUC, the passive subject of the IUC is the lessee or the leasing entity, in whose name the ownership of the vehicle is registered.
d) - If, under a financial leasing contract or a vehicle rental contract without driver with promise of sale, on the date of the due date of the tax, the vehicle has already previously been alienated although the right of ownership thereof continues registered in the name of its previous owner, for the purposes of the provisions of Article 3, no. 1, of the CIUC, the passive subject of the IUC is the previous owner or the new owner.
e) - If the documents presented, relating to the leasing and sale of the vehicles identified in the proceeding, are apt to prove the leasing and the 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 have legal personality and capacity, are legitimate and are legally represented (cf. Article 4 and no. 2 of Article 10 of Decree-Law no. 10/2011 and Article 1 of Ordinance no. 112/2011, of 22 March).
45 - The proceeding does not suffer from vices that invalidate it.
46 - Having in mind the information registered in the tax administrative proceeding, and the documentary proof joined to the case file, it is now necessary to present the factual matter relevant to the understanding of the decision, as fixed in the terms mentioned below.
II - GROUNDS
G - STATEMENT OF FACTS
47 - In terms of relevant facts, this tribunal considers established the following facts:
48 - The Claimant is a financial institution, specializing in the branch of automobile financing, in whose corporate purpose are inscribed, in particular, the conclusion with its customers of Long-Term Contracts (ALD), Short-Term Rental Contracts (renting) and Financial Leasing Contracts (leasing);
49 - In the context of its activity, it concluded with its customers vehicle rental contracts without driver with promise of sale and financial leasing contracts;
50 - In the period comprised between May and June 2014 it received notifications for prior hearing, concerning IUC assessments relating to the years 2013 and 2014, whose total value amounted to € 4,535.11;
51 - The single vehicle circulation tax subject to assessment, concerning the vehicles in question, was paid by the Claimant;
52 - The Claimant filed a Gracious Appeal against 93 IUC assessments, with a total value of € 4,535.11, relating to the years 2013 and 2014, concerning 59 vehicles, having then presented, in particular, copies of financial leasing contracts and operational leasing contracts with promise of sale, as well as invoices for the sale of the vehicles;
53 - The gracious appeal, after being substantially analyzed, in the Tax Services of Lisbon..., that is, after reconsideration of the legality of the assessment acts targeted, was, by order of 22-06-2015, of the Head of the aforementioned Service, partially granted, reaffirming the legality of the assessment acts in question, in that only the assessments relating to the vehicles with the registration numbers ...-... -... and ...-... -... were annulled, with the refund of the corresponding tax, the total value of IUC paid being reduced to the amount of € 4,233.89;
54 - The Claimant, as proof of the aforementioned leasing contracts and the aforementioned sales, with a view, in particular, to rebutting the presumption that it understands to be established in no. 1 of Article 3 of the CIUC, joined both copies of the aforementioned contracts, and invoices relating to the corresponding and alleged sales of the vehicles, as well as documents relating to the respective payments;
55 - In the contracts concluded by the Claimant, of financial leasing and vehicle rental without driver with promise of sale, the users of the corresponding vehicles are identified;
56 - The sales of the vehicles referenced in the case file are documented and supported, in particular, in the corresponding invoices joined to the case file;
57 - On the dates of the due date of the IUC, concerning the 57 vehicles identified in the case file, the Claimant, in some cases, (vehicles with the registration numbers ...-... -..., ...-... -..., ...-... -..., ...-... -... and...-... -...) was a financial lessor or lessor in operational leasing contracts with promise of sale, and, in other cases, was no longer its owner;
58 - The TA did not undertake, in particular in obedience to the inquisitorial principle, any diligence aimed at the discovery of material truth, regarding the actual situation of the vehicles at issue in the case file.
STATEMENT OF FACTS PROVEN
59 - The facts deemed proven are based on documents joined to the proceeding by the Claimant, whose authenticity was not challenged by the Respondent, and whose correspondence with reality was not questioned, and on the testimony of the witnesses;
- The witnesses showed having knowledge of the facts about which they testified and there was no fact that justified suspicions about their impartiality.
FACTS NOT PROVEN
60 - There are no facts deemed as not proven, given that all facts considered relevant for the appreciation of the request were proven.
H - STATEMENT OF LAW
61 - The factual matter is fixed, it being now important to proceed to its legal subsumption and determine the Law applicable to the underlying facts, in accordance with the issues for decision enumerated in no. 42.
62 - The decisive issue in the present case, regarding which there are absolutely opposed positions between the Claimant and the TA, is translated into whether the norm of subjective incidence contained in no. 1 of Article 3 of the CIUC establishes or does not establish a rebuttable presumption.
63 - The positions of the parties are known. Indeed, for the Claimant, the provisions of no. 1 of Article 3 of the CIUC establishes a rebuttable legal presumption, understanding that, in view of the provisions of no. 2 of the aforementioned article, financial lessees and holders of vehicle rental contracts without driver, with promise of sale, are the passive subjects of the tax;
64 - The Respondent, on its part, considers that the tax legislator, in establishing in Article 3, no. 1 of the CIUC who are the passive subjects of the IUC, determined, expressly and intentionally, that these are the owners (or in the situations provided for in no. 2, the persons enumerated therein), being considered, as such, the persons in whose names the same are registered.
