IUC Tax on Financial Leasing: Subjective Incidence and Liability of Credit Institutions (CAAD 79/2015-T)

ARBITRAL DECISION

CLAIMANT: A… – CREDIT FINANCIAL INSTITUTION SA

RESPONDENT: TAX AND CUSTOMS AUTHORITY

I – REPORT

The Parties and Constitution of the Arbitral Tribunal

A… - CREDIT FINANCIAL INSTITUTION, SA, Legal Entity No. …, with registered office in ... Lisbon, hereinafter referred to as "Claimant", requested the constitution of a Singular Arbitral Tribunal, in accordance with the provisions of Article 2, No. 1, paragraph a) and Article 10, Nos. 1 and 2 of Decree-Law No. 10/2011, of 20 January, hereinafter referred to as "RJAT" and of Administrative Order No. 112 – A/2011, of 22 March, seeking the declaration of illegality of seventy-six assessments of Unique Circulation Tax (IUC) relating to the tax periods 2009 to 2012, described in the Table annexed to the arbitral petition, which are contained in the Administrative Process with the files of the ATA, and which are hereby deemed entirely reproduced for all due legal effects, in the total amount payable of €10,771.91.

The request for constitution of the Arbitral Tribunal was presented by the Claimant on 09-02-2015, accepted by the Honourable President of CAAD on 11-02-2015 and immediately notified to the Tax and Customs Authority.

The Claimant chose not to designate an arbitrator, therefore, in accordance with the provisions of No. 1 of Article 6 of the RJAT, the undersigned was designated on 01-04-2015, by the Deontological Council of the Administrative Arbitration Centre as singular arbitrator. The appointment was accepted and the parties were notified of the arbitrator's designation, and did not manifest the intention to refuse the designation.

Thus, in accordance with the provisions of paragraph c), No. 1, of Article 11, of Decree-Law No. 10/2011, of 20 January, in the wording introduced by Article 228 of Law No. 66-B/2012, of 31 December (RJAT), the Singular Arbitral Tribunal was constituted on 20-04-2015. The TA was notified on 21/04/2015 to present a response within the legal deadline, in accordance with the provisions of Nos. 1 and 2 of Article 17 of the RJAT.

The TA presented its response on 21-05-2015, in which it presents its defence by way of opposition, which is hereby deemed entirely reproduced. On 25-05-2015, an arbitral order was issued designating 08 – 06 - 2015, at 11 o'clock, for the meeting provided for in Article 18 of the RJAT, which took place, with the parties reiterating the same positions set out in their respective pleadings. At the meeting, the Claimant answered the preliminary question raised by the ATA in the response presented. The parties declared to waive the presentation of final pleadings, referring to everything contained in their respective pleadings. A date was set for the pronouncement of the arbitral decision by 30 July 2015 and the Claimant was warned to, by that date, proceed to payment of the subsequent arbitral fee.

B) THE REQUEST FORMULATED BY THE CLAIMANT

The Claimant formulates the present request for arbitral pronouncement seeking the illegality, with the consequent annulment, of the Unique Circulation Tax assessments, relating to the tax periods 2009, 2010, 2011 and 2012, itemized in the Table annexed to the Arbitral Petition, in a total of 76 assessments, in the overall amount of €10,771.91.

All these assessments are properly identified and acknowledged as true, as concluded from the analysis of the AP, namely of all elements contained in the Gracious Reclamation procedure submitted by the Claimant and partially upheld by the ATA, therefore the table annexed to the arbitral petition as well as the documents contained in the AP are hereby deemed entirely reproduced by the ATA.

