IUC Tax on Leased Vehicles: Who Pays – Owner or Lessee? CAAD Ruling 645/2015-T

Arbitral Decision

I – REPORT

A) The Parties and Constitution of the Arbitral Tribunal

1. A…, SA, Legal Entity no. …, with registered office at Rua … …, … – …, Lisbon, hereinafter referred to as the "Claimant", filed a request for constitution of a singular Arbitral Tribunal, pursuant to Article 2, no. 1, subparagraph a) and Articles 10, nos. 1 and 2 of Decree-Law no. 10/2011, of 20 January, hereinafter referred to as "RJAT" and Ordinance no. 112 – A/2011, of 22 March, seeking the declaration of illegality of twenty-six (26) assessments of Unique Circulation Tax (IUC) described in document no. 3 attached to the present arbitral request, all concerning the taxation period of the year 2015, and which are hereby fully reproduced for all due legal effects, in the total amount payable of €2,013.27

The request for constitution of the Arbitral Tribunal was presented by the Claimant on 22-10-2015, was accepted by the Esteemed President of CAAD on 26-10-2015 and notified to the Tax and Customs Authority on 2-11-2015.

The Claimant chose not to appoint an arbitrator, therefore, pursuant to Article 6, no. 1 of RJAT, the undersigned was appointed, on 16-12-2015, by the Ethics Council of the Administrative Arbitration Centre as sole arbitrator. The appointment was accepted and the parties were notified of the arbitrator's designation, having manifested no intention to refuse the appointment.

1. Thus, in accordance with the provision of subparagraph c), no. 1, Article 11, of Decree-Law no. 10/2011, of 20 January, as amended by Article 228 of Law no. 66-B/2012, of 31 December (RJAT), the Singular Arbitral Tribunal was constituted on 4-01-2016. On the same date, the Tax Authority was notified to present its response within the legal timeframe, pursuant to nos. 1 and 2 of Article 17 of RJAT.

The Tax Authority presented its response on 04-02-2016, which is hereby fully reproduced. Considering the content of the Arbitral Request and the Response and finding that the matter under discussion in the proceedings is exclusively one of law, without production of evidence required by the parties, an arbitral order was issued on 17-02-2016, dispensing with the holding of the meeting provided for in Article 18 RJAT, and a period of 15 days, equal and successive, was set for the parties to present, if they so wish, their written submissions. A date was set for issuing the arbitral decision by 30-03-2016 and the Claimant was notified to make payment of the subsequent arbitral fee by the date set for issuance of the decision, whose deadline was extended by a further five days, pursuant to the arbitral order of 30-03-2016.

The Claimant presented its submissions on 22-02-2016 and the Respondent on 7-03-2016, which are hereby fully reproduced.

B) THE REQUEST FORMULATED BY THE CLAIMANT:

1. The Claimant makes the present request for arbitral pronouncement seeking the illegality, with the consequent annulment, of 26 assessments of IUC, concerning the periods of 2013 and 2014, contained in document no. 3 Attached to the Arbitral Request, which is hereby fully reproduced, in the total amount of €2,013.27.

All these assessments are duly identified and itemized in the table attached to the arbitral request, with identification of the vehicle registration number to which they relate and the legal situation in which they are found, therefore the content of the said attached table is hereby fully reproduced.

1. In summary, it alleges that it is a financial credit institution, whose corporate purpose is the practice of operations permitted to banks, with the exception of deposit-taking. In this respect, it pursues its financing activity, granting loans, namely for the acquisition of motor vehicles, through the execution of loan contracts with retention of title or through the execution of financial leasing contracts. The Claimant was notified for payment of the IUC's, concerning the vehicles identified in the present proceedings, with reference to the year 2015, on the basis of being its owner "based on the elements that the Tax and Customs Authority has…".

The Claimant disputes all these assessments on the grounds that it is not the passive subject of IUC in relation to the vehicles and the periods in question, because in relation to all these vehicles, at the date of the taxable event, the Claimant either no longer owned them or the vehicle was leased.

There is thus a reason for exclusion from the subjective incidence of the tax. It considers that the requirements for subjective tax incidence, as provided for in Article 3 of the CIUC, are not satisfied, in conjunction with Articles 4 and 6 of the said Code.

It concludes by alleging the illegality of the assessment acts by violation of law due to error regarding the presuppositions of the taxable event, which constitutes a defect of violation of law. It invokes numerous arbitral jurisprudence and proceedings in which it was Claimant and in which the factual and legal matters under debate were similar to those of the present proceedings.

It concludes by petitioning for the annulment of the IUC assessments and the consequent termination of the executive proceedings and administrative penalty proceedings underlying the assessment acts in dispute.

C – THE RESPONSE OF THE RESPONDENT

1. The Respondent Tax Authority, duly notified for this purpose, presented its response in due time in which, by way of challenge, it alleged, in summary, that the Claimant has no merit, whose position is based on an erroneous interpretation and application of the legal rules applicable to the case sub judice notoriously incorrect. Article 3 of the CIUC does not contain any legal presumption, therefore the passive subject of the tax is the owner of the vehicle, as results from the databases that serve as the basis for the Tax Authority to proceed with the assessment, that is, the database of the Institute of Land Transport Mobility (IMTT) and the Institute of Registration and Notary/Motor Vehicle Registry Office (IRN).

It further alleges that the understanding defended by the claimant falls into a biased reading of the letter of the law, corresponds to an interpretation that does not take into account the systematic element, violating the unity of the regime established throughout the CIUC and, more broadly, throughout the entire tax and legal system and further stems from an interpretation that ignores the ratio of the regime established in the article in question, and likewise throughout the CIUC. According to the Tax Authority, the legislature expressly and intentionally established that such are considered the persons in whose names the same are registered, inasmuch as this is the interpretation that preserves the unity of the tax and legal system and that any other interpretation would be to ignore the teleological element of interpretation of law: the ratio of the regime established in the article in question, and likewise throughout the CIUC; it reinforces this allegation by invoking that this is the understanding followed by the jurisprudence of our courts expressed in the judgment issued by the Administrative and Tax Court of Penafiel, in the context of Case no. 210/13.0BEPNF. It seeks the total dismissal of the arbitral request, therefore the Tax Authority should not be held responsible for payment of procedural costs, as the issuance of the assessments is entirely attributable to the Claimant.

