Summary
Full Decision
ARBITRAL DECISION
I. - REPORT
A - PARTIES
A…, taxpayer number…, hereinafter referred to as "Claimant", filed a request for constitution of an arbitral tribunal pursuant to Article 2(1)(a) and Articles 10 et seq. of Decree-Law No. 10/2011, of 20 January (Legal Regime for Arbitration in Tax Matters, hereinafter referred to as "RJAT"), with a view to the examination of the following claim against the Tax and Customs Authority (which succeeded, among others, the General Directorate of Taxes), hereinafter referred to as "Respondent" or "TA".
B - CLAIM
1 - The request for constitution of the arbitral tribunal was accepted by His Excellency the President of CAAD on 20 October 2014 and notified to the TA on 23 October 2014.
2 - The Claimant did not proceed to appoint an arbitrator, therefore, pursuant to Article 6(1) of the RJAT, the undersigned, on 05-12-2014, was designated by the Deontological Council of the Centre for Administrative Arbitration as arbitrator of a Singular Arbitral Tribunal, having accepted in accordance with the legal provisions.
3 - The Parties were, on 05-12-2014, duly notified of this appointment and did not manifest any intention to refuse it, in accordance with the combined provisions of Article 11(1)(a) and (b) and Articles 6 and 7 of the Deontological Code.
4 - In these circumstances, in accordance with Article 11(1)(c) of Decree-Law No. 10/2011, of 20 January, as amended by Article 228 of Law No. 66-B/2012, of 31 December, the arbitral tribunal was duly constituted on 24-12-2014.
5 - On 29 May 2015, the Arbitral Tribunal, taking into account Article 16(c) of the RJAT, issued an order dispensing with the meeting provided for in Article 18 of the same instrument, considering, on the one hand, both the availability of the parties for this purpose, the submission of written submissions, and the circumstance that the exceptions to be examined and decided were decided in writing, and on the other hand, that no autonomous evidentiary proceedings were requested by the parties, with the relevant documents and the administrative file being attached to the proceedings.
6 - The now Claimant requests that this Arbitral Tribunal:
Declare the illegality and the consequent annulment, both of the assessment act relating to the Single Circulation Tax (hereinafter referred to as IUC), as well as the corresponding compensatory interest, relating to the year 2013, with respect to the vehicle identified in the case, with the registration …-…-….
C - CAUSE OF ACTION
7 - The Claimant, in justifying its request for arbitral judgment, alleges, in summary, the following:
8 - That it acquired the vehicle with registration …-…-… on 20 December 2000 and that in July 2006 it entered into a purchase and sale contract with Mr. B…, for the said vehicle, having since then transferred the ownership and possession of such vehicle.
9 - That, following notification of the seizure of assets in a tax enforcement proceeding instituted against it, and after having identified the nature of the debt, it contacted the Tax Office of … in order to inform it that it was not the passive subject of the IUC relating to the aforementioned vehicle, in virtue of having transmitted the ownership of the vehicle in question in July 2006.
10 - That it also informed the said Tax Office that, despite several attempts with the acquirer of the vehicle in question to have the vehicle regularised, it was unable to achieve this, therefore, in November 2009, it requested the IMTT to initiate the necessary procedures for the seizure of the vehicle.
11 - That, following contacts with the TA, it was informed by the latter that the said vehicle was still registered in the Motor Vehicle Registry in the name of the Claimant, therefore, pursuant to Article 3(1) of the IUC Code, it was the passive subject of the tax as the owner of the vehicle.
12 - That after being informed by the TA, by means of an official letter of 29-04-2014, that the passive subject of the tax was the Claimant, it sent to the Tax Office of … documentation intended to prove that it had in fact sold the vehicle in question to Mr. B…, then requesting the annulment of the IUC debt and the lifting of the seizure, which was dismissed by order of 25-07-2014 from the head of the said Tax Office.
13 - That on 24-07-2014, it proceeded to pay the IUC relating to the vehicle with registration …-…-…, relating to the year 2013.
14 - That the validity of a legal transaction of purchase and sale of a motor vehicle subject to registration is not prejudiced by the fact that such acquisition act may or may not be registered.
15 - That, given the real nature of the purchase and sale contract, the transfer of ownership occurs by mere effect of the contract, pursuant to Article 874 of the Civil Code.
16 - That Article 1 of the IUC Code provides that the IUC adheres to the principle of equivalence, seeking to burden taxpayers in the measure of the environmental and road costs they cause, therefore, there can be no doubt that the law intended to burden those to whom the aforementioned environmental and road costs caused by the circulation of motor vehicles could be attributed.
17 - That the expression "being considered as such" used by the legislator in Article 3(1) of the IUC Code constitutes a legal presumption of tax incidence, and is necessarily rebuttable, in light of Article 73 of the General Tax Law.
18 - That the declaration of sale, forming part of Doc. No. 2, attached to the request for arbitral judgment, should be regarded as suitable for rebutting the presumption established in Article 3(1) of the IUC Code, from which it also results that the transfer of the ownership of the vehicle occurred at a date prior to the date of occurrence of the taxable event underlying the disputed assessment.
D - RESPONSE OF THE RESPONDENT
19 - The Respondent, Tax and Customs Authority (hereinafter referred to as TA), submitted its Response on 02-02-2015, as well as a copy of the Tax Administrative File, having then referred to Arbitral Decisions rendered in Cases Nos. 113/2014-T; 114/2014-T; 170/2014-T; 178/2014-T and 179/2014-T, which it mentions in Article 37 of its Response, which pronounce on matters related to the exceptions it raises.
20 - In the said Response, the TA presents its defence by raising, from the outset, various exceptions, which are specified in:
-
Incompetence of the Arbitral Tribunal ratione materiae, with respect to the lack of subject matter of the request for arbitral judgment.
-
Material incompetence of the Arbitral Tribunal, to the extent that we are not dealing with an official assessment.
-
Untimely submission of the request for arbitral judgment.
21 - The said exceptions sustain and translate the Respondent's defence as follows:
BY PEREMPTORY EXCEPTION
22 - The Respondent considers that the request for arbitral judgment underlying this proceeding stems from an error in which the Claimant labours, to the extent that it reacts against a Collection Notice as if it were an official assessment.
23 - The said Collection Notice, in the Respondent's view, does not undoubtedly constitute an official assessment, but rather a document for the collection of IUC, extracted by the Claimant from the Finance Portal. (See Articles 6 and 7 of the Response)
24 - It likewise considers that, clearly and unequivocally, it follows from the document in question that the Respondent did not proceed to issue or notify any official assessment of IUC for the year 2013, relating to the vehicle …-…-….
