Summary
Full Decision
TAX ARBITRATION DECISION
1 REPORT
1.1 – A…, with NIP: … (doc. 1), Claimant in the tax procedure, hereinabove and marginally referenced, hereinafter referred to as "Claimant", came, invoking the provisions of paragraphs 1 and 2 of Article 10 of Decree-Law No. 10/2011, of 20 January (hereinafter RJAT), Article 99 of the Code of Tax Procedure and Process (CPPT) and paragraph 1 of Article 95 of the General Tax Law (LGT), to request the constitution of the Singular Arbitral Tribunal, aimed at a request for challenge to the tax acts set out in the self-assessments carried out by the Claimant, in the following terms:
- The annulment of the tax assessment acts for the Unique Motor Vehicle Tax (hereinafter referred to as IUC), carried out by the Tax and Customs Authority (hereinafter AT), concerning the years: 2013 to 2015, according to documents nos. 4 and 5, which form an integral part of the Request for Tax Arbitration Pronouncement.
- The request for refund of the total amount of €8,107.21, which includes the corresponding compensatory interest, unduly paid by the Claimant.
- The Claimant considers that it also has the right to indemnificatory interest provided for in Articles 43 of the LGT and Article 61 of the CPPT, both, by virtue of Article 29 of the RJAT.
1.2 – Pursuant to the provisions of paragraph a) of paragraph 2 of Article 6 and paragraph b) of paragraph 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 Deontological Council appointed as sole arbitrator, Maria de Fátima Alves, who communicated acceptance of the assignment, within the applicable timeframe:
- On 2017-02-13, the parties were duly notified of this appointment, and the parties did not manifest the will to challenge the Arbitrator, in accordance with the combined provisions of Article 11 paragraph 1 paragraphs a) and b) of the RJAT and Articles 6 and 7 of the Code of Deontology.
- Wherefore, the arbitral tribunal was constituted on 2017-03-07, in accordance with the provisions of paragraph c) of paragraph 1 of Article 11 of Decree-Law No. 10/2011, of 20 January, as amended by Article 228 of Law 66-B/2012, of 31 December.
1.3 – The Claimant, in substantiating its request for arbitral pronouncement, states, in summary, the following:
- The self-assessments challenged in this case were carried out by the Claimant and fully paid, despite disagreeing with them, through documents extracted from the Finance Portal (see docs. nos. 4 and 5), attached to the case file;
- Now, the Claimant is a Financial Institution specialized in the automobile sector, whereby it enters into contracts with its clients for Long-Term Rental (ALD), Short-Term Rental contracts (renting) and Financial Leasing contracts (leasing), of motor vehicles;
- Resulting from this context, that within the scope of its commercial activity, it enters into contracts of diverse nature with its clients, of which the following stand out: contracts for vehicle rental without driver "with or without promise of purchase and sale, leasing contracts and financing contracts";
- The Claimant further states that when acquiring new vehicles from national importers: … and …, it carries out financial leasing (leasing), long-term rental (ALD), renting (AOV) or operational leasing, of those same vehicles in favor of third parties;
- It further states that "after the term of the contracts, as a rule," it proceeds to transfer the ownership of the vehicles to the corresponding lessees or to third parties, at a residual value";
- Being that, as far as the vehicles in question are concerned, the Claimant either had leased those vehicles to third parties or was not the owner of the vehicles in dispute, as it had already sold them to the respective lessees or to third parties, as "alleged and demonstrated in the Gracious Complaint, attached to the case file, as doc. no. 5";
- It reinforces the fact that it is not a taxpayer on the date of tax exigibility, as can be observed "through copies of contracts and sales invoices that evidence the sale of the respective vehicles, contained in document no. 6, dossier relating to each one of the vehicles in dispute and, which forms an integral part of the case file";
- Those invoices, which are sent, automatically, after their issuance, to the respective clients, thus transferring the ownership of the vehicles to their rightful owners;
- A situation which also occurs within the scope of leasing contracts, as it removes the Claimant's responsibility for payment of the respective IUC, in accordance with paragraphs 1 and 2, of Article 3 of the CIUC, as these are the owners of the vehicles by virtue of the leasing contract;
