Summary
Full Decision
ARBITRAL DECISION
Case No. 758/2016-T
Decision Date: 2022-07-18
IUC
Claim Value: € 3,305.05
Topic: Assessment of the Single Vehicle Circulation Tax – Reform of the Arbitral Decision (attached to the decision).
Replaces the arbitral decision of June 9, 2017
I. – REPORT
A – PARTIES
The company A…, designated as "Claimant," with registered office at Street …, …, in Lisbon, with the corporate identification number …, challenging party in the tax procedure above referenced, came forward, invoking the provisions of articles 2.º, no. 1, paragraph a) of the Legal Framework for Tax Arbitration, approved by Decree-Law no. 10/2011, of January 20 (hereinafter RJAT), and of articles 1.º and 2.º of Order no. 112-A/2011, of March 22, requesting the establishment of a singular arbitral tribunal, with a view to the consideration of the following claim opposing it to the Tax and Customs Authority, hereinafter designated as "Respondent" or "AT."
B – CLAIM
1 – The request for establishment of the arbitral tribunal was accepted by the President of the CAAD on December 28, 2016, and on that same date, notified to the AT.
2 – The Claimant did not proceed with the appointment of an arbitrator, wherefore, pursuant to the provision in no. 1 of article 6.º of the RJAT, the undersigned, on January 31, 2017, was designated by the Deontological Council of the Center for Administrative Arbitration as arbitrator of the Singular Arbitral Tribunal, having accepted in accordance with the terms legally provided.
3 – The Parties were, on February 13, 2017, duly notified of this designation, having manifested no will to refuse it, in accordance with the combined provisions of paragraphs a) and b) of no. 1, of article 11.º and of articles 6.º and 7.º of the Deontological Code.
4 – In these circumstances, in conformity with the provision in paragraph c) of no. 1 of art. 11.º of Decree-Law no. 10/2011, of January 20, in the wording introduced by art. 228.º of Law no. 66-B/2012, of December 31, the arbitral tribunal was regularly constituted on March 7, 2017.
5 – On June 5, 2017, the Arbitral Tribunal, pursuant to art. 16.º, paragraph c) of the RJAT (Decree-Law no. 10/2011, of January 20), and taking into account the content of the order issued on May 21, 2017, deemed dispensable the holding of the meeting provided for in article 18.º of the said legal diploma.
6 – The present Claimant requests that this Arbitral Tribunal:
a) – Declare the illegality of the order dated June 20, 2016, from the Chief of the Administrative Justice Division (acting), of the Financial Directorate of Lisbon, in the segment in which it rejects, on grounds of lack of timeliness, the Gracious Complaint no. … – 2015/…;
b) – Declare the illegality and consequent annulment of the self-assessment acts relating to the Single Vehicle Circulation Tax (hereinafter designated as IUC) and compensatory interest (CI), subject to that same Gracious Complaint no. … – 2015/…, with the value of € 3,305.05; as they appear in the case file, in the documents designated as self-assessments, as well as in the documents identified as Doc. 4 and Doc. 7, where the corresponding vehicles are likewise referenced, which are hereby deemed fully reproduced;
c) – Condemn the AT to reimbursement of the amount of € 3,305.05, corresponding to the total amount paid as IUC and CI, relating to the self-assessment acts and vehicles aforementioned;
d) – Condemn the Tax and Customs Authority to payment, both of indemnity interest relating to the amounts unduly assessed and paid, and of the costs of the procedure.
C – GROUNDS FOR THE CLAIM
7 – The Claimant, in substantiation of its request for arbitral determination, alleges, in summary, the following:
8 – That it is a financial institution which, within the scope of its corporate purpose, engages in operations permitted to Banks, with the exception of the receipt of deposits, entering into agreements with its clients Long-Term Rental Contracts (ALD); Short-Term Rental contracts (renting) and Financial Leasing contracts (leasing) of motor vehicles;
9 – That, in this context, it entered into agreements with its clients for the rental of vehicles without driver with promise of purchase and sale and financial leasing contracts, vehicles which it acquires, as new vehicles, from the national importers of Renault and Nissan, and which, upon the expiration of such contracts, are sold to the corresponding lessees or to third parties;
10 – That it became aware, on the Financial Portal, of the documents of self-assessment of IUC and CI identified in the case file, relating to the years 2013 and 2014, being unaware, until then, of such assessments;
11 – That, notwithstanding having been surprised by the said self-assessments, and although disagreeing with them, it proceeded to the full payment of the respective amounts, since it is its duty to maintain a tax situation properly regularized;
12 – That, on April 24, 2015, it filed a Gracious Complaint against 70 self-assessments of IUC, relating to the years 2013 and 2014, having then instructed such Complaint, namely, with a file relating to each of the vehicles under analysis, composed both by copies of the financial leasing and operational leasing contracts with promise of purchase and sale, and by invoices for the sale of the vehicles, and by identification of the vehicles alienated before the date of the tax accrual;
13 – That the Gracious Complaint, having been considered untimely, was, by order dated June 20, 2016, from the Chief of the Administrative Justice Division (acting), of the Financial Directorate of Lisbon, partially rejected;
14 – That, it being unquestionable that we are faced with a case of self-assessments of tax, the Gracious Complaint could not be deemed untimely, having been submitted against the mentioned self-assessments of IUC within the period of 2 years, provided for in no. 1 of art. 131.º of the CPPT;
15 – That in all contracts it entered into, of financial leasing and rental of vehicles without driver with promise of purchase and sale, the users of the corresponding vehicles are clearly identified, to whom, or to third parties, after the termination of the contracts, it transferred ownership of these vehicles for a residual value;
16 – That on the dates of accrual of the IUC, relating to the vehicles in issue in the case file, it was no longer, in some instances, its owner and, in other instances, was financial lessor or lessor in operational leasing contracts with promise of purchase and sale, not being, in any of the cases, the taxpayer of the said tax;
17 – That the sales of the vehicles occurred precisely on the dates on which the corresponding invoices were issued, which document and demonstrate the sale of these vehicles at a moment prior to the date of accrual of the IUC, and that, after the completion of such sales, it never resumes ownership of the vehicles;
18 – That the IUC, although it has as its objective the raising of revenue, also aims to tax the environmental costs that each individual causes to the community, the unification of these objectives being ensured by the principle of equivalence established in art. 1.º of the IUC Code, which, being fundamental in the context of IUC taxation, makes it clear that taxpayers should be burdened to the extent of the impacts they cause to the environment and to the road network, thus enshrining the polluter-pays principle;
19 – That it was established, in the IUC Code, the principle that the polluter must pay, linking the tax to the environmental and road damages that are caused with the actual use of the vehicles;
20 – That it was never the actual polluter and causer of environmental damages, insofar as it limited itself to leasing the vehicles in question or to selling them, in cases where the leasing contracts had already terminated;
21 – That no. 1 of art. 3.º of the IUC Code establishes a rebuttable legal presumption, and that, in light of the provision in no. 2, of the said article, the financial lessees and the holders of vehicle rental contracts without driver, with promise of purchase and sale, are the taxpayers of the tax;
22 – That, after the termination of the said contracts, it proceeds to the transfer of ownership of the respective vehicles, for a residual value, to the corresponding lessees or to third parties, a transfer that occurs by mere effect of the contracts and which is supported in the respective sale invoices, on whose dates of issuance the respective price is paid;
23 – That, in any of the mentioned contracts, entered into with its clients, although the lessor continues to be the owner of the vehicles, only the lessees and the holders of the purchase and sale option, in the case of vehicle rental contracts without driver, with promise of purchase and sale, have the exclusive enjoyment of the vehicles, being the potential causers of road and environmental damages;
24 – That the registration of acquisition of motor vehicles has no constitutive value whatsoever, but merely declarative value, insofar as it has only as its objective to publicize the legal status of the vehicles, constituting the same a presumption that the registration exists and belongs to the registered holder, being, however, such presumption rebuttable;
25 – That even in cases where the buyer (new owner of the vehicle) does not provide for the registration of its ownership right, it is presumed that this right continues to belong to the seller, being able, however, such presumption to be rebutted;
26 – That to consider as taxpayers of IUC only the owners of the vehicles in whose names they are registered, not taking into account situations where such registrations no longer coincide with the real owners or actual users thereof, constitutes a restriction which, in light of the purposes of IUC, finds no basis of support;
27 – That the AT had official knowledge of the dates of the sales and leases of the vehicles in question, as well as of the purchasers and lessees thereof, insofar as all sales invoices and lease receipts were timely communicated to it via SAF-T;
28 – That contrary to what was incumbent upon it, the AT, in light of the inquisitorial principle, did not undertake any diligence tending to the discovery of the material truth, relating to the real situation of the vehicles in question, demonstrating total disinterest in the pursuit of that truth, having limited itself to considering the information contained in the databases.
