IUC Subjective Incidence in Financial Leasing: Rebuttable Legal Presumptions of Vehicle Ownership

ARBITRAL DECISION

I – REPORT

1.1. A... (hereinafter referred to as the "Claimant"), resident at Av..., no.... -...-..., Braga, with NIF..., having been notified of the rejection of administrative appeal concerning the assessment of IUC (Vehicle Tax) for the years 2013 and 2014, of the vehicle with registration number...-...-..., submitted, on 21/9/2015, a request for constitution of an arbitral tribunal and for arbitral decision, pursuant to Article 10, No. 2, of Decree-Law No. 10/2011, of 20/1 (Legal Regime for Arbitration in Tax Matters, hereinafter designated as "LRBTM"), in which the Tax and Customs Authority (AT) is summoned, with a view to annulling the aforementioned act of rejection, considering "the said IUC assessment without effect".

1.2. On 30/11/2015, the present Sole Arbitral Tribunal was constituted.

1.3. Pursuant to Article 17, No. 1, of the LRBTM, the AT was served notice, as the respondent party, to submit its defence, in accordance with the said article. The AT submitted its defence on 27/1/2016, arguing for the total dismissal of the Claimant's request and further raising a preliminary exception precluding consideration of the merits of the case, alleging the untimeliness of the request filed.

1.4. The Claimant, in a submission dated 31/3/2016, commented on the exception raised by the AT, having, in summary, considered it "groundless", since, in its understanding, "the request filed is timely".

1.5. By ruling of 2/5/2016, the Tribunal considered that, as the Claimant had already commented on the exception invoked by the Respondent – thus fulfilling the requirement of Article 18, No. 1, paragraph b), of the LRBTM – the meeting provided for in the said Article 18 was dispensable, pursuant to Article 16, paragraph c), of the LRBTM, and that the case was ready for decision. In accordance with Articles 16, paragraphs c) and e), and 19 of the LRBTM, the Tribunal further considered that witness testimony (requested by the Claimant) was dispensable, given that there were sufficient evidentiary elements on the record to render the decision. In these terms, the date of 9/5/2016 was finally set for the delivery of the arbitral decision.

1.6. The Arbitral Tribunal was regularly constituted, is materially competent, the case does not suffer from defects that would render it invalid (see infra, "preliminary question"), and the Parties have legal standing and capacity, being duly constituted as parties.

II – PARTIES' ALLEGATIONS

2.1. The Claimant alleges in its initial petition that: a) "contrary to the position of the Tax Authority and the Director, the definitive registration constitutes nothing more than a presumption that the right exists and belongs to the registered holder, in the exact terms of the registration, but a rebuttable presumption, thereby admitting contrary proof, as follows from the law and as jurisprudence has noted, to which regard may be had, inter alia, to the Supreme Court Decisions Nos. 03B4369 and 07B4528, respectively, of 19/02/2004 and 29/01/2008"; b) "the said vehicle ceased to be the property of the A. at least since September 1997, for that on 18.09.1997 the A. requested the cancellation of the insurance policy of the said vehicle from the insurance company because he had sold it – see doc. 1"; c) "in that year, in mid-September, the A. sold the vehicle in question, registration number...-...-..., to B..., which had an establishment designated as 'C...'"; d) "the A. is therefore not responsible for the payment of IUC, for he is not the legitimate possessor of the said vehicle at least since 1997"; e) "Article 3, No. 1 of the CIUC, which establishes that the passive subjects of the tax are the owners of the vehicles, considering as such the natural or legal persons, of public or private law, in whose names they are registered, may be divided into two parts: the first, constituted by a provision and rule, and the second, which establishes a presumption"; f) "in the first, the norm determines that the passive subjects of IUC (provision) are the owners of the vehicles (rule), in the second, it considers as owners those in whose names the vehicles are registered, thus establishing a legal presumption, which is, by nature, a relative presumption, juris tantum"; g) "the definitive registration is merely a presumption of the existence of the right, which admits contrary proof, thus constituting a rebuttable presumption, as indeed has been recognized in jurisprudence"; h) "the ratio legis of the tax points in the sense that the effective owners/users of the vehicles are taxed, for which reason the expression 'considering' is used in the normative provision in question in a sense similar to 'presuming', for which reason there is no doubt that a legal presumption is established"; i) "by establishing Article 3, No. 1, of the CIUC a juris tantum presumption, therefore rebuttable, the person who is registered in the registration as the owner of the vehicle and who, for that reason was considered by the Tax Authority as the passive subject of the tax, may present evidence elements intended to demonstrate that the holder of the ownership is another person, to whom the ownership was transferred"; j) "from the elements brought to the case by the A., the conclusion is drawn that he was not the owner of the vehicle to which the assessments in question relate, by having, in the meantime, already transferred the ownership thereof, in accordance with the law of civil law"; l) "transmission of ownership which is enforceable against the ATA, in so far as, although facts subject to registration only produce effects against third parties when registered, in view of the provisions of Article 5, No. 1, of the Property Registration Code, the Tax Authority is not a third party for registration purposes".