- The Claimant highlights the fact that it is "merely a lessor of motor vehicles" and, therefore, never operated any of the leased vehicles on its own account or in its own interest, any of the vehicles leased in the table which it attaches to the case file as doc. 7, whereby the allocation of the IUC should only be applied to those that cause damage to the road network and the environment, in accordance with the principle of equivalence, Article 1 of the CIUC, which establishes the principle of polluter-payer, see Sérgio Vasques, in "The Principle of Equivalence as a Criterion of Tax Equality", Almedina, 2008, p. 312 et seq;
- From which it follows that: the damage that arises for the environment, resulting from the use of motor vehicles, should be assumed by the actual polluters, as these are the user agents of the same, who operate them in their own interest (see Sérgio Vasques, "Reform of Motor Vehicle Taxation: Problems and Perspectives", Taxation, no. 10, 2002, p. 60, 79 et seq;
- Whereby the Claimant "was never the actual polluter and causer of environmental damage", as it merely limited itself to leasing the vehicles in dispute and, selling them, "in cases where the contracts had already terminated", see docs. nos. 5, 6 and 7, attached to the case file;
- Emphasizing that, through columns 4 and 11 of document no. 7, attached to the case file, it is apparent that the Claimant on the date of IUC exigibility, on the date of the anniversary of the registration of each one of the corresponding vehicles, "was no longer the owner of the same";
- Whereby, it does not conform to the aforementioned IUC self-assessments, as it is not the taxpayer for this tax;
- It further states, therefore, that the self-assessments in question are illegal for violating Article 1 and paragraph 1 of Article 3, both of the CIUC, and therefore, the Claimant should be reimbursed for the respective IUC, unduly paid;
- Considering that the AT did not comply with the provisions of Article 58 of the LGT, as it did not comply with the principle of inquisitorial investigation, which allows it to search for material truth, which, in terms of evidence, enabled it to resort, ex officio, to its disposal, in the declaration of income for corporate tax, necessarily submitted by the Claimant;
- Facts that are proven by the owners of the respective vehicles, through sales invoices and the respective leasing contracts.
- Considering the context described above, at the date of the tax facts, the Claimant could not, in light of the evidence elements, above described, be considered a taxpayer of the tax, a fact which precludes any subjective responsibility for its payment.
1.4 – The Respondent, Tax and Customs Authority (hereinafter referred to as AT), submitted a Reply, from which it appears that the tax acts in question do not suffer from any defect of violation of Law, ruling for the lack of merit of the claim and for the maintenance of the assessment acts questioned, defending, summarily, the following:
- It alleges the exception of untimeliness of the Gracious Complaint no. …2016… and consequently of the Request for Arbitral Pronouncement, which will be dealt with below, in the appropriate chapter.
- By way of challenge:
- It challenges, within the scope of "error regarding the assumptions and in the consequent violation of Articles 19 and Article 3, both, of the Code of the Unique Motor Vehicle Tax":
- Alleging that the Claimant makes an erroneous interpretation and application of the legal norms, which are subsumable to the case sub judice;
- It bases its argument on the fact that, within the scope of the "exception" of Article 3 of the CIUC, financial lessors must, necessarily, consider Article 19 of the CIUC.
- Whereby the Claimant, by failing to comply with the specific obligation of Article 19 of the CIUC, cannot exempt itself from the tax under Article 3 of the CIUC, whereby the Claimant should be considered, as a taxpayer of the IUC.
- Because, although the Claimant "alleges to have entered into financial leasing contracts, it is responsible for the IUC, because it did not notify of the existence of financial leasing to which Article 19 of the CIUC refers;
- "However, although Article 19 of the CIUC refers to Article 3 of the same statute, it must be considered that in the case sub judice, we are faced with a specific analysis of the circulation of vehicles, in public space that embodies the damage to roads and environmental damage caused, by the respective users/polluters, who should be responsible, according to the principle of equivalence provided for in Article 1 of the CIUC (which will be developed in the appropriate chapter), as we must avoid taxation of third parties who prove that at the moment of tax exigibility they were not responsible for the same, because these, legally, did not belong to them."
