Summary
Full Decision
TAX ARBITRATION JURISPRUDENCE
Case no. 726/2016-T
Decision date: 2020-02-26
IUC (Single Vehicle Tax)
Value of claim: € 7,919.52
Subject Matter: IUC – Assessment of single vehicle tax – Reconsideration of arbitration decision (attached to decision).
*Replaces the arbitration decision of 09 June 2017.
ARBITRATION DECISION
Following and in execution of the judgment delivered by the Central Administrative Court of the South, which in an appeal filed by the Claimant – A... BRANCH IN PORTUGAL, by judgment of 21-06-2018, communicated to CAAD on 25-09-2019, annulling the arbitration decision rendered in this arbitration case on 09-06-2017, the following new decision is hereby rendered:
I. REPORT
A - PARTIES
The company A... BRANCH IN PORTUGAL, designated as "Claimant," with registered office at Dr. ... Street, ..., in Lisbon, with taxpayer identification number ..., contestant in the tax procedure above and hereinafter referenced, came, invoking the provisions of articles 2, no. 1, sub-paragraph a) of the Legal Regime for Tax Arbitration, approved by Decree-Law no. 10/2011, of 20 January (hereinafter LRTA), and of articles 1 and 2 of Order no. 112-A/2011, of 22 March, to request the constitution of a single arbitration tribunal, in order to examine the following claim opposing it to the Tax and Customs Authority, hereinafter designated as "Respondent" or "TCA."
B - CLAIM
1 - The request for constitution of the arbitration tribunal was accepted by His Excellency the President of CAAD on 07 December 2016 and, on that same date, notified to the TCA.
2 - The Claimant did not proceed with the appointment of an arbitrator, therefore, in accordance with the provisions of no. 1 of article 6 of the LRTA, the undersigned was, on 31-01-2017, designated by the Deontological Board of the Administrative Arbitration Center as arbitrator of a Single Arbitration Tribunal, having accepted in accordance with legal provisions.
3 - The Parties were, on 31-01-2017, duly notified of this designation, having not manifested any intention to refuse it, in accordance with the combined provisions of sub-paragraphs a) and b) of no. 1, article 11 and articles 6 and 7 of the Deontological Code.
4 - In these circumstances, in conformity with the provisions of sub-paragraph c) of no. 1 of 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, the arbitration tribunal was regularly constituted on 15-02-2017.
5 - On 05 June 2017, the Arbitration Tribunal, in accordance with article 16, sub-paragraph c) of the LRTA (Decree-Law no. 10/2011, of 20 January), and taking into account the content of the order issued on 21 May 2017, considered it unnecessary to hold the meeting provided for in article 18 of the said legislative instrument.
6 - The now Claimant requests that the present Arbitration Tribunal:
a) - Declare the illegality of the order of 20-06-2016 from the Head of Administrative Justice Division (in substitution), of the Finance Directorate of Lisbon, in the part in which it rejects, as being untimely, the gracious complaint no. ... - 2015/...;
b) - Declare the illegality and consequent annulment of the self-assessment acts relating to the Single Vehicle Tax (hereinafter designated as IUC) and the compensatory interest (CI), which was the subject of that same gracious complaint no. ...- 2015/..., as identified in the case file (Doc.7), relating to the vehicles, likewise identified in the said Doc.7, which are hereby incorporated in their entirety, totaling the amount of € 7,919.52;
c) - Condemn the TCA to the reimbursement of the sum of € 7,919.52, corresponding to the total amount paid as IUC and CI, relating to the self-assessment acts and vehicles hereinabove referenced;
d) - Condemn the Tax and Customs Authority to payment, both of indemnificatory interest relating to the amounts wrongfully assessed and paid, and of the costs of the proceedings.
C - GROUNDS FOR CLAIM
7 - The Claimant, in supporting its request for arbitration, states, in summary, the following:
8 - That it is a financial institution which, within the scope of its corporate purpose, carries out operations permitted to banks, with the exception of deposit-taking, entering into contracts with its clients for Long-Term Rental (ALD); Short-Term Rental contracts (renting) and Financial Leasing contracts of motor vehicles;
9 - That, in this context, it entered into contracts with its clients for rental of vehicles without a driver with promise of sale and financial leasing contracts, vehicles which it acquires, as new vehicles, from national importers of B... and C..., and which, after the termination of such contracts, are sold to the respective lessees or to third parties;
10 - That it became aware, on the Tax Portal, of the self-assessment documents for IUC and CI identified in the case file, relating to the years 2012, 2013 and 2014;
11 - That despite having been surprised by the said self-assessments, and although disagreeing with them, it proceeded to the complete payment of the respective amounts, since it is its responsibility to maintain a duly regularized tax situation;
12 - That, on 27-04-2015, it filed a gracious complaint against 178 self-assessments of IUC, relating to the years 2012, 2013 and 2014, having then supported such complaint, namely, with a file relating to each of the vehicles in question, comprising both copies of the financial leasing contracts and operational leasing contracts with promise of sale, and invoices for the sale of the vehicles, and identification of the vehicles disposed of before the date of tax liability;
13 - That the gracious complaint, for having been considered untimely, was, by order of 20-06-2016 from the Head of Administrative Justice Division (in substitution), of the Finance Directorate of Lisbon, partially rejected, relating to assessments, the sum of which totals € 7,919.52;
14 - That the gracious complaint cannot be considered as untimely, as it was filed against the said IUC self-assessments within the period of 2 years, provided for in no. 1 of article 131 of the TCPC;
15 - That in all the contracts it entered into, for financial leasing and for rental of vehicles without a driver with promise of sale, are clearly identified the users of the respective vehicles, to whom, or to third parties, after the termination of the contracts, it transferred the ownership of those vehicles at a residual value;
16 - That on the dates of tax liability of the IUC, relating to the vehicles in question in the case file, it was no longer, in some cases, their owner and, in other cases, was the financial lessor or lessor in operational leasing contracts with promise of sale, not being, in any case, the passive subject of the said tax;
17 - That the sales of the vehicles occurred precisely on the dates on which the respective invoices were issued, which document and demonstrate the sale of those vehicles at a moment prior to the date of tax liability of the IUC, and that, after the completion of such sales, it never resumed ownership of the vehicles;
18 - That the IUC, although having as its objective the raising of revenue, also aims to tax the environmental costs that each individual causes to the community, with the unification of these objectives being ensured by the principle of equivalence established in article 1 of the ICVT, which, being fundamental in the taxation of IUC, makes clear that taxpayers should be charged in proportion to the impacts they cause to the environment and road network, thus enshrining the polluter-pays principle;
19 - That the principle was established in the ICVT that the polluter must pay, associating the tax with the environmental and road damage caused by the effective use of vehicles;
20 - That it was never the actual polluter and causer of environmental damage, in that it merely leased the vehicles in question or sold them, in cases where the leasing contracts had already terminated;
21 - That no. 1 of article 3 of the ICVT establishes a rebuttable legal presumption, and that, in light of the provisions of no. 2 of the said article, financial lessees and holders of vehicle rental contracts without a driver, with promise of sale, are the passive subjects of the tax;
22 - That, after the termination of the said contracts, it proceeds to transfer the ownership of the respective vehicles to the corresponding lessees or to third parties, a transfer which occurs by mere effect of the contracts and is supported in the respective invoices for sale, on the dates of issue of which the respective price is paid;
23 - That, in any of the said contracts, entered into with its clients, although the lessor continues to be the owner of the vehicles, only the lessees and the holders of the purchase and sale option, in the case of vehicle rental contracts without a driver, with promise of sale, have the exclusive use of the vehicles, being the potential causers of road and environmental damage;
24 - That the registration of acquisition of motor vehicles has no constitutive value, but merely declarative value, in that it has only as its objective the publicity of the legal situation of the vehicles, and the same constitutes a presumption that the registration exists and belongs to the registered holder, although such presumption is rebuttable;
25 - That even in cases where the buyer (new owner of the vehicle) does not provide for the registration of their property right, it is presumed that such right continues to belong to the seller, although such presumption can be rebutted;
26 - That considering as passive subjects of IUC only the owners of the vehicles in whose names they are registered, not taking into account situations in which such registrations no longer coincide with the actual owners or actual users of the same, constitutes a restriction that, in light of the purposes of the IUC, does not find a basis for support;
27 - That the TCA had official knowledge of the dates of the sales and rentals of the vehicles in question, as well as of the purchasers and lessees of the same, in that all invoices for sale and rent were, timely, communicated to it via SAF-T;
28 - That contrary to what was its duty to do, the TCA, in light of the inquisitorial principle, did not undertake any measures aimed at discovering material truth, regarding the actual situation of the vehicles in question, demonstrating total lack of interest in the search for that truth, having merely limited itself to considering the information contained in the databases.