25 - In these circumstances, the Respondent considers that the subject matter of the request for arbitral judgment is not based on an official assessment, but rather on a collection document which the Claimant entirely voluntarily extracted from the Finance Portal and upon which it proceeded to payment. (See Article 13 of the Response)
BY DILATORY EXCEPTION
26 - The Respondent considers that it did not issue any official assessment act of IUC relating to the vehicle …-…-…, with respect to the year 2013, and that to arbitral tribunals falls, pursuant to Article 2(1)(a) of the RJAT, the declaration of illegality of assessment acts, self-assessment acts, withholding at source acts and payment on account acts. (See Articles 33 and 34 of the Response)
27 - The Respondent thus considers that we are not dealing with official assessment acts, but rather with collection documents, therefore, as there are no acts assessing taxes, the Arbitral Tribunal is materially incompetent to examine and decide on the claim which is the subject matter of the dispute, underlying the present proceeding.
28 - The Respondent also considers that, even in the hypothesis of understanding that we are dealing with an act assessing IUC, the period from which the Claimant could react against such an assessment act had long since expired. In effect,
29 - The deadline for payment, as stated in the Collection Notice, corresponds to 02-12-2013, and from this date onwards that the Claimant has a period of 90 days to file the request for arbitral judgment, which, having been filed on 17-10-2014, is clearly untimely, by violation of Article 10(1)(a) of the RJAT.
BY REBUTTAL
30 - The Respondent considers that the allegations of the Claimant cannot at all proceed, as they make an interpretation and application of the legal norms applicable to the case that is notoriously wrong, to the extent that it incurs not only "in a biased reading of the letter of the law", but also in the adoption "of an interpretation that does not heed the systematic element, violating the unity of the regime" enshrined in the entire IUC Code and, more broadly, in the entire legal-tax system, also following an "interpretation that ignores the ratio of the regime enshrined in the article in question". (See Articles 52, 53 and 54 of the Response)
31 - The tax legislator, in establishing in Article 3(1) of the IUC Code, who are the passive subjects of the IUC, expressly and intentionally established that they are the owners of the vehicles, being considered as such the persons in whose name they are registered, noting that,
32 - The said 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 name they are registered". (See Articles 59 and 60 of the Response)
33 - The wording of Article 3 of the IUC Code does not permit invoking, as the Claimant does, that it enshrines a presumption, to the extent that what is established in the said article corresponds to a clear choice of legislative policy adopted by the legislator, whose intention, within its freedom of legislative configuration, was that, for the purposes of IUC, those who appear as such in the motor vehicle register be considered owners, adding, on the one hand, that the contrary understanding corresponds to an interpretation contra legem, and that, on the other hand, it is in this direction that points,
34 - The "understanding already adopted by the Jurisprudence of our courts", transcribing for this purpose part of the judgment of the Administrative and Tax Court of Penafiel, rendered in Case No. 210/13.OBEPNF. (See Articles 67 to 71 of the Response)
35 - On the systematic element of interpretation, it considers that the solution advocated by the Claimant is intolerable, finding the understanding endorsed by the latter no legal support whatsoever. (See paragraph 72 of the Response)
36 - On the ignorance of the "ratio" of the regime, the TA considers that the interpretation advocated by the Claimant is manifestly wrong, to the extent that what was aimed at by the tax legislator was the creation of a tax based on the taxation of the owner of the vehicle, as stated in the motor vehicle register.
37 - It adds that the new IUC taxation regime substantially altered the automobile taxation regime, with the passive subjects of the tax becoming those owners entered in the property register, regardless of the circulation of vehicles on the public highway, with the Single Circulation Tax being owed by the persons who appear in the register as owners of the vehicles. (See paragraph 107 of the Response)
38 - In this sense, it states that this is the understanding set out, notably, in recommendation No. 6-B/2012, of 22/06/2012, from the Ombudsman addressed to the State Secretary for Public Works, Transportation and Communications.
39 - The interpretation conveyed by the Claimant is, also, in addition to what has already been mentioned, at variance with the Constitution, namely because, among others, it violates the principle of the efficiency of the tax system, to the extent that it results in an impediment and increased costs of the competencies attributed to the Respondent, with obvious prejudice to the interests of the Portuguese State of which both the Claimant and the Respondent form part. (See paragraph 115 of the Response)
40 - The Respondent further adds that it was the Claimant itself who gave rise to the filing of the request for arbitral judgment, and therefore can only complain about itself as to the assessment now challenged, and should consequently be condemned to pay the arbitral costs pursuant to Article 527(1) of the CPC as provided by Article 29(1)(e) of the RJAT.
41 - Finally, in light of all the arguments it has adduced, it considers that the exceptions it has raised should be judged as founded, and that, on the other hand, the request for arbitral judgment underlying this proceeding should be judged as unfounded, with the Respondent entity being absolved accordingly.
E - ISSUES TO BE DECIDED
42 - It is therefore necessary to examine and decide.
43 - In light of the foregoing, regarding the positions of the Parties and the arguments presented, it is necessary to examine and decide:
a) The peremptory exception of incompetence of the Arbitral Tribunal ratione materiae, with respect to the lack of subject matter of the request for arbitral judgment;
b) The dilatory exceptions relating to the non-existence of an official assessment act of IUC and to the untimely submission of the request for arbitral judgment;
c) The establishment, or not, of a presumption in the norm of subjective incidence contained in Article 3(1) of the IUC Code;
d) The legal value of vehicle registration in the economy of the IUC Code, particularly for the purposes of the subjective incidence of this tax;
e) If, on the date of the occurrence of the taxable event, the vehicle had previously already been alienated, although the right of ownership of this vehicle continues to be registered in the name of its prior owner, is the passive subject of the IUC, for the purposes of Article 3(1) of the IUC Code, the prior owner or the new owner;
F - PROCEDURAL REQUIREMENTS
44 - The Arbitral Tribunal is duly constituted and is materially competent, pursuant to Article 2(1)(a) of Decree-Law No. 10/2011, of 20 January.
45 - The Parties have legal capacity and standing, are duly authorized and are legally represented (see Article 4 and Article 10(2) of Decree-Law No. 10/2011 and Article 1 of Ordinance No. 112/2011, of 22 March).
46 - The proceeding does not suffer from vices that would invalidate it.
47 - Taking into account both the tax administrative file, a copy of which was duly presented by the TA, and the documentary evidence attached to the proceedings, as well as the submissions produced, it is now necessary to present the factual matter relevant to the understanding of the decision, which is set out as follows.
G - REGARDING THE RAISED EXCEPTIONS
48 - Taking into account Articles 97, 578, 579 and 608, all of the CPC and Article 13 of the Code of Procedure in Administrative Courts (CPTA), applicable here by virtue of Article 29(1)(c) and (e) of the RJAT, the said exceptions should be known first.