I - INTERPRETATION OF THE NORM OF SUBJECTIVE INCIDENCE CONTAINED IN NO. 1 OF ARTICLE 3 OF THE CIUC
65 - On this issue, that is, whether the norm of subjective incidence contained in no. 1, of Article 3 of the CIUC, establishes a presumption, it should be noted that the jurisprudence established in CAAD points to the effect that the aforementioned norm establishes a legal presumption. Indeed, since the first Decisions rendered on this matter, in the year 2013, among which may be in particular mentioned those rendered in the context of Cases nos. 14/2013-T, 26/2013-T and 27/2013-T, until the most recent of which may be indicated the Decisions rendered in the context of Cases no. 69/2015-T and no. 79/2015-T, passing through numerous Decisions rendered in the year 2014, of which mention is made, by way of mere example, the Decisions rendered in Cases nos. 34/2014-T, 120/2014-T and 456/2014 - T, all point to the understanding that no. 1 of Article 3 of the CIUC establishes a rebuttable legal presumption.
Furthermore, consideration should be given to the understanding inscribed in the Judgment of the Central Administrative Court of the South, rendered on 19-03-2015, Case 08300/14, available at: www.dgsi.pt, which seconds the aforementioned jurisprudence, when it is expressly stated therein that Article 3, no. 1 of the CIUC "[…] establishes a legal presumption that the holder of vehicle registration is its owner, being such presumption rebuttable by force of Article 73 of the LGT".
This is an understanding in which, at all, we lean and which is accepted, without further ado, as valid and applicable in the present case, not being considered, therefore, necessary other developments, in light of the abundant substantiation contained in the aforementioned decisions and in the aforementioned Judgment.
66 - This being the understanding which, in relation to Article 3, no. 1 of the CIUC, is entirely espoused by this tribunal, it is, however, still necessary to note the lack of reason that accompanies the Respondent, when, in Articles 59 and 61 of its response, it alleges that the interpretation that goes in the direction of understanding that a rebuttable legal presumption is established in no. 1 of Article 3 of the CIUC violates the constitutional principles of confidence and legal certainty, of the efficiency of the tax system and of proportionality.
Let us examine, then, this issue.
Let us see,
- On the principle of proportionality, it is important to first note that the same, insofar as it is materially inherent to the regime of rights, freedoms and guarantees, inscribing itself in their defense, aims, in essence, to regulate the action of the Public Administration in order that its activity, in its dealings with individuals, is guided by the choice of the most equilibratedly appropriate measures for the pursuit of the public interest.
As Professor Freitas do Amaral teaches, in Course of Administrative Law, Vol II, Almedina, 2002, pp. 127/128 and following, the "principle of proportionality constitutes a constitutive manifestation of the principle of the Rule of Law", with "[…] the idea being strongly anchored that, in a democratic Rule of Law state, the measures of the public powers should not exceed the strictly necessary for the realization of the public interest".
The principle of proportionality, continues the aforementioned Professor, ibidem, p.129, means that "[…] the limitation of private goods or interests by acts of the public powers must be adequate and necessary to the concrete purposes that such acts pursue, as well as tolerable when confronted with those purposes".
With regard to the principle of proportionality, it is also necessary to note, what J. J. Gomes Canotilho and Vital Moreira tell us, in CONSTITUTION OF THE PORTUGUESE REPUBLIC, ANNOTATED, VOLUME I, 4th Edition, 2007, Coimbra Editor, pp. 392/393, when they consider that the aforementioned principle is divisible into three sub-principles, namely: "[…] a) principle of adequacy (also designated by principle of suitability); b) principle of exigibility (also called principle of necessity or indispensability); c) principle of proportionality in the strict sense, which means that the restrictive legal means and the purposes obtained should be in a "just measure", preventing the adoption of restrictive legal measures disproportionate, excessive, in relation to the purposes obtained […]".
The aforementioned sub-principles all have a common denominator, which is that of just balance and permanent coherence between the purposes of the law and the means adopted to achieve such purposes, which, in the circumstance and attempting the transposition of the aforementioned principle to the case at hand, will imply responding to the question of what is the adequate interpretation of no. 1 of Article 3, with a view to the pursuit of the legal purposes provided for in Article 1 of the CIUC, which translate into the fiscal burdening of the effective owners of motor vehicles (and not, necessarily, of those in the register) in the measure of the environmental and road cost that they cause.
As Professor J. J. Gomes Canotilho refers in Constitutional Law and Theory of the Constitution, Almedina - Coimbra, 1998, pp. 264 and following, the most important field of application of the principle of proportionality or the prohibition of excess, which has constitutional basis in Articles 18, no. 2 and 266, no. 2 of the CRP, "[…] is that of the restriction of rights, freedoms and guarantees by acts of the public powers. However, the logical field of application of the principle of proportionality extends to conflicts of legal goods of any kind." The administration, continues the aforementioned author, idem, "[…] must always observe, in each concrete case, the requirements of the prohibition of excess […]".
In this same sense points the jurisprudence, in particular the judgment of the STA of 01-07-1997, Case no. 041177, available at: www.dgsi.pt, when it considers that the principle of proportionality in a broad sense, comprises the congruence, the adequacy or the suitability of the means or measure to achieve the legally proposed end and, in the strict sense, encompasses the prohibition of excess.
The principle of proportionality is a corollary of the principle of justice, which means and implies that in its action the Public Administration should harmonize the specific public interest which it has to pursue with the rights and legitimate interests of the individuals possibly affected by its acts, interests and rights these which, in the case at hand, are reduced to the non-taxation in IUC of persons who are no longer owners of the vehicles and who, consequently, in no way contribute to the effectuation of any road and environmental cost.
What matters is to balance the legal purposes and the means to pursue them, and, in the context of a judgment of consideration, to identify the most appropriate means for this purpose, which, in the case, are translated into the interpretation espoused by the arbitral tribunal.
It may even be said that the understanding that the aforementioned no. 1 of Article 3 of the CIUC establishes a rebuttable legal presumption corresponds to the only interpretation that coherently accords with the aforementioned principle of equivalence, and which shows itself in line with the principles of justice and proportionality.