II - PROCEDURAL REQUIREMENTS

1. The Arbitral Tribunal is regularly constituted. It is materially competent, pursuant to Article 2, no. 1, subparagraph a) of Decree-Law no. 10/2011, of 20 January.

2. The Parties enjoy legal personality and capacity, are legitimate and are legally represented (See Articles 4 and 10, no. 2 of DL no. 10/2011 and Article 1 of Ordinance no. 112/2011, of 22 March).

3. With regard to the joinder of claims, seeking the joint assessment of the legality of 26 assessments of IUC, relating to the year 2015, although they constitute autonomous acts, concerning vehicles and differentiated situations, the conditions required by no. 1 of Article 3 of RJAT and Article 104 of CPPT being met, the joinder is to be admitted. Thus, the joinder of requests for declaration of illegality of all tax acts relating to the assessment of IUC and their corresponding compensatory interest is accepted in the same arbitral request, given the identity of the tax and the assessment of the tax acts in question depending on the assessment of the same factual circumstances and the application of the same rules of law. This is the case with the present arbitral request.

The legal requirements that allow the joinder of claims are thus met, pursuant to the provisions of Articles 104 of CPPT and Article 3, no. 1 of RJAT, considering the identity of the tax and the jurisdiction of the tribunal, which is accepted by this Tribunal.

1. The proceedings do not suffer from defects that would invalidate them.

III - FACTUAL FOUNDATION

1. Taking into account the documentary evidence attached to the proceedings, it is now necessary to present the factual matter relevant to understanding the decision, which is determined as follows.

A) Established Facts

1. As relevant factual matter, this tribunal takes as established the following facts:

a) The Claimant is a financial credit institution whose activity is identical to that of banks, with the exception of deposit-taking;

b) The substantial activity of the claimant consists of motor vehicle financing, through the execution of loan contracts with retention of title or financial leasing contracts for vehicles without a driver, intended for the acquisition, by companies and individuals, of motor vehicles;

b) The Claimant was notified to proceed with payment of the 26 assessments of IUC here disputed, for the year 2015 and their corresponding compensatory interest, concerning the vehicles with the registration numbers identified in the IUC assessments attached to the proceedings;

c) The disputed assessments correspond to the vehicles identified with registration number, tax amount, compensatory interest amount, all duly itemized in the table attached to the Arbitral Request as document no. 3, which is hereby fully reproduced, namely:

1 - IUC Assessment no. 2015…, with payment deadline of 30-07-2015, concerning the vehicle with registration number …-…-…, whose total amount of tax and compensatory interest is €42.23;

2 - IUC Assessment no. 2015…, with payment deadline of 30-07-2015, concerning the vehicle with registration number …-…-…, whose total amount of tax and compensatory interest is €52.63;

3 - IUC Assessment no. 2015…, with payment deadline of 30-07-2015, concerning the vehicle with registration number …-…-…, whose total amount of tax and compensatory interest is €42.22;

4 - IUC Assessment no. 2015…, with payment deadline of 30-07-2015, concerning the vehicle with registration number …-…-…, whose total amount of tax and compensatory interest is €35.73;

5- IUC Assessment no. 2015…, with payment deadline of 30-07-2015, concerning the vehicle with registration number …-…-…, whose total amount of tax and compensatory interest is €20.08;

6 - IUC Assessment no. 2015…, with payment deadline of 30-07-2015, concerning the vehicle with registration number …-…-…, whose total amount of tax and compensatory interest is €126.59;

7 - IUC Assessment no. 2015…, with payment deadline of 30-07-2015, concerning the vehicle with registration number …-…-…, whose total amount of tax and compensatory interest is €162.71;

8 - IUC Assessment no. 2015…, with payment deadline of 30-07-2015, concerning the vehicle with registration number …-…-…, whose total amount of tax and compensatory interest is €52.63;

9 - IUC Assessment no. 2015…, with payment deadline of 30-07-2015, concerning the vehicle with registration number …-…-…, whose total amount of tax and compensatory interest is €52.79;

10 - IUC Assessment no. 2015…, with payment deadline of 30-07-2015, concerning the vehicle with registration number …-…-…, whose total amount of tax and compensatory interest is €21.10;

11 - IUC Assessment no. 2015…, with payment deadline of 26-08-2015, concerning the vehicle with registration number …-…-…, whose total amount of tax and compensatory interest is €52.62;

12 - IUC Assessment no. 2015…, with payment deadline of 26-08-2015, concerning the vehicle with registration number …-…-…, whose total amount of tax and compensatory interest is €29.35;

13 - IUC Assessment no. 2015…, with payment deadline of 26-08-2015, concerning the vehicle with registration number …-…-…, whose total amount of tax and compensatory interest is €32.38;

14 - IUC Assessment no. 2015…, with payment deadline of 26-08-2015, concerning the vehicle with registration number …-…-…, whose total amount of tax and compensatory interest is €52.62;

15 - IUC Assessment no. 2015…, with payment deadline of 26-08-2015, concerning the vehicle with registration number …-…-…, whose total amount of tax and compensatory interest is €52.62;

16 - IUC Assessment no. 2015…, with payment deadline of 02-10-2015, concerning the vehicle with registration number …-…-…, whose total amount of tax and compensatory interest is €66.00;

17 - IUC Assessment no. 2015…, with payment deadline of 02-10-2015, concerning the vehicle with registration number …-…-…, whose total amount of tax and compensatory interest is €503.32;

18 - IUC Assessment no. 2015…, with payment deadline of 02-10-2015, concerning the vehicle with registration number …-…-…, whose total amount of tax and compensatory interest is €52.66;

19 - IUC Assessment no. 2015…, with payment deadline of 02-10-2015, concerning the vehicle with registration number …-…-…, whose total amount of tax and compensatory interest is €131.69;

20 - IUC Assessment no. 2015…, with payment deadline of 02-10-2015, concerning the vehicle with registration number …-…-…, whose total amount of tax and compensatory interest is €95.70;

21 - IUC Assessment no. 2015…, with payment deadline of 08-10-2015, concerning the vehicle with registration number …-…-…, whose total amount of tax and compensatory interest is €32.32;

22 - IUC Assessment no. 2015…, with payment deadline of 08-10-2015, concerning the vehicle with registration number …-…-…, whose total amount of tax and compensatory interest is €29.29;

23 - IUC Assessment no. 2015…, with payment deadline of 08-10-2015, concerning the vehicle with registration number …-…-…, whose total amount of tax and compensatory interest is €52.51;