D – RESPONSE OF THE RESPONDENT
29 – The Respondent, Tax and Customs Authority, (hereinafter designated as AT), submitted its Response on April 6, 2017, in which, in summary, it alleged the following:
BY WAY OF EXCEPTION
30 – The lack of timeliness of the Gracious Complaint, given that the period for its submission, relating to the corresponding assessments (and not self-assessments as the Claimant understands) was 120 days, in accordance with art. 120.º, no. 1 of the CPPT, under art. 70.º, no. 1 of the same Code, and not 2 years, as provided in no. 1 of art. 131.º of the CPPT, as the Claimant considered;
31 – The lack of timeliness encompasses the vehicles with registrations ..., ..., ..., ..., ..., ..., ..., ... and..., whose most recent payment date relating to IUC assessments was September 26, 2014, with the other assessments deemed timely; (see arts. 3.º to 9.º of the Response)
32 – The request for establishment of an arbitral tribunal is untimely, with the exception, namely, of vehicles whose tax accrual deadline was March 1, 2015; (see art. 26.º of the Response)
33 – The untimeliness of the submission of the request for arbitral determination, based on the rejection on grounds of lack of timeliness of the Gracious Complaint.
BY WAY OF CHALLENGE
34 – The Respondent alleges that the Claimant's claim cannot proceed at all, inasmuch as the financial leasing contracts which, it refers to having been entered into, were not communicated in accordance with the terms established in art. 19.º of the IUC Code, nor can the argument likewise proceed that the Claimant was not the taxpayer of IUC in cases where it alleges it was no longer the owner of the vehicles on the dates when the obligation to assess the said tax became due. (see arts. 31.º to 38.º of the Response)
35 – On the other hand, the Respondent considers that the Claimant makes an interpretation and application of the legal norms applicable to the case, notoriously wrong, insofar as,
36 – It reveals an understanding that incurs, not only in a skewed reading of the letter of the law, but also in an interpretation that does not heed the systematic element, violating the unity of the regime established throughout the IUC Code and, more broadly, throughout the entire legal-fiscal system, also resulting from an interpretation that ignores the ratio of the regime established in no. 1 of article 3.º of the IUC Code. (see arts. 50.º and 51.º of the Response)
37 – It states that the tax legislator in establishing, in art. 3.º, no. 1 of the IUC Code, who are the taxpayers of IUC established expressly and intentionally that these are the owners (or in the situations provided for in no. 2 the persons therein mentioned), being considered as such the persons in whose names they are registered. (see art. 62.º of the Response)
38 – It emphasizes that the legislator did not use the expression "it is presumed" as it could have done, for example, in the following terms: "the taxpayers of the tax are the owners of the vehicles, being presumed as such the natural or legal persons, of public or private law, in whose names they are registered." (see art. 63.º of the Response)
39 – It considers that the wording of art. 3.º, no. 1 of the IUC Code corresponds to a clear choice of legislative policy adopted by the legislator, wherefore to understand that a presumption is established therein would, unequivocally, constitute an interpretation against the law.
40 – It states that the said understanding has already been adopted by the Jurisprudence of our courts, transcribing, for this purpose, part of the judgment of the Administrative and Tax Court of Penafiel, delivered in Case no. 210/13.OBEPNF. (see art. 76.º of the Response)
41 – On the systematic element of interpretation, it considers that the solution advocated by the Claimant is intolerable, the understanding for which it argues finding no legal support whatsoever. (see art. 78.º of the Response)
42 – On the ignorance of the "ratio" of the regime, the AT considers that, in light of a teleological interpretation of the regime established throughout the IUC Code, the interpretation advocated by the Claimant in the sense that the taxpayer of IUC is the actual owner, regardless of whether such status does not appear in the vehicle registration, is manifestly wrong. (see art. 101.º of the Response)
43 – It adds that the IUC Code carried out a reform of the regime for taxation of vehicles in Portugal, substantially altering the regime for motor vehicle taxation, with the taxpayers of the tax becoming the owners appearing in the property registration.
44 – It adds that the invoices presented by the Claimant, as evidence of the sale of the vehicles, are not apt and do not reveal, by themselves, the will to enter into a synallagmatic contract such as purchase and sale is. (see arts. 118.º to 120.º of the Response)
45 – Finally, it states that it was not the Respondent who gave rise to the submission of the request for arbitral determination, but rather the Claimant, and must, consequently, be the Claimant condemned in arbitral costs "in accordance with art. 527.º/1 of the New Code of Civil Procedure ex vi of art. 29.º/1-e) of the RJAT", also stressing that the legal prerequisites for the accrual of indemnity interest are not met, whose request was made by the Claimant. (see arts. 151.º and 152.º of the Response)
46 – It considers, to conclude, that, in light of all the argumentation adduced, the exception invoked should be judged meritorious, the request for arbitral determination should be judged without merit, the tax acts of assessment contested being maintained in the legal order, absolver, accordingly, the Respondent entity from the claim.
E – ISSUES TO BE DECIDED
47 – It falls, therefore, to assess and decide.
48 – In light of the foregoing, relating to the positions of the Parties and the arguments presented, it is necessary to assess and decide the following issues:
a) – The exception relating to the untimeliness of the submission of the request for arbitral determination, based on the lack of timeliness of the Gracious Complaint;
b) – Whether or not the rule of subjective incidence contained in article 3.º no. 1 of the IUC Code establishes a presumption;
c) – What is the legal value of the vehicle registration in the economy of the IUC Code, particularly for purposes of the subjective incidence of this tax;
d) – Whether, in accordance with a financial leasing contract or a contract for rental of a vehicle without driver with promise of purchase and sale, on the date of accrual of the tax, the vehicle has already been previously alienated although the ownership right thereof continues registered in the name of its previous owner, for purposes of the provision in article 3.º, no. 1, of the IUC Code, the taxpayer of IUC is the previous owner or the new owner;
e) – Whether the documents presented, relating to the leasing and sale of the vehicles identified in the case, are apt to prove the leasing and the purchase and sale of such vehicles.
F – PROCEDURAL PREREQUISITES
49 – The Arbitral Tribunal is regularly constituted and is competent to assess the case, in light of the provision in paragraph a) of no. 1, of article 2.º of Decree-Law no. 10/2011, of January 20.
50 – The Parties enjoy legal personality and capacity, are legitimate and are legally represented (see art. 4.º and no. 2 of art. 10.º of Decree-Law no. 10/2011 and art. 1.º of Order no. 112/2011, of March 22).
51 – The procedure does not suffer from defects that would invalidate it.
52 – Taking into account the documentary evidence joined to the case file, it now falls to present the relevant factual matter for understanding the decision, as established in the terms mentioned below.
II – GROUNDS
G – GROUNDS OF FACT
53 – With regard to matters of fact, it should be noted that the Tribunal need not pronounce on all that was alleged by the Parties, but rather it is incumbent upon it to have the duty to select the facts that matter for the decision and to discriminate between the proven matter and the unproven matter [see article 123.º, no. 2, of the Code of Tax Procedure and Process (CPPT) and article 607.º, nos. 3 and 4, of the CPC (applicable under article 29.º, no. 1, paragraphs a) and e), of the RJAT].