The interpretation that understands that a rebuttable legal presumption is established in no. 1 of Article 3 of the CIUC is, therefore, the only one that permits ensuring the pursuit of the purposes aimed at by the law - to burden the owners of motor vehicles in the measure of the environmental and road cost that they cause, - as established in Article 1 of the CIUC, which means that the passive subjects of the IUC are, presumably, the persons in whose names the vehicles are registered, that is, the aforementioned passive subjects are, in principle, and only in principle, the persons in whose name such vehicles are registered, there being, therefore, no other interpretation capable of achieving the aforementioned legal purposes, only in this way, it is reaffirmed, are the aforementioned principles of proportionality and justice complied with.
The contrary understanding, that is, that considered by the TA, which interprets no. 1 of Article 3 of the CIUC as not establishing a rebuttable legal presumption, understanding that the passive subjects of the IUC are, definitively, the persons in whose names the vehicles are registered, in the just measure in which it leads to the imposition of a fiscal burden on one who may no longer be the owner of the vehicle in question and who, in this way, does not pollute, removing from fiscal subjection one who, in reality, is the actual causer of the environmental and road damage, resulting from the use of the vehicles of which they are the actual owners, evidences that the legally prescribed purposes would not, at all, be achieved, not respecting, in this way, the principle of equivalence which, in the context of the CIUC, has an absolutely structuring function. Such understanding, this one, does not show itself, in these circumstances, in tune with the principle of proportionality.
The interpretation made by the tribunal, in the decision which it now reforms, took exactly into account the principle of proportionality when, contrary to what the Respondent intended, it properly considers that the definitive registration does not have constitutive efficacy by being intended to give publicity to the registered act, functioning only as mere rebuttable presumption of the existence of the right and when, in homage to that principle, it takes into account the principle of equivalence, as a fundamental element of the CIUC.
- As for the efficiency of the tax system, it may be said that the efficiency of the Administration in general, or of the TA in particular, in the current sense, corresponds to the capacity/work methodology oriented towards the optimization of the work executed or the services provided, which means producing the maximum, in quantity and quality, with the minimum of costs and means, having nothing to do with the observance of legally established principles and with respect for the rights of citizens, whether as taxpayers or otherwise.
In the technical sense, it may be said that the principle of efficiency of the tax system, is commonly held, in the domain of tax procedure, as a corollary of the principle of proportionality, which as is known, imposes an adequate proportion between the legal purposes and the means chosen to achieve those purposes, or, as Diogo Leite Campos, Benjamim Silva Rodrigues and Jorge Lopes de Sousa state, in General Tax Law, Annotated and Commented, 4th Edition 2012, Encontro de Escrita, Lda, Lisbon, p. 488, in the annotations to Article 55 of the LGT, it is a principle that obliges "[…] the tax administration to refrain from imposing on taxpayers obligations that are unnecessary to the satisfaction of the purposes that it seeks to pursue".
In this context, the aforementioned principle of efficiency of the tax system will mean the capacity to achieve the legally established objectives with the minimum of means, which will also have nothing to do with the respect for the rights of citizens, nor with the need for observance of other principles to which the tax administration must subordinate its activity, in particular the inquisitorial principle and that of the discovery of material truth, it being obvious that the application of the aforementioned principle of efficiency cannot be made, either to the prejudice of the rights of citizens, or by the absence of observation of the legal purposes. [1]
- As for the principle of legal certainty and confidence it should be noted, above all, that the latter principle, that of confidence, is a concretization of the principle of good faith, which, having consecration in our legal order, since 1996, came to have express constitutional inscription, as contained in no. 2 of Article 266 of the CRP, where it is established that "Administrative bodies and agents are subject to the Constitution and the law and must act, in the exercise of their functions, with respect for the principles of equality, proportionality, justice, impartiality and good faith". (emphasis ours)
With regard to good faith, it is worth noting what Professor Freitas do Amaral states, when, in Course of Administrative Law, Vol. II, Almedina, 2002, pp. 135/136, citing Professor V. Fausto de Quadros, tells us that "[…] the Public Administration is obliged to comply with bona fide in its relations with individuals. More: it should even give, also there, the example to individuals of the observance of good faith, in all its manifestations, as the essential core of its ethical behavior. Without this, it can never be affirmed that the State (and with it other public entities) is a person of good conduct".
On the other hand, the principle of confidence is also held as a consequence of the principle of legal certainty, indissociable from the Rule of Law, which having to guarantee a minimum of certainty in the rights of persons and in the legal expectations that will be created for them, generates confidence of citizens in the legal protection of the Public Administration.
Regarding the principles of legal certainty and protection of confidence, Professor J. J. Gomes Canotilho tells us in Constitutional Law and Theory of the Constitution, Almedina - Coimbra, 1998, p. 250 and following, that the aforementioned principles are closely associated, considering that "[…] legal certainty is connected with objective elements of the legal order - guarantee of legal stability, security of orientation and realization of law - while the protection of confidence is more linked to the subjective components of security, namely the calculability and predictability of individuals in relation to the legal effects of acts of the public powers". In any case, continues the aforementioned Professor, idem, that the "[…] general principle of legal certainty in a broad sense (thus encompassing the idea of protection of confidence) can be formulated in the following way: the individual has the right to be able to rely on the fact that to his acts or to public decisions affecting his rights, positions or legal relations anchored in valid and current legal norms are linked the legal effects provided and prescribed by these same norms".
It follows from this doctrine that persons, when alienating their vehicles, must be assured that, if they proceed to the sale of vehicles of which they are owners, and the same are not registered in the name of the acquirers, the legal effects resulting therefrom will be those provided and arising from the legal norms in force and their adequate interpretation in light of the legal purposes of these same norms, which, in this case, led the arbitral tribunal to consider the registration as a rebuttable presumption of the existence of the right and that only persons who cause road and environmental costs should be taxed.