24 - IUC Assessment no. 2015…, with payment deadline of 08-10-2015, concerning the vehicle with registration number …-…-…, whose total amount of tax and compensatory interest is €52.51;

25 - IUC Assessment no. 2015…, with payment deadline of 08-10-2015, concerning the vehicle with registration number …-…-…, whose total amount of tax and compensatory interest is €133.21;

26 - IUC Assessment no. 2015…, with payment deadline of 08-10-2015, concerning the vehicle with registration number …-…-…, whose total amount of tax and compensatory interest is €35.76;

• All totalling €2,013.27

d) Of the twenty-six vehicles identified, twenty-five had already been sold by the claimant on a date prior to the date of occurrence of the taxable event – see Documents 5 to 8 attached as annex to the Request;

e) The vehicle with registration number …-…-…, at the date of the taxable event, was leased, as confirmed by the leasing contract attached to the proceedings;

f) From the analysis of documents nos. 5 (invoices), 6 and 7 (financial leasing contracts and certificate from the Motor Vehicle Registry Office) it results that in the month of registration concerning each of the vehicles identified in the proceedings, with the exception of the vehicle with registration number …-…-…, ownership had already been transferred to the respective holders;

g) As to the vehicle with registration number …-…-… it was subject, at the date of the taxable event, to the respective financial leasing contract, a fact registered in the Motor Vehicle Registry Office;

h) At the date of the taxable events, the transfer of ownership of all the remaining motor vehicles referenced in the IUC assessments under dispute was duly communicated to the Motor Vehicle Registry Office and the IMTT – Documents 7 and 8 attached to the arbitral request;

i) At the date of the taxable facts of assessment, the Tax Authority had access to the information elements contained in the databases of the Land Property Registry and the IMTT;

j) At no time did the Claimant enjoy the use of the vehicles, with exclusive use being the responsibility of the respective lessees and subsequent lessees.

B) FOUNDATION OF THE ESTABLISHED FACTS

1. The decision on the factual matter as described above is based on the documentary evidence presented by the Claimant and which forms part of the present proceedings. The Tribunal particularly considered the corporate purpose of the Claimant and the specific nature of its economic activity, relevant to the factual reality underlying the commercial situations concerning the various contracts relating to the vehicles identified above, proven by the documents attached to the arbitral request and contained in the administrative proceedings submitted by the Tax Authority.

C) UNPROVEN FACTS

1. There are no other facts determined as unproven, as all facts relevant to the assessment of the request were determined as proven.

IV – LEGAL FOUNDATION

1. Once the factual matter is established, it is important to address the legal questions relevant to the decision, corresponding, in summary, to the illegality raised by the Claimant in the present arbitral request, which amounts to the question of subjective incidence of IUC, namely during the validity of financial leasing contracts and after their validity, with the transfer of ownership occurring upon the termination of the contract and, as a result of this, the determination of the effects of motor vehicle registration and the existence or not of a rebuttable presumption.

2. It is necessary to verify whether the Claimant should be qualified as a passive subject of the Unique Circulation Tax, assessed in relation to the year 2015, as to the vehicles identified in the request for arbitral pronouncement.

As the Claimant itself refers in the arbitral request, the fundamental question to be decided is whether, during the validity of financial leasing contracts concerning the vehicles identified in the present proceedings, the Claimant or the respective owners or, still, the lessees in the leasing contracts in force, should be the passive subjects of unique circulation tax.

To answer this question, it is necessary to assess the terms of the configuration of the subjective incidence of IUC in light of Article 3 of the Code of Unique Circulation Tax (CIUC), namely, the question of whether subjective incidence is based strictly on the registration of vehicle ownership in the Motor Vehicle Register, or whether registration operates only as a presumption of tax incidence, rebuttable, in accordance with Article 73 of the General Tax Law. On this matter, arbitral jurisprudence is already abundant and well-defined, set forth in various decisions that have already ruled on this same question. However, it is necessary to analyze the specific case in its specificity.

1. The fundamental legal framework applicable in this matter is provided for in Articles 1 to 6 of the CIUC.

Article 1 of the CIUC defines the objective incidence of the tax, distinguishing vehicles by specified categories, a rule that appears clear and without difficulties of application. However, this is not the case with the rule of subjective incidence contained in no. 1 of Article 3 of the CIUC, which is at the origin of the present dispute and thus constitutes the question to be decided in the case under examination.

The analysis of both provisions (Articles 1 and 3) allow for the conclusion that in the functioning of the IUC, motor vehicle registration plays a fundamental role, but what truly matters is to determine the meaning and scope of the rule of subjective incidence contained in Article 3, no. 1 of the CIUC and the eventual existence or not of a rebuttable presumption, connected with the question of the legal effects of motor vehicle registration, raised by the Claimant.

On this question, the positions of the parties may be summarized as follows:

• For the Claimant it cannot be considered a passive subject of IUC, by virtue of the leasing contracts in force and the specific rule contained in no. 2 of Article 3 of the CIUC that provides, specifically for this case, that responsibility for payment falls on the lessees;

• For the Respondent, Article 3, no. 1 of the CIUC establishes a rule of tax incidence and not mere rebuttable presumption, and even in the case where financial leasing contracts are in force, the owner does not cease to be the lessor and, by force thereof, this is a passive subject of the tax.

Let us see, therefore, what results from the legal regime in force and its application to the specific case in the proceedings. Article 3 of the CIUC provides:

"ARTICLE 3

SUBJECTIVE INCIDENCE

"1 – 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 the same are registered.

2 – Financial lessees, acquirers with retention of title, as well as other holders of purchase option rights by virtue of the leasing contract are equated to owners".

In the case of the present proceedings, it is necessary not only to determine the meaning and scope of the rule contained in no. 1, but, above all, the rule contained in no. 2, specifically intended to regulate the specific case of financial lessees, acquirers with retention of title and other holders of purchase option rights.

The interpretation and application of any legal rule presupposes the performance of an interpretive activity, which must be objective, balanced, and in accordance with the letter and spirit of the law. Any text, and the law is no exception, contains multiple meanings and frequently contains ambiguous or obscure expressions. For this reason, although the letter of the law is "the guiding thread" of the interpreter, it must be interpreted taking into account the underlying objectives, "the ratio" or the motivation of the legislature in establishing the rule under analysis.[1]

In this sense, no. 1 of Article 11 of the General Tax Law establishes that "in determining the meaning of tax norms and in qualifying the facts to which they apply, the general rules and principles of interpretation and application of laws are observed".