D - RESPONSE OF RESPONDENT
29 - The Respondent, Tax and Customs Authority (hereinafter designated as TCA), presented its Response on 27-03-2017, in which, in summary, alleged the following:
BY WAY OF EXCEPTION
30 - The untimeliness of the filing of the request for arbitration, given that the period for its presentation, relating to the respective assessments (and not self-assessments as the Claimant understands), was 120 days, in accordance with article 120, no. 1 of the TCPC, by operation of article 70, no. 1 of the same Code, and not 2 years, as provided for in no. 1 of article 131 of the TCPC, as the Claimant considered;
31 - The untimeliness of the filing of the request for arbitration, based on the rejection as untimely of the gracious complaint.
BY WAY OF DEFENSE
32 - The Respondent alleges that the Claimant's claim cannot, in any way, succeed, in so far as the financial leasing contracts which the same refers to having been entered into, were not communicated in accordance with the terms established in article 19 of the ICVT, and equally cannot succeed the argument that the Claimant was not a passive subject of the IUC in cases in which it alleges no longer to be the owner of the vehicles on the dates on which the obligation to assess the said tax became due. (see articles 31 to 37 of the Response)
33 - On the other hand, the Respondent considers that the Claimant makes a manifestly erroneous interpretation and application of the legal norms applicable to the case, in so far as,
34 - They reveal an understanding that incurs, not only in a skewed reading of the letter of the law, but also in an interpretation that does not take into account the systematic element, violating the unity of the regime established throughout the ICVT and, more broadly, throughout the legal-tax system, further arising from an interpretation that ignores the ratio of the regime established in no. 1 of article 3 of the ICVT. (see article 51 of the Response)
35 - It states that the tax legislator, when establishing, in article 3, no. 1 of the ICVT, who are the passive subjects of the IUC, established expressly and intentionally that these are the owners (or in the situations provided for in no. 2, the persons mentioned there), being considered as such the persons in whose names they are registered. (see article 62 of the Response)
36 - It emphasizes that the legislator did not use the expression "it is presumed" as it could have done, for example, in the following terms: "the passive subjects of the tax are the owners of the vehicles, being presumed as such the natural or legal persons, of public or private law, in whose names the same are registered." (see article 63 of the Response)
37 - It considers that the wording of article 3, no. 1 of the ICVT corresponds to a clear choice of legislative policy adopted by the legislator, so that understanding that it establishes a presumption there would unequivocally be making an interpretation contra legem.
38 - It states that the said understanding has already been adopted by the Jurisprudence of our courts, transcribing, for that purpose, part of the judgment of the Administrative and Tax Court of Penafiel, delivered in Case no. 210/13.OBEPNF. (see article 76 of the Response)
39 - On the systematic element of interpretation, it considers that the solution advocated by the Claimant is intolerable, and the understanding supported by it finding no legal support. (see article 78 of the Response)
40 - On the ignorance of the "ratio" of the regime, the TCA considers that, in light of a teleological interpretation of the regime established throughout the IUC Code, the interpretation advocated by the Claimant in the sense that the passive subject of the IUC is the actual owner, regardless of not appearing in the vehicle register, is manifestly wrong. (see article 101 of the Response)
41 - It adds that the ICVT carried out a reform of the regime for taxation of vehicles in Portugal, substantially altering the regime for automotive taxation, with the passive subjects of the tax becoming the owners appearing in the property register.
42 - It adds that the invoices presented by the Claimant, as proof of sale of the vehicles, are not suitable and do not reveal, by themselves, the intention to celebrate a synallagmatic contract such as purchase and sale. (see articles 118 and 119 of the Response)
43 - Finally, it states that it was not the Respondent who gave rise to the filing of the request for arbitration, but rather the Claimant, and consequently, the Claimant should be condemned in the arbitration costs "in accordance with article 527/1 of the New Code of Civil Procedure by operation of article 29/1-e) of the LRTA", also emphasizing that the legal requirements for the assessment of indemnificatory interest are not present, the request for which was formulated by the Claimant. (see articles 151 and 152 of the Response)
44 - It considers, to conclude, that, in light of all the arguments adduced, the exception invoked should be upheld, and the request for arbitration should be judged unfounded, with the impugned tax acts remaining in the legal order, thereby acquitting the Respondent entity of the claim.
E - QUESTIONS TO BE DECIDED
45 - It is thus necessary to examine and decide.
46 - In light of the foregoing, relating to the positions of the Parties and the arguments presented, it is necessary to examine and decide the following questions:
a) - The exception relating to the untimeliness of the filing of the request for arbitration, based on the untimeliness of the gracious complaint;
b) - Whether the norm of subjective application contained in article 3, no. 1 of the ICVT establishes or does not establish a presumption;
c) - What is the legal value of the vehicle register in the economy of the ICVT, particularly for the purposes of the subjective application of this tax;
d) - Whether, under the terms of a financial leasing contract or a vehicle rental contract without a driver with promise of sale, on the date of tax liability of the tax, the vehicle has already been previously disposed of, although the property right therein continues to be registered in the name of its prior owner, for the purposes of article 3, no. 1 of the ICVT, the passive subject of the IUC is the prior owner or the new owner.
e) - Whether the documents presented, relating to the rental and sale of the vehicles identified in the case, are suitable to prove the rental and purchase and sale of such vehicles.
F - PROCEDURAL REQUIREMENTS
47 - The Arbitration Tribunal is regularly constituted and is competent to examine the case, in light of the provisions of sub-paragraph a) of no. 1 of article 2 of Decree-Law no. 10/2011, of 20 January.
48 - The Parties have legal personality and capacity, are legitimate and are legally represented (see article 4 and no. 2 of article 10 of Decree-Law no. 10/2011 and article 1 of Order no. 112/2011, of 22 March).
49 - The case is not affected by defects that would render it invalid.
50 - Taking into account the documentary evidence attached to the case file, and the information inscribed in the tax administrative case, it is now necessary to present the material facts relevant to the understanding of the decision, as established in the terms hereinafter mentioned.