The best way, in the case at hand, to ensure legal certainty, in a broad sense, is, therefore, that concretized through the interpretation made by the arbitral tribunal, when it considers that a rebuttable legal presumption is established in no. 1 of Article 3 of the CIUC, permitting any citizen, who proceeds to the sale, to a third party, of a motor vehicle, the possibility of demonstrating that, at the time of the due date of the IUC, he was no longer its owner nor responsible for the payment of that tax.
- Beyond what has been aforementioned, it is also important to know whether the interpretation espoused by the arbitral tribunal, besides not conflicting with any of the aforementioned principles, inscribes itself directly and substantively in the context of the constitutional order.
With regard to the interpretation of the law in light of the Constitution, or of interpretation in conformity with the Constitution, Professor Jorge Miranda tells us, in Manual of Constitutional Law, TOME II, Introduction to the Theory of the Constitution, 2nd edition, Coimbra Editor, 1987, p. 232 and following, that what is at stake, first of all, is "[…] to take into account, within the systemic element of interpretation, that which relates to the Constitution. Indeed, each legal provision must not only be captured in the set of provisions of the same law and each law in the set of the legislative order; it must also be considered in the context of the constitutional order [..]". (emphasis ours)
The understanding that considers that a rebuttable legal presumption is established in no. 1 of Article 3 of the CIUC is supported on diverse elements of interpretation, among which may be mentioned the systemic element, in that the interpretation in conformity with the Constitution implies that within the systemic element of interpretation, one takes into account that which relates to the Constitution.
On the aforementioned systemic element it is worth mentioning the following:
a) In the understanding of BAPTISTA MACHADO, in Introduction to Law and the Legitimizing Discourse, p. 183, the systemic element "[…] comprises the consideration of other provisions that form the normative complex of the institute in which the norm to be interpreted is integrated, that is, that regulate the same matter (context of the law), as well as the consideration of legal provisions that regulate parallel normative problems or related institutes (parallel places). It also comprises the systematic place that competes to the norm to be interpreted in the overall order, as well as its consonance with the spirit or intrinsic unity of the entire legal order".
b) It is known that a legal principle, in this case the principle of equivalence, does not exist in isolation, but is linked by an intimate nexus with other principles that integrate, at the more global level, the respective legal order, in this case, with the other principles embodied in the system inscribed in the CIUC, and with other principles constitutionally established. In this sense, each article of a given legal instrument, in this case the CIUC, will only be understandable if we place it, both before the other articles that follow or precede it, and before the constitutional order.
c) With regard to the systematization of the CIUC, environmental concerns were determining for the aforementioned principle of equivalence to be, from the outset, inscribed in the first article of the aforementioned Code, which, necessarily leads to the subsequent articles, insofar as they are based on such principle, being influenced by it. This occurred, in particular, with the taxable base, which became constituted by diverse elements, particularly those relating to pollution levels, and with the rates of the tax, established in Articles 9 to 15, which were influenced by the environmental component, and, naturally, also with the subjective incidence itself, provided for in Article 3 of the CIUC, which cannot escape the aforementioned influence.
d) The aforementioned principle of equivalence, as noted by Sérgio Vasques, in Special Consumption Taxes, Almedina, 2001, p. 122 and following, implies that "[…] the tax must correspond to the benefit that the taxpayer derives from the public activity; or to the cost that the taxpayer imputes to the collective by its own activity". The aforementioned author adds, idem, that "Thus, a tax on automobiles 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." For this reason, as the cited author also refers, idem, the realization of the principle of equivalence dictates special requirements "[…] as regards the subjective incidence of the tax [..]."
The aforementioned principle that informs the current Single Vehicle Circulation Tax, inscribes itself in the environmental concerns established in no. 2, sub-paragraph a) of Article 66 of the CRP and in the necessity of, - with a view to ensuring the right to the environment, in the context of sustainable development, - "[…] Preventing and controlling pollution and its effects and harmful forms of erosion", concerns these, which are, manifestly, considered in the interpretation defended by the arbitral tribunal.
On the other hand, the provision in sub-paragraph h) of no. 2 of Article 66 of the Constitution, when it establishes that, in the context of sustainable development, it is incumbent upon the State "to ensure that fiscal policy reconciles development with environmental protection and quality of life", entails, as a corollary, the polluter-pays principle, which concretizes the idea, inscribed therein, that whoever pollutes must, for this, pay, being thus the interpretation defended by the arbitral tribunal, in perfect concordance with the constitutional order.
e) It is also worth leaving a brief note, merely to raise the question of why the rules contained in Article 9 of the Civil Code obligate the interpreter of ordinary legislation, when it is certain that the aforementioned Code does not occupy any prominent place in the legal system.
Professor Jorge Miranda answers this question, ibidem, p. 230, when he considers that the "[…] conclusion towards which one is inclined is that rules like these are valid and effective, not because they are contained in the Civil Code - since this occupies no prominent place in the legal system - but, directly, as such, because they translate a legislative will, not contradicted by any other provisions, with respect to the problem of interpretation (which are not only technical-legal) of which they care."
The aforementioned author adds, idem, that "rules on these matters can be considered substantially constitutional and it would not even be strange to see them raised to the Constitution in formal sense."
With regard to the problems of interpretation and its rules, as is derived from Professor José de Oliveira Ascensão, in The Law, Introduction and General Theory, 2nd edition, Calouste Gulbenkian Foundation, 1980, pp. 352/353, the imperative character of these rules should be emphasized, and their binding nature for the interpreter.
The interpretation that the arbitral tribunal makes of no. 1 of Article 3 of the CIUC and the criteria that, for this purpose, it considered, as expressly mentioned in the Decision rendered in the context of Case N.º 196/2014-T, from the literal element, to the systemic element, passing through the historical and rational (or teleological) element, do not collide, therefore, with any constitutional principles.