In summary, it bases its request, alleging the following:

• The Claimant is a credit institution subject to supervision by the Bank of Portugal, which pursues its activity in the branch of automobile financing, namely under the modality of granting loans for the acquisition of vehicles or the conclusion of financial leasing contracts;

• The Claimant disagrees with all the impugned assessment acts because it is not the passive subject of IUC relating to the registrations in question, in any of the years on which the assessments that are the subject of the request for arbitral pronouncement fell;

• In all cases covered by the present arbitral petition, the tax assessed relates to vehicles already sold by the Claimant, to vehicles whose leasing contract was still in force or tax that had already been previously paid, all of which correspond to reasons for exclusion of subjective tax incidence, disregarded by the ATA in each of the assessments now subject to request for arbitral pronouncement;

• The first 61 situations identified in the Table annexed to the Arbitral Petition share the cause of action which consists in the fact that the vehicle associated with the assessment was sold by the Claimant prior to the due date of the IUC;

• The following 3 situations, identified in the attached Table, are reducible to the same cause of action, which consists in the fact that the vehicle was subject to a leasing contract that was in force at the date on which the taxable event occurred and the corresponding exigibility;

• The Claimant was notified for payment of all official assessments of IUC relating to the vehicles identified in the Table annexed to the request for arbitral pronouncement (summary table attached to the arbitral petition) and to the tax periods 2009, 2010, 2011 and 2012;

• Presented a Gracious Reclamation, which was considered partially justified, having been notified of the decision on 11 November 2014.

As regards the legal justification of the request presented, the Claimant alleges that in accordance with the provisions of Article 3, No. 1 and Article 6 of the CIUC, the legal regime in force, using the elements contained in the automobile register, the legislator established, simultaneously, enshrines a norm of subjective incidence that establishes, merely, a legal presumption, especially as in the tax legal system we can find the verb "consider" used with a presumptive sense; Already No. 2 of the same article adds that financial lessees, acquirers with reservation of title, as well as other holders of purchase option rights by virtue of the leasing contract are equated to owners;

Indeed, whenever vehicles are sold in leasing, there is a genuine transfer of the economic ownership of the vehicle, with the legal ownership of the same being preserved by the credit institution with a mere function of guarantee;

As for the last two situations indicated in the attached Table, the Claimant alleges that there is duplication of collection since these had already been subject to assessment and payment by the Claimant, as can be verified through access to the tax records of the Claimant.

It concludes by petitioning for the annulment of these IUC assessments, in the total amount of €10,771.91, corresponding to €9,660.62 of unduly paid tax and €1,051.29 of undue compensatory interest, as well as the payment of indemnity interest for the deprivation of said amount, in accordance with Article 43 of the LGT.

C – THE RESPONDENT'S REPLY

The Respondent, duly notified for this purpose, presented its response in due course, in which, by way of opposition, it alleged, in summary, the following:

As a preliminary matter, it alleges the failure to annex the assessments underlying the present arbitral petition, although it acknowledges that this concerns the same tax assessments that were the subject of the gracious reclamation registered with No. …2014….

It further alleges that the object of the gracious reclamation and the present request for arbitral pronouncement is not the same, because in the former assessments were in the amount of €12,549.61 and in the present arbitral petition the amount is €10,771.91; therefore it considers that the provisions of Art. 10, No. 2, paragraph b) of the RJAT are not complied with.

By way of opposition, the ATA alleges that the Claimant has no merit, because:

• As regards the assessments relating to vehicles subject to financial leasing, it was incumbent upon the Claimant to demonstrate having failed to comply with the ancillary obligation imposed by Article 19 of the CIUC, in order to defeat the presumption of Article 3 of the CIUC; having failed to demonstrate that it complied with such obligation, the Claimant is a subject of tax;

• As it did not prove compliance with the obligation, it will not be able to do so subsequently, because all evidence must be presented with the pleading;

• As for vehicles whose sale it alleges occurred before the taxable event, it is also without merit, Claimant's understanding incurs a skewed reading of the letter of the law, and the adoption of an interpretation that does not attend to the systematic element, violating the unity of the regime enshrined throughout the CIUC and, more broadly, throughout the entire legal-fiscal system and further stems from an interpretation that ignores the ratio of the regime enshrined in the article in question, and indeed throughout the CIUC;

• As regards assessments relating to financial leasing contracts, the Claimant does not prove the existence of such contracts, because it did not annex to the files the alleged leasing contracts, which should have been attached with the arbitral petition.