- The Respondent also challenges the facts carried out by the Claimant, both within the scope of the registration as within the scope of registration, in national territory;
- Facts which put into question the exigibility of the unique motor vehicle tax;
- Questions the veracity of the means of proof, leasing contracts and sales invoices, corresponding to the respective vehicles;
- As it does not consider them "apt to prove the execution of a synallagmatic contract";
- Now, perhaps by oversight, the Respondent does not consider, that in this specific case, the purchase and sale of a vehicle, has freedom of form, pursuant to Article 219 of the CC, allowing that the contract of purchase and sale may be by verbal contract, although, in the concrete case, this does not occur;
- However, the change in the ownership of the right of property, acquired by verbal form, of purchase and sale of vehicles "is relevant for the purposes of the IUC, from the date of transmission of the respective vehicles, as provided in Article 17-A of the CIUC";
- The Respondent bases its argument on the fact that "the tax legislator, in Articles 3 and 6 of the CIUC, clearly established the premises regarding the generating fact of the tax, as well as its exigibility, establishing, unequivocally, that such fact is constituted by the ownership of the vehicle, as attested by the registration or registration in national territory";
- Being, therefore, irrelevant that the Claimant has transferred, by sale, the ownership of the motor vehicles, to "third parties";
Now,
- The Respondent, in light of the facts, summarily set forth:
- Makes a general and objective interpretation of what is expressly provided, in the articles it invokes, not considering the presumption of Article 3 of the CIUC, thus disregarding Article 73 of the LGT;
- Does not take into account the principle of "equivalence", provided for in paragraph 1 of the CIUC, corollary of the polluter/payer principle, with basis in paragraph 2 of Article 66 of the Constitution and in the Doctrine, above referred to in point 1.3 and which will be better clarified (below) in this Arbitration Decision;
- Not relying on the means of proof, set out in the contracts and purchase and sales invoices, when ex officio it has them at its disposal, within the scope of corporate income tax, as the Claimant necessarily has organized bookkeeping.
1.5 – The meeting provided for in Article 18 of the RJAT was dispensed with, as these are matters already sufficiently debated, either in the case file or in Case Law, this Arbitral Tax Tribunal understanding it unnecessary for final arguments, dispensing with the examination of witnesses.
1.6 – This Tribunal having set 2017-06-12 as the date for the Final Decision.
2 ISSUES TO BE DECIDED
2.1 – In light of what is stated in the above paragraphs, relating to the presentation of the parties and the arguments presented, the main issues to be decided are as follows:
- The allegation made by the Claimant relating to the material illegality of the assessment acts and the illegality of the accessory interest acts, for the years 2013 to 2015, concerning the IUC on the vehicles above referenced in the PI;
- The erroneous interpretation and application of the rules of subjective incidence of the unique motor vehicle tax assessed and collected, which constitutes the central issue to be decided in this proceeding;
- The legal value of the registration of motor vehicles.
3 FINDINGS OF FACT
3.1 – Regarding the facts, relevant to the decision to be rendered, this Tribunal finds as established, in light of the elements existing in the case file, the following facts:
- The Claimant presented evidence elements consisting of documents nos. 1, 2, 3, 4, 5, 6 and 7, attached to the PI, which are considered fully reproduced for all legal purposes;
3.1.1 BASIS OF THE ESTABLISHED FACTS
- The facts found established are based on the documents attached to the request for arbitral pronouncement of the above-mentioned PI, which are considered fully reproduced for all legal purposes.
3.1.2 UNPROVEN FACTS
- There are no facts found as unproven, given that all the facts deemed relevant for the assessment of the merits of the case were proven.