No. 1 of Article 9 of the CC provides that the search for legislative thought should "[…] especially take into account […] the unity of the legal system, the circumstances in which the law was elaborated and the specific conditions of the time in which it is applied", circumstances and conditions these which, nowadays more than ever, are of sensitivity to the environment and of respect for issues related to it, and which show themselves inscribed in the constitutional order.
Thus, in view of what has been aforementioned, it does not appear, without due respect, that the TA has reason, in that the interpretation considered by the arbitral tribunal, as being the only capable of respecting the legal purposes, does not violate any of the principles in question, that is, the principles of confidence and legal certainty, of the efficiency of the tax system and of proportionality, being that, on the other hand, such interpretation is express and substantively in conformity with the principles inscribed in the Constitution.
Thus, it is not foreseen that the interpretation made by the tribunal, on no. 1 of Article 3 of the CIUC, contends with any constitutional norms or principles in force.
J - ON THE ACQUISITION OF OWNERSHIP OF THE VEHICLE AND ON THE VALUE OF REGISTRATION
67 - Above all, it must be added, in view of what is hereinafter, explicitly, stated regarding the value of registration, that the acquirers of the vehicles become owners of these same vehicles by way of transmission of the respective ownership, with or without registration.
68 - There are three articles of the Civil Code that are important to take into account, regarding the acquisition of ownership of a motor vehicle. They are, from the outset, Article 874, which establishes the notion of a purchase and sale contract, as being "[…] the contract by which the ownership of a thing, or another right, is transmitted, by means of a price"; Article 879, in whose sub-paragraph a) is established, as essential effects of the purchase and sale contract, "the transmission of the ownership of the thing or of the titularity of the right" and Article 408, which is entitled contracts with real efficacy, and establishes in its no. 1, that "the constitution or transfer of real rights over a determined thing occurs by mere effect of the contract, except for the exceptions provided for by law". (emphasis ours)
We are, indeed, in the domain of contracts with real efficacy, which means that their conclusion causes the transmission of real rights, in this case, motor vehicles, determined by mere effect of the contract, as expressly derives from the aforementioned norm.
69 - With regard to the aforementioned contracts with real efficacy, it is worth noting the teachings of Pires de Lima and Antunes Varela, when, in annotations to Article 408 of the CC, they tell us that "These contracts called real (quoad effectum), because they have as their immediate effect the constitution, modification or extinction of a real right (and not merely the obligations tending to this result) are distinguished from the so-called real contracts (quoad constitutionem), which require the delivery of the thing as an element of their formation (cf. Articles 1129, 1142 and 1185) ".
We are thus facing contracts in which the ownership of the thing sold is transferred, without further ado, from the seller to the buyer, having, as cause, the contract itself.
70 - Also from the jurisprudence, in particular from the Judgment of the STJ no. 03B4369 of 19/02/2004, available at: www.dgsi.pt, it is derived that, in view of the provisions of Article 408, no. 1, of the Civil Code, "the constitution or transfer of real rights over a determined thing occurs by mere effect of the contract, except for the exceptions provided for by law". This is the case of the contract for purchase and sale of a motor vehicle (Articles 874 ° and 879, sub-paragraph a) of the Civil Code), which does not depend on any special formality, being valid even when concluded verbally - in accordance with Judgment of STJ of 3-3-98, in CJSTJ, 1998, year VI, Tome I, p. 117". (emphasis ours)
71 - The purchase and sale contract, in view of what has been aforementioned, having real nature, with the aforementioned consequences, it is also necessary to consider the legal value of the vehicle registration of that contract, in that the transaction of the aforementioned good is subject to public registration.
72 - Indeed, it establishes in no. 1 of Article 1 of Decree-Law no. 54/75, of 12 February, relating to the registration of motor vehicles, that "The registration of vehicles has essentially as its purpose to give publicity to the legal situation of motor vehicles and their respective trailers, with a view to the security of legal commerce". (emphasis ours)
73 - Making clear, in view of the aforementioned norm, what is the purpose of registration, there is, however, no clarity, within the scope of the aforementioned Decree-Law, regarding the legal value of that registration, it being important to consider Article 29 of the aforementioned legal instrument, relating to the registration of vehicle ownership, when it is provided therein that "The provisions relating to the registration of immovable property are applicable, with the necessary adaptations, to the registration of automobiles, […]". (emphasis ours)
74 - In this context, so that we may achieve the sought knowledge about the legal value of the registration of vehicle ownership, it is important to take into account what is established in the Property Registration Code, approved by Decree-Law no. 224/84, of 06 July, when it provides in its Article 7 that "definitive registration constitutes a presumption that the right exists and belongs to the registered holder in the precise terms in which the registration defines it". (emphasis ours)
75 - The combination of the provisions aforementioned, particularly that established in no. 1 of Article 1 of Decree-Law no. 54/75, of 12 February and in Article 7 of the Property Registration Code, allows considering, on the one hand, that the fundamental function of registration is to give publicity to the legal situation of the vehicles, allowing, on the other hand, to presume that the right exists and that such right belongs to the holder in whose favor it is registered, in the precise terms in which it is defined in the registration.
76 - Thus, definitive registration constitutes nothing more than the presumption that the right exists and belongs to the registered holder, in the exact terms of the registration, but a rebuttable presumption, admitting, for this reason, counter-proof, as derives from the law and the jurisprudence has been noting, being able, for this purpose, to see, 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.
77 - The function legally reserved to registration is, therefore, on the one hand, to publicize the legal situation of the goods, in this case, of the vehicles and, on the other hand, to allow us to presume that the right exists over these vehicles and that the same belongs to the holder, as such inscribed in the registration, which means that registration does not have a constitutive nature of the right of ownership, but only a declarative one, hence that registration does not constitute a condition of validity of the transmission of the vehicle from the seller to the buyer.