II - GROUNDS
G - GROUNDS OF FACT
51 - With regard to the matter of fact, it is important to note that the Tribunal does not have to rule on everything that was alleged by the Parties, but rather has the duty to select the facts that matter for the decision and to distinguish the proven facts from those not proven [see article 123, no. 2, of the Code of Tax Procedure and Process (TCPC) and article 607, nos. 3 and 4, of the CPC (applicable by operation of article 29, no. 1, sub-paragraphs a) and e), of the LRTA].
Facts Proven
52 - On the matter of relevant fact, this tribunal considers the following facts as established:
53 - The Claimant is a financial institution which, within the scope of its corporate purpose, carries out operations permitted to banks, with the exception of deposit-taking, entering into contracts with its clients for Long-Term Rental (ALD); Short-Term Rental contracts (renting) and Financial Leasing contracts of motor vehicles;
54 - The Claimant became aware, on the Tax Portal, of the documents designated by it as self-assessments of IUC, and of CI identified in the case file, relating to the years 2012, 2013 and 2014, having proceeded to the payment of the corresponding amounts;
55 - On 27-04-2015, the Claimant filed a gracious complaint against 178 self-assessments of IUC, relating to the years 2012, 2013 and 2014, having then supported such complaint, namely, with a file relating to each of the vehicles in question, comprising both copies of the financial leasing contracts and operational leasing contracts with promise of sale, and invoices for the sale of the vehicles, and identification of the vehicles disposed of before the date of tax liability of the tax;
56 - The gracious complaint was, by order of 20-06-2016 from the Head of Administrative Justice Division (in substitution), of the Finance Directorate of Lisbon, considered untimely and partially rejected;
57 - The Claimant understands that the gracious complaint cannot be considered as untimely, as it was filed, within the period of 2 years, provided for in no. 1 of article 131 of the TCPC, against the designated self-assessments of IUC;
58 - The Claimant presented, on 06-12-2016, a request for constitution of an arbitration tribunal, requesting the annulment, as being illegal, of the order for partial rejection of the gracious complaint, in the part in which that order rejected such complaint, as well as the annulment of the impugned self-assessments of IUC, and respective CI, and the restitution of the totality of the amount paid, in the sum of € 7,919.52;
59 - The date of most recent payment, relating to the IUC assessments, which were the subject of the gracious complaint and of the request for constitution of an arbitration tribunal, is reported as 16-12-2014.
60 - In the universe of IUC assessments underlying the gracious complaint in question, not all of them had as the deadline for their voluntary payment, the date of 16-12-2014, given that some of these assessments, namely those relating to the vehicles with registrations ..., ..., ..., ..., ... and ..., whose assessments totaled the sum of € 479.17, had payment dates that fell in the first three months of 2015;
61 - The vehicles referenced in the preceding point, having been the subject of a financial leasing contract and a vehicle rental contract without a driver with purchase-promise contract, were, under the terms of those contracts, sold to third parties;
62 - The Claimant, as proof of the mentioned sales and to rebut, namely, the presumption that it understands to be established in no. 1 of article 3 of the ICVT, attached copies of both the contracts and the invoices for sale of the vehicles.
63 - On the dates relating to the tax liability to which the corresponding IUC assessments relate, the ownership of the vehicles in question did not belong to the Claimant, but to other persons, as identified in the case file.
64 - The period of 120 days (article 102, no. 1 of the TCPC, by operation of article 70, no. 1 of the same Code), for the filing of the gracious complaint, was exceeded, given that, on the one hand, it was filed on 2015-04-27 and, on the other hand, the date of most recent payment relating to the IUC assessments which were the subject of that complaint, was 2014-12-16.
65 - The gracious complaint no. ...2015..., filed by the Claimant, on 2015-04-27, "(...) was partially rejected, as being untimely (with the exception of the IUC assessments relating to vehicles with registrations ... and ... and to vehicles whose deadline for payment of the tax was on 01-03-2015)".
66 - The assessment, in the sum of € 137.03, relating to the vehicle with registration ..., in light of the documentation attached to the case file, was the subject of annulment.
Facts Not Proven
67 - No facts were not proven that are relevant to the arbitration decision.
H - GROUNDS OF LAW
68 - The matter of fact has been established, and it is now necessary to proceed with its legal subsumption and to determine the Law applicable to the underlying facts, in accordance with the questions to be decided set forth in point 46.
69 - The essential and decisive question in the present case, as to which there are absolutely opposed understandings between the Claimant and the TCA, is whether the norm of subjective application contained in no. 1 of article 3 of the ICVT establishes or does not establish a rebuttable presumption.
70 - The positions of the parties are known. Indeed, for the Claimant, no. 1 of article 3 of the ICVT establishes a rebuttable legal presumption, and that, in light of the provisions of no. 2 of the said article, financial lessees and holders of vehicle rental contracts without a driver, with promise of sale, are the passive subjects of the tax;
71 - The Respondent, for its part, considers that the tax legislator, when establishing, in article 3, no. 1 of the ICVT, who are the passive subjects of the IUC, established expressly and intentionally that these are the owners (or in the situations provided for in no. 2, the persons mentioned there), being considered as such the persons in whose names the same are registered. (see article 62 of the Response)
PRIOR QUESTIONS
ON THE ANNULMENT OF THE DECISION
72 - Following the annulment of the arbitration decision rendered in this arbitration case on 09-06-2017, by judgment of the Central Administrative Court of the South, delivered on 21-06-2018, communicated to CAAD on 25-09-2019, on the ground of violation of the principle of contradictory, in that, regardless of the question of the exception of lack of subject-matter jurisdiction, invoked by the arbitration tribunal in the said decision, being subject to official knowledge, the said tribunal should have, but did not, granted the parties the opportunity to, regarding the same, make their submissions, it was requested of the Claimant and the Respondent that they make submissions on such question, and, in summary, the same stated the following:
73 - The Claimant understands that the decision that was rendered on "(...) the gracious complaint, in the part concerning the vehicles with registrations ..., ..., ..., ..., ... and ...- to which correspond IUC self-assessments issued in January, February and March of 2015 - (...)", rejected the said "gracious complaint on the basis of the legality of the respective self-assessments, and not on the ground of untimeliness of the complaint (...)," further considering that,
74 - If "(...) by mere hypothesis, there were lack of subject-matter jurisdiction of the arbitration tribunal with respect to all self-assessments of IUC and CI, by imposition of article 14, no. 1 of the ACPC, therefrom there cannot result the acquittal of the Respondent/TCA of the instance, but rather" "(...) the referral of the case to the competent Tax Court - as results from that article 14, no. 1 of the ACPC and article 278, no. 1 a) and no. 2 of the CPC".
75 - The Respondent, for its part, reproducing some of the considerations set forth in the defense by exception contained in its Response, states expressly, and in summary, that,
76 - The gracious complaint no. ...2015..., filed by the Claimant "(...) was partially rejected, as being untimely (with the exception of the IUC assessments relating to vehicles with registrations ... and ... and to vehicles whose deadline for payment of the tax was on 01-03-2015)", adding that,
77 - "From the analysis of the gracious complaint filed, it is noted that, having the same been filed on 2015-04-27 and the date of most recent payment relating to IUC assessments being 2014-12-16, the period of 120 days (article 102, no. 1 of the TCPC, by operation of article 70, no. 1 of the same Code), for the filing of the same, is largely exceeded". It also considers,
78 - That the order for rejection of the gracious complaint was based on its untimeliness, the illegality of which the Claimant wishes to have declared, so that it supports the tribunal when the same "(...) understands officially, that it lacks subject-matter jurisdiction, taking into account, both the provisions of sub-paragraph a) of no. 1 of article 2 of the LRTA, and the provisions of no. 1 of article 96 and no. 1 of article 97, both of the CPC".