It further alleges that the arbitral jurisprudence invoked by the Claimant has been inflated, and moreover does not serve as precedent and does not correspond to the current jurisprudence of a Superior Court, it being certain that more recent arbitral jurisprudence has not followed in all cases the initial jurisprudence current invoked by the Claimant;

It further develops its argumentative exposition around the issue of the subjective incidence of the IUC, centering its allegation on the provisions of Nos. 1 and 2, of Article 3 of the CIUC, stressing that the legislator did not use the expression "are presumed", as could have done, indeed in like manner to what occurs in other legal normatives, exemplifying some situations provided for in law;

It therefore understands that in cases where the tax legislator uses the expression "is considered", it is not establishing a presumption, but rather a legislative choice to consider as owners those who appear as such in the register; to understand that the legislator enshrined here a presumption would be unequivocally to effect an interpretation against the law;

It concludes, therefore, that in the case of the present files, the legislator expressly and intentionally established that those in whose names the same are registered are considered as such, because this is the interpretation that preserves the unity of the legal-fiscal system and that any other interpretation would be to ignore the teleological element of interpretation of the law: the ratio of the regime enshrined in the article in question, and indeed throughout the CIUC; it reinforces this allegation by invoking that this is the understanding followed by the jurisprudence of our courts expressed in the judgment delivered by the Administrative and Fiscal Court of Penafiel, within the scope of Case No. 210/13.0BEPNF;

It concludes that Article 3 of the CIUC does not contain any legal presumption, and for the inadmissibility of the arbitral petition, because the tax acts in issue do not suffer from any defect of violation of law, in that in light of the provisions of Article 3, Nos. 1 and 2 of the CIUC and Article 6 of the same code, it was the Claimant, in the capacity of owner, the passive subject of the IUC, as attested by the Information relating to the history of ownership of the vehicles in question, issued by the Automobile Register Conservatorship;

In the view of the TA, it is undeniable that the Land Register Code applies subsidiarily to the Automobile Register Regulation, however, the Land Register Code is not subsidiary legislation of the IUC Code, therefore the IUC became, in accordance with the provisions of Article 3 of the CIUC, due by persons who appear in the register as owners of the vehicles;

Any other interpretation would be to ignore the teleological element of interpretation of the law, the systematic element, violating the unity of the regime and would, moreover, be an interpretation inconsistent with the Constitution;

The TA alleges that, should this not be understood, it would always have to be considered that the evidentiary documents submitted by the Claimant (second copies of invoices) are not capable of defeating the presumption of the register, given the unilateral nature of the invoice, therefore it is a document insufficient for the demonstration of the bilateral character of the purchase and sale contract; the fact that one could hold a supposed transaction that may not actually happen, due to lack of acceptance by the other party; it invokes to this effect the arbitral jurisprudence set out in the decisions delivered in cases Nos. 63/2014-T, 130/29014-T; 150/2014 – T, 220/2014T and 339/2014 T, among others; it completes with indication of diverse jurisprudence of superior courts on the evidentiary force of documents, namely particular, unilateral and internal documents, among which the Judgment of the TCA South of 19-03-2015, delivered in case No. 08300/14.

It concludes by seeking the admissibility of the exception invoked in accordance with the provisions of Article 577 - e) of the CPC, giving rise to absolution of the instance in accordance with the provisions of Article 278, No. 1, paragraph d) of the same code or, should this not be understood, the petition should be judged inadmissible, maintaining in the legal system the tax assessment acts impugned, absolving the Respondent from the petition.

II - PROCEDURAL REQUIREMENTS

The Arbitral Tribunal is regularly constituted. It is materially competent, in accordance with Article 2, No. 1, paragraph a) of Decree-Law No. 10/2011, of 20 January.