78 - Thus, if the acquirers of the vehicles, as their "new" owners, do not immediately promote the adequate registration of their right, it is presumed, for the purposes of Article 7 of the Property Registration Code and of no. 1 of Article 3 of the CIUC, that the vehicles continue to be the property of the person who in the registration remains their owner, this person being the passive subject of the tax, in the certainty, however, that such presumptions are rebuttable, either by force of the provision in no. 2 of Article 350 of the CC, or in light of the provisions of Article 73 of the LGT. From which it follows that, from the moment in which the presumptions in question are set aside, by means of proof of the respective transmission, the TA cannot persist in considering as the passive subject of the IUC the transferor of the vehicle, who, in the registration, continues to appear as its owner, but rather the ex - lessees, as acquirers of the vehicles.
L - ON THE PASSIVE SUBJECT OF THE IUC DURING THE VALIDITY OF FINANCIAL LEASING CONTRACTS OR VEHICLE RENTAL CONTRACTS WITHOUT DRIVER WITH PROMISE OF SALE
79 - It is important, first of all, to note that the Legal Framework of the Financial Leasing Contract, approved by Decree-Law no. 149/95, of 24 June, with the last amendment introduced by Decree-Law no. 30/2008, of 25 January, provides in its Article 9 that are, in particular, obligations of the lessor to grant the enjoyment of the good for the purposes to which it is intended and that of selling the good to the lessee, if the latter wishes, at the end of the contract, as respectively, the sub-paragraphs b) and c) of its no. 1.
80 - On the other hand, in view of the provision in Article 10 of the aforementioned legal instrument, in particular in the sub-paragraphs a) of its nos. 1 and 2, we learn that are obligations of the lessee to pay the rents and to use and enjoy the leased good, which means that, during the validity of a financial leasing contract that has as its object a vehicle, only the lessee has its exclusive enjoyment.
81 - The obligations of the lessee, in light of the aforementioned norms, clearly point to the effect that it is this contractual subject that has the exclusive enjoyment of the vehicle which is the object of the financial leasing contract, being the one who uses it as if he were the true owner of that good.
82 - The lessor is the formal owner of the vehicle, having, consequently, no potential as a polluter, which means that the damages that accrue to the community, resulting from the use of motor vehicles should be assumed by their actual users, as costs that only they should bear. The financial lessee, being assimilated to an owner in the sense of being a passive subject of the tax (Article 3, nos. 1 and 2 of the CIUC), has the full use and enjoyment of the vehicle, as legally established, and thus is its true user and actual generator of environmental damage, and should therefore be responsible for the corresponding tax, this being the understanding that should be gathered from the provision in no. 2 of Article 3 of the CIUC, which, in our view, makes complete sense. It is a matter of concretizing and giving useful sense to the principle of equivalence, which informs and shapes the current CIUC, a principle that concretizes the idea, underlying the polluter-pays principle, that whoever pollutes must, for this, pay.
83 - On the other hand, it should be underlined the similarity and the recognized affinities of the vehicle rental contract without driver (ALD) with promise of sale, with the financial leasing contract, especially when, as occurs in this case, the aforementioned rental contract is also integrated by a contract of promise to buy and sell the vehicle, foreseeing, ultimately, the transfer of the ownership of the aforementioned good to the lessee, that is, when the corresponding contractual term arrives.
84 - In any of the aforementioned cases, the lessees are considered as passive subjects of the tax. Indeed, the financial lessee is expressly provided for in no. 2 of Article 3 of the CIUC, as being the passive subject of the IUC, and the lessee, in the context of a vehicle rental contract without driver (ALD) with promise of sale, is equally provided as a passive subject of the aforementioned tax, in that such contract is subsumible under the third hypothesis of the aforementioned norm, when in the same are mentioned "[…] other holders of purchase option rights by force of the leasing contract".
85 - In view of what has just been mentioned, it is our understanding that, if a financial leasing contract, or vehicle rental contract without driver (ALD) with promise of sale, is in force, on the date of the due date of the tax, which has as its object a motor vehicle, the passive subjects of that tax are, in light of the provision in no. 2 of Article 3 of the CIUC, the lessees, and not the lessor, it being important, for this purpose, to note the provision in Article 19 of the CIUC, when, precisely, for the purposes of Article 3 of the aforementioned Code, that is, for the purposes of the subjective incidence, it comes to impose on the entities that proceed to financial leasing, operational leasing or long-term rental of vehicles the obligation to provide the TA with the data relating to the tax identification of the users of the leased vehicles, which reveals, in particular, that, for the purposes of the aforementioned incidence, it was intended to know who are, after all, the actual users of the leased vehicles, so that they, and not others, bear the single vehicle circulation tax, which, moreover, reveals itself in total tune with the principle of equivalence, as a structuring principle of the CIUC.
86 - Having reached this point, it is important to underline that regarding the vehicles with the registration numbers ...-... -...; ...-... -...; ...-... -...; ...-... -... and ...-... -..., inscribed in the contracts in question, the due date of the corresponding tax occurred during the validity of such contracts, the payment thereof not being the responsibility of the Claimant, but rather of the respective lessees, as, as already aforementioned, passive subjects of the tax.
87 - The leasing contracts referred to (copies) cannot be left unconsidered as suitable means and with sufficient force to prove the status of the lessees, for the purposes of the provision in no. 2 of Article 3 of the CIUC, that is, for the purposes of their binding to the payment of the tax in question. There are, moreover, no elements that permit understanding that the data inscribed in such contracts do not correspond to the contractual truth, it also being certain that the law, in this case, no. 1 of Article 75 of the LGT, attributes to these documents a presumption of veracity.