79 - Thus, it is important, from the outset, to note, regarding the vehicles mentioned by the Respondent, in point 76, the coincidence existing - except for the vehicle with registration ..., with respect to which, in light of the documentation attached to the case file, the TCA proceeded to the annulment of the corresponding "(...) official IUC assessment note no. 2013 ... in the sum of € 137.03 - between such vehicles and those that are identified by the Claimant, as, in point 73, are mentioned.
ON THE EXCEPTION
80 - It has been said that the Respondent, in the Response presented, immediately raised its defense by exception, so that, taking into account both the provisions of article 13 of the Code of Procedure before Administrative Courts (ACPC), and the established in no. 1 of article 608 of the CPC, here applicable by force of article 29, no. 1, sub-paragraphs c) and e) of the LRTA, respectively, it is important to know, in the first place, the said exception, since, in light of the said norms, its knowledge precedes that of any other matters.
81 - The Respondent understands that the request for arbitration presented by the Claimant was untimely, in so far as the same is based on the rejection of a gracious complaint rejected as untimely. More specifically, it states that,
82 - "(...) the Claimant can never claim to justify the timeliness of the request for arbitration on the basis of the rejection, although partial, of a gracious complaint partially untimely," given that, "Otherwise, the path would be open to continue to discuss the legality of tax acts for which the respective periods of contestation have already expired". Adding that,
83 - The Claimant cannot "(...) base the timeliness of recourse to the arbitration tribunal on the filing of a petition for gracious complaint in the untimely part, nor can (...) the tribunal fail to examine the question of the timeliness of the gracious complaint, for the purposes of examination and decision regarding the timeliness of the request for arbitration, which the TCA contests, in accordance with the documents contained in the administrative case". The Respondent also considers, in the allegations relating to the said exception,
84 - That, having the gracious complaint filed by the Claimant been presented on 2015-04-27 and being the date of most recent payment relating to IUC assessments 2014-12-16, the period of 120 days (article 102, no. 1 of the TCPC, by operation of article 70, no. 1 of the same Code), for the filing of the same, was largely exceeded, adding that,
85 - Although no. 2 of article 16 of the ICVT "(...) states that assessment of the tax is done by the passive subject himself, we are not dealing with a 'self-assessment' in the true sense, as it is the Tax Administration that carries out the determination of the amount to be paid by the passive subject which merely prints the payment slip for the tax owed, not performing any calculation operation", nor are we, thus, "(...) dealing with a self-assessment, with the Claimant merely proceeding to the payment of the amounts determined by the Tax Administration and corresponding to the IUC to be paid". It further adds that,
86 - "In this way, the Claimant could not make use of the procedure provided for in article 131 of the TCPC, since we are not dealing with a self-assessment, nor with an error attributable to the services, but rather with an assessment of tax".
87 - In light of the circumstance that the untimeliness of the request for arbitration, invoked by the Respondent, has as its subject matter and resides in the rejection of the gracious complaint no. ... - 2015/..., rejected as untimely, in accordance with the order of 20-06-2016 from the Head of Administrative Justice Division (in substitution), of the Finance Directorate of Lisbon, it is essential to know, above all, whether the said gracious complaint, presented on 27 April 2015, was, or was not, timely filed.
Let us see,
88 - It is important, from the outset, to know whether in the context of taxation relating to the single vehicle tax (IUC) we are in the domain of assessment of tax or self-assessment.
89 - In the case of the file in question, the Claimant says, in point 9 of its request for arbitration, that "[...] was unaware of this IUC and CI until it consulted the Tax Portal and ascertained the existence, among many others, of the collection documents for IUC and CI in question here, having [...] downloaded from the Tax Portal the respective collection documents for self-assessment and payment of IUC and CI", adding that,
90 - "Despite having been surprised by the values of IUC and CI that appeared in the Tax Portal/reserved area [...], it understood to take the "initiative of self-assessing and paying the respective IUC and CI, obtaining the respective payment documents via the internet, on the Tax Portal [...]". See points 11 and 12 of its request for arbitration.
91 - The Claimant thus refers to having become aware of the tax acts, in conformity with their disclosure in the "its site" on the Tax Portal, having proceeded to the payment of the sums of tax assessed.
92 - It is thus certain that the Claimant downloaded from its page on the Tax Portal, the documents designated as IUC Assessment Notes/Assessment Notices, as results from some of these documents, which are attached to the case file, and proceeded to the payment of the amounts inscribed therein, which cannot fail to signify that the corresponding and underlying tax assessments had already been "generated" (performed) on the basis of computer programming, given that their automaticity necessarily results from a computer program with clear and precise objectives, previously delineated by the programmer, which is to say, by the Tax Administration, payments which are duly proven by the collecting entity, as results from the respective Proof of Payment Certificates.
93 - The mentioned documents, attached to the request for arbitration, on which the Claimant based itself to proceed to the payment of the IUC in question, contain all the essential elements of the assessment acts in question, namely: the identification of the issuing service, the identification of the passive subject, including his tax identification number, the period to which the missing tax relates, the deadline for payment, the amount to be paid which, although respecting, in some cases, the importance resulting from the sum of the IUC due and the corresponding compensatory interest, is, nevertheless, duly itemized, therein proceeding to the demonstration of the respective assessments, whether, namely, as IUC, where, in particular, reference is made to the vehicle registration, the year and month of registration, as well as its engine displacement, or relating to the said interest, as well as its respective reference for payment.
94 - In these circumstances, we are, unequivocally, dealing with IUC assessments performed by the TCA, with the elements that are in the system, previously inserted, not being within the capacity of the passive subject to alter any of these elements, assessments which are brought to the sphere of knowledge of the Claimant via their placement on the "page" that is "reserved for it" on the Tax Portal, constituting injurious acts which, in light of what is provided for and established in no. 2 of article 9 and in no. 1 of article 95, both of the LGT, can be impugned by the interested parties.
95 - The assessment of the tax in question, as of the date of some of the facts, was established in no. 1 of article 16 of the ICVT, was, moreover, under the competence of the Directorate-General of Taxes, being, today, the same, attributed to the Tax and Customs Authority, and the provisions of nos. 2 and 3 of the said article should not be interpreted without taking into account the exclusive competence, in matters of IUC assessment, legally entrusted to the said Department of the Ministry of Finance, and it is certain that the term "assessment" used in no. 2 of the said article cannot have any other understanding than that it refers to the "payment" of the said tax, an imprecision of terminology that, moreover, is verified, particularly in both other articles of the said ICVT, as is the case of no. 2 of article 17, and in other legal instruments, and in "commercial parlance".
96 - Thus, the understanding is set aside that we are dealing with a situation of self-assessment, given that self-assessment is that which is entirely performed by private parties, by opposition to assessment which is performed by the Tax Administration, and one can only speak of self-assessment when it is the taxpayer itself who performs the calculations of the tax to be paid, that is, when it is the passive subject who applies the tax rate to the taxable matter, which, in no way, occurs in the case of the file in question (See in particular, José Casalta Nabais, in Tax Law - (Reprint) Almedina, Coimbra - March - 2002, p. 252; Vítor Faveiro, in Fundamental Notions of Portuguese Tax Law, 1st vol., Coimbra Editora - 1984, pp 409/410 and Pedro Soares Martinez, in Manual of Tax Law, Almedina, Coimbra, 1983, pp. 295/296.