Of the Proven Facts
54 – In matters of relevant fact, this tribunal establishes as true the following facts:
55 – The Claimant is a financial institution which, within the scope of its corporate purpose, engages in operations permitted to Banks, with the exception of the receipt of deposits, entering into agreements with its clients Long-Term Rental Contracts (ALD); Short-Term Rental contracts (renting) and Financial Leasing contracts (leasing) of motor vehicles;
56 – The Claimant became aware, on the Financial Portal, of the documents, which it designates as self-assessment of IUC, and CI identified in the case file, relating to the years 2013 and 2014, having proceeded to the payment of the corresponding amounts;
57 – On April 24, 2015, the Claimant filed a Gracious Complaint against 70 assessments of IUC, which it designates as self-assessments, relating to the years 2013 and 2014, having then instructed such complaint, namely, with a file relating to each of the vehicles under analysis, composed both by copies of the financial leasing and operational leasing contracts with promise of purchase and sale, and by invoices for the sale of the vehicles, and by identification of the vehicles alienated before the date of accrual of the tax;
58 – The Gracious Complaint no. ...-2015/..., submitted by the Claimant, on April 24, 2015, was, by order dated June 20, 2016, from the Chief of the Administrative Justice Division (acting), of the Financial Directorate of Lisbon, partially rejected, on grounds of lack of timeliness, relating to the vehicles with registrations ..., ..., ..., ..., ..., ..., ..., ... and ..., on the basis that the "… most recent payment date relating to the assessments complained of (relating to the said vehicles) was September 26, 2014", with the other assessments deemed timely;
59 – The Claimant understands that the Gracious Complaint cannot be deemed untimely, having been submitted, within the period of 2 years, provided in no. 1 of art. 131.º of the CPPT, against the designated self-assessments of IUC;
60 – The Claimant submitted, on December 27, 2016, a request for establishment of an arbitral tribunal, requesting the annulment, on grounds of illegality, of the order of partial rejection of the Gracious Complaint, in the segment in which that order rejected such complaint, as well as the annulment of the self-assessments of IUC contested, and the respective CI, and the restitution of the entirety of the amount paid, in the amount of € 3,305.05;
61 – The self-assessments/assessments of IUC subject to the said request for establishment of an arbitral tribunal embody thirty-six (36) assessments, relating to thirty-four (34) vehicles, as they appear in doc. 4 and are listed in the table identified as doc. 7;
62 – The vehicles referred to in the preceding point and respective IUC assessments were, likewise, the subject of the aforementioned Gracious Complaint, and include the vehicles which have registrations ..., ..., .... and ..., with payment dates relating to IUC, which occur, respectively, on April 14, 2014, October 6, 2014, September 26, 2014 and April 29, 2014, the tax paid thereon totaling the amount of € 243.39;
63 – The payment dates of the IUC of the four vehicles aforementioned founded the partial rejection of the Gracious Complaint no. ...-2015/..., submitted by the Claimant, on April 24, 2015, given that the period of 120 days (article 102.º, no. 1 of the CPPT, under article 70.º, no. 1 of the same Code), for its submission, had been exceeded;
64 – In the universe of IUC assessments underlying the Gracious Complaint in question, not all of them had, as payment dates, those mentioned in point 62, as some of these assessments, namely those which, now, appear in the request for arbitral determination, had payment dates which occurred in the month of March of the year 2015, which, in this measure, conferred timeliness on the Gracious Complaint;
65 – The request for arbitral determination, with the exception of the vehicles which have registrations ..., ..., ... and ..., with payment dates relating to IUC, situated, respectively, on April 14, 2014, October 6, 2014, September 26, 2014 and April 29, 2014, whose assessments total € 243.39, is consequently reduced to thirty (30) vehicles and thirty-two (32) assessments, with the total amount of € 3,061.66;
66 – The thirty (30) vehicles mentioned in the preceding point, as they are referenced in doc. 4 and are listed in the table identified as doc. 7, are shown to be the subject of financial leasing contracts and contracts for rental of vehicles without driver with contract-promise of purchase and sale, and were, in the framework of these contracts, sold to third parties;
67 – The Claimant, as evidence of the said sales and to rebut, namely, the presumption which it understands to be established in no. 1 of art. 3.º of the IUC Code, joined copies, both of the contracts and of the invoices for the sale of the vehicles;
68 – On the dates relating to the accrual of the tax, and to its payment, to which the corresponding IUC assessments refer, the ownership of the vehicles in question did not belong to the Claimant, but to other persons, as identified in the case file;
69 – The period of 120 days (article 102.º, no. 1 of the CPPT, under article 70.º, no. 1 of the same Code), for the submission of the Gracious Complaint, was exceeded with regard to the four vehicles identified in points 62 and 65, with registrations ..., ..., ... and..., given that, on one hand, it was submitted on April 24, 2015 and, on the other, the payment dates relating to the corresponding IUC assessments subject of that complaint, were, respectively, of April 14, 2014, October 6, 2014, September 26, 2014 and April 29, 2014.
Of the Unproven Facts
70 – No facts occurred as unproven, with relevance for the arbitral decision.
H – GROUNDS OF LAW
71 – The matter of fact is established, it being incumbent to proceed to its legal subsumption and to determine the Law applicable to the underlying facts, in accordance with the issues to be decided enumerated in point 48.
72 – The essential and decisive issue in the present case, relating to which there are absolutely opposed understandings between the Claimant and the AT is translated into knowing whether the rule of subjective incidence contained in no. 1 of art. 3.º of the IUC Code establishes or not a rebuttable presumption.
73 – The positions of the parties are known. Indeed, for the Claimant, no. 1 of art. 3.º of the IUC Code establishes a rebuttable legal presumption, and that, in light of the provision in no. 2, of the said article, the financial lessees and the holders of vehicle rental contracts without driver, with promise of purchase and sale, are the taxpayers of the tax;
74 – The Respondent, for its part, considers that the tax legislator in establishing, in art. 3.º, no. 1 of the IUC Code, who are the taxpayers of IUC established expressly and intentionally that these are the owners (or in the situations provided for in no. 2 the persons therein mentioned), being considered as such the persons in whose names they are registered. (see art. 62.º of the Response)
PRELIMINARY ISSUES
REGARDING THE ANNULMENT OF THE DECISION
75 – In consequence of the annulment of the arbitral decision, delivered in this arbitral case on June 9, 2017, by judgment of the Central Administrative Court of the South, delivered on March 10, 2022, communicated to the CAAD on May 4, 2022, on the ground of violation of the principle of adversarial procedure, insofar as, regardless of the issue of the exception of lack of jurisdiction ratione materiae, invoked by the arbitral tribunal in the said decision, being subject to official knowledge, the said tribunal should have, which it did not do, granted the parties the opportunity to, with regard to it, pronounce themselves, the Claimant and Respondent were requested to pronounce on such issue, having, in summary, the same stated the following:
76 – The Claimant understands that in light, namely, of the provision in article 16.º nos. 2 and 3 of the IUC Code and in article 17.º nos. 1 and 2 of the same code, it is "[… unquestionable that we are faced with a case of self-assessment of tax," considering further that,
77 – The Gracious Complaint is not partially untimely, as it was submitted against self-assessments of IUC, wherefore the period "[… in the present case, was 2 years, and not merely 120 days", as established in article 131º no. 1 of the CPPT, also understanding that,
78 – The "[… Gracious Complaint is timely with regard to all the self-assessments of IUC here in discussion", wherefore the said Complaint is entirely timely, there being "[… no basis for raising the lack of material jurisdiction of the Arbitral Tribunal".