REGARDING THE PEREMPTORY EXCEPTION
49 - The Respondent, as already mentioned above, bases the said exception on what it considers to be an error in which the Claimant incurs, by confusing a collection notice with an official assessment, understanding that,
50 - Document No. 1, identified in the case, cannot be regarded as embodying an official assessment, given that it was not generated nor sent by the Respondent to the Claimant.
51 - Such document, not having been issued by the Respondent entity, is nothing more than a mere collection notice that the Claimant issued and voluntarily extracted from the Finance Portal, via the internet.
52 - Thus, the TA considers that the "subject matter of the present request for arbitral judgment is not based on an official assessment act issued by the Respondent, but rather [on] a collection document which the Claimant entirely voluntarily extracted from the Finance Portal, and upon which it proceeded to payment", concluding from this that, as no assessment act was issued, the said request for arbitral judgment lacks subject matter, therefore,
53 - As it falls to arbitral tribunals, in light of Article 2(1)(a) of the RJAT, namely the declaration of illegality of acts assessing taxes, there is no, in the present case, competence of the arbitral tribunal constituted for the purposes of this proceeding.
54 - It further adds that, even if it is not so judged and it is understood that we are dealing with a self-assessment act, its challenge must necessarily be preceded by a gracious complaint, as provided for by Article 131/1 of the Tax Procedural Code, which, in the present case, did not occur.
Let us see,
55 - The document attached to the proceedings, and upon which the Claimant relied in order to proceed to the payment of IUC relating to the vehicle identified in the aforementioned Document No. 1 identified in the case, apart from being duly identified by means of its own numbering by the TA and having the date of its issuance recorded, contains the tax identification and address of the Claimant, mentions the certain amount/value of IUC to be paid and has both the indispensable reference for payment, so that it can be made, as well as an indication of the various possible payment methods, as well as the deadline for this purpose.
56 - The amount to be paid, although respecting the amount resulting from the sum of IUC owed and the corresponding compensatory interest, is, however, properly itemized in the said document, given that there is a demonstration of the respective assessments, whether, that is, as IUC, where, namely, the vehicle's registration number, the year and month of registration, as well as its cylinder capacity are mentioned, whether regarding the said interest.
57 - Arriving here, it is important to recall that assessments are acts of the administration that, combining a complex of elements, which, in the case, correspond to those set out above, determine the amount of tax owed.
On the other hand,
58 - It is certain that the Claimant withdrew from its page on the Finance Portal the document designated by Assessment Notice/Assessment Demonstration, which is attached to the case, and proceeded to pay the amounts listed therein, which cannot fail to mean that the corresponding and underlying tax assessment had already been "generated" (carried out) based on computer programming, given that its automaticity necessarily results from a computer program with clear and precise objectives, previously outlined by the programmer, that is to say, by the Tax Administration.
59 - In the case of the present proceedings, the Claimant had knowledge of the tax act, in accordance with its revelation on "its page" on the Finance Portal, and proceeded to pay the amount of tax assessed, an act which, although performed in the IT System, binds the Tax Administration.
60 - In these circumstances, we are, unequivocally, dealing with an assessment of IUC carried out by the TA, brought to the sphere of knowledge of the Claimant via its placement on the "page" which is "reserved" for it on the Finance Portal, constituting a harmful act which, in light of what is provided for and established in Article 9(2) and Article 95(1), both of the General Tax Law, can be challenged by interested parties.
61 - In light of the foregoing, the tribunal cannot agree with the Respondent's understanding as to the lack of subject matter of the request for arbitral judgment, concluding thus that we are dealing with the existence of an act assessing IUC capable of being challenged, therefore the peremptory exception invoked by the TA does not proceed.
62 - Thus, the understanding that we are dealing with a situation of self-assessment is also set aside, given that self-assessment is that which is entirely done by individuals, in contradistinction to assessment which is done by the Tax Administration, and one can only speak of self-assessment when it is the taxpayer itself that does the calculations/computations of the tax to be paid, that is, when it is the passive subject that applies the tax rate to the taxable matter, which, absolutely, does not occur in the case of the present proceedings (See namely, José Casalta Nabais, in Tax Law - (Reprint) Almedina, Coimbra - March - 2002, p. 252; Vitor Faveiro, in Fundamental Notions of Portuguese Tax Law, 1st vol., Coimbra Publisher - 1984, pp 409/410 and Pedro Soares Martinez, in Manual of Tax Law, Almedina, Coimbra, 1983, pp. 295/296.
63 - On this subject, it is worth noting, similarly to what is done in the Decision of the Administrative Supreme Court, of 31-05-2006, Case JSTA00063227, available at www.dgsi.pt., that the "latest development" with respect to the concept of self-assessment is enshrined in Article 120(1) of the Spanish General Tax Law, approved by Law 58/2003, of 17 December, when it provides that "self-assessments are statements in which the tax-bound parties, in addition to communicating to the Administration the data necessary for the assessment of the tax and other information, make by themselves the operations of qualification and quantification necessary to determine and pay the amount of the tax debt or, if applicable, determine the quantity to be refunded or offset".
64 - In these circumstances, we are dealing with an act assessing IUC, which is included in the list of claims subject to examination by the arbitral tribunal, as follows from Article 2(1)(a) of the RJAT, therefore the singular arbitral tribunal constituted is materially competent to know of the request for arbitral judgment underlying the present proceeding.
REGARDING THE DILATORY EXCEPTIONS
REGARDING THE NON-EXISTENCE OF THE ASSESSMENT ACT
65 - In light of the thesis it has been sustaining, the TA reaffirms that we are not, in the case, dealing with a tax act, but rather with a collection document.
66 - Thus, it concludes that the singular arbitral tribunal constituted is materially incompetent to examine and decide on the request for arbitral judgment underlying the present proceeding, taking into account the non-existence of an act assessing IUC issued by the Respondent, which constitutes a dilatory exception barring the examination of the merits of the case.
67 - The said issue is intimately linked to the TA's understanding of the lack of subject matter of the request for arbitral judgment, therefore with the said understanding set aside, the question raised regarding the incompetence of the arbitral tribunal is also resolved. In effect,
68 - To the extent that we are dealing with an act assessing IUC and given that it is included in the list of claims subject to examination by the arbitral tribunal, as follows from what is enshrined in Article 2(1)(a) of the RJAT, the singular arbitral tribunal constituted is materially competent to know of the request for arbitral judgment underlying the present proceeding, therefore, equally, the dilatory exception of incompetence ratione materiae raised by the Respondent does not proceed.
69 - Arbitral tribunals, indeed, in accordance with Article 2(1)(a) of the RJAT, are competent to examine the claims for "declaration of illegality of acts assessing taxes, self-assessment acts, withholding at source acts and payment on account acts".
70 - On the other hand, Article 4(1) of the RJAT provides that the binding of the Tax Administration to the jurisdiction of arbitral tribunals depends on an ordinance of the members of Government responsible for the areas of finance and justice.