4 LEGAL GROUNDS
4.1 – The Tribunal is materially competent and is regularly constituted, in accordance with Articles 2 paragraph 1, paragraph a), 5 paragraph 2, paragraph a), 6 paragraph 1, 10 paragraph 1, paragraph a) and paragraph 2 of the RJAT:
- The parties enjoy judicial personality and capacity and are legitimate, by virtue of Articles 4 and 10, paragraph 2, of the RJAT and article no. 1 of Regulation No. 112-A/2011, of 22 March;
- The proceeding does not suffer from nullities;
- There exists a preliminary issue on which the Tribunal must pronounce itself
PRELIMINARY ISSUE
1st – The Tax and Customs Authority (AT), Respondent in this proceeding,
Comes,
Within its Reply, submitted, in accordance with what is provided and, for the purposes provided in art. 17 of the RJAT, "to invoke a peremptory exception, in accordance with the provisions of Article 576, paragraph 3 of the CPC, by virtue of Article 29 of the RJAT, which entails the partial discharge of the AT from the Claim, as it prevents the legal effect of the facts alleged by the Claimant".
2nd – That the Claimant considers the Request for Arbitral Pronouncement timely, counting the period from the partial rejection of the Gracious Complaint no. …2016…;
3rd – That from the analysis of the said GC filed, it is apparent that the same was presented on 2016-02-04 and that the date of the most recent payment relating to 72 IUC assessments being 2015-09-30, the 120-day period under Article 102, paragraph 1 of the CPPT, by virtue of paragraph 1 of art. 70 of the CPPT, for the submission thereof, has long been exceeded;
4th – And, that all other assessments whose payment deadline was on 2015-11-02, are timely.
Reply
5th – The Claimant comes before the proceeding to state that the above-mentioned Gracious Complaint is not partially untimely, because the same was presented against the IUC self-assessments, within the two-year period established in paragraph 1 of art. 131 of the CPPT;
6th – Because, it was the Claimant itself who raised and requested the declaration of illegality of the IUC self-assessment, as can be inferred from the content of the GC and the request for arbitral pronouncement and it was the same that assessed and paid the IUC, in accordance with paragraphs 2 and 3 of Article 16 of the CIUC;
7th – That only exceptionally, when the taxpayer does not self-assess the IUC is that the AT proceeds with the official assessment, in accordance with Article 18 of the CIUC, a situation not occurring, in the present case, as per the evidentiary documents nos. 4 and 5, attached to the case file, as it was the Claimant that took the initiative to self-assess and pay the respective IUC and CI, obtaining the respective payment documents via Internet, on the Finance Portal, although disagreeing with the self-assessments and respective payments.
In light of the facts summarily set forth, with basis in the evidentiary documents, attached to the case file, duly analyzed, this Tribunal understands that the peremptory exception alleged by the AT, relating to the untimeliness of the Request for Arbitral Pronouncement, does not succeed.
4.2 – The claim, object of this proceeding, consists of the declaration of annulment of the IUC assessment acts, corresponding to the motor vehicles better identified in the case file;
4.2.1 – Condemnation of the AT to refund the amount of the tax relating to such assessments in the amount of €8,107.21;
4.2.2 – Condemnation of the AT to payment of indemnificatory interest on the same amount.
4.3 – According to the AT's understanding, it is sufficient that in the registration the vehicle appears as property of a certain person, for that person to be the taxpayer of the tax obligation.
4.4 – The facts are fixed, as set out in paragraph 3.1 above, and it is now necessary to determine the Law applicable to the underlying facts, in accordance with the issues to be decided, identified in paragraph 2.1 above, it being certain that the central issue at hand in this proceeding, regarding which there are absolutely opposing understandings between the Claimant and the AT, consists in determining whether paragraph 1 of Article 3 of the CIUC establishes or does not establish a rebuttable presumption.