79 – The Respondent, for its part, reproducing some of the considerations set out in the defense by way of exception contained in its Response, expressly states, and in summary, that,
80 – The Gracious Complaint no. ...-2015/..., submitted by the Claimant was deemed untimely with regard to the vehicles with registrations ..., ..., ..., ..., ..., ..., ..., ... and ..., whose most recent assessment date was September 26, 2014, with the other assessments deemed timely, adding that,
81 – From analysis of the Gracious Complaint filed, it is verified that having the same been submitted on April 24, 2015 and the most recent payment date, relating to the IUC assessments of the said vehicles, being September 26, 2014, the period of 120 days (article 102º, no. 1 of the CPPT, under article 70º, no. 1 of the same Code), for its submission, is largely exceeded, considering that,
82 – "From which it follows that untimely is the arbitral request submitted by the Claimant relating to the IUC assessments of the vehicles with registrations ..., ..., ..., ..., ..., ..., ..., ... and...".
REGARDING THE EXCEPTION
83 – It has already been stated that the Respondent, in the Response submitted, organized its defense, from the outset, by way of exception, wherefore, taking into account, both the provision in article 13.º of the Code of Procedure in Administrative Courts (CPTA), and the established in no. 1 of art. 608.º of the CPC, here applicable by virtue of article 29.º, no. 1, paragraphs c) and e) of the RJAT, respectively, it is incumbent to know, in the first place, the said exception, as, in light of the alluded norms, its knowledge precedes that of any other matters.
84 – The Respondent understands that the request for arbitral determination submitted by the Claimant was untimely, insofar as it is based on the rejection of a Gracious Complaint rejected on grounds of lack of timeliness. More specifically, it states that,
85 – "[… the Claimant can never seek to justify the timeliness of the request for arbitral determination on the basis of the rejection of a Gracious Complaint partially untimely", as, "Otherwise, the way would be open to continue to discuss the legality of tax acts with regard to which the respective periods for contesting them have already expired". Adding that,
86 – The Claimant cannot "[… base the timeliness of the recourse to the arbitral tribunal on the basis of the submission of a petition for Gracious Complaint in the untimely segment, nor can "[… the tribunal fail to assess the issue of the timeliness of the Gracious Complaint, for purposes of assessment and decision relating to the timeliness of the request for arbitral determination, which the AT contests, in accordance with the documents contained in the administrative file". The Respondent further considers, in the allegations pertaining to the said exception,
87 – That having the Gracious Complaint, filed by the Claimant, been submitted on April 24, 2015 and being the most recent payment date relating to the IUC assessments of September 26, 2014, the period of 120 days (article 102º, no. 1 of the CPPT, under article 70º, no. 1 of the same Code), for its submission, was largely exceeded, adding that,
88 – Although no. 2 of article 16.º of the IUC Code "[… states that the assessment of the tax is made by the taxpayer himself, we are not faced with a "self-assessment" in the true sense, as it is the Tax Administration that performs the assessment of the amount to be paid by the taxpayer which merely prints the payment notice for the tax owing, not engaging in any calculation operation", there not being, thus, "… a self-assessment, with the Claimant limited to proceeding to payment of the amounts assessed by the Tax Administration and corresponding to the IUC to be paid". It further adds that,
89 – "In this manner, the Claimant could not avail itself of the procedure provided for in article 131.º CPPT, as we are not faced with a self-assessment, nor with error attributable to the services, but rather a tax assessment".
90 – In light of the fact that the untimeliness of the request for arbitral determination, invoked by the Respondent, has as its object and resides in the rejection of the Gracious Complaint no. ... – 2015/..., rejected, on grounds of lack of timeliness, in accordance with the order dated June 20, 2016, from the Chief of the Administrative Justice Division (acting), of the Financial Directorate of Lisbon, it is incumbent to know, before all else, whether the said Gracious Complaint, submitted on April 27, 2015, was, or not, timely submitted.
Let us see,
91 – It is first and foremost necessary to know whether in the framework of taxation relating to the Single Vehicle Circulation Tax (IUC) we are in the domain of tax assessment or self-assessment.
92 – In the case of the file the Claimant says, in point 9 of its request for arbitral determination, that "[… it was unaware of this IUC and CI until it consulted the Financial Portal and ascertained the existence, among many others, of the documents of collection of IUC and CI here in question, having […] obtained from the Financial Portal the respective collection documents for self-assessment and payment of IUC and CI", adding that,
93 – "Notwithstanding having been surprised by the amounts of IUC and CI that appeared on the Financial Portal/reserved area […]", it deemed it appropriate to take the "initiative to self-assess and pay the respective IUC and CI, obtaining the respective payment documents via the internet, on the Financial Portal […]". See points 11 and 12 of its request for arbitral determination.
94 – The Claimant thus refers to having become aware of the tax acts, in conformity with the revelation of the same in "its site" on the Financial Portal, having proceeded to the payment of the amounts of tax assessed.
95 – It is thus certain that the Claimant obtained from its page, on the Financial Portal, the documents designated as Notices of Collection of IUC/Notices of Assessment, and proceeded to payment of the amounts inscribed therein, which cannot but mean that the corresponding and underlying tax assessments had already been "generated" (made) on the basis of computer programming, as their automaticity necessarily results from a computer program with clear and precise objectives, previously delineated by the programmer, that is to say, by the Tax Administration, payments which are duly evidenced by the collecting entity, as results from the respective Certificates of Proof of Payment.
96 – We are thus, unequivocally, faced with IUC assessments made by the AT, with the elements contained in the system, previously inserted, it not being incumbent on the taxpayer to alter any of these elements, assessments which are brought to the sphere of knowledge of the Claimant via their placement on the "page" which is "reserved" to it on the Financial Portal, constituting harmful acts which, in light of the foreseen and established in no. 2 of art. 9.º and in no. 1 of art. 95.º, both of the LGT, may be contested by the interested parties.
97 – The assessment of the tax in question is, currently and legally, incumbent upon the Tax and Customs Authority, as is lapidarily established in no. 1 of art. 16.º of the IUC Code, in the wording introduced by article 201.º of Law no. 83-C/2013, of December 31, therein establishing, indeed, that "The competence for the assessment of the tax is of the Tax and Customs Authority, being considered, for all legal purposes, the tax act practiced in the financial service of the residence or registered office of the taxpayer", which will dispel any doubts about the legal competence for the assessment of the said tax. (emphasis added)
98 – For this purpose, it is also important to consider the provision in nos. 2 and 3, of that same article 16.º, whose interpretation may not fail to take into account the exclusive competence, in matters of IUC assessment, legally incumbent on the said Department of the Ministry of Finance, it being certain, moreover, that the term "assessment" used in nos. 2 and 3 of the said article cannot have any other understanding than that of referring to the "payment" of the mentioned tax, an imprecision in terminology which, moreover, is verified, namely, in other articles of the said IUC Code, such as the case of no. 2, of art. 17.º, as in other legal diplomas, as in "commercial jargon".
99 – In these circumstances, the understanding that we are faced with a situation of self-assessment is rejected, as self-assessment is that which is, at all, made by private parties, by contrast with assessment which is made by the Tax Administration, only being able to speak of self-assessment when it is the taxpayer itself that makes the calculations of the tax to be paid, that is, when it is the taxpayer that applies the tax rate to the taxable matter, which, absolutely, does not occur in the case of the file (See notably, José Casalta Nabais, in Direito Fiscal - (Reprint) Almedina, Coimbra - March - 2002, p. 252; Vitor Faveiro, in Noções Fundamentais de Direito Fiscal Português, 1st vol., Coimbra Editora - 1984, pp 409/410 and Pedro Soares Martinez, in Manual de Direito Fiscal, Almedina, Coimbra, 1983, pp. 295/296.
100 – For this purpose, it is appropriate to note, in like manner to that done in the Judgment of the STA (Supreme Administrative Court), of May 31, 2006, Proc. JSTA00063227, available at www.dgsi.pt., that the "latest" regarding the concept of self-assessment is enshrined in art. 120.º, no. 1 of the Spanish General Tax Law, approved by Law 58/2003, of December 17, when it provides that "self-assessments are statements in which the obligated taxpayers, in addition to communicating to the Administration the data necessary for the assessment of the tax and other data of informative content, themselves make the operations of qualification and quantification necessary to determine and pay the amount of the tax debt or, if appropriate, determine the amount to be refunded or compensated".