71 - The binding referred to in the said Article 4(1) of the RJAT was established by Ordinance No. 112-A/2011, of 22 March, whose Article 1 binds to the jurisdiction of arbitral tribunals the services of the DGCI and DGAIEC, now forming part of the current TA - Tax and Customs Authority.
72 - Article 2 of the said Ordinance provides that the aforementioned services are bound to the jurisdiction of arbitral tribunals that operate in CAAD, which have as their purpose the examination of claims relating to taxes whose administration is entrusted to them, referred to in Article 2(1) of Decree-Law No. 10/2011, of 20 January.
73 - It is thus clear that to examine and decide the exception of incompetence of this tribunal, the judgment made regarding the problem of the administration of IUC is decisive, which implies knowing who is responsible for the administration of such tax.
74 - Now, being certain that in order to administer a tax, in the case IUC, it is necessary, namely, to be holder of the competence to assess and collect the tax in question (see Article 1(3) of the General Tax Law), and that the tax in question was assessed by the Entity that, for this purpose, had legal competence, it cannot fail to be understood that the present tribunal is materially competent to know of the Claimant's request, therefore the exception in question, as already mentioned above, cannot proceed.
REGARDING THE UNTIMELY SUBMISSION OF THE REQUEST FOR ARBITRAL JUDGMENT
75 - Regarding the submission of the request for arbitral judgment, the Respondent considers that it was submitted untimely, given that in the assessment mentioned in the said request, embodied in Document No. 1 identified in the case, there appears, in its understanding, a deadline for payment which leads to consideration of the non-observance of the 90-day period legally provided for this purpose, counted from the end of the deadline for payment contained in that document.
76 - In this framework, it is important to know what is the date from which the 90-day period should be counted for filing the request for arbitral judgment, relating to the vehicle with registration …-…-…, identified in the case.
Let us see,
77 - In the said Document there are two dates: one, relating to the date on which it was issued; another, indicating the deadline for payment.
78 - The cited Document No. 1 thus has, respectively, the date of 23-07-2014 and 02-12-2013.
79 - With respect to the counting of the period for the purposes of the timely submission to CAAD of the request for arbitral judgment, it is important to take into account that the TA, within the period of limitation of the right to assess, may proceed to notify the taxpayer, therefore, if regarding the document in question the deadline therein stated for payment of the tax is considered as being the relevant date for the purposes of challenge and not the date on which it was issued by the TA's computer system, it would preclude the right of the injured party to file a complaint, judicial challenge or appeal.
80 - If it were not so and being that, on one hand, the Claimant only had knowledge of the content of the assessment in question on the date on which the said Document was issued and that, on the other hand, Notifications can always be made within the period of limitation, the passive subject would be, definitively, prevented from defending the aforementioned rights within the 90-day period legally established for this purpose, if the same were to be counted from the deadline for payment stated in the Document created by the computer system and not from the date on which that Document was issued.
Note that the said right of challenge, in addition to being inscribed in Articles 20(1) and 268(4), both of the Constitution, has legal recognition in Article 96 of the Tax Procedural Code, whose paragraph 1, as taught by Jorge Lopes de Sousa, in Tax Procedure and Process Code, Annotated and Commented, Volume II, 6th Edition, Áreas Publisher, SA, Lisbon, 2011, p. 28, enshrines a choice for the subjectivist doctrine, for which the primary function of tax litigation is "[…] the guarantee of judicial protection of rights or legitimate interests, the object of the court proceeding being the tax legal relationship […]". The aforementioned right of challenge has its realization enshrined in Articles 9(1) and 95(1), both of the General Tax Law, and it is worth noting the teachings of Diogo Leite Campos, Benjamim Silva Rodrigues and Jorge Lopes de Sousa, in General Tax Law, Annotated and Commented, 4th Edition 2012, Encontro de Escrita, Lda, Lisbon, p. 824, when regarding the said right they state that the "[…] importance given to the right of challenge […] of harmful acts is explained solely by the fact that we are in a domain in which the activity of the Administration is an activity essentially aggressive of rights and interests legally protected and not an activity of provision and in which that aggression is carried out, as a rule, through acts of positive content unfavorable to the taxpayer (assessment of taxes) or of negative content equally unfavorable (non-recognition of tax benefits)".
81 - The Claimant not having been notified, in the formal manner provided for Official Assessments, the counting of the 90-day period for the submission of the request for arbitral judgment shall be based on the date on which such documents (Assessment Notices/Assessment Demonstrations) were issued on the Finance Portal. (See Article 102(1)(f) of the Tax Procedural Code).
82 - In these circumstances, with the request for arbitral judgment having been filed on 17-10-2014, it is concluded that the exception raised by the Respondent regarding the untimeliness of the request for arbitral judgment, relating to the assessment of IUC for the year 2013, relating to the vehicle identified in the case, with registration …-…-… does not proceed.
II - GROUNDS
H - FACTUAL GROUNDS
83 - As regards factual matter of relevance, this tribunal considers the following facts to be established:
84 - The Claimant proceeded with the sale of the vehicle identified in the proceedings, as shown in the Declaration of Sale presented as evidence of the aforementioned transaction, where, namely, the name of the seller and buyer, the date of sale of the vehicle, as well as the price of the said sale are referenced.
85 - The sale of the said vehicle, in light of the mentioned Declaration of Sale, occurred at a date prior to the taxable event and to the date of its due date.
86 - The Claimant proceeded to pay the IUC, as shown in the proof of payment, forming part of Doc. No. 8, attached to the proceedings, relating to the vehicle with registration …-…-…, identified in the proceedings, based on the payment reference number stated in the Assessment Demonstration/Assessment Notice, available on its "page" on the Finance Portal.
87 - The Respondent considers that the Document supporting the payment of IUC relating to the vehicle with registration …-…-… is a "mere collection notice" generated and extracted by the Claimant itself from the Finance Portal, via the internet.
88 - The Claimant considers that Article 3(1) of the IUC Code enshrines a presumption, and that the Declaration of Sale attached to the proceedings embodies a document suitable for rebutting the said presumption.
89 - The Respondent considers that the wording of Article 3(1) of the IUC Code does not permit invoking that it enshrines a presumption, to the extent that what is established in the said article corresponds to a clear choice of legislative policy adopted by the legislator, whose intention, within its freedom of legislative configuration, was that, for the purposes of IUC, those who appear as such in the motor vehicle register be considered owners.
GROUNDS FOR FACTS FOUND PROVED
90 - The facts found to be proved are based on the documents mentioned with respect to each of them, to the extent that their correspondence to reality was not questioned.
FACTS NOT PROVED
91 - There are no facts found to be not proved, given that all facts regarded as relevant for the examination of the claim were proved.