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

As to the cumulation of petitions, seeking the joint assessment of the legality of 15 IUC assessments, relating to the years 2009 to 2012, although they constitute autonomous acts, relating to different situations, the requirements laid down in No. 1, of Article 3, of the RJAT and Article 104 of the CPPT being met, cumulation is to be admitted. Accordingly, in the same arbitral petition, the cumulation of petitions for declaration of illegality of all tax assessment acts of IUC and respective compensatory interest associated with them is accepted, given the identity of the tax and the assessment of the tax acts in question depending on the assessment of the same factual circumstances and the application of the same legal rules. Such is the case with the present arbitral petition. The legal requirements permitting cumulation of petitions are thus fulfilled, in accordance with the provisions of Articles 104 of the CPPT and Article 3, No. 1 of the RJAMT, considering the identity of the tax and the tribunal's competence, which is accepted by this Tribunal.

The process is not affected by defects that would invalidate it.

Taking into account the administrative tax process and the documentary evidence submitted to the files, it is now necessary to present the factual matter relevant to the understanding of the decision, which is fixed as follows.

III - STATEMENT OF FACTS

Proven Facts

As factual matter relevant, this tribunal deems the following facts as established:

• The Claimant is a Credit Financial Institution subject to supervision by the Bank of Portugal, which is engaged in automobile financing, namely under the modality of granting loans for the acquisition of vehicles or the conclusion of financial leasing contracts;

• The Claimant received various IUC assessment notices on vehicles related to the activity aforementioned, relating to the vehicles identified in the Table annexed to the arbitral petition, which is hereby deemed entirely reproduced;

• The Claimant presented a Gracious Reclamation, which proceeded under the number …2014…, which was partially upheld, with reference to the assessments contained in the Map attached to the final decision of the gracious reclamation, which is contained in the AP and is hereby deemed entirely reproduced;

• The ownership of these vehicles was not registered in the automobile register in favor of the new owner;

• The Claimant issued the invoices attached as annexes to the arbitral petition as documents Nos. 1 to 42, which are hereby deemed entirely reproduced, to establish the transfer of ownership of the vehicles, after payment of the respective price and/or residual value stipulated in the financial leasing contract.

UNPROVEN FACTS

The existence of the leasing contracts invoked in the arbitral petition, their commencement and termination dates, since copies of such contracts were not annexed.

There are no other unproven facts with relevance for the decision to be rendered.

STATEMENT OF THE PROVEN FACTS

The facts described above were deemed as proven based on the documents that the parties submitted to the present process, the Claimant as annexes to the petition formulated and the TA in the response presented and respective Administrative Process.

IV – QUESTIONS TO BE DECIDED AND STATEMENT OF LEGAL GROUNDS

It is necessary to assess and decide the questions to be resolved:

• Preliminary matter: the failure to annex the assessments in question in the present arbitral petition;
• Decision and justification of the legal questions raised by the parties.

As to the preliminary matter raised by the TA regarding the failure to annex the impugned assessments, it must be borne in mind, first and foremost, the provisions of No. 2 of Article 10 of the RJAT, according to which:

"2 – The request for constitution of an arbitral tribunal is made by means of a request sent electronically to the president of the Administrative Arbitration Centre which must include:

a) the identification of the passive subject, including the tax identification number, and the local peripheral service of its domicile or registered office or, in the case of a coalition of passive subjects, the local peripheral service of the domicile or registered office of the subject identified first in the petition;

b) the identification of the act or acts that are subject of the request for arbitral pronouncement;

c) the identification of the request for arbitral pronouncement, constituting the grounds of this petition those provided for in Article 99 of the Tax Procedure and Process Code and, as well, the exposition of the factual and legal questions that are the subject of said request for arbitral pronouncement;

d) the elements of evidence of the facts indicated and the indication of the means of evidence to be produced;

e) the indication of the value of the economic utility of the petition;

f) proof of payment of the initial arbitration fee, in cases where the passive subject has not chosen to designate an arbitrator or proof of payment of the arbitration fee, should the passive subject manifest the intention to designate the arbitrator;

g) the intention to designate an arbitrator in accordance with paragraph b) of No. 2 of Article 6.