4.5 – All of this having been analyzed and, taking into account, on the one hand, the positions of the parties in conflict, mentioned in paragraphs 1.3 and 1.4 above and, considering, on the other hand, that the central issue to be decided is whether paragraph 1 of Article 3 of the CIUC establishes or does not establish a legal presumption of tax incidence, it is necessary, in this context, to assess and render a decision.
5 ISSUE OF ERRONEOUS INTERPRETATION AND APPLICATION OF THE RULE OF SUBJECTIVE INCIDENCE OF THE IUC
5.1 – Considering it is commonplace in doctrine that in the interpretation of fiscal laws the general principles of interpretation apply fully, which will be, only and naturally, limited by the exceptions and particularities dictated by the law itself being subject of interpretation. This is an understanding that has come to receive approval in the General Tax Laws of other countries and has also come to be enshrined in Article 11 of our General Tax Law, which has, moreover, been frequently highlighted by case law.
It is consensually accepted that in order to apprehend the sense of the law, the interpretation resorts, a priori, to reconstructing the legislative thought through the words of the law, which means seeking its literal sense, valuing it and assessing it in light of other criteria, involving the so-called elements of a logical, rational or teleological nature and of a systematic order:
- With regard to the interpretation of fiscal law, case law must be considered, namely, the Decisions of the STA of 05-09-2012, case no. 0314/12, of 06-02-2013, case 01000/12, available at www.dgsi.pt, the importance of the provisions of Article 9 of the Civil Code (CC), as a fundamental element of legal hermeneutics;
- Paragraph 1 of Article 3 of the CIUC provides that "The taxpayers 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";
- The formulation used in the aforementioned article resorts to the expression "being considered" which raises the question of whether such expression can be attributed a presumptive sense, equating it to the expression "being presumed", these are expressions frequently used, with equivalent senses;
- As taught by Jorge Lopes de Sousa, in Code of Tax Procedure and Process, Annotated and Commented, volume I, 6th Edition, Área Editora, SA, Lisbon 2011, p. 589, that in matter of tax incidence, presumptions can be revealed by the expression "it is presumed" or by similar expression, there being mentioned several examples of such presumptions, referring to that contained in Article 40, paragraph 1 of the CIRS, in which the expression "it is presumed" is used and that contained in Article 46 paragraph 2, of the same Code, in which use is made of the expression "is considered", as an expression with an effect similar to that and, equally embodying a presumption;
- In the legal formulation set out in paragraph 1 of Article 3 of the CIUC, in which a presumption is enshrined, revealed by the expression "being considered", of similar significance and of equivalent value to the expression "being presumed", in use since the creation of the tax in question;
- The use of the expression "being considered" aimed at nothing more than establishing a more marked and clear approximation between the taxpayer of the IUC and the actual owner of the vehicle, which is in line with the strengthening conferred on the ownership of the vehicle, which became the generating fact of the tax, in accordance with Article 6 of the CIUC;
- The relevance and interest of the presumption in question, which historically was revealed through the expression "being presumed" and which now uses the expression "being considered", resides in the truth and justice which, through that means, is conferred upon tax relationships and which embody fundamental tax values, allowing to tax the real and actual owner and not one who, by circumstances of diverse nature, is sometimes nothing more than an apparent and false owner. If the case were not considered this way, not admitting and relying on the presentation of evidentiary elements intended to demonstrate that the actual owner is, after all, a person different from the one appearing in the registration and which initially, and in principle, was supposed to be the true owner, such values would be objectively set aside.
5.2 – The principle of equivalence, inscribed in Article 1 of the CIUC, must also be considered, which has underlying the polluter-payer principle and, concretizes the idea inscribed in it that whoever pollutes must, for that reason, pay (see Fernanda Alves and Nuno Vitorino, "The Balance of Motor Vehicle Tax Reform" p. 42 et seq; Sérgio Vasques, in "The Principle of Equivalence as a Criterion of Tax Equality", Almedina, 2008, p. 312 et seq, and, also, by the same author "Reform of Motor Vehicle Taxation: Problems and Perspectives", Taxation, no. 10, 2002, p. 79 et seq). The aforementioned principle has constitutional basis, insofar as it represents a corollary of the provisions of paragraph h) of paragraph 2 of Article 66 of the Constitution, having, also, basis in Community law, both at the level of primary law, Article 130-R, of the Treaty of Maastricht (Treaty on European Union, of 07-02-1992), where the aforementioned principle came to be included as support for Community Policy, in the environmental domain and which aims to make responsible those who contribute to the damage that arises for the community, resulting from the use of motor vehicles, to be assumed by their owner-users, as costs that only they should bear.