I - GROUNDS OF LAW
92 - The factual matter is fixed, it is now important, with no further exceptions to be known and decided, and with competence of the tribunal being fixed, to enter into the substantive issue at hand in the present proceedings, which boils down to the examination of the act assessing IUC relating to the year 2013, relating to the vehicle with registration …-…-…, identified in the proceedings, which the Claimant considers tainted with illegality, which is challenged by the TA. It is therefore necessary to proceed now to the legal subsumption of the underlying facts and to determine the applicable law, in accordance with the issues to be decided enumerated in paragraph 43.
93 - The question which, in light of the foregoing, remains as essential, regarding which there are, moreover, absolutely opposed understandings between the Claimant and the TA, is whether the norm of subjective incidence contained in Article 3(1) of the IUC Code establishes or does not establish a rebuttable presumption.
94 - The positions of the parties are known. In effect, for the Claimant, that norm enshrines a rebuttable legal presumption, while for the Respondent Article 3 of the IUC Code does not permit understanding that it enshrines a presumption, to the extent that what is established in the said article corresponds to a clear choice of legislative policy adopted by the legislator, whose intention, within its freedom of legislative configuration, was that, for the purposes of IUC, those who appear as such in the motor vehicle register be considered owners.
J - INTERPRETATION OF THE NORM OF SUBJECTIVE INCIDENCE CONTAINED IN ARTICLE 3(1) OF THE IUC CODE
95 - It is important to note, first of all, the uncontested understanding, in the doctrine, that in the interpretation of tax laws the general principles of interpretation apply fully. This is an understanding which, moreover, finds accommodation in Article 11 of the General Tax Law.
96 - It is commonly accepted that, with a view to grasping the meaning of the law, interpretation should resort to various means, it being important, first, to reconstruct the legislative thought through the words of the law, which means seeking, from the outset, its literal meaning. The said meaning, as is also uncontested, corresponds to the lowest degree of interpretative activity, being important therefore to value it and assess it in light of other criteria, intervening, for this purpose, the so-called elements of a logical nature, whether of rational sense (or teleological), of a systematic character or of a historical order.
97 - With respect to the interpretation of tax law, it is worth recalling, as moreover jurisprudence has been pointing out, namely in Administrative Supreme Court Decisions of 05/09/2012 and 06/02/2013, Cases Nos. 0314/12 and 01000/12 respectively, available at: www.dgsi.pt, the importance of the provision in Article 9 of the Civil Code (CC), as a fundamental precept of legal hermeneutics, which, in this context, cannot fail to be taken into account.
98 - Interpretative activity is thus not avoidable in the resolution of doubts raised by the application of the legal norms in question.
99 - In the view of FRANCESCO FERRARA, in Interpretation and Application of Laws, translation by MANUEL DE ANDRADE, (2nd ed.), Arménio Amado, Editor, Successor - Coimbra, 1963, p. 131, the said interpretative activity "[…] is unique [and] complex, of a logical and practical nature, as it consists in inducing from certain circumstances the legislative will", adding, ibidem, p.130, that "Looking at the practical application of law, legal interpretation is by its nature essentially teleological".
100 - The purpose of interpretation, the said author tells us, ibidem, pp. 134/135, is "[…] to determine the objective meaning of the law […]". The law, being the expression of the will of the State, is a "[…] will that persists autonomously, detached from the complex of thoughts and tendencies that animated the persons who contributed to its emanation". Hence the activity of the interpreter should be to "[…] seek not what the legislator wanted, but what the law objectively appears to want: the mens legis and not the mens legislatoris".
101 - For MANUEL DE ANDRADE, citing FERRARA, in Essay on the Theory of Interpretation of Laws, p. 16 (2nd ed.), Arménio Amado, Editor, Successor - Coimbra, 1963, "Interpretation seeks the voluntas legis, not the voluntas legislatoris […], and it seeks the actual will of the law, not its will at the moment of application: it is not therefore a will of the past, but a will always present as long as the law does not cease to be in force. It is to say that the law, once formed, detaches itself from the legislator, gaining autonomous consistency; and, more than that, becomes a living entity, which is not merely an inanimate body […]". (emphasis ours)
REGARDING THE LITERAL ELEMENT
102 - It is in this framework that it will be important to find an answer to the issues to be decided, particularly to the one aimed at knowing whether Article 3(1) of the IUC Code establishes or does not establish a presumption, beginning directly from the literal element.
103 - Being the literal element the first that should be used in search of the legislative thought, it is necessarily from there that one should begin, seeking to achieve the meaning of the expression being considered as such the persons registered in the said Article 3(1) of the IUC Code.
104 - Article 3(1) of the said IUC Code provides that "The passive subjects of the tax are the owners of the vehicles, being considered as such the natural or legal persons, of public or private law, in whose name the same are registered." (emphasis ours)
105 - The formulation used in the said article, it is worth noting, first of all, resorts to the expression "being considered", which raises the question of whether to such an expression a presumptive meaning can be attributed, thus equating it to the expression "presuming". These are expressions frequently used with equivalent meanings, as is apparent in various situations of Portuguese legal order.
106 - In truth, there are countless norms that enshrine presumptions, combining for this purpose, moreover, the verb to consider in various ways. It is not therefore difficult to identify situations in various areas of law in which the expression "being considered" or "considers" is used with meaning equivalent to the expression "presuming" or "presumes", expressions which, whether at the level of irrebuttable presumptions, whether in the context of rebuttable presumptions, is very often given an equivalent meaning.
107 - Not deeming it pertinent to again reference examples revealing such situations, given that such examples are abundantly enumerated in some of the decisions of tax arbitral tribunals, of which example are those rendered in the framework of Cases Nos. 14/2013 - T, 27/2013 - T and 73/2013 - T, we hereby consider them fully reproduced.
108 - In these circumstances, being the aforementioned expressions recurrently used with an equivalent purpose and meaning, it can be concluded that it is not only the use of the verb "presume" that places us before a presumption, but also the use of other terms can serve as a basis for presumptions, as, namely, occurs with the expression "being considered", which, in our view, is precisely what occurs in Article 3(1) of the IUC Code.
It is thus an understanding which, not appearing to correspond to a biased reading of the letter of the law, as the TA considers, proves to be in harmony with Article 9(2) of the Civil Code, to the extent that it assures the legislative thought the minimum of verbal correspondence required therein.
109 - In the literal perspective, in light of what is set out above, there is no doubt that the interpretation that considers a rebuttable presumption established in Article 3(1) of the Code has total support in the formulation enshrined there, given the aforementioned equivalence between the expression "being considered as such" and the expression "presuming as such".
The linguistic element, as mentioned above, being the first that should be used in search of the legislative thought, should, however, in order to find the true meaning of the norm, be submitted to the control of the other elements of interpretation of a logical nature (whether such elements be of rational sense (or teleological), of a systematic character or of a historical order).