To these elements is added another, according to which the interpretation of the legal rule must respect the "unity of the legal system", its coherence and intrinsic logic. Article 9 of the Civil Code provides the fundamental rules and elements for the interpretation of the legal rule, which tax law interpretation must also obey the provisions of that normative, which begins by stating that interpretation must not be confined to the letter of the law, but should reconstitute from it the "legislative thought".[2]

To these general principles are added those provided for in the General Tax Law, namely in Article 73, which establishes that presumptions contained in tax incidence norms always admit proof to the contrary.

With regard to the question under analysis, the contribution of arbitral decisions already issued in cases nos. 14/2013-T, of 15 October, 26/2013-T of 19 July, 27/2013-T, of 10 September, 217/2013-T of 28 February and, more recently, in the decisions issued in cases 286/2013-T, of 2 May 2014 and 293/2013-T, of 9 June 2014, 46/2014-T and 89/2014-T of 5 September, among others, revealing a refined reflection on the fundamental question under examination, both as regards the meaning and scope of the provision in no. 1, and in no. 2 of this normative. In all of them, the understanding on this question is unanimous: we are faced with a rebuttable presumption.

In the same sense, the Supreme Administrative Court recently ruled on 19-03-2015, in case no. 08300/14, in which it decided, in the same sense as the arbitral jurisprudence cited, that "the aforementioned Article 3, no. 1 of the CIUC establishes a legal presumption that the holder of motor vehicle registration is its owner, and such presumption is rebuttable, by virtue of Article 73 of the General Tax Law."

Therefore, as to the question of whether, in light of the literal tenor of no. 1 of Article 3 of the CIUC, what is the scope of the expression "considering as such", given that in the current version the legislature did not use the term "presumed" (which was contained in the extinct Motor Vehicle Tax Regulation), this Tribunal understands, in harmony with the arbitral jurisprudence and the Supreme Administrative Court mentioned above, that it can only be the following: the legislature presumes (considers) that the owners are the persons in whose names the vehicles are registered. This means that such presumption, implicit, is naturally rebuttable pursuant to Article 73 of the General Tax Law.

The presumption established in Article 3, no. 1 of the current CIUC was already enshrined in the earlier versions of the codes abolished with the entry into force of the CIUC. Already Article 3 of the Motor Vehicle Tax Regulation (approved by Decree-Law no. 143/78) established that "the tax is due by the owners of the vehicles, presumed as such, until proof to the contrary, the persons in whose name the same are registered or recorded".

Similarly, Article 2 of the Regulation of Circulation Tax and Haulage Tax (approved by Decree-Law no. 116/94) established that "passive subjects of circulation tax and haulage tax are the owners of the vehicles, presumed as such, until proof to the contrary, the natural or legal persons in whose names the same are registered".

In fact, in the current version of the Code only the verb changed, with the legislature now opting for the expression "considering". What is certain is that, between the earlier legislative versions and the current one, the General Tax Law entered into force, which expressly enshrined the principle contained in Article 73, from which it results that in matters of tax incidence any presumption always admits proof to the contrary. Therefore, it becomes irrelevant whether an express or implicit presumption is adopted, since both are equally rebuttable.

Thus, it is understood that the fact that the legislature, in the current version of the CIUC, opted for an implicit presumption (using the expression "considering") instead of an express presumption (using the expression "presumed"), as happened previously, does not translate a substantial change as regards the subjective incidence of the tax. It is not, therefore, the ownership recorded in the motor vehicle registration a condition, in itself determinative of tax incidence in the context of IUC, but rather mere presumption that ownership belongs to the holder registered in the registration, a naturally rebuttable presumption.

Furthermore, contrary to what has been alleged by the Respondent, we can easily point out various examples, extracted from the tax legal system, in which the legislature opted for the use of the verb "consider", with a presumptive sense.

Moreover, as has been said above, being a rule of tax incidence, it would never be admissible to establish an irrebuttable presumption. As stated by Diogo Leite Campos, Benjamim Silva Rodrigues and Jorge Lopes de Sousa, in the annotation to no. 3 of Article 73 of the General Tax Law, "presumptions in matters of tax incidence may be explicit, revealed by the use of the expression presumed or similar (…). However, presumptions can also be implicit in incidence norms, namely objective incidence, when certain values of movable or immovable property are considered as constituting taxable matter, in situations where it is not infeasible to ascertain the real value". And there are many examples of norms in which the verb "consider" is used to establish rebuttable presumptions, as occurs with the provision of no. 2 of Article 21 of the Corporate Income Tax Code, in Article 89-A of the General Tax Law or in Article 40, no. 1 of the Personal Income Tax Code, among others.

The Respondent alleges, however, in the response presented, that this same word "considering" is also normally used by the tax legal system to define situations distinct from presumptions. Now, this appears normal, namely, in the case of other tax norms in which the legislature used the formula "considers" or "are considered", but assigning it another meaning, since these are expressions that, depending on the context, can assume a plurality of meanings, without which can be extracted the conclusion that the Respondent seeks.

Bearing in mind that the legal system should form a coherent whole, the examples referred to above, as well as the doctrine and jurisprudence indicated, allow for the conclusion that it is not only when the verb "presume" is used that we are faced with a presumption, but also the use of other terms or expressions, such as the term "considers" can serve as the basis for presumptions. As referred to above, being the literal element the first instrument of interpretation of the legal rule, in search of legislative thought, it is important to confront it with the other elements of interpretation, namely the rational or teleological element, the historical element and the systematic element.

And, also in this line of reflection, the Tribunal cannot accept the argumentation put forward by the Tax Authority. As to the historical element, it must be noted that since the origin of circulation tax, with the entry into force of Decree-Law no. 599/72 of 30 December, a presumption was expressly enshrined, concerning the passive subjects of the tax as being those in whose name the vehicles were registered. That version of the law used the literal expression "presumed as such".

However, considering the purposes of the tax in question, it must be recognized that the use of the expression "considers" in the current version contemplates an expression with an effect similar to that, embodying, equally, a presumption. This is precisely what occurs in the formulation contained in no. 1 of Article 3 of the CIUC, in which a presumption was established, revealed through the use of the expression "considering", of similar meaning and of equivalent value to the expression "presumed", in use since the creation of the tax in question. The use of the expression "considering" is justified only by the fact that it appears more in line with the strengthening given to vehicle ownership, which became the taxable event, pursuant to Article 6 of the CIUC.