5.3 – In light of the above-described facts, it is important to note that the aforementioned interpretation elements, be they those related to literal interpretation, supported by the legally used words, be they those relating to the logical elements of interpretation, of a historical or rational nature, of a systematic order: they all point in the direction that the expression "being considered" has a sense equivalent to the expression "being presumed", and should, thus, be understood that the provision in paragraph 1 of Article 3 of the CIUC establishes a legal presumption which, in light of Article 73 of the LGT, where it is established that "The presumptions enshrined in the rules of tax incidence always admit evidence to the contrary", will necessarily be rebuttable, which means that the taxpayers are, in principle, the persons in whose name such vehicles are registered. They will, therefore, be such persons, identified in such conditions to whom the AT must, necessarily, be directed;
- But it will be, in principle, given that within the framework of prior hearing, of a mandatory nature, in light of the provisions of paragraph a) of paragraph 1 of Article 60 of the LGT, the tax relationship may be reconfigured, validating the initially identified taxpayer or redirecting the proceeding in the direction of the one who is, after all, the true and actual taxpayer of the tax in question.
- The taxpayer has the right to be heard, through prior hearing (José Manuel Santos Botelho, Américo Pires Esteves and José Cândido de Pinho, in Code of Administrative Procedure, Annotated and Commented, 4th edition, Almedina, 2000, annotation 8 of Article 100).
- The prior hearing, which naturally must take place at the moment immediately prior to the assessment procedure, corresponds to the proper venue and time to, with certainty and security, identify the taxpayer of the IUC.
6 REGARDING THE LEGAL VALUE OF THE REGISTRATION
6.1 – Regarding the legal value of the registration, it is important to note what is established in paragraph 1 of Article 1 of Decree-Law No. 54/75, of 12 February (amended several times, the last by Law No. 39/2008, of 11 August), when it establishes that "the registration of motor vehicles essentially aims to publicize the legal situation of motor vehicles and their respective trailers, with a view to the security of legal commerce":
- Article 7 of the Code of Real Estate Registration (CRP), applicable, as a supplementary matter, to motor vehicle registration, by virtue of Article 29 of the CRA, provides that "The definitive registration constitutes a presumption that the right exists and belongs to the registered holder, in the precise terms in which the registration defines it";
- The definitive registration constitutes nothing more than a rebuttable presumption, admitting, therefore, counterproof, as follows from the law and case law has pointed out, which can be seen, among others, in the Decisions of the STJ no. 03B4369 of 19-02-2004 and no. 07B4528, of 2008-01-29, available at: www.dgsi.pt;
- Therefore, the legally reserved function of the registration is on the one hand to publicize the legal situation of the goods, in the case at hand, of the vehicles and, on the other hand, allows us to presume that the right exists over those vehicles and that the same belongs to the holder, as such registered in the registration, does not have a constitutive nature of the right of property, but only declarative, whereby the registration does not constitute a condition of validity of the transmission of the vehicle from the seller to the buyer;
- The acquirers of the vehicles become owners of those same vehicles by virtue of the execution of the corresponding purchase and sale contracts, with registration or without it;
- In this context it is worth recalling that, in light of the provisions of paragraph 1 of Article 408 of the CC, the transfer of real rights over things, in the case sub judice, motor vehicles, is determined by mere effect of the contract, being that in accordance with the provisions of paragraph a) of Article 879 of the CC, among the essential effects of the contract of purchase and sale, stands out the transmission of the thing;
- In light of the above, it becomes clear that the legislative thought points in the direction that the provisions in paragraph 1 of Article 3 of the CIUC establishes a presumption "juris tantum", consequently rebuttable, allowing, thus, that the person who, in the registration, is inscribed as owner of the vehicle, can present elements of proof intended to demonstrate that such ownership is inserted in the legal sphere of another person, to whom the ownership was transferred;
- Which as far as the disputed facts are concerned, there exist, attached to the case file documents, which were proven by the Claimant, both in the Gracious Complaint proceeding as in the request for arbitral pronouncement, configuring, therefore the certainty that it belongs to the respective owners/users of the vehicles, the subjective responsibility for the IUCs, in accordance with paragraphs 1 and 2 of Article 3 of the CIUC.