110 - In effect, as is gathered from the work of MANUEL DE ANDRADE, cited above, p. 28, "[…] purely linguistic analysis of a legal text is merely the beginning […], the first degree […] or the first act of interpretation. In other words, it only furnishes us with the probable legislative thought and will […] or, rather, the grammatical delineation of the possible consistency of the law […], the framework within which its true content resides".
111 - Thus being, let us then examine the rational (or teleological) element.
REGARDING THE HISTORICAL AND RATIONAL (OR TELEOLOGICAL) ELEMENT
112 - Attending to the elements of interpretation with a historical bent, it is necessary from the outset to recall what is expressly set out in the explanatory memorandum of Bill No. 118/X of 07/03/2007, underlying Law No. 22-A/2007 of 29/06, when it states there that the reform of automobile taxation is achieved through the displacement of part of the tax burden from the moment of acquisition of vehicles to the circulation phase and aims to "form a coherent whole" which, although intended for the raising of public revenue, intends for the same to be raised "in the measure of the environmental costs that each individual causes to the community", adding with respect 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 enshrined, thus making it clear that the tax, as a whole, is subject to the idea that taxpayers should be burdened in the measure of the cost they cause to the environment and the road network, and this is the raison d'être of this tax figure".
113 - In this framework, it seems clear that the rationality of the new system of automobile taxation could only coexist with a passive subject of the tax, on the premise that this one, and no other, is the real and effective subject causing road and environmental damage, as follows from the principle of equivalence, inscribed in Article 1 of the IUC Code.
114 - The said principle of equivalence, which informs the current Single Circulation Tax, has, at least in the part that specifically relates to the environment, underlying the polluter-pays principle, and concretizes the idea inscribed therein that whoever pollutes must, for that reason, pay. The said principle has, moreover, in some way, constitutional basis, to the extent that it represents a corollary of Article 66(2)(h) of the Constitution.
115 - What is sought to be achieved through the said principle is to internalize negative environmental externalities, which, after all, in the case of the present proceedings, means nothing more than ensuring that the harms that befall the community, arising from the use of motor vehicles, are assumed by their owners, as economic-user subjects, as costs that they alone should bear.
116 - Returning to the aforementioned principle of equivalence, it will be said that the same has, in the economy of the IUC Code, an absolutely structuring role, on which the normative edifice of the Code in question is based. The said principle cannot therefore fail to constitute an aim that is legally intended to be pursued, embodying, in that measure, a legal sense that must be considered by the interpreter.
117 - With respect to the said principle, it is worth noting what Sérgio Vasques tells us, when, in Special Consumption Taxes, Almedina, Coimbra, 2001, p. 122, with respect to the technical implementation of that principle considers that "In obedience to the principle of equivalence, the tax must correspond to the benefit that the taxpayer derives from public activity; or to the cost that the taxpayer imputes to the collectivity by its own activity".
118 - Addressing the IUC specifically, the said author adds, op. cit., that "Thus, a tax on motor vehicles based on a rule of equivalence will be equal only if those who cause the same road wear and the same environmental cost pay the same tax; and those who cause different wear and environmental cost pay different tax also", adding that the implementation of the said principle "[…] dictates other requirements still regarding the subjective incidence of the tax […]".
119 - In light of what has just been mentioned, it becomes clear that the taxation of the real and effective polluters corresponds to an important aim aimed at by the law, in the case by the IUC Code, an aim which, in the words of Francesco Ferrara, in Interpretation and Application of Laws, 2nd Edition, Arménio Amado, Editor, Successor, Coimbra, 1963, p. 130, must always be before the eyes of the jurist, given that, as the aforementioned author states there, "[…] legal interpretation is by its nature essentially teleological".
120 - Thus it should be noted that, whether in light of the said historical elements, whether in the light of the elements of a rational or teleological nature of interpretation that are referenced, it is equally necessary to conclude that Article 3(1) of the IUC Code can only enshrine a rebuttable presumption.
121 - It is still necessary to consider the systematic element of interpretation.
REGARDING THE SYSTEMATIC ELEMENT
122 - On the systematic element BAPTISTA MACHADO tells us, in Introduction to Law and to Legitimizing Discourse, p. 183, that "this element comprises the consideration of the other provisions that form the normative complex of the institute in which the norm being interpreted is integrated, that is, which regulate the same matter (context of the law), as well as the consideration of legal provisions that regulate parallel normative problems or similar institutes (parallel places). It also comprises the systematic place that belongs to the norm being interpreted in the global legal order, as well as its consonance with the spirit or intrinsic unity of the entire legal order".
123 - It is known that a legal principle, in the case the principle of equivalence, does not exist in isolation, but is rather linked by an intimate nexus with other principles that integrate, at the more global level, the respective legal order, in the case, with the other principles embodied in the system inscribed in the IUC Code. In that sense, each article of a given legal instrument, in the case the IUC Code, will only be understandable if we situate it before the other articles that follow or precede it.
124 - With respect to the systematization of the IUC Code, concerns of an environmental order were determinative in order that the aforementioned principle of equivalence be, from the outset, inscribed in the first article of the said Code, which necessarily leads to the subsequent articles, to the extent that they have foundation in such principle, being influenced by it. This was the case, namely, with the taxable base, which became constituted by diverse elements, particularly those concerning levels of pollution, and with the rates of the tax, established in Articles 9 to 15, which were influenced by the environmental component, and naturally also with the subjective incidence itself, provided for in Article 3 of the IUC Code, which cannot escape the said influence.
125 - The systematic element of interpretation and the interaction among the diverse articles and principles that integrate the system inscribed in the IUC Code likewise appeal to the understanding that what is established in Article 3(1) of the IUC Code cannot fail to constitute a presumption.
126 - Article 9(1) of the Civil Code provides that the search for the legislative thought should "[…] especially take into account […] the unity of the legal system, the circumstances in which the law was elaborated and the specific conditions of the time in which it is applied", circumstances and conditions which, today more than ever, are sensitive to the environment and respect for questions related to it.
In this context, the considerations formulated regarding the aforementioned elements of interpretation, whether of a literal character or of a historical bent, whether of a rational or systematic nature, point in the direction that Article 3(1) of the IUC Code establishes a presumption, or in other words, the ratio legis of that norm, as the reason or purpose that should reasonably be attributed to it, cannot fail to view the expression "being considered as such", used in the said article, as revealing the establishment of a presumption, which means that the passive subjects of the IUC being, in principle, the owners of the vehicles, being considered as such the persons in whose name they are registered, may, ultimately, be others.
It will indeed be said that the establishment of the presumption in the aforementioned norm corresponds to the only interpretation that accords with the principle of equivalence mentioned above.