2.2. By the foregoing, the Claimant seeks, in summary, that it be "declared that the said IUC assessment against the A. is without effect, for manifestly he is no longer the owner of the vehicle in question in the case, the assessment of such tax against the A. being illegal".

2.3. For its part, the AT alleges in its defence: a) that "the Claimant petitions that the Tribunal deign to assess the legality of the acts of IUC assessment, identified in the case"; b) that "the immediate object of the case should be the rejection of the administrative appeal, rejected by ruling notified on 23 June 2015"; c) that "from the assessment notes (as per the administrative case) the ultimate payment dates for IUC appear as 17 June 2014"; d) that, "having the Claimant submitted the request for constitution of an Arbitral Tribunal on 21 September 2015 and considering the foregoing points, it is apparent that on that date the legally defined deadline for challenging in arbitral proceedings the assessment acts in question in the present case had already been exceeded, for which reason that request is untimely, and the Tribunal cannot consider it"; e) that "the request filed (leading to the annulment of the assessment acts) [should] be declared dismissed, as untimely, in so far as the expiry of the right of action constitutes a preliminary exception precluding consideration of the merits of the case"; f) that "the understanding propounded by the Claimant incurs not only a skewed reading of the letter of the law, but also the adoption of an interpretation that does not attend to the systematic element, violating the unity of the regime established throughout the CIUC and, more broadly, throughout the entire fiscal legal system and further stems from an interpretation that ignores the ratio of the regime established in the article in question, and indeed, throughout the CIUC"; g) that "it is imperative to conclude that, in the case of the present arbitral proceedings, the legislator expressly and intentionally established that are considered as such [as owners or in the situations provided for in No. 2, the persons therein listed] the persons in whose names the said [vehicles] are registered, in so far as this is the interpretation that preserves the unity of the fiscal legal system"; h) that "to hold that the legislator established herein a presumption would unequivocally be to effect an interpretation against the law"; i) that "Article 3 of the CIUC does not contain any legal presumption, it being certain that the thesis propounded by the Claimant directs its objective to the wrong target"; j) that "also the systematic element of interpretation of the law demonstrates that the solution propounded by the Claimant is intolerable, the understanding maintained by this Authority finding no support whatsoever in the law, in so far as this results not only from the mentioned No. 1 of Article 3 of the CIUC, but also from other provisions established in the said Code"; l) that, "even allowing that, from the perspective of the rules of civil law and property registration, the absence of registration does not affect the acquisition of the status of owner and that registration is not a condition of validity of contracts with real effects, in accordance with the terms established in the CIUC (which in the case in question constitutes special law, which, in accordance with general rules of law, derogates the general rule), the tax legislator wished intentionally and expressly that be considered as owners, lessees, acquirers with reservation of ownership or holders of the right of purchase option in long-term rental, the persons in whose names [the vehicles] are registered"; m) that, "in light of a teleological interpretation of the regime established throughout the Code of IUC, the interpretation propounded by the Claimant in the sense that the passive subject of IUC is the effective owner, independently of not appearing in the registration automotive, the registration of that status, is manifestly wrong, in so far as it is the very ratio of the regime established in the Code of IUC that constitutes clear proof that what the tax legislator intended was to create a Single Vehicle Tax based on the taxation of the owner of the vehicle as registered in the vehicle registration"; n) that "the tax acts in issue do not suffer from any defect of violation of law, in so far as in light of the provisions of Article 3, Nos. 1 and 2, of the CIUC and of Article 6 of the same Code, the Claimant, in his capacity as owner, was the passive subject of IUC"; o) that "the claimant did not furnish his request for arbitral decision with any document having probative value intended to rebut such [presumption]"; p) that the "document [No. 1] in addition to not succeeding in proving the cancellation of any insurance policy, relating to the vehicle in question in the case, does not succeed in proving any transmission of ownership, for which reason it is here expressly contested, since no legal effects sought by the Respondent can be drawn from it. The same shall be said of document No. 2, consisting of an alleged statement of the alleged purchaser of the vehicle [given that] it is not a purchase and sale contract and which is devoid of any authenticity, without any probative force. Consequently, no probative force is drawn from the documents attached as docs. 4, 5 and 6"; q) that "such documents can never benefit from the presumption of truthfulness to which Article 75 of the General Tax Law refers"; r) that "the Claimant did not file documentary proof of the purchase and sale contract, when he could and should have done so, that is, in the submission of the request for arbitral decision, now finding itself foreclosed from the possibility of doing so at a later time, in accordance with the aforesaid interlocutory decision delivered within the framework of arbitral case No. 75/2012-T [...]. [...] the truth is that the Claimant did not bring forward means of proof to rebut the presumption resulting from the registration, for which reason the request filed by the Claimant must fail"; s) "the interpretation conveyed by the Claimant [...] appears to be contrary to the Constitution, in so far as such interpretation translates into a violation of the principle of confidence, of the principle of legal certainty, of the principle of efficiency of the tax system and of the principle of proportionality".