101 – In summary, we are, in the case of the file, confronted with IUC assessments and not, as the Claimant understands, with self-assessments, when it states that "Contrary to what was advocated in the order rejecting the Gracious Complaint, this is not untimely, […]", adding that "Indeed, the Gracious Complaint was submitted against the self-assessments of IUC, within the period of 2 years set out in article 131º no. 1 of the CPPT". See points 16 and 17 of its request for arbitral determination.
102 – Thus being, and taking into account, as results from the file, that the lack of timeliness encompasses the vehicles with registrations ..., ..., ..., ..., ..., ..., ..., ... and..., whose most recent payment date relating to IUC assessments was September 26, 2014, and that the said complaint was submitted on April 24, 2015, it is necessary to understand that, as to these assessments, such complaint was out of time on the date it was submitted, in view of the period of 120 days, legally provided for this purpose (art. 102.º, no. 1 of the CPPT, under no. 1, of art. 70.º of the said Code), not deserving, therefore, censure the decision of the Tax Authority that rejected, as untimely, the said Gracious Complaint, with the remaining assessments deemed timely.
103 – On the other hand, and in these circumstances, that is, in light of the order of partial rejection, on grounds of lack of timeliness, of the Gracious Complaint in question, it will now be important to know, what are the consequences of the submission, on December 27, 2016, of the request for establishment of an arbitral tribunal (request for arbitral determination), which has, namely, as its object the declaration of illegality of that same order of rejection.
104 – It has already been stated that the Respondent, in its defense by way of exception, understands that the request for arbitral determination is untimely, insofar as, contrary to the Claimant's understanding, its timeliness cannot be based on the rejection, albeit partial, of a Gracious Complaint partially untimely.
Let us see,
105 – The Gracious Complaint in question, it has already been stated, in light of its submission on April 24, 2015, did not prove to have been submitted within the legally established period, insofar as the period for its submission, as stated above, was 120 days, counted from the end of the period for voluntary payment of IUC, and that, as to the vehicles with registrations ..., ..., ..., ..., ..., ..., ..., ... and ..., the most recent payment date relating to the corresponding IUC assessments was September 26, 2014.
106 – The Claimant chose to initially file a Gracious Complaint, when it could not have done so. In fact, it results from the content of article 70.º of the CPPT at the time of the facts (wording introduced by Law no. 60-A/2005 of December 30), that "1 - The Gracious Complaint may be filed with the same grounds provided for judicial impugnation and shall be submitted within the period of 120 days counted from the events provided in no. 1 of article 102.º", events which, in the case, as results from paragraph a) of the said article, are the "end of the period for voluntary payment of tax installments (…)"
107 – As stated above, the period of 120 days provided by law for submission of the Gracious Complaint was not observed, in view of its submission on April 24, 2015, which, as a consequence, places the request for arbitral determination, relating to the assessments relating to vehicles with registrations ..., ..., ..., ..., ..., ..., ..., ... and..., in which the most recent payment date was September 26, 2014, in a situation which is also untimely, considering, namely, the legal period of 90 days for its submission, provided in paragraph a) of no. 1 of art. 10.º of the RJAT, counted from the events provided in nos. 1 and 2 of article 102.º of the CPPT,
108 – Thus, the untimeliness of the Gracious Complaint, forecloses the right to assess the legality of the assessment acts, relating to the nine (9) vehicles aforementioned, as, as has already been stated, if it were not so, "(…) the way would be open to continue to discuss the legality of tax acts with regard to which the respective periods for contesting them have already expired", and which consolidated in the legal order.
109 – In this sense, it is important, with the necessary adaptations, to note the jurisprudential guidance concretized, namely, both in the Judgment of the TCAN (administrative court) (case no. 01584/09.3BEPRT), of October 11, 2017, when it states that "only the timeliness of the Gracious Complaint opens to the impugnant, the possibility to discuss the legality of the assessments contested, as the untimeliness of the complaint (…) leads to its necessary dismissal, as it then reacts against a case decided or resolved", as in the Judgment of the TCAS (administrative court) (case no. 07644/14), of March 23, 2017, when it judges in the sense that "being the Gracious Complaint out of time on the date it was submitted, in consequence and regardless of whether or not it was decided, the judicial impugnation will also be untimely".
110 – Having arrived here, it should be noted that, it being certain that in the universe of IUC assessments recorded in the Gracious Complaint referenced in the case, there appear assessments relating to vehicles with registrations ..., ..., ... and..., with payment dates relating to IUC, situated, respectively, on April 14, 2014, October 6, 2014, September 26, 2014 and April 29, 2014, now appearing in the request for arbitral determination, which, in light of the said payment dates, were encompassed by the untimeliness of the said Gracious Complaint, given its submission on April 24, 2015, it is no less certain that the said request also contains thirty (30) further vehicles, to which correspond thirty-two (32) assessments, as they are referenced, namely, in doc. 4 and are listed in the table identified as doc. 7, whose payment dates occurred in the month of March of the year 2015.
111 – These are thirty-two (32) assessments which, not being able to have served as the basis for the order of rejection, on grounds of lack of timeliness, of the Gracious Complaint in question, can only be deemed as having been confirmed, in their legality, which means that, in this particular, the said order proceeded to the reaffirmation of the legality of the corresponding assessment acts. Thus,
112 – The order of rejection which fell upon the Gracious Complaint in question, based on its untimeliness, as has been referred to, could not, however, have failed to assess the legality of the thirty-two (32) assessments aforementioned, relating to the mentioned thirty (30) vehicles.
113 – The order of rejection of the Gracious Complaint, issued in the said circumstances, assumes itself, in some manner, as the "extension" and "prolongation" of the assessment act itself, insofar as it re-assesses its legality and confirms it anew, as it had initially been configured, a rejection which, being, on one hand, a harmful act susceptible of impugnation by the interested party, whose assessment is important to effect, insofar as it proceeds to the reaffirmation of the underlying primary assessment act and from which it is indissociable, determines, on the other hand,
114 – That the request for arbitral determination, with regard to the said assessment acts, that is, the thirty-two (32) assessments, relating to the thirty (30) vehicles aforementioned, cannot be deemed untimely. Indeed,
115 – Pursuant to the provision in paragraph a) of no. 1 of art. 10.º of the RJAT, combined with the established in no. 2 of article 102.º of the CPPT, the judicial impugnation of the decision of Gracious Complaint must be filed within the period of 90 days, counted from the notification of the said decision, which, in the case of the file, in light of the documents in the case file, was, in the form of registered mail with proof of receipt, to the knowledge of the Claimant on September 29, 2016, and the request for establishment of an arbitral tribunal, in light of the elements recorded in the Electronic System of Procedural Management (SGP), was submitted to the CAAD on December 27, 2016.
116 – In these circumstances, and in the part relating to the said assessments, whose legality was, as already stated, confirmed by the order dated June 20, 2016, from the Chief of the Administrative Justice Division (acting), of the Financial Directorate of Lisbon, which partially rejected, on grounds of untimeliness, the Gracious Complaint no. … - 2015/..., it is considered that the request for establishment of the arbitral tribunal was timely submitted.
117 – Before advancing, it is important, again, to note that, in the framework of the thirty-four (34) vehicles and the thirty-six (36) assessments, subject to the request for arbitral determination, there appear vehicles with registrations ..., ..., ... and..., with payment dates relating to IUC, situated, respectively, on April 14, 2014, October 6, 2014, September 26, 2014 and April 29, 2014, which, in light of the date of April 24, 2015, corresponding to the submission of the Gracious Complaint aforementioned, could not fail to be encompassed by the order of untimeliness, in view of the period of 120 days, legally provided for this purpose (art. 102.º, no. 1 of the CPPT, under no. 1, of art. 70.º of the said Code), from which also results their untimeliness as to the arbitral request submitted by the Claimant on December 27, 2016.