88 - The TA, when it understands that, in this case, the Claimant is the passive subject of the IUC, without properly considering the provision in no. 2 of Article 3 of the CIUC, nor taking into account the validity of the financial leasing contract and vehicle rental contract without driver (ALD) with promise of sale, on the date of the due date of the IUC, is proceeding to the illegal assessment of that tax, based on the wrong interpretation and application of the aforementioned norm of subjective incidence of the Single Vehicle Circulation Tax, which constitutes the practice of a tax act lacking in legality due to error as to the presuppositions of fact and law, which leads to the annulment of the corresponding tax acts, due to violation of law.
M - ON THE PASSIVE SUBJECT OF THE IUC UPON THE ALIENATION OF THE VEHICLE SUBJECT OF FINANCIAL LEASING CONTRACTS OR VEHICLE RENTAL CONTRACTS WITHOUT DRIVER WITH PROMISE OF SALE
89 - The transmissions of the vehicles at issue in the case file, had as acquirers the persons who, in the corresponding financial leasing contracts, or vehicle rental contracts without driver (ALD) with promise of sale, appeared as lessees or as promisees-buyers, being that the aforementioned sales occurred before the dates referring to those of the due date of the IUC.
90 - The alienation of the aforementioned vehicles, occurred, in some cases, during the validity of the aforementioned contracts and, in others, after its termination, inscribing itself in the first situation the vehicles with the registration numbers ...-...-...; ...-...-...; ...-... -...; ...-...-... and ...-...-..., whose sales took place between 13-03-2003 and 29-12-2010, the due date of the IUC concerning the years 2013 and 2014.
91 - As for the remaining vehicles, whose sales occurred between the dates of 04-05-1992 and 26-03-2014, that is, after the terminus of the contracts, it is verified that the due date of the IUC concerns the years 2013 and 2014 (30-04).
92 - In any of the situations, that is, in those referring to the sales of the vehicles that occurred during the validity of the aforementioned contracts, or on dates posterior to the end of those contracts, the dates of the aforementioned sales refer to moments prior to those of the due date of the single vehicle circulation tax, the payment thereof not being, therefore, the responsibility of the Claimant, given that, in view of what has already aforementioned, the same was not, then, in these circumstances, a passive subject of the tax.
N - ON THE MEANS OF PROOF PRESENTED
ON THE FINANCIAL LEASING CONTRACTS
93 - With regard to the financial leasing contracts in force on the date of the due date of the tax, in the number of five, should it be understood that such contracts are suitable means and with sufficient force to prove the status of the lessees, for the purposes of the provision in no. 2 of Article 3 of the CIUC, that is, for the purposes of their binding to the payment of the tax in question. There are, moreover, no elements that permit understanding that the data inscribed in such contracts do not correspond to the contractual truth, it also being certain that the law, in this case, no. 1 of Article 75 of the LGT, attributes to these documents a presumption of veracity.
ON THE INVOICES
94 - Written form not being legally required for the transmission of 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 this including, in particular, the invoices relating to the sales of the vehicles.
95 - The Claimant, as a means of proof that it proceeded to the sale of the vehicles, as identified in this proceeding, on a date prior to that of the due date of the tax, joined, in particular, besides the copies of the aforementioned contracts, in some cases, the invoices relating to the corresponding and alleged sales, in others, invoices and payment documents.
96 - It should, moreover, be noted that nothing permits considering that any of these documents, in particular the invoices presented, as support for the sales of the vehicles at issue in the case file, do not have correspondence with the sales that, allegedly, were materialized.
97 - The invoices joined to the case file, as proof of the alienation of the vehicles, taking into account the corporate purpose of the Claimant, embodied in the rental of motor vehicles, being that, at the end of these rental contracts, it proceeds, as a rule, to the sale of the vehicles to its customers, show themselves totally adjusted to the aforementioned business reality, being absolutely plausible the sale of the vehicles that the invoices presented aim to prove, no elements being identified that embody any simulated contract, rather permitting to conclude that we are facing invoices that reproduce the real and true sale of the vehicles to the persons indicated therein.
98 - It may even be said that, in the case at hand, in view of the economic activity of the Claimant, as already referenced, it will not be strange, quite the contrary, that following the aforementioned contracts the transfer of the ownership of the vehicles identified in the case file is materialized.
99 - The invoices in question (copies), relating to the sales of the vehicles, in that they enjoy the presumption of veracity that is conferred on them in no. 1 of Article 75 of the LGT, it being incumbent upon the TA, in light of the provision in Article 75, no. 2 of the LGT, within the context of the well-founded and objective reasons that it may have had, to demonstrate that the information inscribed therein does not correspond to reality, combined with the other means of proof, in particular with the financial leasing contracts and vehicle rental contracts without driver (ALD) with promise of sale (copies), joined to the case file, and with the testimony of the witnesses, which confirm the factuality referred to and invoked in the request for arbitral decision underlying this proceeding, permit concluding to the actual sale/transfers of the titularity of the vehicles, constituting sufficient means of proof to rebut the presumptions at issue in the case file, that is, the presumption established in Article 7 of the Property Registration Code and that enshrined in no. 1 of Article 3 of the CIUC, which means that, on the date on which the tax was due, the Claimant was not the owner of the vehicles in question, not being a passive subject of the tax in question.
100 - In these circumstances, with the exception of the two vehicles with the registration numbers ...-... -... and ...-... -..., whose assessments were annulled within the context of gracious appeal no. ...2015... and the five vehicles with the registration numbers ...-... -...; ...-... -...; ...-... -...; ...-... -... and ...-... -..., regarding which the due date of the IUC occurred during the validity of the leasing contracts, all the remaining vehicles were, effectively, sold on dates prior to the dates of their respective IUC assessments, and should, therefore, be considered as such that the Claimant, regarding such vehicles, was not, on the date to which the assessments in question relate, a passive subject of the tax in question, it being unable, therefore, to leave unconsidered that the legal presumption established in no. 1 of Article 3 of the CIUC was rebutted.