Therefore, in light of the literal element of interpretation, nothing prevents the understanding that the provision of no. 1 of Article 3 of the CIUC establishes a rebuttable presumption. This understanding also has acceptance in the recent jurisprudence of the Supreme Administrative Court on this matter.

Thus, as to the subjective incidence of the tax, it may be concluded that there are no changes in relation to the situation previously in force in the context of the Municipal Tax on Vehicles, Circulation Tax and Haulage Tax, as is widely recognized by doctrine, with a rebuttable presumption continuing to apply in this matter.[3]

1. To all that has been set out, it is important to add that this understanding is, also, the only one that appears adequate and in accordance with the principle of material truth and justice, underlying the tax legal relationship. In the specific case, this is demonstrated in the letter and in the ratio legis of Article 3, nos. 1 and 2 of the CIUC, as from both results the clear objective of the legislature to tax the real and effective owner and not the one who, by circumstances of a diverse nature, passes, at times, for an apparent and false owner, for appearing in the motor vehicle registration. As referred to in Arbitral Decision no. 63-2014-T of 15 September "… if the legislature had, as the Respondent claims, established in law a non-presumptive qualification on who is the owner of the vehicles (a legal fiction), it would thereby be establishing, through a different formulation, a rule entirely identical to the aforesaid hypothetical rule. It would be making the subjective incidence of the tax rest on a legal fiction, in total disconnection from any economic substance as the basis of subjective incidence. (…) But the principle of taxation efficiency cannot override in absolute terms the principle of contributory capacity, to the point of eliminating it as a criterion of subjective incidence. And it is also certain that the tax legislature would have at its disposal other means of holding the seller of the vehicle responsible for their failure to communicate the sale of the vehicle, for payment of the tax, without being as a direct taxpayer (configuring, e.g., a case of tax liability for the debt of a third party). And, if such is the case, it is also necessary to conclude that Article 3, no. 1 can only establish a presumption of ownership of the vehicle, even with all the negative consequences that this conclusion will entail, certainly, in terms of efficiency of tax administration."

Thus, the person registered in the motor vehicle registration must be allowed the possibility of presenting sufficient probative elements to demonstrate that the actual owner is, after all, a person different from the one recorded in the registration, and which initially, and in principle, was supposed to be the true owner. Otherwise, the supremacy of the formal truth of the registration over material truth would be accepted, and it would be admitting a gross violation of the fundamental fiscal principles stated and, also, of the principle contained in Article 73 of the General Tax Law, according to which there are no irrebuttable presumptions in matters of tax incidence. The legislature did not feel the need to maintain in the new incidence rule an express and rebuttable presumption, since after the entry into force of the General Tax Law (1999) "presumptions enshrined in tax incidence norms always admit proof to the contrary". Therefore, in light of Article 73 of the General Tax Law, it would be technically incorrect to use the expression "presumed as such, until proof to the contrary", contained in the earlier version in force.

Moreover, it is possible to extract yet another argument from Article 7 of the Land Property Registration Code (which constitutes the fundamental legal basis regarding property registration) which provides that "definitive registration constitutes a presumption that the right exists and belongs to the holder registered, in the precise terms in which the registration defines it." In light of the principle of uniformity and coherence intrinsic to the legal system, no acceptable ground appears to exist for the principle prevailing in general property registration to suffer an inflection or even unjustified "trampling" in the matter of motor vehicle registration.

1. If any doubt persisted, it could always be said that, as to the elements of interpretation of a rational or teleological nature, the statement of reasons of Proposal of Law no. 118/X of 07/03/2007, underlying Law no. 22-A/2007, of 29/06, is quite expressive in clarifying that the reform of automobile taxation is implemented by means of the displacement of part of the tax burden from the moment of vehicle acquisition to the circulation phase and aims to "form a coherent whole" which, although intended for the raising of public revenue, intends that the same be raised "in the measure of the environmental costs that each individual causes to the community", adding, with regard to the tax in question and the different types and categories of vehicles, that "as a structuring and unifying element (…) the principle of equivalence is established, thus making clear that the tax, as a whole, is subordinated to the idea that taxpayers should be burdened in the measure of the cost they cause to the environment and to the road network, this being the raison d'être of this tax figure", further referring to "(…) this principle that dictates the burden on vehicles according to their respective ownership and until the moment of scrapping (…)".

In this regard, the position set forth in the recent Arbitral Decision no. 286/2013-T of 2 May 2014 is quite enlightening in stating that "It is this principle (of equivalence) that dictates the burden on vehicles according to their respective ownership and until the moment of scrapping, the common employment of a specific tax base, the review of the framework of tax benefits in force and the allocation of a portion of revenue to the municipalities of the respective use.

Now, to allege, as the Respondent does, that the legislature, in Article 3, no. 1 of the CIUC, fixed, whatever the technical means underlying, the subjective incidence of the tax in persons in whose names the vehicles are registered, with total independence of whether or not, in the relevant tax period, they are holders of the right of use of the vehicle, and most of its ownership, would imply disregarding that purpose which presides over tax normativity, well manifested in objective incidence and in the tax base associated with the various categories of vehicles (see Articles 2 and 7 of the CIUC). The reason is that a registration entry, without correspondence with the underlying ownership, has no value to satisfy and fulfill such purpose, for it is not the persons in whose names the vehicles are registered when they are not holders of rights concerning their use that cause environmental and road costs, but rather such environmental and road costs are caused by the actual users of the vehicles, in accordance with the substantive legal situations pertaining, even if they do not appear, as they should, in the motor vehicle registration. Registration, in fact, in no way affects or serves the principle of equivalence established in Article 1 of the CIUC. Indeed, assuming that the determinative element of subjective tax incidence is simple and exclusively the motor vehicle registration also does not allow for the assertion of a connection with any manifestation of relevant contributory capacity, which, as a general rule, in taxes not strictly commutative in nature, is essential, since there must be, without prejudice to practicability requirements, some effective connection between the tax and an economically substantive presupposition capable of justifying the tax. The raison d'être of the tax figure therefore distances the idea that its incidence is tied strictly and exclusively to the registration entry itself of the ownership of taxable vehicles and not to the substantive situations conferring the right of use of the vehicles (Article 3, nos. 1 and 2 of the CIUC) which registration is intended to publicize (see Article 1 and Article 5 of Decree-Law no. 54/75, of 12 February, with subsequent amendments, which regulates motor vehicle registration)."[4]