2.4. The Respondent concludes, in summary, that "the exception of expiry of the right of arbitral action should be held well-founded, with the absolution of the Respondent entity from the action; or, if such is not to be understood, the present request for arbitral decision should be held to be without foundation, the tax assessment acts in question remaining in the legal order and the Respondent being accordingly absolved of the request."

III – PROVEN FACTS, UNPROVEN FACTS AND THEIR JUSTIFICATION

3.1. The following facts are considered proven:

i) In accordance with information provided by the IRN and IMT, the data held by the AT shows that the Claimant was the owner of the vehicle with registration number...-...-..., with effect from 29/4/1998, information which served as the basis for the IUC assessments for the years 2013 and 2014 now in question (see administrative appeal attached to the record).

ii) Given that the IUC for 2013 and 2014 mentioned above was not assessed and paid, the AT proceeded to assess it ex officio on 21/5/2014, in the total amount now in question of €792.53: IUC for 2013 (assessment 2013..., in the amount of €401.88: €382.00 of IUC + €19.88 of compensatory interest) + IUC for 2014 (assessment 2014..., in the amount of €390.65: €386.00 of IUC + €4.65 of compensatory interest).

iii) Not agreeing with the mentioned assessments, the Claimant filed an administrative review application, which was fully rejected by ruling notified to the Claimant on 7/10/2014. Dissatisfied with this decision, the Claimant filed, on 4/11/2014, an administrative appeal, which was also rejected, through a ruling of 29/5/2015 (see administrative appeal attached to the record).

iv) Dissatisfied with the said rejection of the administrative appeal, the Claimant filed the request for constitution of an arbitral tribunal and for arbitral decision on 21/9/2015.

3.2. As regards the documents brought to the present case by the Claimant (see Docs. 1 to 6) – intended to demonstrate that the vehicle in question had been sold, "in mid-September [of 1999], [...] to B..." – it is considered that the same (among which there is not even a purchase and sale contract or sales invoice/receipt) do not permit rebuttal of the presumption established in Article 3, No. 1, of the CIUC. The said presumption could only be rebutted through the presentation of documentary evidence that attested, unequivocally, that the Claimant was not, at the time of the facts, the owner of the vehicle in question – proof which, as stated, was not made.

3.3. The facts considered relevant and proven (see 3.1) are justified by the analysis of the positions set forth by the parties and the documentary evidence brought to the record. The fact considered unproven is justified by the absence of documentary evidence demonstrating the allegation that was made.