7 THE PRESUMPTION OF ARTICLE 3 OF THE CIUC AND THE DATE IN WHICH THE IUC IS EXIGIBLE
7.1 DATE IN WHICH THE IUC IS EXIGIBLE
- The IUC is a periodic taxation tax, the periodicity of which corresponds to the year which begins at the time of registration or on each of its anniversaries, in accordance with the provisions of paragraphs 1 and 2 of Article 4 of the CIUC;
- It is exigible in accordance with paragraph 3 of Article 6 of the aforementioned Code;
- It being important to note that, as regards the assessment of the IUC charged to the Claimant on the vehicles above referenced, in the years 2013 to 2015, it must be considered that at the moment of the tax facts, the vehicles in question were in the legal sphere of the owners/users of the said motor vehicles, because they hold the use and enjoyment of said vehicles, whereby in accordance with paragraphs 1 and 2 of art. 3 of the CIUC, they must be held responsible for the payment of the obligation of said tax, see docs. nos. 6 and 7, attached to the case file.
7.1.1 – Regarding the burden of proof, Article 342 paragraph 1 of the CC stipulates "it is incumbent upon the one who invokes a right to prove the constitutive facts of the alleged right";
7.1.2 – Also Article 346 of the CC (counterburdening) determines that "to the evidence produced by the party on whom the burden of proof falls, the other party may oppose countervailing evidence regarding the same facts, intended to make them doubtful; if it succeeds, the issue is decided against the burdened party." (As stated by Anselmo de Castro, A., 1982, ED. Almedina Coimbra, "Declaratory Civil Procedural Law", III, p. 163, "where one of the parties bears the burden of proof, it suffices for the other party to oppose countervailing evidence, this being evidence intended to make doubtful the facts alleged by the first").
Thus, in the present case, what the Claimant must prove, in order to rebut the presumption arising from either Article 3 of the CIUC or the Motor Vehicle Registration itself, is that it, the Claimant, was not the owner of the vehicles in question in the period to which the assessments in question refer. Proposes to prove, as results from the case file, is that the ownership of the vehicles did not belong to it in the periods to which the assessments relate. Presenting, thus, the sales invoices and leasing contracts of the vehicles contained in the documents, attached to the Gracious Complaint and attached to the case file as documents no. 4, 5, 6 and 7, which are considered fully reproduced, for all legal purposes.
7.2 REBUTTAL OF THE PRESUMPTION
- The Claimant, as referred to in 3.1., regarding the proven facts, alleged, with the purpose of overcoming the presumption, not being a taxpayer of the tax, at the time of occurrence of the tax facts, offering for such purpose the following documents;
- Sales invoices to the respective lessees and leasing contracts (see documents attached to the case file with nos. 4, 5, 6 and 7);
- Now, these documents, enjoy the presumption of veracity provided for in paragraph 1 of Article 75 of the LGT. Resulting from this, that on the date in which the IUC was exigible those who held the ownership of the motor vehicles were the legitimate owners and users and not the Claimant.
8 OTHER ISSUES RELATING TO THE LEGALITY OF THE ASSESSMENT ACTS
- Regarding the existence of other issues pertaining to the legality of the assessment acts, taking into account that it is inherent in the establishment of an order of knowledge of defects, such as provided for in Article 124 of the CPPT, that proceeding the request for arbitral pronouncement based on defects that prevent the renewal of the assessments challenged, is prejudiced, because unnecessary, the knowledge of other defects, it does not seem necessary to address the other issues raised.