Thus, the logic and rationality of the new automobile taxation system presupposes and aims at a passive subject coinciding with the owner of the vehicle, on the assumption that this, and no other, is the real and effective subject causing environmental damage, as results from the principle of equivalence inscribed in Article 1 of the CIUC. This principle of equivalence, which informs the current unique circulation tax, has underlying it the polluter-pays principle, and realizes the idea, inscribed in it, that whoever pollutes must, for this reason, pay. It is, after all, about addressing the negative environmental externalities that arise from the use of motor vehicles, whether assumed by their owners and/or by the users, as costs that only they should bear.[5]

Any other understanding would imply accepting the possibility of taxing legal or natural persons with no responsibility in the production of any environmental damage, while the real causes of such damage would not be subject to the tax, frustrating in absolute terms the regulatory purposes of the law itself, that is, its true ratio legis.

It is precisely in order to satisfy this objective that no. 2 of Article 3 of the CIUC equates financial lessees and holders of leasing contracts to owners, to whom by virtue of the contract falls the enjoyment and fruition of the vehicles. For this reason, in these cases, the subjective incidence of IUC falls to the lessees and not to the owners recorded in the registration.

Now, it is within the scope of application of this no. 2 of Article 3 of the CIUC that we find the solution to the specific case of the disputed assessments. Proven the existence of leasing contracts in force, as of the date of the taxable events, and with the lessees duly identified, they are the true subjects of the tax. Now, the leasing contract is also recorded in the registration, in which the lessee is duly identified, therefore, pursuant to no. 2 of Article 3 of the CIUC, the passive subject of the tax becomes the lessee, who for this purpose is equated to the owner.

For all that has been set out, it is therefore necessary to conclude that as to the vehicle with registration number …-…-…, it falls to the lessee identified in the leasing contract and in the motor vehicle registration, the payment of the respective IUC. To that extent, the IUC assessment concerning this vehicle is manifestly illegal, due to error in the qualification of the taxable event and consequent violation of law, requiring its annulment.

1. It remains to analyze the application of the principles set out above to the remaining twenty-five cases mentioned in the proceedings, concerning which the transfer of ownership occurred on a date prior to the taxable event.

It must be noted, from the outset, that documents nos. 7 and 8 attached to the proceedings annexed to the arbitral request demonstrate that during the validity of financial leasing contracts, the lessees of the vehicles were already recorded in the motor vehicle registration. But the same documents demonstrate that, immediately after the termination of their respective financial leasing contracts, the Claimant proceeded to communicate the respective transfers of ownership to the Motor Vehicle Registry Office and the IMTT.

Therefore, having the Tax Authority access to the databases of the Motor Vehicle Registry Office and the IMTT, it is not understood how it did not have knowledge of the contracts in force, as well as of the transfers of ownership operated and communicated by the seller.

In communicating the transfers of ownership effected, in which it identified the owners or acquirers of the vehicles, the Claimant acted with sufficient care and diligence to allow entities with public responsibilities to access the correct and sufficient information, namely, to tax the IUC to the legitimate owners and users of the vehicles. It should be recalled that the obligation to register falls to the new owner, therefore, the claimant, in proceeding with all the aforementioned communications, operated with the utmost possible prudence, gave notice of the transfers that occurred and of the respective acquirers to the authorities officially responsible for the publicity of vehicle ownership and for their taxation, therefore, no other procedure was required. Furthermore, the transfers in question occurred in years prior to the year 2015, therefore, the possibility of the seller promoting the registration of the transfer of vehicle ownership was not yet in force.

Moreover, the effect of registration is not confused with the translative effect of ownership which is autonomous and prior to it. As results clearly from the provisions of Articles 1 and 7 of the Land Property Registration Code, registration has a twofold purpose: to publicize the legal situation of goods and to constitute a presumption that the right exists and belongs to the holder registered in it. These presumptions are, however, rebuttable through proof to the contrary, as results expressly from Article 350, no. 2 of the Civil Code and, in matters of taxation, reinforced by Article 73 of the General Tax Law.

1. It is accepted for doctrine and for the jurisprudence of our superior courts that registration is not a condition for the validity of the transactions subject to or underlying it.[6] Motor vehicle property registration is not constitutive in nature, but merely declarative, allowing only the registration to presume the existence of the right and its ownership, which is why the presumption resulting from registration can be rebutted by proof to the contrary. This is so precisely because, pursuant to Article 408 of the Civil Code, except for exceptions provided by law, the constitution or transfer of real rights over a determined thing is given by mere effect of the contract, with its validity not depending on registration.

In the case of a purchase and sale contract for a motor vehicle, with the law providing no exception for the same, the contract has real effect, with the purchaser becoming its owner, independent of registration, as well as the person registered in the registration ceasing to be the owner, despite the fact that they may still appear, for some time or even much longer, in the registration as such.

It should also be noted that the transfers effected are enforceable against the Respondent Tax Authority, despite the provision of no. 1 of Article 5 of the Land Property Registration Code, which provides: "facts subject to registration only produce effects against third parties when registered." This is because the Tax Authority is not a third party for purposes of registration, in the context provided by law. The notion of third parties for purposes of registration is enshrined in no. 4 of the same Article 5, according to which third parties, for purposes of registration, are those who have acquired from a common author incompatible rights, which is manifestly not the case of the Tax Authority.

Thus, the transfer of ownership of a movable good, even if subject to registration, as occurs with a motor vehicle, operates by mere effect of the contract, pursuant to Article 408, no. 1 of the Civil Code. The purchase and sale contract has a real nature, that is, the transfer of ownership of the thing sold, or the transfer of the alienated right, has the contract itself as its cause. Motor vehicles are movable property, whose transfer of ownership does not obey any special formalism. In Portuguese law, the fact that determines the transfer of ownership of a movable good (even if subject to registration) is the contract expressed by the will of the parties. So much so is this the case that the buyer becomes the owner of the sold vehicle through the execution of the purchase and sale contract, independent of registration, which is assumed as a condition of effectiveness and enforceability against third party acquirers.

1. In the situation under analysis, we are faced with purchase and sale contracts concerning movable property, which are not subject to any special formalism (see Civil Code, Article 219). The corresponding transfer of ownership operates by mere effect of the contract and tradition of the thing (See Civil Code, Article 408, no. 1).