IV – PRELIMINARY QUESTION

As stated in the report of the present decision, the Respondent raised, in its defence of 27/1/2016, an exception alleging the untimeliness of the request for arbitral decision.

It is therefore necessary to determine whether the same should be held well-founded, having regard also to what appears in the submission of the Claimant of 31/3/2016, in which the latter commented on the said exception.

The Respondent alleges, in summary, that: "the object of the request is [...] the IUC assessments mentioned above and identified in the present case"; "the immediate object of the case should be the rejection of the administrative appeal, rejected by ruling notified on 23 June 2015"; "nevertheless, from the tenor of the request filed and transcribed above, it is apparent that the tax acts being challenged and which are in fact the object of the request for arbitral decision are not the rejection of the administrative appeal (referred to in the preceding point) but rather, as the Claimant refers to, the IUC assessment acts relating to the years 2013 and 2014, concerning the vehicle...-...-...". The Respondent concludes that, "having the Claimant submitted the request for constitution of an Arbitral Tribunal on 21 September 2015 and considering the foregoing points, it is apparent that on that date the legally defined deadline for challenging in arbitral proceedings the assessment acts in question in the present case had already been exceeded, for which reason that request is untimely, and the Tribunal cannot consider it."

The Respondent is not, however, correct, since, despite the formulation not being the clearest at the beginning of the Claimant's initial petition, the indication of the claim forming the object of the present request for arbitral decision is not left in doubt and is intelligible, when the Claimant refers, unequivocally – immediately at point 1 of the said initial petition – that it disagrees with the position of the Director of Services of the IMT, IS, IUC and Special Contributions, responsible for the act rejecting the administrative appeal in question: "[the Claimant] comes to request the judgment by this tribunal of the question [...] which was the object of rejection of administrative appeal by the Director of Services of the IMT, IS, IUC and Special Contributions, with the following grounds: 1 – Contrary to the position of the Tax Authority and [of] the Director, ...". And it is also certain that, as the Claimant further adds, in its submission of 31/3/2016, such request does not impede any references to assessment acts, despite these not having been directly or autonomously challenged: "What is asked of the Tribunal is that it render a decision on the rejection of the administrative appeal [...] for the reason for the rejection of the administrative appeal is precisely the legality of the IUC assessment in question."

By the foregoing – and considering: the natural necessity of making reference, in the request for arbitral decision, to the assessment acts resulting from acts of rejection; the reference (express and intelligible) contained in point 1 of the Claimant's initial petition, cited above; and, further, the indication, also made therein, of the decision of rejection and the reasons for disagreement therewith – the exception alleging untimeliness of the request for arbitral decision is held to be without foundation.

V – ON THE LAW

In the present case, there are three disputed questions of law: 1) whether Article 3 of the CIUC contains a presumption and whether rebuttal of the same was made; 2) whether, as the AT alleges, the Claimant's interpretation does not heed the systematic and teleological elements of interpretation of the law; 3) whether, as the AT also alleges, "the interpretation conveyed by the Claimant [...] appears to be contrary to the Constitution".

Let us see then.

1. and 2) The first two questions of law converge in the direction of the interpretation of Article 3 of the CIUC, for which reason it is necessary: A) to determine whether the norm of subjective incidence, contained in the said Article 3, establishes or does not establish a presumption; B) to determine whether, by considering that this norm establishes a presumption, this violates the "unity of the regime", or disregards the systematic and teleological element; C) to determine – allowing that the presumption exists (and that the same is juris tantum) – whether rebuttal of the same was made.

A) Article 3, Nos. 1 and 2, of the Code of the Single Vehicle Tax, has the following wording, which is reproduced herein:

"Article 3 – Subjective Incidence

1 - Passive subjects of the tax are the owners of the vehicles, considering as such the natural or legal persons, of public or private law, in whose names the same are registered.

2 - Equivalent to owners are financial lessees, acquirers with reservation of ownership, as well as other holders of purchase option rights by virtue of the rental contract".

The interpretation of the cited legal text is, naturally, essential for the resolution of the case under analysis. To this extent, it is necessary to resort to Article 11, No. 1, of the General Tax Law, and, by referral of this, to Article 9 of the Civil Code.