9 REFUND OF THE TOTAL AMOUNT PAID
- In accordance with the provisions of paragraph b) of paragraph 1 of Article 24 of the RJAT and, in conformity with what is established there, the arbitral decision on the merits of the claim in respect of which no appeal or challenge is available, binds the tax administration from the end of the period provided for appeal or challenge, and it must, in the exact terms of the success of the arbitral decision in favor of the taxpayer and until the end of the period provided for the execution of sentences of tax courts "Restore the situation that would have existed if the tax act object of the arbitral decision had not been carried out, adopting the acts and operations necessary for that purpose"
- These are legal commands that are in complete harmony with the provisions of Article 100 of the LGT, applicable to the case, by virtue of the provisions in paragraph a) of paragraph 1 of Article 29 of the RJAT, in which it is established that "The tax administration is obliged, in case of full or partial success of complaints or administrative appeals or judicial proceedings in favor of the taxpayer, to the immediate and full reconstruction of the situation that would have existed if the illegality had not been committed, corresponding to the payment of indemnificatory interest, in accordance with the terms and conditions provided by law";
- The case presented in this proceeding raises the manifest application of the aforementioned rules, since as a result of the illegality of the assessment acts, referenced in this proceeding, there must, by force of those rules, be refund of the amounts paid, whether as title of the tax paid, or of the corresponding compensatory interest, as a way of achieving the reconstruction of the situation that would have existed if the illegality had not been committed.
10 RIGHT TO INDEMNIFICATORY INTEREST
- The declaration of illegality and consequent annulment of an administrative act confers on the recipient of the act the right to the reintegration of the situation in which the same would have been before the execution of the annulled act.
- Within the scope of the assessment of the tax, its annulment confers on the taxpayer the right to restitution of the tax paid, plus the corresponding compensatory interest and, as a rule, the right to indemnificatory interest, in accordance with paragraph 1 of Article 43 of the LGT and Article 61 of the CPPT.
- Whereby the Claimant has the right to indemnificatory interest on the amount of tax paid relating to the annulled assessments.
11 DECISION
In light of the above, this Arbitral Tribunal decides:
- To rule as successful the claim for declaration of illegality of the IUC assessment, concerning the years: 2013 to 2015, with respect to the motor vehicles identified in this proceeding, annulling, consequently, the corresponding tax acts;
- To rule as successful the claim for condemnation of the Tax Administration to refund the amount unduly paid, in the amount of 8,107.21 euros, condemning the Tax and Customs Authority to effect these payments;
- The AT must, also, effect the payment corresponding to the amount due for indemnificatory interest, on the tax paid relating to the annulled assessments, in accordance with paragraph 1 of Article 43 of the LGT, by virtue of paragraph 2 of Article 61 of the CPPT (Wording of Law No. 55-A/2010, of 31-12, entering into force, on 2011-01-01).
CASE VALUE: In accordance with the provisions of Articles 306 paragraph 2 of the CPC and 97-A, paragraph 1 of the CPPT and Article 3, paragraph 2 of the Regulation of Costs in Tax Arbitration Proceedings, the case value is set at €8,107.21.
COSTS: In accordance with paragraph 4 of Article 22 of the RJAT, the amount of costs is set at €918.00, in accordance with Table I, attached to the Regulation of Costs in Tax Arbitration Proceedings, charged to the Tax and Customs Authority.
Notify the parties.
Lisbon, 2017-06-12
The Arbitrator
Maria de Fátima Alves
(The text of this decision was prepared by computer, in accordance with Article 131, paragraph 5 of the Code of Civil Procedure, applicable by referral of Article 29, paragraph 1 paragraph e) of Decree-Law 10/2011, of 20 January (RJAT), governed by its drafting by current spelling)
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