However, being a purchase and sale contract that has a motor vehicle as its object, in which registration is mandatory, its punctual fulfillment presupposes the issuance of the sales statement necessary for the registration of the corresponding acquisition in favor of the buyer, as has been understood by the jurisprudence of the superior courts.

Such a statement, relevant for registration purposes, may constitute proof of the transaction, although it is not the only or exclusive means of proof of such fact. To which is added, for registration purposes, nor is any special formalism required, being sufficient the presentation to the competent entity of a request signed by the buyer and confirmed by the seller (and if operated online not even that is necessary).

Now, based on the documents that form part of the present proceedings (already cited above), it is verified that, at the date of tax exigibility, the identified vehicles were no longer property of the Claimant by virtue of having been transferred by this to the former lessees.

1. Given this, it remains to analyze the question of rebutting the presumption.

The proof of the existence of the purchase and sale contract can be effected by any means, with the invoice being a suitable accounting document for this purpose, as for many others, namely fiscal, since from this document the principal taxes to which this entity is subject are processed, as occurs with corporate income tax or the determination of VAT.

In this sense, it is not accepted that its probative force be questioned solely for the purpose of proving the transfer of vehicle ownership, under penalty of falling into a legal absurdity of, from the same document, recognizing that the transaction existed for purposes of income tax incidence but did not exist for purposes of proving the purchase and sale (precisely the same purchase that generated the said income tax).

In this regard, we do not accept the understanding of the Respondent, namely when it questions its probative value solely and only by virtue of its unilateral character. In fact, Invoices are documents that are invested with particular legal and accounting force distinct, by virtue of the rules in force in VAT and Income Tax, it being certain that Invoices evidence sales, transactions or services provision that are presumed true by virtue of the presumption of veracity instituted in Article 75 of the General Tax Law. This rule is, moreover, a basic principle of accounting and tax organization essential to the security of commercial transactions functioning. Being a presumption, nothing prevents the demonstration of its falsity or inadequacy in light of the legal requirements established in Article 36 of the VAT Code.[7] It is, also in this case, a rebuttable presumption, with the burden of proof falling on the Tax Authority.

Presumptions of tax incidence may be rebutted through the contradictory procedure proper provided for in Article 64 of the Code of Tax Procedure or, alternatively, through the means of administrative review or judicial challenge of the tax acts on which they are based.

In the case of the proceedings, the Claimant did not use that proper procedure, having instead opted for the present request for arbitral decision, which constitutes a proper means to rebut the presumption of subjective incidence of IUC on which the tax assessments whose annulment is the object of the request are based, as it is a matter within the scope of the material jurisdiction of this arbitral tribunal (Articles 2 and 4 of DL 10/2011).

1. To rebut the presumption derived from the entry in the motor vehicle registration, the Claimant offered, as means of proof, copies of invoices, copies of financial leasing contracts, copy of the registration certificate in the Motor Vehicle Registry Office and copy of the registered letters with acknowledgment of receipt sent to the Motor Vehicle Registry Office and the IMTT with the respective attached lists, in which the Claimant communicates the transfers of ownership that occurred, the date on which the same took place (which coincides with the payment of the last invoice provided for in the leasing contract), the identification of the vehicle, of the concluded leasing contract, and finally, the complete identification of the acquirers or "new owners".

In light of the foregoing, having critically evaluated all these means of proof, this Tribunal concludes that as of the date of occurrence of the taxable event underlying the twenty-five IUC assessments placed in dispute, the sale and corresponding transfer of ownership of the vehicles had already occurred on a much earlier date. Consequently, at the time of the taxable events, the Claimant was no longer the owner of the vehicles in question, therefore the disputed assessments suffer from error regarding the factual and legal presuppositions and from illegality that requires their annulment.

1. Nor is the argument of the unilateral nature of the invoices valid, since these are means of proof of the occurrence of transfers of ownership, provided they are accompanied by other documents that leave no doubt about the realization of that specific transaction, as occurs in the present case.

In sum: none of the remaining twenty-five vehicles in question was, as of the date of the taxable event, property of the Claimant, therefore the presumption is considered rebutted.

Therefore, the presumption of ownership derived from motor vehicle registration taken in no. 1 of Article 3 of the CIUC is hereby rebutted, as to the vehicles and periods to which all the disputed assessments relate, with reference to the vehicles identified in them, as per the list annexed to the present request for arbitral pronouncement.

Thus, the understanding underlying the disputed assessments in the present proceedings, according to which the passive subjects of IUC are, definitively and without admission of proof to the contrary, the persons in whose names the motor vehicles are registered, without considering the probative elements for identifying the actual and true users and current owners of the vehicles, led to the illegal assessment of IUC, based on the incorrect interpretation and application of the rules of subjective incidence of the Unique Circulation Tax. Such assessments appear, therefore, illegal, which requires the annulment of the corresponding tax acts.

In these terms, taking into account the provision of Article 3, nos. 1 and 2 of the CIUC, the conclusion is reiterated that the presumption contained in no. 1 is shown to be rebutted and that, therefore, the Claimant does not constitute a passive subject of IUC, assessed in relation to the years 2009 to 2012, as to the vehicles identified in the proceedings. As a consequence of all the foregoing, it results that all disputed assessments are illegal, suffer from the defect of violation of law, due to error regarding the factual and legal presuppositions, therefore they must be subject to annulment, proceeding consequently to the reimbursement to the Claimant of the amount unduly paid plus interest at the legal rate.

The evidence elements provided are, from the perspective of this Arbitral Tribunal, sufficient proof to conclude the application of the provision of no. 2 of Article 3 of the CIUC. In this perspective, the burden of proof on the Claimant has been fulfilled and the demonstration of the transfer of ownership of the vehicles has been achieved.

1. Finally, the allegation of the Respondent regarding the interpretation defended by the Claimant representing a biased reading of the law and being based on an interpretation contra legem, if shown to be contrary to the Constitution, does not hold. To all the arguments already set out, a final one extracted from the very jurisprudence of the Constitutional Court. Thus, it should be noted that, contrary to what is alleged by the Respondent, the consideration that the provision of Article 3, no. 1 of the CIUC establishes a rebuttable presumption represents the best interpretation and the most in accordance with the Constitution, as results from the decision of the Constitutional Court with no. 348/97, of 29.4.1997, a position reiterated in decision no. 311/2003, of 28.4.2003, which declare the unconstitutionality of "establishment by the tax legislature of a presumption "juris et de jure" as "completely deprives taxpayers of the possibility of contradicting the presumed fact, subjecting them to taxation that may be based on taxable matter fixed in defiance of the principle of tax equality". In this conformity, the allegation of the Respondent does not appear to have acceptance.