Now, in accordance with the said Article 9 of the Civil Code, interpretation begins from the letter of the law and seeks, through it, to reconstruct the "legislative thought". This is to say (regardless of the objectivism-subjectivism dispute) that literal analysis is the basis of the interpretive task and the systematic, historical, or teleological elements are guides for orientation of the said task.

The literal comprehension of the legal text in question does not generate – even though the separation of this from the determination, even if minimal, of its meaning is very debatable – the notion that the expression "considering as such" means something different from "presuming as such". In fact, it would be very difficult to find authors who, in a task of pre-comprehension of the said legal text, would instinctively reject the identity between the two expressions.

Confirming the indistinction (both literal and in meaning) of the words "considering" and "presuming" (presumption), see, for example, the following articles of the Civil Code: 314, 369 No. 2, 374 No. 1, 376 No. 2, and 1629. And, with particular interest, the case of the expression "is considered", contained in Article 21, No. 2, of the Corporate Income Tax Code. As noted by Diogo Leite Campos, Benjamin Silva Rodrigues and Jorge Lopes de Sousa, regarding that article of the Corporate Income Tax Code: "beyond this norm showing that what is at issue in the taxation of capital gains is to ascertain the real value (that of the market), the limitation to the ascertainment of real value derived from the rules for determination of the taxable value provided for in the Income Tax Code cannot fail to be considered as a presumption in terms of incidence, whose rebuttal is permitted by Article 73 of the General Tax Law" (General Tax Law, Annotated and Commented, 4th ed., 2012, pp. 651-2).

B) These are merely some examples that permit the conclusion that it is precisely for reasons related to "the unity of the legal system" (the systematic element) that it cannot be asserted that only when the verb "presume" is used is one in the presence of a presumption, given that the use of other terms or expressions (literally similar) may also serve as the basis for presumptions. And, among these, the expressions "is considered as" or "considering as" assume, as was seen, prominence.

If literal analysis is only the basis of the task, it naturally appears essential to evaluate the text in light of the other elements (or sub-elements of the so-called logical element). Indeed, the AT also alleges that the Claimant's interpretation does not attend to the systematic element, violating the unity of the regime established throughout the CIUC and, more broadly, throughout the entire fiscal legal system, and that in light of a teleological interpretation of the regime established throughout the CIUC, the interpretation propounded by the Claimant is wrong.

It is therefore justified to determine whether the interpretation that considers the existence of a presumption in Article 3 of the CIUC collides with the teleological element, i.e., with the purposes (or with the sociological relevance) of what was intended with the rule in question. Now, such purposes are clearly identified at the beginning of the CIUC: "The Single Vehicle Tax complies with the principle of equivalence, seeking to burden taxpayers in proportion to the environmental and road cost which these cause, in fulfilment of a general rule of tax equality" (see Article 1 of the CIUC).

What can be inferred from this Article 1? It can be inferred that the close connection of IUC to the principle of equivalence (or principle of benefit) does not permit the exclusive association of the "taxpayers" therein referred to with the figure of owners but rather with the figure of users (or economic owners). As was well noted in the Arbitral Decision delivered in case No. 73/2013-T: "in truth, the ratio legis of the tax [IUC] rather points in the direction that users of the vehicles be taxed, the 'economic owner' in the words of Diogo Leite de Campos, the effective owners or financial lessees, for it is these who have the polluting potential causing environmental costs to the community."

Indeed, if the said ratio legis were otherwise, how could one understand, for example, the obligation (on the part of entities that proceed to lease vehicles) – and for purposes of the provisions in Article 3 of the CIUC and Article 3, No. 1, of Law No. 22-A/2007, of 29/6 – of providing to the General Directorate of Taxation data concerning the identification of the users of the said vehicles (see Article 19)? Would it be that where "users" is read, should instead be read, disregarding the systematic element, "owners with registration in their names"...?