127 - Still with respect to the presumption that has been mentioned and that is understood to be enshrined in Article 3(1) of the IUC Code, it is worth noting what is written in the preamble of the recently published Decree-Law No. 177/2014, of 15 December, when, referring to motor vehicles, considers that "The failure to regularize the registration of ownership presents grave consequences, both for those who remained owner in the register and for those who acquired and did not promote registration in their favor, as well as for the various public entities that base their decisions on ownerships which they presume to be substantively true". (emphasis ours)
128 - Arriving here, it is worth recalling what is provided for in Article 73 of the General Tax Law, when it establishes that "The presumptions enshrined in the norms of tax incidence always admit proof to the contrary", (emphasis ours), which means that the legal presumption, which appears to be established in Article 3(1) of the IUC Code, will necessarily be rebuttable.
129 - In this framework, the passive subjects of the tax are presumptively the persons in whose name the vehicles are registered, that is, the said passive subjects are, in principle, and only in principle, the persons in whose name such vehicles are registered.
130 - In effect, if the owner in whose name the vehicle is registered, comes, as occurs in the present proceeding, to indicate and prove who was the owner of the vehicle in question, nothing justifies, in our understanding, that the prior owner be held responsible for payment of the IUC that may be owed.
131 - It is further the case that this interpretation of Article 3 of the IUC Code is the one that, in our opinion, best accords with the principles to which the TA should subject its activity, namely the principle of inquiry, in order to discover material truth.
132 - With respect to the said principle of inquiry, it is worth alluding to the teachings of Diogo Leite Campos, Benjamim Silva Rodrigues and Jorge Lopes de Sousa, in General Tax Law, Annotated and Commented, 4th Edition 2012, Encontro de Escrita, Lda, Lisbon, p. 488/489, when, in annotations to the cited Article 58, they state that the administration has a dynamic role in the collection of elements with relevance to the decision, adding that the "[…] lack of diligences deemed necessary for the construction of the factual basis of the decision will affect it not only in the hypothesis of being mandatory (violation of the principle of equality), but also if the materiality of the facts considered is not proven or if, in that basis, relevant facts alleged by the interested party are lacking, due to insufficiency of proof that the Administration should have gathered […]".
The principle of inquiry, the said authors add, op. cit, "[…] is concerned with the powers (-duties) of the Administration to proceed to the investigations necessary to the knowledge of the facts essential or determinative for the decision […]".
133 - The material truth, embodied in the present case, in the circumstance that the ownership of the vehicle identified in the request for arbitral judgment had been alienated by the Claimant at a date prior to the date of due date of the tax, that is, the date from which the tax creditor could enforce its right to payment of the tax against the debtor, was, in light of the elements inscribed in the administrative file, within the knowledge of the TA.
L - REGARDING THE ACQUISITION OF THE OWNERSHIP OF THE VEHICLE AND THE VALUE OF THE REGISTRATION
134 - First of all, it should be added, in light of what will, explicitly, be said below regarding the value of the registration, that acquirers of vehicles become owners of those same vehicles by way of the execution of the corresponding purchase and sale contracts, with registration or without it.
135 - There are three articles of the Civil Code that should be taken into account with respect to the acquisition of the ownership of a motor vehicle. They are, from the outset, Article 874, which establishes the notion of purchase and sale contract, as being "[…] the contract by which the ownership of a thing, or another right, is transferred, in consideration of a price"; Article 879, in whose section (a) is established, as essential effects of the purchase and sale contract, "the transfer of the ownership of the thing or of the holding of the right" and Article 408, which has as its heading contracts with real effectiveness, and establishes in its paragraph 1, that "the constitution or transfer of real rights over a determined thing is given by mere effect of the contract, save for the exceptions provided for in law". (emphasis ours)
We are indeed in the domain of contracts with real effectiveness, which means that their execution causes the transfer of real rights, in the case motor vehicles, determined by mere effect of the contract, as expressly follows from the norm mentioned previously.
136 - With respect to the said contracts with real effectiveness, it is worth noting the teachings of Pires de Lima and Antunes Varela, when, in annotations to Article 408 of the Civil Code, they tell us that "From these contracts called real (quoad effectum), because they have as their immediate effect the constitution, modification or extinction of a real right (and not merely the obligations tending to that result) are distinguished the so-called real contracts (quoad constitutionem), which require the delivery of the thing as an element of their 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.
137 - Also from jurisprudence, namely from the Decision of the Supreme Court of Justice No. 03B4369 of 19/02/2004, available at: www.dgsi.pt, it is gathered that, in light of the provision in Article 408(1) of the Civil Code, "the constitution or transfer of real rights over a determined thing is given by mere effect of the contract, save for exceptions provided for in law". This is the case of the purchase and sale contract of a motor vehicle (Articles 874° and 879, section a) of the Civil Code), which does not depend on any special formality, being valid even when entered into in verbal form - in accordance with Decision of the Supreme Court of Justice of 3-3-98, in CJSTJ, 1998, year VI, Volume I, p. 117". (emphasis ours)
138 - Having the purchase and sale contract, in light of what is mentioned, a real nature, with the said consequences, it is also necessary to consider the legal value of the vehicle registration that is the subject of that contract, to the extent that the transaction of the said good is subject to public registration.
139 - In effect, Article 1(1) of Decree-Law No. 54/75, of 12 February, relating to the registration of motor vehicles, establishes that "The registration of vehicles has essentially as its purpose to publicize the legal situation of motor vehicles and their trailers, with a view to the security of legal commerce". (emphasis ours)
140 - Being clear, in light of the said norm, what the purpose of registration is, there is not, however, clarity, within the scope of the said Decree-Law, regarding the legal value of that registration, it being important to consider Article 29 of the aforementioned instrument, relating to the registration of motor vehicle ownership, when it provides that "The provisions relating to property registration shall be applicable, with the necessary adaptations, to the registration of motor vehicles, […]". (emphasis ours)
141 - In this framework, for us to be able to achieve the sought knowledge regarding the legal value of motor vehicle property registration, it is important to take into account what is established in the Code of Property Registration, approved by Decree-Law No. 224/84, of 06 July, when it provides in its Article 7 that "definitive registration constitutes a presumption that the right exists and belongs to the holder registered in the precise terms in which the registration defines it". (emphasis ours)
142 - The combination of the provisions mentioned above, particularly what is established in Article 1(1) of Decree-Law No. 54/75, of 12 February and in Article 7 of the Code of Property Registration, allows considering, on one hand, that the fundamental function of registration is to publicize the legal situation of vehicles, allowing, on the other hand, to presume that the right exists and that such right belongs to the holder in whose favor the same is registered, in the precise terms in which it is defined in the registration.