I – GROUNDS OF LAW (CONTINUATION)
118 – Having arrived here, with the exception of the vehicles aforementioned, with registrations..., ..., ... and..., whose payment dates relating to IUC, were situated, respectively, on April 14, 2014, October 6, 2014, September 26, 2014 and April 29, 2014, it is now important to judge as to the legality of the 32 assessments associated with the remaining 30 vehicles, as they are referenced in doc. 4 and are listed in the table identified as doc. 7, in the case file.
119 – It has already been stated, in point 48, that, in the framework of the present case, the essential and decisive issue, relating to which there are absolutely opposed understandings between the Claimant and the AT is translated into knowing whether the rule of subjective incidence contained in no. 1 of art. 3.º of the IUC Code establishes or not a rebuttable presumption.
J – INTERPRETATION OF THE RULE OF SUBJECTIVE INCIDENCE CONTAINED IN NO. 1 OF ARTICLE 3.º OF THE IUC CODE
120 – On this issue, that is, whether the rule of subjective incidence contained in no. 1, of art. 3.º of the IUC Code, establishes a presumption, it should be noted that the jurisprudence established at the CAAD points in the direction that the said rule establishes a legal presumption. Indeed, from the first Decisions, delivered on this matter, in the year 2013, among which may, namely, be referred to those delivered in the framework of Cases nos. 14/2013-T, 26/2013-T and 27/2013-T, to the most recent of which may be indicated the Decisions delivered in the framework of Cases no. 69/2015-T and no. 79/2015-T, passing through numerous Decisions delivered in the year 2014, of which are mentioned, merely by way of example, the Decisions delivered in Cases nos. 34/2014-T, 120/2014-T and 456/2014 - T, all point to the understanding that no. 1, of art. 3.º of the IUC Code establishes a rebuttable legal presumption.
For this purpose, mention should also be made of the recent Decision of the Tax Court of Lisbon, delivered, on January 23, 2017, in Case No. 463/13.4BELRS, where it is considered that the "[… impugnant succeeded in rebutting the presumption established in art. 3.º, no. 1 of the IUC Code."
Consideration should also be given to the understanding inscribed in the Judgment of the Central Administrative Court of the South, delivered on March 19, 2015, Case 08300/14, available at: www.dgsi.pt, which seconds the said jurisprudence, when therein it is expressly stated that art. 3.º, no. 1 of the IUC Code "[… establishes a legal presumption that the holder of the vehicle registration is its owner, and such presumption is rebuttable by virtue of art. 73.º of the LGT".
This is an understanding which is fully shared and which is, without further ado, taken as valid and applicable in the present case, it not being considered, therefore, necessary any further developments, in light of the abundant substantiation set out in the said Decisions and in the said Judgment.
L – THE ACQUISITION OF VEHICLE OWNERSHIP AND THE VALUE OF THE REGISTRATION
121 – Before all else, it should be added, in light of what will hereafter, explicitly, be stated about the value of the registration, that the acquirers of the vehicles become owners of these same vehicles by way of the celebration of the corresponding purchase and sale contracts, with or without registration.
122 – There are three articles of the Civil Code which are important to take into account, regarding the acquisition of ownership of a motor vehicle. They are, from the outset, art. 874.º, which establishes the notion of purchase and sale contract, as being "[… the contract by which ownership of a thing, or another right, is transferred, by means of a price"; art. 879.º, in whose paragraph a) is established, as essential effects of the purchase and sale contract, "the transfer of ownership of the thing or of the ownership of the right" and art. 408.º, which is entitled contracts with real effect, and establishes in its no. 1, that "the constitution or transfer of real rights over a determined thing occurs by mere effect of the contract, except for the exceptions provided by law".
We are, indeed, in the domain of contracts with real effect, which means that their celebration provokes the transfer of real rights, in the case, motor vehicles, determined by mere effect of the contract, as expressly results from the norm previously mentioned. (emphasis added)
123 – Regarding the said contracts with real effect, it is appropriate to note the teachings of Pires de Lima and Antunes Varela, when, in annotations to art. 408.º of the CC, they tell us that "These contracts said 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 this result) distinguish themselves from the so-called real contracts (quoad constitutionem), which require the delivery of the thing as an element of their formation (see arts. 1129.º, 1142.º and 1185.º)".
We are, thus, faced with contracts in which the ownership of the sold thing is transferred, without more, from the seller to the buyer, having, as its cause, the contract itself.
124 – Likewise from the jurisprudence, namely from the Judgment of the Supreme Court of Justice no. 03B4369 of February 19, 2004, available at: www.dgsi.pt, it is derived that, in light of the provision in art. 408.º, no. 1, of the C. Civil, "the constitution or transfer of real rights over a determined thing occurs by mere effect of the contract, except for the exceptions provided by law". This is the case of the purchase and sale contract of a motor vehicle (arts. 874.° and 879.º para. a) of the C. Civil), which does not depend on any special formality, being valid even when celebrated in verbal form - see Judgment of the Supreme Court of Justice of March 3, 1998, in CJSTJ, 1998, year VI, Volume I, page 117". (emphasis added)
125 – The purchase and sale contract having, in light of what is stated above, real nature, with the mentioned consequences, consideration must also be given to the legal value of the vehicle registration subject of that contract, insofar as the transaction of the said good is subject to public registration.
126 – It is established, indeed, in no. 1 of art. 1.º of D.L. no. 54/75, of February 12, relating to the registration of motor vehicles, that "The registration of vehicles has essentially as its purpose to give publicity to the legal status of motor vehicles and their respective trailers, with a view to the safety of legal commerce". (emphasis added)
127 – Being clear, in light of the said norm, what is the purpose of the registration, there is, however, no clarity, within the framework of the said Decree-law, regarding the legal value of this registration, it being important to consider article 29.º of the said legal diploma, relating to the registration of motor vehicle ownership, when it therein provides that "The provisions relating to land registration are applicable, with the necessary adaptations, to the registration of automobiles […]". (emphasis added)
128 – In this framework, so that we may attain the sought knowledge about the legal value of the registration of motor vehicle ownership, it is important to take into account what is established in the Land Registration Code, approved by Decree-Law no. 224/84, of July 6, when it provides in its article 7.º 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". (emphasis added)
129 – The combination of the provisions in the aforementioned articles, particularly the established in no. 1, of art. 1.º of D.L. no. 54/75, of February 12 and in art. 7.º of the Land Registration Code, allows to consider, on one hand, that the fundamental function of registration is to give publicity to the legal status of vehicles, allowing, on the other hand, to presume that the right exists and that such right belongs to the holder for whom it is registered, in the precise terms in which it is defined in the registration.
130 – Thus, the definitive registration constitutes nothing more than the presumption that the right exists and belongs to the registered holder, in the exact terms of the registration, but a rebuttable presumption, admitting, therefore, contrary proof, as results from the law and jurisprudence has been pointing out, being able, for this purpose, to be seen, among others, the Judgments of the Supreme Court of Justice nos. 03B4369 and 07B4528, respectively, of February 19, 2004 and January 29, 2008, available at: www.dgsi.pt.
131 – The function legally reserved to registration is, thus, on one hand, to publicize the legal status of the goods, in the case, of vehicles and, on the other, to allow us to presume that the right over these vehicles exists and that the same belongs to the holder, as such registered in the registration, which means that the registration does not have a constitutive nature of the ownership right, but only declarative, from which the registration does not constitute a condition of validity of the transmission of the vehicle from the seller to the buyer.
132 – Thus, if the buyers of the vehicles, as the "new" owners thereof, do not immediately proceed with the appropriate registration of their right, it is presumed, for purposes of the provision in art. 7.º of the Land Registration Code and of no. 1 of art. 3.º of the IUC Code, that the vehicles continue to be the property of the person who sold them and who in the registration remains their owner, that person being the taxpayer of the tax, in the certainty, however, that such presumptions are rebuttable, either by virtue of the established in no. 2 of art. 350.º of the CC, or in light of the provision in art. 73.º of the LGT. From which it follows that, from the moment the presumptions in question are rebutted, through proof of the said sales, the AT cannot persist in considering as the taxpayer of IUC the seller of the vehicle, who, in the registration, continues to appear as its owner.