C) From the foregoing it is concluded that limiting the passive subjects of this tax only to the owners of the vehicles in whose names they are registered – ignoring situations where they no longer coincide with the real owners or real users of the same – constitutes a restriction which, in light of the purposes of IUC, finds no basis for support. And, even if it is alleged that the legislator's intention was that, for purposes of IUC, be considered as owners those who, as such, appear in the vehicle registration, it is necessary to bear in mind that such registration, in light of what was said previously, generates only a rebuttable presumption, i.e., a presumption that can be set aside by the presentation of contrary proof. In this sense, see, for example, the Decision of the Administrative Court of Appeal of 19/3/2015, case 8300/14: "The [...] Article 3, No. 1, of the CIUC, establishes a legal presumption that the holder of the vehicle registration is its owner, and such presumption is rebuttable".

It would, moreover, be unjustified to impose a kind of irrebuttable presumption, in so far as, without an apparent reason, one would be imposing a (admittedly debatable) formal truth to the detriment of what really could have been and would have been proven; and, on the other hand, would be set aside the duty of the AT to comply with the investigative principle established in Article 58 of the General Tax Law, i.e., the duty to carry out the necessary diligences for a correct determination of the factual reality on which its decision must be based (which means, in the present case, the determination of the current and effective owner of the vehicle).

Moreover, if the seller were not permitted to rebut the presumption contained in Article 3 of the CIUC, one would without a plausible reason be benefitting acquirers who, in possession of correctly completed and signed acquisition contract forms, and enjoying the advantages associated with their status as owners, would attempt to exempt themselves, by way of a "registration formalism", from the payment of tolls or fines.

To this end, it should be noted also that vehicle registration does not have constitutive effect, functioning, as was said before, as a rebuttable presumption that the holder of the registration is, effectively, the owner of the vehicle. In this sense, see, for example, the Decision of the Supreme Court of Justice of 19/2/2004, case 03B4639: "Registration does not have constitutive effect, in so far as it is intended to give publicity to the registered act, functioning (only) as a mere rebuttable presumption, (presumption 'juris tantum') of the existence of the right (Articles 1, No. 1 and 7, of the Constitution and Article 350, No. 2, of the Civil Code) as well as of the respective ownership, all in accordance with what is contained in it."

In the same sense, it was stated, in this regard, in the Arbitral Decision delivered in case No. 14/2013-T, in terms that are supported hereby: "the essential function of vehicle registration is to give publicity to the legal situation of vehicles, with registration not having constitutive effect, functioning (only) as a mere rebuttable presumption of the existence of the right, as well as of the respective ownership, all in accordance with what is contained in it. The presumption that the right registered belongs to the person in whose name it is inscribed can be rebutted by contrary proof. The AT not meeting the requirements of the notion of third party for registration purposes [circumstance which could prevent the full efficacy of purchase and sale contracts celebrated], cannot avail itself of the absence of updating of the registration of the right of property to call into question the full efficacy of the purchase and sale contract and to demand of the seller (previous owner) the payment of IUC owed by the buyer (new owner) provided that the presumption of the respective ownership is rebutted through sufficient proof of the sale."

It happens, however, that, in the case under analysis herein, it is apparent that rebuttal of the presumption was not made, since sufficient proof of the alleged sale was not presented. Indeed, a sales invoice/receipt or purchase and sale contract of the vehicle in question was not presented, these being the decisive documentary proofs for, according to extensive jurisprudence of this Arbitration Centre, the presumption based on registration to be rebutted. This means, consequently, that Docs. 1 to 6, presented by the Claimant, do not permit rebuttal of the said presumption (and any testimony proof would not permit it either).

Regarding the probative force of documents such as purchase and sale contracts or invoices/receipts, note, for example, the Arbitral Decision delivered in case No. 27/2013-T, of 10/9/2013, where it is emphasized that "the documents presented, particularly the copies of the invoices that support, from the outset, the sales [of] the [...] referenced vehicles, [...] embody means of proof with sufficient and appropriate force to rebut the presumption based on registration, as established in No. 1 of Article 3 of the CIUC, documents, which moreover enjoy the presumption of truthfulness provided for in No. 1 of Article 75 of the General Tax Law."

In the same sense, see, lastly, the Arbitral Decision delivered in case No. 230/2014-T, of 22/7/2014: "the documentary elements, consisting of copies of the respective sales invoices [...] enjoy the probative force provided for in Article 376 of the Civil Code and the presumption of truthfulness which is conferred by Article 75, No. 1, of the General Tax Law, thus having suitability and sufficient force to rebut the presumption which supported the assessments made."