143 - Thus, definitive registration constitutes nothing more than a presumption that the right exists and belongs to the holder registered, in the exact terms of the registration, but a rebuttable presumption, admitting therefore counter-proof, as follows from the law and jurisprudence has been pointing out, and one may see, among others, the Decisions of the Supreme Court of Justice Nos. 03B4369 and 07B4528, respectively of 19/02/2004 and 29/01/2008, available at: www.dgsi.pt.
144 - The function legally reserved for registration is thus, on one hand, to publicize the legal situation of goods, in the case vehicles, and on the other hand, to allow us to presume that there exists a right over those vehicles and that the same belongs to the holder as such registered in the registration, which means that registration does not have a constitutive nature of the right of ownership, but merely declarative, therefore registration does not constitute a condition for the validity of the transfer of the vehicle from the seller to the buyer.
145 - Thus if the buyers of the vehicles, as their "new" owners, do not immediately promote the appropriate registration of their right, it is presumed, for the purposes of Article 3(1) of the IUC Code and the provision in Article 7 of the Code of Property Registration, that the vehicles continue to be the property of the person who sold them and who remains their owner in the registration, that person being the passive subject of the tax, in the assurance, however, that such presumptions are rebuttable, whether by virtue of what is established in Article 350(2) of the Civil Code, whether in light of what is provided for in Article 73 of the General Tax Law. Therefore, from the moment in which the said presumptions are set aside, through proof of the respective sale, the TA cannot persist in considering as the passive subject of IUC the seller of the vehicle, who in the registration continues to be recorded as its owner.
L - REGARDING THE MEANS OF PROOF PRESENTED
146 - Not being legally required a written form for the purchase and sale contract of motor vehicles, proof of the corresponding sale may be made by any means, namely through documentation, provided that the same is indicative of the sale of the vehicles, and exhibits both the registration number of the vehicle and the name and address of the seller and buyer, as follows from what is established in Article 2(2) of Decree-Law No. 177/2014, of 15 December.
147 - As a means of proof that it proceeded with the sale of the vehicle with registration …-…-…, identified in the present proceeding, the Claimant attached a signed declaration of sale, which constitutes a purchase and sale contract of the vehicle in question, executed on 13 July 2006. In effect, the said document contains both the identification of the Claimant as the seller of the vehicle, fully identified, and the name of the buyer, Mr. B…, duly identified, and the necessary elements relating to the sale, namely those relating to the identification of the vehicle and the value of the transaction in question.
148 - The said document enjoys the presumption of veracity, in light of Article 75(1) of the General Tax Law, with the facts inscribed in the said document and the transfer of the vehicle to its acquirer being held as true, the TA being required, in light of Article 75(2) of the General Tax Law, in the framework of the founded and objective reasons that it might have had, to demonstrate that such sale, in reality, did not occur.
149 - The said document, presented by the Claimant as a means intended to prove the transaction of the vehicle in question, enjoying thus the aforementioned presumption of veracity, appears with sufficient suitability in order to demonstrate the sale of the vehicle with registration …-…-…, constituting, in our view, a means of proof adequate and capable of rebutting the presumption established in Article 3(1) of the IUC Code.
150 - In light of what has just been mentioned, and taking into account both the presumption established in Article 3(1) of the IUC Code, and the transfer of ownership of the vehicle in question by mere effect of the contract, prior to the date of due date of the tax, and the legal value of motor vehicle registration in the economy of the IUC Code, the tax acts in dispute (IUC and Compensatory Interest) cannot merit our agreement, whether because an appropriate interpretation and application of the legal norms of subjective incidence was not taken into account, which constitutes an error regarding the legal assumptions, whether because the said acts were based on a matter of fact clearly divergent from the effective reality, which constitutes an error regarding the factual assumptions.
151 - In these circumstances, taking into account, on one hand, that the presumption enshrined in Article 3(1) of the IUC Code has been rebutted and that, on the other hand, the ownership of the vehicle in question was transferred at a date prior to the date of due date of the tax, we hold that, in light of Article 6(3), combined with Article 4(2), both of the IUC Code, the Claimant was not the passive subject of the tax in question.
152 - The TA, when it considers that the passive subject of IUC is, definitively, the person in whose name the motor vehicle is registered, without considering that Article 3(1) of the IUC Code constitutes a presumption, nor taking into account the evidentiary elements presented to it, as results from the administrative file, is proceeding to illegal assessment of IUC, based on the erroneous interpretation and application of the norms of subjective incidence of the Single Circulation Tax, contained in the said Article 3 of the IUC Code, whether at the level of provision, whether at the level of enactment, which constitutes the performance of a tax act lacking in legality due to error regarding the factual and legal assumptions, which determines the annulment of the tax acts in question due to violation of law.
CONCLUSION
153 - In the circumstances framework that has been being mentioned, the TA, in performing the assessment acts that are the subject of the present proceeding, founded on the idea that Article 3(1) of the IUC Code does not enshrine a rebuttable presumption, makes erroneous interpretation and application of this norm, committing an error regarding the legal assumptions, which constitutes violation of law.
154 - On the other hand, because the TA, at the date of the occurrence of the taxable event, considered the Claimant to be the owner of the vehicle referenced in the present proceeding, considering it as such the passive subject of the tax, when such ownership, with respect to the vehicle in question, no longer was inscribed in its legal sphere, basing itself thus on a matter of fact divergent from the effective reality, commits an error regarding the factual assumptions, and therefore violation of law.
III - DECISION
155 - Accordingly, having regard to all of the above, this Arbitral Tribunal decides:
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To hold as founded, by proven facts, on the basis of a defect of violation of law, the request for arbitral judgment as far as concerns the annulment of the act assessing IUC and compensatory interest, relating to the vehicle identified in the case, with reference to the year 2013;
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To annul, consequently, both the act assessing IUC and the act assessing the compensatory interest associated with it, relating to the year 2013, relating to the vehicle, as mentioned above;
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To condemn the TA to pay the costs of the present proceeding.
VALUE OF THE PROCEEDING
In accordance with the provisions of Articles 306(2) of the CPC (formerly 315(2)) and 97-A(1) of the Tax Procedural Code and Article 3(2) of the Regulation of Costs in Tax Arbitration Proceedings, the value of the proceeding is set at € 35.96.
COSTS
In accordance with the provisions of Article 12(2), at the end, and Article 22(4), both of the RJAT, and Article 4 of the Regulation of Costs in Tax Arbitration Proceedings and the Table I attached thereto, the total amount of costs is set at € 306.00.
Let it be notified.
Lisbon, 24 June 2015
The Arbitrator
António Correia Valente
(This decision was drafted by computer, in accordance with Article 131(5) of the Code of Civil Procedure (formerly 138(5)), applicable by reference from Article 29(1)(e) of Decree-Law No. 10/2011, of 20 January (RJAT), governed in its drafting by the spelling prior to the Orthographic Agreement of 1990.)
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