M – THE TAXPAYER OF THE IUC UPON ALIENATION OF THE VEHICLE SUBJECT TO FINANCIAL LEASING CONTRACTS OR VEHICLE RENTAL CONTRACTS WITHOUT DRIVER WITH PROMISE OF PURCHASE AND SALE
133 – With the exception of the vehicles with registrations ..., ..., ... and ..., with payment dates relating to IUC, situated, respectively, on April 14, 2014, October 6, 2014, September 26, 2014 and April 29, 2014, whose assessments total € 243.39, as they are referenced in doc. 4 and are listed in the table identified as doc. 7, in the case file, the transmissions of the remaining thirty (30) vehicles, likewise, referenced and listed in the said documents, whose assessments total the amount of € 3,061.66; and which did not give rise to the rejection on grounds of untimeliness of the Gracious Complaint, had as acquirers the persons who, in the corresponding financial leasing contracts, or vehicle rental contracts without driver with promise of purchase and sale, appeared as lessees or as promise-buyers, and the said sales occurred (all of them) before the dates relating to those of the accrual of IUC.
134 – The alienation of the vehicles referenced in the case file occurred, in some instances, during the currency of the said contracts and, in others, after the termination of these contracts, and that, in either of the situations, that is, in those relating to the sales of the vehicles which occurred still during the currency of the said contracts, or on dates subsequent to the end of these contracts, the dates of the said sales refer to moments prior to those of the accrual of the Single Vehicle Circulation Tax, not being, therefore, its payment the responsibility of the Claimant, given that, in light of what has already been stated above, the same was not, then, in these circumstances, the taxpayer of the tax.
N – THE MEANS OF PROOF PRESENTED
REGARDING THE FINANCIAL LEASING CONTRACTS AND VEHICLE RENTAL CONTRACTS WITHOUT DRIVER WITH PROMISE OF PURCHASE AND SALE
135 – Relating to the financial leasing contracts and the vehicle rental contracts without driver with promise of purchase and sale, in the framework of which all the transfers of ownership of vehicles occurred to the ex-lessees and to the promise-buyers (with the exception of the vehicles with registrations ... and ..., for which only invoices no. B40001271, dated July 24, 2014 and no. 281591204, dated October 10, 1994, respectively, are presented), it should be understood that such contracts are suitable means and with sufficient force to prove the quality of lessees or promise-buyers. There are, moreover, no elements which allow to understand that the data inscribed in such contracts do not correspond to the contractual truth, it being also certain that the law, in the case, no. 1 of art. 75.º of the LGT, attributes to these documents a presumption of veracity.
REGARDING THE INVOICES
136 – As written form is not legally required for the transmission of ownership of motor vehicles, proof of that transmission may be made by any means, namely by way of documentary, therein being included, namely, invoices relating to the sales of the vehicles.
137 – With regard to invoices, as evidentiary documents of the sale of motor vehicles, consideration cannot be failed to be given to no. 2, article 2.º, of Decree-Law no. 177/2014, of December 15, in whose establishment invoices are considered as documents which give indication of the effective purchase and sale of the vehicles.
138 – On the other hand, it is also important to recall the provision in paragraph b) of no. 1 of art. 29.º; in no. 5 of art. 36.º and in nos. 1 and 2 of art. 40.º, all of the CIVA, in the wording introduced by Decree-Law no. 197/2012, of August 24, from which it is derived that only the invoice, the invoice-receipt and the simplified invoice embody documents recognized for purposes of the transmission of goods or the provision of services.
139 – The Claimant, as means of proof that it proceeded to the sale of the vehicles, as identified in the present case, at a date prior to that of the accrual of the tax, joined, namely, in addition to the copies of the mentioned contracts, both invoice/receipt documents relating to the alleged sales, as occurred with regard to the vehicles with registrations ..., ... and ..., as well as invoices and payment documents for the remaining vehicles, invoices which, in some instances, display the reference to their processing by computer and, in other instances, the indication that they were processed by Certified Program no. 746/DGCI.
140 – It should, moreover, be emphasized that nothing allows to consider that any of these documents, namely the invoices presented, as support of the sales of the vehicles in issue in the case file, do not have correspondence with the sales which they seek to demonstrate, and which, allegedly, were carried out.
141 – The invoices joined to the case file, as proof of the alienation of the vehicles, taking into account the corporate purpose of the Claimant, embodied in the rental of motor vehicles and the sale of these vehicles to its clients, upon the termination of the respective rental contracts, show themselves to be totally adjusted to the said business reality, and it is absolutely probable that the sale of the vehicles which the presented invoices seek to prove, no elements being identified whatsoever which embody any simulated contract, before they permit to conclude that we are faced with invoices which reproduce the real and true sale of the vehicles to the persons therein indicated.
142 – The combination of the various documents presented, allow the tribunal to understand, with a high degree of probability and verisimilitude, that the alienation of the vehicles in question to the corresponding lessees and promise-buyers was carried out. For this purpose, it is appropriate to note what is written by Jorge Lopes de Sousa, in Código de Procedimento e de Processo Tributário, Annotated and Commented, Volume II, 6th Edition, Áreas Editora, SA, Lisbon, 2011, p. 256, in annotations to art. 115.º of the said Code, when citing ALBERTO DOS REIS, states that "sufficient proof leads to a judgment of certainty; not of logical certainty, absolute, material, in most cases, but of certainty sufficient for the practical needs of life, of certainty called historical-empirical. That is to say, what is formed on the basis of sufficient proof is, normally, a judgment of probability, but of probability elevated to a degree so high, that it is as much as is sufficient for the reasonable requirements of social security".
143 – In summary, the proof of the sale of the vehicles in question, from the joining to the case file of the mentioned documents, appears reasonable and proportional, especially, taking into account the corporate purpose of the Claimant, centered on the activity of financing operations for the acquisition of motor vehicles, and the celebration of the corresponding financial leasing and vehicle rental contracts without driver with promise of purchase and sale, it not being, consequently, surprising, indeed quite to the contrary, that, as has already been noted, in the sequence of the mentioned contracts, the transfer of the ownership of the vehicles identified in the case file occurs to the corresponding lessees and promise-buyers.
144 – The invoices in question (copies), relating to the sales of the vehicles, insofar as they enjoy the presumption of veracity which is conferred on them in no. 1 of art. 75.º of the LGT, it being incumbent on the AT, in view of the provision in art. 75.º, no. 2 of the LGT, in the framework of the well-founded and objective reasons it had, to demonstrate that the information inscribed therein does not correspond to reality, permit to conclude the real transfer of the ownership of the vehicles, constituting means of proof sufficient to rebut the presumptions in question in the case file, that is, the presumption established in art. 7.º of the Land Registration Code and that established in no. 1 of art. 3.º of the IUC Code, which means that, on the date the tax was accrued, the ownership of the vehicles in question had been transferred from the Claimant to the ex-lessees and promise-buyers, the Claimant not being the taxpayer of the tax in question.
145 – In these circumstances, the thirty (30) vehicles aforementioned, namely in point no. 133, identified in the case file as having been alienated, in the framework of the respective financial leasing and vehicle rental contracts without driver with promise of purchase and sale, are considered as sold, in the terms already mentioned, at moments prior to the dates of the accrual of the corresponding IUC, and should, thus, be considered as the Claimant, with regard to such vehicles, was not, on the date to which the assessments in question refer, the taxpayer of the tax in question, it not being able, therefore, to fail to consider that the legal presumption established in no. 1 of art. 3.º of the IUC Code has been rebutted.
146 – The AT, when it understands that the taxpayers of IUC are the persons in whose names the motor vehicles are registered, without considering that art. 3.º, no. 1 of the IUC Code establishes a rebuttable presumption, nor taking into account the evidentiary elements which were presented to it, nor attending to the circumstance that IUC is deemed a true environmental tax, which, in obedience to the polluter-pays principle, elected as the taxpayer the actual user of the vehicle, is proceeding to the illegal assessment of IUC, with regard to the thirty (30) vehicles aforementioned, based on the erroneous interpretation and application of the rules of subjective incidence of the Single Vehicle Circulation Tax, contained in the said art. 3.º of the IUC Code, which constitutes the practice of tax acts lacking legality due to error regarding the factual and legal prerequisites, determining the annulment of the corresponding tax acts, by violation of law.