See, lastly, the Decision of the Administrative Court of Appeal of 19/3/2015 (case 8300/14): "The I.U.C. is legally configured to function in integration with the vehicle registration, which is inferred, from the outset, from Article 3, No. 1, of the C.I.U.C., a norm where it is established that the passive subjects of the tax are the owners of the vehicles, further adding that are considered as such the natural or legal persons, of public or private law, in whose names the same are registered. The cited Article 3, No. 1, of the C.I.U.C., establishes a legal presumption that the holder of the vehicle registration is its owner, and such presumption is rebuttable, by virtue of Article 73 of the General Tax Law. The rebuttal of the legal presumption follows the rule contained in Article 347 of the Civil Code, in accordance with which full legal proof can only be contradicted by means of proof that shows that the fact which is the subject thereof is not true. This means that it is not sufficient for the opposing party to oppose mere contrary proof – which is intended to cast doubt on the facts (see Article 346 of the Civil Code) that render the presumed facts doubtful. On the contrary, it must show that the presumed fact is not true, in such form that there remains no uncertainty that the facts resulting from the presumption are not real. [...] the issuance of an invoice/receipt or receipt constitutes proof of payment and discharge ['and, consequently, proof that the purchase and sale was concluded'] – see Article 787 of the Civil Code".

In this sense, it is reaffirmed that, in the absence of the presentation of a purchase and sale contract of the automobile (note, in this regard, that the law does not establish any specific form for the conclusion of a purchase and sale contract of movable property), it was necessary to present documents that would permit proof of the conclusion of the said purchase and sale. Thus, and in the absence of the mentioned contract, an invoice/receipt or a request for presentation to registration and responsibility statement, containing the obligation of the acquiree to promote registration in due course, could suffice (see, in this regard, the Arbitral Decision delivered in case No. 841/2015, of 20/7/2015). Now, none of these elements was brought to the record. The record contains only: the request for cancellation of the insurance policy of the vehicle on 18/9/1997 (Doc. 1); the statement of responsibility of the alleged acquiree (B...), in which there is no mention of any obligation to promote registration (Doc. 2); the attachment on the vehicle, registered by D..., Lda., in 2004, and another relating to execution brought by E..., S.A., in 2005 (Docs. 3 to 5); and, lastly, the insurance of the vehicle in the name of F..., Lda., for the period of 19/11/1998 to 26/2/1999 (Doc. 6). As can be seen from the list described, none of the aforementioned documents succeeds in proving the alleged transmission of ownership of the vehicle in question.

1. It is concluded, in light of the foregoing, that there was not an "interpretation [...] contrary to the Constitution", contrary to what was alleged by the Respondent in points 103 to 111 of its defence.

VI – DECISION

In light of the foregoing, it is decided:

• The request for arbitral decision is held to be without foundation, with the impugned act (and the IUC assessments) remaining in full force in the legal order, and the respondent entity is accordingly absolved of the request.

The value of the case is set at €792.53 (seven hundred ninety-two euros and fifty-three cents), in accordance with Article 32 of the Code of Administrative Procedure and Article 97-A of the Code of Administrative Procedure (Civil Division), applicable by virtue of the provisions of Article 29, No. 1, paragraphs a) and b), of the LRBTM, and Article 3, No. 2, of the Regulation of Costs in Tax Arbitration Proceedings.

Costs borne by the Claimant, in the amount of €306.00 (three hundred six euros), in accordance with Table I of the Regulation of Costs in Tax Arbitration Proceedings, and in compliance with Articles 12, No. 2, and 22, No. 4, both of the LRBTM, and with the provisions of Article 4, No. 4, of the said Regulation.

Notify.

Lisbon, 9 May 2016.

The Arbitrator

(Miguel Patrício)

Document prepared by computer, in accordance with the provisions of Article 131, No. 5, of the Code of Civil Procedure, applicable by referral of Article 29, No. 1, paragraph e), of the LRBTM.

The drafting of the present decision is governed by the spelling prior to the Orthographic Agreement of 1990.