101 - The TA, when it understands that the passive subjects of the IUC are, definitively, the persons in whose name the motor vehicles are registered, without considering that Article 3, no. 1 of the CIUC establishes a presumption, nor taking into account the evidentiary elements that were presented to it, as results, in particular, from the tax administrative proceeding, is proceeding to the illegal assessment of the IUC, regarding the vehicles aforementioned, based on the wrong interpretation and application of the norms of subjective incidence of the Single Vehicle Circulation Tax, contained in the aforementioned Article 3 of the CIUC, which constitutes the practice of tax acts lacking in legality due to error as to the presuppositions of fact and law, determining the annulment of the corresponding tax acts, due to violation of law.
O - REFUND OF THE AMOUNT PAID AND INDEMNIFICATORY INTEREST
102 - Under the terms of the provision in sub-paragraph b) of no. 1 of Article 24 of the RJAT, and in conformity with what is established therein, the arbitral decision on the merits of the claim regarding which no appeal or challenge is possible binds the tax administration from the end of the deadline provided for appeal or challenge, this administration having - in the exact terms of the success of the arbitral decision in favor of the passive subject and until the end of the deadline provided for the execution of final judgments of the tax courts - "Restore the situation that would have existed if the tax act object of the arbitral decision had not been carried out, adopting the acts and operations necessary for the purpose." (emphasis ours)
103 - These are legal commands that are in total harmony with the provision in Article 100 of the LGT, applicable to the case by force of the provision in sub-paragraph 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 appeals or administrative appeals, or of judicial proceedings in favor of the passive subject, to the immediate and complete reconstitution of the situation that would have existed if the illegality had not been committed, comprising the payment of indemnificatory interest, under the terms and conditions provided for by law." (emphasis ours)
104 - The case contained in the present case file, gives rise to the manifest application of the aforementioned norms, as following the illegality of the assessment acts referenced in this proceeding, there will have, by force of these norms, to be a refund of the amounts paid, both for tax and for compensatory interest, as a way of achieving the reconstitution of the situation that would have existed if the illegality had not been committed, amounts these which in the case at hand total € 4,233.89, corresponding to the assessments relating to the vehicles aforementioned.
105 - As for the indemnificatory interest, it appears manifest that, in view of the provision in Article 61 of the CPPT and with the requirements of the right to indemnificatory interest being met, that is, verified the existence of error imputable to the services resulting in the payment of the tax debt in an amount higher than that legally due, as provided for in no. 1 of Article 43 of the LGT, the Claimant has a right to indemnificatory interest at the legal rate, calculated on the amount of € 4,233.89.
CONCLUSION
106 - In the circumstantial framework that has been referred to, the TA, in carrying out the assessment acts at issue in this proceeding, based on the idea that Article 3, no. 1, of the CIUC does not establish a rebuttable presumption, and that the Claimant is, in the cases provided for in no. 2 of the aforementioned article, a passive subject of the tax, makes wrong interpretation and application of this norm, committing an error as to the presuppositions of law, which constitutes a violation of law.
107 - On the other hand, because the TA, on the date of the occurrence of the tax events, considered the Claimant the owner of the vehicles referenced in this proceeding, considering it, as such, a passive subject of the tax, when such ownership, regarding the vehicles in question, was no longer inscribed in its legal sphere, basing itself, thus, on factual matter divergent from the actual reality, commits an error as to the presuppositions of fact, and therefore a violation of law.
III - DECISION
108 - Therefore, mindful of all that has been exposed, this Arbitral Tribunal decides:
-
To annul the decision rendered, on 22-06-2015, by the Head of the Tax Services of Lisbon..., in the part in which it rejected the appeal referenced in the case file, with the no. … 2015…;
-
To judge meritorious, as proven, on the basis of a defect of violation of law, the request for arbitral decision as concerns the annulment of the acts of assessment of IUC and compensatory interest to which the Claimant's request refers, relating to the years 2013 and 2014, which total the amount of € 4,233.89, as identified in the case file, concerning the vehicles identified in the proceeding;
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To annul, consequently, both the acts of assessment of IUC, and the acts of assessment 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 the refund of the amount of € 4,233.89, relating to the IUC and the compensatory interest which were paid, relating to the years 2013 and 2014, as well as to the payment of indemnificatory interest at the legal rate, counted from the date of payment of the aforementioned amount, until the complete refund thereof;
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To condemn the TA to pay the costs of this proceeding.
VALUE OF THE PROCEEDING
In conformity with the provision in Articles 306, no. 2 of the CPC (ex-315, no. 2) and 97-A, no. 1 of the CPPT and in Article 3, no. 2 of the Regulation of Costs in Tax Arbitration Proceedings the value of € 4,233.89 is fixed for the proceeding.
COSTS
In accordance with the provision in Article 12, no. 2, in fine, in Article 22, no. 4, both of the RJAT, and in Article 4 of the Regulation of Costs in Tax Arbitration Proceedings and the Table I, which is attached thereto, the amount of total costs is fixed at € 612.00.
Notify hereof.
Lisbon, 23 May 2016
The Arbitrator
António Correia Valente
(The text of this decision was prepared by computer, in accordance with Article 131, no. 5 of the Code of Civil Procedure (ex-138, no. 5), applicable by reference of Article 29 no. 1 sub-paragraph e) of Decree-Law no. 10/2011, of 20 January (RJAT), being its writing governed by the orthography prior to the Orthographic Agreement of 1990.)
[1] See the study on the matter, prepared by Professor Carlos Pestana Barros, in Science and Fiscal Technique, 2005, no. 416, pp. 105-126
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