97 - On this point, it is proper to note, in the manner done in the Judgment of the STA, of 31-05-2006, Case JSTA00063227, available at www.dgsi.pt, that the "latest word" regarding the concept of self-assessment is established in article 120, no. 1 of the Spanish General Tax Law, approved by Law 58/2003, of 17 December, when it provides that "self-assessments are declarations in which taxpayers, in addition to communicating to the Administration the data necessary for the assessment of the tax and other information content, themselves perform the necessary qualification and quantification operations to determine and pay the amount of the tax debt or, if applicable, determine the amount to be refunded or compensated".
98 - In summary, in the case of the file in question, we are confronted with IUC assessments and not, as the Claimant understands, with self-assessments, when it states that "Contrary to what is advocated in the order for partial rejection of the Complaint, the same is not untimely, [...], " adding that "Indeed, the Gracious Complaint was filed against the self-assessments of IUC, within the period of 2 years established in article 131, no. 1 of the TCPC". See points 16 and 17 of its request for arbitration.
99 - Thus, and taking into account, as results from the file, that, with the exception of the IUC assessments relating to vehicles with registrations ..., ..., ..., ..., ... and ..., the most recent deadline for voluntary payment, relating to the IUC assessments which were the subject of the said gracious complaint, relates to 16-12-2014, and that the said complaint was presented on 27-04-2015, it is necessary to understand that the same was out of time when it was presented, in view of the period of 120 days, legally provided for the effect (article 102, no. 1 of the TCPC, by operation of no. 1, of article 70 of the said Code), and not deserving, therefore, of censure the decision of the Tax Authority which rejected, as untimely, the said gracious complaint.
100 - On the other hand, and in these circumstances, that is, in light of the order for partial rejection, as untimely, of the gracious complaint in question, it is important, now, to know what are the consequences of the presentation, on 06-12-2016, of the request for constitution of an arbitration tribunal (request for arbitration), which has, in particular, as its subject matter the declaration of illegality of that same order for rejection.
101 - It has been said that the Respondent, in its defense by exception, understands that the request for arbitration is untimely, in so far as, contrary to the Claimant's understanding, its timeliness cannot be based on the rejection, although partial, of a gracious complaint partially out of time.
Let us see,
102 - The gracious complaint in question, it has been said, in light of its presentation on 27-04-2015, did not prove to be filed within the legally established period, in so far as the period for its presentation, as above referred to, was 120 days, counted from the end of the period for voluntary payment of the IUC, which - except for the assessments, whose legality was, impliedly, confirmed in the said complaint - ended on 16-12-2014.
103 - The Claimant chose to initially file a gracious complaint, when it could have chosen not to. In truth, it results from the content of article 70 of the TCPC at the time of the facts (wording introduced by Law no. 60-A/2005 of 30 December), that "1 - The gracious complaint may be filed on the same grounds provided for judicial impugning and shall be presented within 120 days counted from the facts provided for in no. 1 of article 102", facts which, in the case, as results from sub-paragraph a) of the said article, are the "end of the period for voluntary payment of tax installments (...)".
104 - As above referred to, the period of 120 days provided for in the law for the presentation of the gracious complaint, counted from 16-12-2014 (the most recent deadline for voluntary payment of IUC assessments), was not observed, in view of its presentation on 27-04-2015, which, as a consequence, places the request for arbitration in a situation which will also be untimely, taking into account, in particular, the legal period of 90 days for its presentation, provided for in sub-paragraph a) of no. 1 of article 10 of the LRTA, counted from the facts provided for in nos. 1 and 2 of article 102 of the TCPC, which, in the case, as results from sub-paragraph a) of the said article, are embodied in the "end of the period for voluntary payment of tax installments (...)," and which correspond, precisely, to the acts of assessment of IUC which, with the exception of assessments, whose legality was confirmed, underlie the gracious complaint rejected as untimely.
105 - Thus, the untimeliness of the gracious complaint precludes the right to examine the legality of the assessment acts inscribed therein, with the exception above mentioned, since, as has already been stated, if it were not thus, "(...) the path would be open to continue to discuss the legality of tax acts for which the respective periods of contestation have already expired", and which have become consolidated in the legal order.
106 - In this sense, it is important, with the necessary adaptations, to note the jurisprudential guidelines concretized, namely, both in the Judgment of the CCNA (case no. 01584/09.3BEPRT), of 11-10-2017, when it states that "only the timeliness of the gracious complaint opens to the contestant the possibility of discussing the legality of the impugned assessments, since the untimeliness of the complaint (...) leads to its necessary rejection, since it is then reacting against a case decided or resolved", and in the Judgment of the CCSA (case no. 07644/14), of 23-03-2017, when it rules in the sense that "since the gracious complaint is out of time when it was filed, in consequence and regardless of whether or not the same was decided, judicial impugning will also be untimely".
107 - Having arrived here, it is important to note that, in the universe of IUC assessments underlying the gracious complaint referenced in the case, not all of the assessments had as the deadline for their voluntary payment the date of 16-12-2014. Indeed, some of them, namely those relating to vehicles with registrations ..., ..., ..., ..., ... and ..., whose payment dates fell in the first three months of 2015.
108 - These are assessments which, not being able to have served as grounds for the order for rejection, as untimely, of the gracious complaint in question, can only be deemed as having been confirmed, in their legality, which means that, in this particular, the said order proceeded to the reaffirmation of the legality of the corresponding assessment acts. Thus,
109 - The order for rejection that was rendered on the gracious complaint in question, based on its untimeliness, as has been stated, could not, nevertheless, have failed to examine the legality of the assessments relating to vehicles with registrations ..., ..., ..., ..., ... and ..., with IUC assessed in the respective amounts of € 21.00; € 32.09; € 143.35; € 99.01; € 52.21 and € 131.51, totaling the sum of € 479.17, having, consequently, examined, to that exact measure, the merits of the disputed assessments, thereby rejecting, in this part, the said complaint on the basis of the legality of such assessments.
110 - The order for rejection of the gracious complaint, rendered in the mentioned circumstances, assumes itself, in some manner, as the "extension" and "prolongation" of the act of assessment itself, in so far as it reexamines its legality and confirms it again, as it had originally been configured, a rejection which, being, on the one hand, an injurious act susceptible of impugning by the interested party, the examination of which is important to carry out, in so far as it proceeds to the reaffirmation of the primary underlying assessment act and of which it is indissociable, determines, on the other hand,
111 - That the request for arbitration, with respect to the mentioned assessment acts, that is, to those relating to vehicles with registrations ..., ..., ..., ..., ... and ..., cannot be deemed as untimely. In fact,
112 - In accordance with the provisions of sub-paragraph a) of no. 1 of article 10 of the LRTA, combined with what is established in no. 2 of article 102 of the TCPC, judicial impugning of the gracious complaint decision must be filed within 90 days, counted from the notification of the said decision, which, in the case of the file, in light of the documents forming part of the case, was, in the form of registered mail with acknowledgment of receipt, sent for knowledge of the Claimant on 06-09-2016, and the request for constitution of an arbitration tribunal, in light of the elements inscribed in the Electronic System of Procedural Management (SGP), was presented to the CAAD on 06-12-2016.