O – REIMBURSEMENT OF THE AMOUNT PAID AND INDEMNITY INTEREST
147 – Pursuant to the provision in paragraph b) of no. 1 of art. 24.º of the RJAT, and in conformity with what is established therein, the arbitral decision on the merits of the claim of which there is no recourse or impugnation binds the tax administration from the end of the period provided for recourse or impugnation, it being required that this – 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 spontaneous execution of sentences of tax judicial courts – "Restore the situation that would exist if the tax act subject of the arbitral decision had not been practiced, adopting the acts and operations necessary for this purpose." (emphasis added)
148 – These are legal commands which are in total harmony with the provision in art. 100.º of the LGT, applicable to the case by virtue of the provision in paragraph a) of no. 1 of art. 29.º of the RJAT, in which it is established that "The tax administration is obliged, in case of total or partial success of complaints or administrative appeals, or of judicial process in favor of the taxpayer, to the immediate and full restoration of the situation that would exist if the illegality had not been committed, comprising the payment of indemnity interest, in the terms and conditions provided by law." (emphasis added)
149 – The case contained in the present file, motivates the manifest application of the mentioned norms, as in consequence of the illegality of the thirty-two (32) assessment acts, relating to the thirty (30) vehicles aforementioned, and of the payment of the corresponding amounts, as appears from the Certificates of Proof of Payment contained in the case, there must, by virtue of these norms, be place for the reimbursement of the amounts paid, by way of tax, as a way of achieving the restoration of the situation that would exist if the illegality had not been committed, amounts which, in the case of the file, total the sum of € 3,061.16, resulting from the assessments of IUC, in the amount of € 3,505.05, subject to the request for arbitral determination, diminished by the amount of € 243.39, relating to the assessments of the vehicles with registrations ..., ..., ... and ..., whose IUC assessments are situated, respectively, on April 14, 2014, October 6, 2014, September 26, 2014 and April 29, 2014, and which, as namely indicated in point no. 107, raise the untimeliness of the request for arbitral determination.
150 – As to the indemnity interest, it appears manifest that, in light of the established in article 61.º of the CPPT and the requirements of the right to indemnity interest being met, that is, verified the existence of error attributable to the services from which results payment of the tax debt in an amount greater than legally owing, as provided in no. 1 of art. 43.º of the LGT, the Claimant has the right to indemnity interest at the legal rate, calculated on the amount of € 3,061.16.
CONCLUSION
The circumstantial framework which is stated above, permits to conclude the following:
151 – The Gracious Complaint, no. ...-2015/... is untimely, as to the vehicles with registrations..., ..., ..., ..., ..., ..., ..., ... and ..., whose most recent payment date was September 26, 2014, insofar as the period of 120 days, provided for its submission, (article 102.º, no. 1 of the CPPT, under article 70.º, no. 1 of the same Code), was not observed, given that it was submitted on April 24, 2015.
152 – The request for arbitral determination, as to the IUC assessments relating to the vehicles identified in the preceding point, based on a Gracious Complaint untimely, is untimely, insofar as only the timeliness of the Gracious Complaint enables the discussion of the legality of the assessments contested therein.
153 – In the circumstantial framework which has been referred to, the AT, when it confirms the legality of the thirty-two (32) acts of assessment of IUC associated with the thirty (30) vehicles which have been mentioned, as they are referenced in doc. 4 and are listed in the table identified as doc. 7, (that is, the assessment acts relating to the vehicles subject to the request for arbitral determination, with the exception of those identified with registrations..., ..., ... and ..., whose payment dates relating to IUC, were situated, respectively, on April 14, 2014, October 6, 2014, September 26, 2014 and April 29, 2014), on the ground that article 3.º, no. 1, of the IUC Code does not establish a rebuttable presumption, and that the Claimant is, in the cases provided in no. 2 of the said article, the taxpayer of the tax, makes erroneous interpretation and application of this norm, committing an error regarding the legal prerequisites, which constitutes violation of law.
154 – On the other hand, because the AT, on the date of the occurrence of the tax facts, deemed the Claimant the owner of the thirty (30) vehicles aforementioned, deeming it, as such, the taxpayer of the corresponding tax, when such ownership, with regard to the vehicles in question, no longer existed in its legal sphere, basing itself, thus, on a matter of fact divergent from the actual reality, commits an error regarding the factual prerequisites and, therefore, of violation of law.
155 – The decision of the AT relating to the Gracious Complaint identified in the case file is, in the part relating to the thirty-two (32) mentioned assessment acts, and insofar as it proceeds to their confirmation, lacking in legality, not being able to remain in the legal order.
III – DECISION
156 – Wherefore, in view of all the foregoing, this Arbitral Tribunal decides:
– To judge meritorious the exception of untimeliness of the claim, with regard to the vehicles which have registrations..., ..., ... and ..., with payment dates relating to IUC, situated, respectively, on April 14, 2014, October 6, 2014, September 26, 2014 and April 29, 2014, whose assessments total € 243.39, excepting the remaining thirty-two (32) assessments, with the total amount of € 3,061.66, whose payment dates, as they appear in Doc. 4, occurred (all of them) on March 25, 2015, associated with the remaining thirty (30) vehicles subject to the request for arbitral determination, deciding, in consequence and in conformity with the provision in no. 3 of article 576.º of the Code of Civil Procedure, applicable by virtue of article 29.º, no. 1, paragraph e), of the RJAT, to partially absolve the Tax and Customs Authority from the claim.
– To judge, consequently, the request for arbitral determination, in the part which concerns the annulment of the assessment acts of IUC, with the value of € 3,061.66, relating to the thirty (30) vehicles aforementioned, timely and meritorious, by proven, on the ground of defect of violation of law.
– To annul the thirty-two (32) acts of assessment of IUC, with payment dates situated on March 25, 2015, whose total value totals the sum of € 3,061.66, associated with the thirty (30) vehicles aforementioned, excepting, therefore, the four (4) vehicles, likewise subject to the request for arbitral determination, with registrations ..., ..., ... and..., with IUC assessments in the amount of € 33.01; € 32.20; € 141.84 and € 36.34, respectively, totaling the amount of € 243.39.
– To condemn the AT to reimbursement of the sum of € 3,061.66, relating to the IUC assessed and paid, relating to the thirty-two (32) assessments associated with the aforementioned thirty (30) vehicles, (whose payment dates are situated on March 25, 2015), as well as to the payment of indemnity interest at the legal rate, calculated from the date of payment of the sum referred to until the complete reimbursement of the same;
– To condemn the Claimant and the Respondent in costs, which are fixed, for each one, in the proportion of 7% for Claimant and 93% for Respondent.
VALUE OF THE CASE
In conformity with the provision in articles 306.º, no. 2 of the CPC (ex-315.º, no. 2) and 97.º - A, no. 1 of the CPPT and in article 3.º, no. 2 of the Regulation of Costs in Tax Arbitration Proceedings, the case is assigned the value of € 3,305.05.
COSTS
In accordance with the provision in article 12.º, no. 2, in fine, in art. 22.º, no. 4, both of the RJAT, and in art. 4.º of the Regulation of Costs in Tax Arbitration Proceedings and the Table I, which is attached thereto, the amount of total costs is fixed at € 612.00.
Notify.
Lisbon, July 18, 2022
The Arbitrator
António Correia Valente
(The text of this decision was prepared by computer, pursuant to article 131.º, no. 5 of the Code of Civil Procedure (ex-138.º, no. 5), applicable by reference of article 29.º no. 1 paragraph e) of Decree-Law no. 10/2011, of January 20 (RJAT), being governed in its drafting by the orthography preceding the Orthographic Agreement of 1990.)
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