2. Indeed, the Claimant has an entrepreneurial nature and a substantial part of its activity (integral to its corporate purpose) consists in the execution of loan contracts and financial leasing to provide for the acquisition of motor vehicles. The leasing contracts that were presented to the proceedings by the Claimant are subject to rigorous legal requirements of an accounting and fiscal nature, with implications for the determination of taxable matter, assessment and collection of other taxes, and, consequently, benefit from the presumption of veracity, all the more so as they were not challenged by the Respondent.

In these terms, it is concluded that these means of proof are sufficient, in light of the provision of no. 2 of Article 3 of the CIUC, to demonstrate that as of the date of the taxable events the passive subjects of the tax were the lessees and not the Claimant.

As a consequence, the decision of the Tax Authority that led to the issuance and collection of the 26 assessments of tax now disputed suffers from the defect of violation of law due to error regarding the factual and legal presuppositions underlying, inasmuch as:

a) the Claimant was no longer the owner of twenty-five of the twenty-six vehicles mentioned in the disputed IUC assessments;

b) the Claimant was at the date of occurrence of the taxable event only the lessor of the vehicle with registration number …-…-…, as is recorded in the motor vehicle registration where the lessee is duly identified, therefore the Tax Authority cannot persist in considering as a passive subject of IUC the now Claimant (lessor) completely disregarding the provision of no. 2 of the same Article 3, which equates lessees to owners, for purposes of incidence, with responsibility for the fulfillment of the tax obligation falling to these.

As a consequence of all the foregoing, it results that all disputed assessments are illegal, suffer from the defect of violation of law, due to error regarding the factual and legal presuppositions, therefore they must be subject to annulment, proceeding consequently to the reimbursement to the Claimant of the amounts unduly paid.

V – With respect to what was alleged by the Tax Authority regarding Arbitral Costs

1. Nor does the Tax Authority have merit on this matter, when it alleges that the transfer of ownership is not susceptible to being controlled by the Respondent (…) and that, having the Claimant failed to exercise proper care in updating the motor vehicle registration (…) it is therefore necessary to conclude that the Claimant did not act with due care.

Now, from all that has been set forth previously, it is verified that the behavior of the claimant was diligent and would only have erred by excess never by defect, since, not being able itself to request registration in favor of the new owners or acquirers, it had the care to communicate the transfer of ownership, both to the Motor Vehicle Registry Office and to the IMTT.

The Respondent and the other public entities intervening in the proceedings could not be unaware of the transfers that occurred, all the more so as it had free access to the databases of the Motor Vehicle Registry Office and the IMTT. If something failed, it was not, as is clear, responsibility of the Claimant.

On the other hand, as to the vehicle that is the subject of a leasing contract in force as of the date of the taxable event, it was proven that the motor vehicle registration was duly effected and the lessee identified, therefore nothing prevented the Tax Authority from properly assessing the IUC, in accordance with the law, to the passive subject of the same, that is, to the lessee.

Thus, and without need for further consideration, its allegation on the matter of costs must also fail.

1. It does not appear that there are other relevant questions raised by the parties.

VI - DECISION

In light of the foregoing, this Arbitral Tribunal decides:

A) - To rule completely in favor of the arbitral request with the grounds set out above and, consequently, to declare the illegality of the 26 disputed IUC assessments in the present proceedings, as they suffer from the defect of violation of law, due to error regarding the factual and legal presuppositions, thereby annulling the corresponding tax acts with all legal consequences, namely the termination of the fiscal execution proceedings and administrative penalty proceedings in progress;

B) To hold the Respondent liable for the costs of the proceedings.

VALUE OF THE PROCEEDINGS: In accordance with the provision of Articles 305, no. 2 of the Code of Civil Procedure, Article 97-A, no. 1, subparagraph a), of the Code of Tax Procedure and Article 3, no. 2 of the Regulation of Costs in Tax Arbitration Proceedings, the value of the proceedings is fixed at €2,013.27.

COSTS: Pursuant to the provision of Article 22, no. 4, of RJAT and in accordance with Table I attached to the Regulation of Costs in Tax Arbitration Proceedings, the amount of costs is fixed at €612.00, to be borne by the Respondent Tax Authority.

Registered and notified.

Lisbon, 4 April 2016

The sole arbitrator,

(Maria do Rosário Anjos)

[1] In this sense, see BAPTISTA MACHADO, Introduction to Legitimizing Discourse, p. 175 et seq.

[2] In this sense, see, among others, the Decisions of the Supreme Administrative Court of 05/09/2012 and 06/02/2013, respectively issued in cases nos. 0314/12 and 01000/12, available at www.dgsi.pt.

[3] In this sense, see Afonso, A. Brigas and Fernandes, M. (2009) Tax on Vehicles and Unique Circulation Tax, Coimbra Publisher, p. 187.

[4] In the same sense, see Arbitral Decisions nos. 14/2013-T, 26/2013-T of 19 July 2013, 27/2013-T, 217/2013-T of 28 February and, more recently, and 293/2013-T of 9 June 2014, among others.

[5] In this sense, and with regard to the principle of equivalence, see arbitral decision no. 286/2013-T of 2 May 2014. In the same sense, see Arbitral Decisions nos. 14/2013-T, 26/2013-T of 19 July 2013, 27/2013-T, 217/2013-T of 28 February and, more recently, and 293/2013-T of 9 June 2014, 46/2014-T and 89/2014-T of 5 September, among others.

[6] In this sense, see, among others, the following Decisions of the Supreme Court of Justice: Decision of 31.05.1966, in Case no. 060727 (Rapporteur: Counselor Lopes Cardoso), decision specifically concerning motor vehicle registration; Decision of 5.05.2005 (Rapporteur: Counselor Araújo Barros) and Decision of 14.11.2013, in Case no. 74/07.3TCGMR.G1.S1 (Rapporteur: Counselor Serra Baptista) excellent in affirming the predominance of the principle of substance over form, with proof by any suitable means of who is substantively the holder of the property right, which rebuts the presumption of registration.

[7] In this regard, see, among others, the arbitral decision issued in case no. 130/2014-T.