113 - In these circumstances, and in the part concerning the mentioned assessments, whose legality was, as has been stated, confirmed by the order of 20-06-2016 from the Head of Administrative Justice Division (in substitution), of the Finance Directorate of Lisbon, which rejected, as untimely, the Gracious Complaint no. ...-2015/..., it is considered that the request for constitution of the arbitration tribunal was timely presented.
I - GROUNDS OF LAW (CONTINUED)
114 - Having arrived here, it is now important to rule on the legality of the assessments associated with the six vehicles, whose registrations are above referenced.
115 - It has been said, in point 69, that, with respect to this, the essential and decisive question, as to which there are absolutely opposed understandings between the Claimant and the TCA, is whether the norm of subjective application contained in no. 1 of article 3 of the ICVT establishes or does not establish a rebuttable presumption.
J - INTERPRETATION OF THE NORM OF SUBJECTIVE APPLICATION CONTAINED IN NO. 1 OF ARTICLE 3 OF THE ICVT
116 - On this question, that is, whether the norm of subjective application contained in no. 1, of article 3 of the ICVT, establishes a presumption, it should be noted that the case law established in CAAD points in the direction that the said norm establishes a legal presumption. Indeed, from the first Decisions, rendered on this matter, in the year 2013, among which may, in particular, be mentioned those rendered in the context of Cases nos. 14/2013-T, 26/2013-T and 27/2013-T, through to the most recent ones, of which may be indicated the Decisions rendered in the context of Cases no. 69/2015-T and no. 79/2015-T, passing through numerous Decisions rendered in 2014, of which mention is made, by way of mere example, the Decisions rendered in Cases nos. 34/2014-T, 120/2014-T and 456/2014 - T, all point to the understanding that no. 1, of article 3 of the ICVT establishes a rebuttable legal presumption.
On this point, mention should also be made of the recent Decision of the Tax Court of Lisbon, rendered, on 23-01-2017, in Case no. 463/13.4BELRS, where it is considered that the "[...] claimant succeeded in rebutting the presumption established in article 3, no. 1 of the ICVT."
Consideration should also be given to the understanding inscribed in the Judgment of the Central Administrative Court of the South, rendered on 19-03-2015, Case 08300/14, available at: www.dgsi.pt, which seconds the said jurisprudence, when it expressly states therein that article 3, no. 1 of the ICVT "[...] establishes a legal presumption that the holder of the vehicle registration is its owner, and such presumption is rebuttable by force of article 73 of the LGT".
This is an understanding that is fully supported and that is, without more, given as valid and applicable in the present case, not considering, therefore, necessary any further development, in light of the abundant grounds set forth in the mentioned Decisions and in the said Judgment.
L - THE ACQUISITION OF OWNERSHIP OF THE VEHICLE AND THE VALUE OF THE REGISTRATION
117 - Before all else, it should be added, in light of what will be explicitly stated ahead regarding the value of the registration, that the purchasers of the vehicles become owners of those same vehicles via the celebration of the corresponding purchase and sale contracts, whether registered or not.
118 - There are three articles of the Civil Code that are important to take into account, regarding the acquisition of ownership of a motor vehicle. They are, from the outset, article 874, which establishes the concept of a purchase and sale contract, as being "[...] the contract by which the ownership of a thing, or another right, is transferred, in exchange for a price"; article 879, in whose sub-paragraph a) is established, as essential effects of the purchase and sale contract, "the transfer of the ownership of the thing or the titularity of the right" and article 408, which has as its heading contracts with real effect, and establishes in its no. 1, that "the constitution or transfer of real rights over a determined thing occurs by mere effect of the contract, except for the exceptions provided for in the law". (emphasis added)
We are, in effect, in the domain of contracts with real effect, which means that their celebration causes the transfer of real rights, in the case, motor vehicles, determined by mere effect of the contract, as expressly results from the norm previously mentioned.
119 - With regard to the said contracts with real effect, it is proper to note the teachings of Pires de Lima and Antunes Varela, when, in annotations to article 408 of the CC, they tell us that "From these so-called real contracts (quoad effectum), because they have as their immediate effect the constitution, modification or extinction of a real right (and not only the obligations tending to that result) distinguish themselves the so-called real contracts (quoad constitutionem), which require the delivery of the thing as an element of its formation (see articles 1129, 1142 and 1185)".
We are, thus, dealing with contracts in which the ownership of the thing sold is transferred, without more, from the seller to the buyer, having, as its cause, the contract itself.
120 - Also from case law, namely from the Judgment of the STJ no. 03B4369 of 19/02/2004, available at: www.dgsi.pt, it is drawn that, in light of the provisions of article 408, no. 1, of the Civil Code, "the constitution or transfer of real rights over a determined thing occurs by mere effect of the contract, except for the exceptions provided for in the law". This is the case of the contract of purchase and sale of a motor vehicle (articles 874 and 879, sub-paragraph a) of the Civil Code), which does not depend on any special formality, being valid even when celebrated verbally - in conformity with Judgment of the STJ of 3-3-98, in CJSTJ, 1998, year VI, Volume I, page 117". (emphasis added)
121 - Having the contract of purchase and sale, in light of what is left stated, real nature, with the mentioned consequences, there must also be considered the legal value of the vehicle registration which is the subject of that contract, in so far as the transaction of the said property is subject to public registration.
122 - It establishes, in effect, no. 1 of article 1 of Decree-Law no. 54/75, of 12 February, relating to the registration of motor vehicles, that "Vehicle registration has essentially as its purpose to give publicity to the legal situation of motor vehicles and respective trailers, with a view to the security of legal commerce". (emphasis added)
123 - Making clear, in light of the said norm, what the purpose of the registration is, there is, however, no clarity, within the scope of the said Decree-Law, regarding the legal value of that registration, making it important to consider article 29 of the mentioned legislative instrument, relating to the registration of motor vehicle ownership, when it therein provides that "The provisions relating to land registration are applicable, with the necessary adaptations, to the registration of motor vehicles, [...]". (emphasis added)
124 - In this context, so that we may achieve the sought knowledge regarding the legal value of motor vehicle ownership registration, it is important to take into account what is established in the Property Registration Code, approved by Decree-Law no. 224/84, of 06 July, when it provides in its article 7 that "definitive registration constitutes presumption that the right exists and belongs to the registered holder in the precise terms in which the registration defines it". (emphasis added)
125 - The combination of the provisions in the articles above mentioned, particularly what is established in no. 1 of article 1 of Decree-Law no. 54/75, of 12 February and in article 7 of the Property Registration Code, permits considering, on the one hand, that the fundamental function of the registration is to give publicity to the legal situation of the vehicles, and, on the other hand, to presume that the right exists and that such right belongs to the registered holder in whose favor the same is registered, in the precise terms in which it is defined in the registration.
126 - Thus, the definitive registration constitutes nothing more than the presumption that the right exists and belongs to the registered holder, in the exact terms of the registration, but a rebuttable presumption, admitting, therefore, rebuttal evidence, as results from the law and case law has been pointing out, and regarding which, among others, may be seen, the Judgments of the STJ nos. 03B4369 and 07B4528, respectively, of 19/02/2004 and 29/01/2008, available at: www.dgsi.pt.
127 - The function legally reserved to the registration is, thus, on the one hand, to make public the legal situation of the property, in the case, of the vehicles and, on the other hand, to permit us to presume that the right over these vehicles exists and that it belongs to the registered holder, which means that the registration does not have a constitutive nature of the property right, but only a declarative one, hence the registration does not constitute a condition of validity of the transfer of the vehicle from the seller to the buyer.