(...)"

It follows from the provision of paragraph b) above mentioned that the arbitral petition must contain the identification of the act or acts that are the subject of tax challenge. Now, given the enormous volume of documentation in question, it is considered that the preparation of the attached Map, which contains the identification of the assessments, respective vehicles, registration numbers and amounts of tax collected, is sufficient. Therefore, the tax acts impugned are sufficiently identified.

Thus, there is no doubt as to which assessments are being impugned, especially since the Administrative Process submitted to the files by the ATA (AP) contains all the elements that make up the gracious reclamation procedure that preceded the present arbitral petition.

It should be noted that the tax assessments impugned also appear in the Map drawn up by the ATA itself, within the scope of the gracious reclamation procedure. As is stated in the final decision of the gracious reclamation procedure, attached to the AP, the ATA itself used the same process of identifying the assessments in question, by drawing up a Map with all the elements relevant to that effect. Thus, it can be read in the said order that "considering the enormous volume of documents presented, the quantity of vehicles subject to the reclamations and the years in question (years 2009, 2010, 2011 and 2012) as well as the convenience of service in instituting various reclamation processes for easier analysis of the petitions, taking into account also No. 1 of Article 71 of the CPPT gives power to the instructing body for the decision, I determine that:

1- as many reclamations as necessary be instituted as each containing up to an average of 150 vehicles;

2- be used as a working basis the listing sent by the claimant composed of 25 pages"

Thus, from the comparison of the List/Map attached to the arbitral petition, and the Map drawn up by the ATA in the course of the reclamation which was accepted in the gracious reclamation as a document sufficient as a basis of analysis for the final decision of this procedure, it is possible that the impugned assessments are properly identified, as well as the vehicles to which they relate and the years in question.

An identical conclusion is drawn from the provisions of Article 108 of the CPPT, which states that the challenge will be formulated in a pleading, directed to the judge of the competent tribunal, "in which the impugned act and the entity that carried it out are identified...". The legislator does not require the attachment of the assessment but rather its identification.

In addition, the provisions of Article 16 of the RJAT, which establishes the principles of the arbitral process, among them the principle of free conduct of the process, this Tribunal considers that being properly identified the impugned assessments, both in the Map attached to the arbitral petition and in the AP submitted to the files by the Respondent, the requirement provided for in the RJAT for knowledge of the petition is fulfilled, therefore there is no reason to consider the exception invoked by the ATA as admissible.

In these terms, this Tribunal considers the alleged exception inadmissible.

As to the legal questions raised by the parties, considering the positions assumed and the arguments presented by both, it is necessary to assess three distinct situations configured by the Claimant in its arbitral petition, namely.

• Acts relating to vehicles whose ownership was transferred prior to the taxable event, which correspond to the first 61 situations identified in the table attached to the arbitral petition;

• Acts relating to vehicles with leasing contracts in force at the date of the taxable event;

• Acts that embody duplication of collection, which correspond to the last two situations identified in said table.

Therefore, the legal questions to be decided are the following:

• Meaning and scope of the norm of subjective incidence provided for in Article 3, No. 1 of the CIUC, namely to ascertain whether this legal provision provides for a defeatable presumption or, conversely, a legal fiction, insusceptible, therefore, of being defeated by proof to the contrary;

• Meaning and scope of the provision in No. 2 of Article 3 of the CIUC, applicable to cases where there are leasing contracts;

• Legal value of the registration of motor vehicles;

• Evidentiary value of the documents submitted to the files by the Claimant to defeat the presumption, prove the existence of the alleged leasing contracts and the duplication of collection.