128 - Thus, if the buyers of the vehicles, as their "new" owners, do not promptly promote the appropriate registration of their right, it is presumed, for the purposes of the provision in article 7 of the Property Registration Code and of no. 1 of article 3 of the ICVT, that the vehicles continue to be the property of the person who sold them and who remains their owner in the registration, and that person is the passive subject of the tax, in the certainty, however, that such presumptions are rebuttable, whether by force of what is established in no. 2 of article 350 of the CC, or in light of the provision in article 73 of the LGT. Hence, from the moment the presumptions in question are set aside, by means of proof of the said sales, the TCA cannot persist in considering as the passive subject of the IUC the seller of the vehicle, who, in the registration, continues to appear as its owner.
M - THE PASSIVE SUBJECT OF THE IUC UPON THE DISPOSITION OF THE VEHICLE WHICH IS THE SUBJECT OF FINANCIAL LEASING CONTRACTS OR VEHICLE RENTAL CONTRACTS WITHOUT A DRIVER WITH PROMISE OF SALE
129 - The transfers of the vehicles in question, that is, of the vehicles with registrations ..., ..., ..., ..., ... and ..., to which has been alluded as having IUC assessments in the total amount of € 479.17, relating to the first three months of 2015 and which did not form the basis for the rejection as untimely of the gracious complaint, had as purchasers the persons who, in the corresponding financial leasing contracts, or vehicle rental contracts without a driver with promise of sale, appeared as lessees or as promissory purchasers, and it is the case that the said sales occurred (all of them) before the dates relating to the tax liability of the IUC.
130 - The disposition of the vehicles referenced in the case file occurred, in some cases, during the validity of the said contracts and, in others, after the termination of those contracts, and it is the case that, in any of the situations, that is, in those referring to the sales of vehicles occurring still during the validity of the said contracts, or on dates following the end of those contracts, the dates of the mentioned sales relate to moments prior to those of the tax liability of the single vehicle tax, and the payment thereof is not the responsibility of the Claimant, given that, in light of what has already been stated above, it was not, then, in these circumstances, a passive subject of the tax.
N - THE MEANS OF PROOF PRESENTED
ON FINANCIAL LEASING CONTRACTS AND VEHICLE RENTAL CONTRACTS WITHOUT A DRIVER WITH PROMISE OF SALE
131 - With regard to the financial leasing contracts and vehicle rental contracts without a driver with promise of sale, within the context of which all transfers of the property of the vehicles to the former lessees were inscribed, it should be understood that such contracts are suitable means and with sufficient force to prove the quality of lessees. There exist, moreover, no elements that permit understanding that the data inscribed in such contracts do not correspond to the contractual truth, and it is also certain that the law, in the case, no. 1 of article 75 of the LGT, grants to those documents a presumption of truthfulness.
ON INVOICES
132 - Being not legally required the written form for the transfer of ownership of motor vehicles, the proof of that transfer may be made by any means, namely by way of documentary proof, in which are included, in particular, the invoices relating to the sales of the vehicles.
133 - With regard to invoices, as documentary evidence of the sale of motor vehicles, one cannot fail to take into account no. 2, article 2, of Decree-Law no. 177/2014, of 15 December, in whose provision invoices are considered as documents that indicate the actual purchase and sale of the vehicles.
134 - On the other hand, it is also important to recall what is provided for in sub-paragraph b) of no. 1 of article 29; in no. 5 of article 36 and in nos. 1 and 2 of article 40, all of the IVA Code, as amended by Decree-Law no. 197/2012, of 24 August, from which it is drawn that only the invoice, the receipt-invoice and the simplified invoice embody recognized documents for the purposes of the transfer of goods or the provision of services.
135 - The Claimant, as means of proof that it proceeded to the sale of the vehicles, as identified in the present case, on a date prior to the date of tax liability, attached, namely, in addition to the copies of the mentioned contracts, both the invoices/receipts relating to the alleged sales (as occurred with respect to vehicles with registrations: ..., ... and ...), and invoices and payment documents, invoices which, in some cases, exhibit the reference to their processing by computer and, in other cases, the indication that they were processed by a Program that was previously certified by the Tax and Customs Authority (TCA), identified as Certified Program no. .../TCA.
136 - It should, moreover, be emphasized that nothing permits considering that any of those documents, namely the invoices presented, as support for the sales of the vehicles in question in the case file, do not have correspondence with the sales which, allegedly, were completed.
137 - The invoices attached to the case file, as proof of the disposition of the vehicles, taking into account the corporate purpose of the Claimant, embodied in the rental of motor vehicles and in the sale of those vehicles to its clients, at the end of the respective rental contracts, show themselves to be totally in keeping with the mentioned business reality, and it is absolutely credible the sale of the vehicles which the presented invoices aim to prove, with no elements being identified that embody any simulated contract, rather permitting to conclude we are dealing with invoices which reproduce the real and true sale of the vehicles to the persons identified therein.
138 - The combination of the various documents presented permits the tribunal to understand, with a high degree of probability and of plausibility, that the disposition of the vehicles in question to the corresponding lessees was completed. On this point, it is proper to note what is written by Jorge Lopes de Sousa, in Code of Tax Procedure and Process, Annotated and Commented, Volume II, 6th Edition, Áreas Editora, SA, Lisbon, 2011, p. 256, in annotations to article 115 of the said Code, when citing ALBERTO DOS REIS, states that "sufficient proof leads to a judgment of certainty; not of logical, absolute, material certainty, in most cases, but of certainty sufficient for the practical needs of life, of certainty called historical-empirical. That is to say, what is formed on the basis of sufficient proof is, normally, a judgment of probability, but of probability elevated to such a high degree that it is enough for the reasonable demands of social security".
139 - In summary, the proof of the sale of the vehicles in question, arising from the attachment to the case file of the mentioned documents, appears to be reasonable and proportionate, above all, taking into account the corporate purpose of the Claimant, centered on the activity of financing operations for the acquisition of motor vehicles, and on the celebration of the corresponding financial leasing contracts and vehicle rental contracts without a driver with promise of sale, not being, consequently, surprising, indeed quite the contrary, that, as has already been noted, as a consequence of the mentioned contracts, there is completed the transfer of the property of the vehicles identified in the case file to the corresponding lessees.
140 - The invoices in question (copies), relating to the sales of the vehicles, in so far as they enjoy the presumption of truthfulness which no. 1 of article 75 of the LGT grants to them, with it incumbent upon the TCA, in view of the provision of article 75, no. 2 of the LGT, in the context of the founded and objective reasons it had, to demonstrate that the information inscribed therein does not correspond to reality, permit concluding for the real transfer of the titularity of the vehicles, constituting a means of proof sufficient to rebut the presumptions in question in the case file, that is, the presumption established in article 7 of the Property Registration Code and that established in no. 1 of article 3 of the ICVT, which means that, on the date on which the tax was due, the ownership of the vehicles in question had been transferred from the Claimant to the former lessees, and the Claimant was not the passive subject of the tax in question.
141 - In these circumstances, the six vehicles referenced in the case file as having been disposed of, within the context of the respective financial leasing contracts and vehicle rental contracts without a driver with promise of sale, are considered as sold, in accordance with the terms already mentioned, at moments prior to the dates of tax liability of the corresponding IUC, and should, thus, be considered that the Claimant, with respect to such vehicles, was not, on the date to which the assessments in question relate, a passive subject of the tax in question, and cannot, therefore, be left to consider that the legal presumption established in no. 1 of article 3 of the ICVT was rebutted.
142 - The TCA, when it understands that the passive subjects of the IUC are the persons in whose names the motor vehicles are registered, without considering that article 3, no. 1 of the ICVT establishes a presumption, nor taking into account the evidentiary elements that were presented to it, as results, in particular, from the tax administrative case, is proceeding to the illegal assessment of the IUC, relating to the vehicles above mentioned, based on the erroneous interpretation and application of the norms of subjective application of the Single Vehicle Tax, contained in the said article 3 of the ICVT, which constitutes the performance of tax acts lacking legality due to error as to the facts and law presuppositions, determining the annulment of the corresponding tax acts, by violation of law.
O - REIMBURSEMENT OF THE AMOUNT PAID AND INDEMNIFICATORY INTEREST
143 - In accordance with the provision in sub-paragraph b) of no. 1 of article 24 of the LRTA, and in conformity with what is established there, the arbitration decision on the merits of the claim for which there is no appeal or impugning binds the tax administration from the end of the period provided for appeal or impugning, and the latter - in the exact terms of the success of the arbitration decision in favor of the passive subject and until the end of the period provided for the voluntary performance of the decisions of the tax courts - "Restore the situation that would exist if the tax act which is the subject of the arbitration decision had not been performed, adopting the acts and operations necessary for the effect." (emphasis added)
144 - These are legal commands that are in total harmony with the provision in article 100 of the LGT, applicable to the case by force of the provision in sub-paragraph a) of no. 1 of article 29 of the LRTA, in which it is established that "The tax administration is obliged, in the event of full or partial success of complaints or administrative appeals, or of judicial process in favor of the passive subject, to the immediate and full restoration of the situation that would exist if the illegality had not been committed, comprising the payment of indemnificatory interest, in the terms and conditions provided for in the law." (emphasis added)
145 - The case contained in the present file raises the manifest application of the mentioned norms, given that as a consequence of the illegality of the six assessment acts, above referenced, and of the payment of the corresponding sums, as contained in the Proof of Payment Certificates contained in the case, there must, by force of those norms, be occasion for the reimbursement of the amounts paid, as title of tax, as a way to achieve the restoration of the situation that would exist if the illegality had not been committed, amounts which, in the case of the file, total the sum of € 479.17, resulting from the IUC assessments with the value of € 21.00; € 32.09; € 143.35; € 99.01; € 52.21 and € 131.51, associated, respectively, with vehicles with registrations ..., ..., ..., ..., ... and ... .
146 - With regard to indemnificatory interest, it appears manifest that, in light of what is established in article 61 of the TCPC and the requirements being met for the right to indemnificatory interest, that is, verified the existence of error attributable to the services from which results payment of the tax debt in an amount greater than legally due, as provided for in no. 1 of article 43 of the LGT, the Claimant has the right to indemnificatory interest at the legal rate, calculated on the sum of € 479.17.
CONCLUSION
The factual context which is thus mentioned permits concluding the following:
147 - The gracious complaint, with the exception of the IUC assessments relating to vehicles with registrations ..., ..., ..., ..., ... and ..., is untimely, in so far as the period of 120 days, provided for its presentation, (article 102, no. 1 of the TCPC, by operation of article 70, no. 1 of the same Code), counted from 16-12-2014 (the most recent deadline for voluntary payment of IUC assessments), was not observed, as the same was presented on 27-04-2015.
148 - The request for arbitration, with the exception of the IUC assessments relating to the vehicles identified in the preceding point, based on a gracious complaint out of time, is untimely, in so far as only the timeliness of the gracious complaint permits the discussion of the legality of the assessments impugned therein.
149 - In the factual context which has been stated, the TCA, when performing and confirming the legality of the six assessment acts in question in the present case, on the basis of the idea that article 3, no. 1 of the ICVT does not establish a rebuttable presumption, and that the Claimant is, in the cases provided for in no. 2 of the said article, a passive subject of the tax, makes erroneous interpretation and application of this norm, committing an error as to the law presuppositions, which constitutes violation of law.
150 - On the other hand, because the TCA, on the date of the occurrence of the tax facts, considered the Claimant to be the owner of the six vehicles referenced in the present case, considering it, as such, a passive subject of the corresponding tax, when such ownership, with respect to the vehicles in question, no longer was inscribed in its legal sphere, basing itself, thus, on a matter of fact divergent from the actual reality, commits an error as to the fact presuppositions, and therefore violation of law.
151 - The decision of the TCA, with respect to the gracious complaint identified in the case file is, in the part that relates to the six mentioned assessment acts, and in so far as it proceeds to their confirmation, lacking in legality, and cannot remain in the legal order.
III – DECISION
152 - Wherefore, taking into account all of the foregoing, this Arbitration Tribunal decides:
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To rule as untimely the filing of the gracious complaint, referenced in the case file, with no. ... - 2015/..., as to the universe of IUC assessments which comprise it, with the exception of the assessments whose deadlines for payment of the said tax fall in the first three months of 2015.
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To annul the decision rendered in the context of the said gracious complaint, in the part that relates to the assessment acts, whose value totals the sum of € 479.17, relating to vehicles with registrations ..., ..., ..., ..., ... and ... .
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To rule as sustained the exception of untimeliness of the claim, excluding the assessments whose deadlines for payment fall in the first three months of 2015, deciding, in consequence and in conformity with the provision in no. 3 of article 576 of the Code of Civil Procedure, applicable by force of article 29, no. 1, sub-paragraph e), of the LRTA, to acquit the Tax and Customs Authority, partially, of the claim.
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To rule, consequently, the request for arbitration, in the part that concerns the annulment of the IUC assessment acts, with the value of € 479.17, relating to the six vehicles hereinabove identified, as timely and successful, as proven, on the ground of a defect of violation of law.
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To annul the IUC assessment acts, with deadlines for payment that fall in the first three months of 2015, with the value of € 21.00; € 32.09; € 143.35; € 99.01; € 52.21 and € 131.51, associated, respectively, with vehicles with registrations ..., ..., ..., ..., ... and ..., whose total value totals the sum of € 479.17.
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To condemn the TCA to the reimbursement of the sum of € 479.17, relating to the IUC assessed and paid, relating to the assessments associated with the hereinabove mentioned vehicles, (whose deadlines for payment fall in the first three months of 2015), as well as to the payment of indemnificatory interest at the legal rate, counted from the date of payment of the sum referred to, until the total reimbursement of the same;
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To condemn the Claimant and the Respondent in costs, which are fixed, for each, in the proportion of 94% for Claimant and 6% for Respondent.
VALUE OF THE CASE
In conformity with the provision in articles 306, no. 2 of the CPC (ex-315, no. 2) and 97-A, no. 1 of the TCPC and in article 3, no. 2 of the Regulation of Costs in Tax Arbitration Cases, the case is valued at € 7,919.52.
COSTS
In harmony with the provision in article 12, no. 2, in fine, in article 22, no. 4, both of the LRTA, and in article 4 of the Regulation of Costs in Tax Arbitration Cases and Table I, which is attached thereto, the total amount of costs is fixed at € 612.00.
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Lisbon, 26 February 2020
The Arbitrator
António Correia Valente
(The text of this decision was prepared by computer, in accordance with article 131, no. 5 of the Code of Civil Procedure (ex-138, no. 5), applicable by referral of article 29, no. 1, sub-paragraph e) of Decree-Law no. 10/2011, of 20 January (LRTA), being its wording governed by the orthography prior to the Orthographic Agreement.)
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