A) As to the Interpretation of Article 3, Nos. 1 and 2 of the CIUC

The Claimant invokes that, with reference to the assessment acts whose ownership was transferred prior to the taxable event, the requirements for subjective incidence provided for in Article 3 of the CIUC are not met, and therefore it is not a passive subject of IUC. It invokes that, at the date of the tax facts, it was no longer the owner of the said vehicles (in the case those identified in the map attached as the first 61 situations) and, consequently, the assessments should be annulled for manifest lack of subjective responsibility for their payment.

For this purpose it alleges, in summary, that Article 3 of the CIUC establishes an implicit presumption of ownership of vehicles in favor of those in whose name the same are registered, a presumption that, by virtue of the application of the general rule provided for in Article 73 of the General Tax Law, can be defeated by proof to the contrary. As for the Respondent, Article 3 of the CIUC does not establish any implicit presumption, but a genuine legal fiction, which is indefeasible.

Now, with reference to this question, there is already abundant arbitral jurisprudence emanating in recent years, of which we highlight the decisions delivered in cases Nos. 14/2013-T, of 15 October, 26/2013-T of 19 July, 27/2013-T, of 10 September, 217/2013-T of 28 February and, more recently, in the decisions delivered in cases 286/2013-T, of 2 May 2014, 293/2013-T, of 9 June 2014, 46/2014-T of 5 September, 246 and 247/2014 T, of 10 October, among others.

But, let us see what, in accordance with the principles of legal hermeneutics, should be the meaning and scope of the provision in Article 3, No. 1 of the CIUC. No. 1 of Article 3 of the CIUC provides:

"The passive subjects of the tax are the owners of the vehicles, being considered as such the natural or legal persons, of public or private law, in whose names the same are registered."

From a simple reading of number one of the said provision, it is clear without great difficulty, that the cornerstone is the expression "is considered" used by the legislator. Should it be understood that the legislator intended to establish an implicit presumption or a genuine legal fiction?

It is important to attend to some reference concepts to find the most appropriate answer to this question, such as the provision of Article 349 of the Civil Code, according to which "presumptions are the inferences that the law or the judge draws from a known fact to establish an unknown fact."

Already according to No. 2 of Article 350 of the Civil Code, legal presumptions can be defeated by proof to the contrary, except in cases where the law prohibits it.

Moreover, with regard, specifically, to presumptions of tax incidence, according to Article 73 of the General Tax Law, these always admit proof to the contrary.

A different situation, to which, sometimes, the legislator resorts, is that designated as "legal fictions", which consist "in a legal process that considers a situation or a fact as distinct from reality in order to attribute legal consequences to it".

According to the thesis repeatedly defended by the Respondent ATA in various processes identical to that discussed in the present files, the fact that Article 3, No. 1, of the CIUC establishes that persons are "considered" as owners, rather than "presumed" as owners, reveals that the legislator, within his freedom of legislative configuration, expressly intended to determine that the persons in whose names the vehicles are registered are considered, without admissibility of any proof to the contrary, as owners thereof. And, further according to the Respondent, if the legislator intended to create a presumption and not a legal fiction, he would have written, as he does in various other diplomas, that owners are presumed and not that they are considered as owners.

Well, this Tribunal cannot endorse such an understanding. And, it is not to be said that this is a position only embodied in the successive arbitral processes that have addressed this matter. In truth, this same position was recently endorsed by the Central Administrative Court South, by Judgment delivered on 19-03-2015, in case No. 08300/14, in which it is stated that "(…) the cited Article 3, No. 1, of the CIUC enshrines a legal presumption that the holder of the automobile register is its owner, such presumption being defeatable by virtue of Article 73 of the LGT." And, the same Judgment adds, that "the defeat of the legal presumption obeys the rule contained in Article 347 of the C. Civil, according to which full legal proof can only be contradicted by means of proof showing the fact which is its object is not true."

In truth, as has already been emphasized in various arbitral decisions rendered, the analysis of the historical and teleological elements, in addition, naturally, to the literal element, of legislative interpretation, lead to the logical conclusion that the legislator did not intend to establish any legal fiction but only and solely a presumption, defeatable by proof to the contrary in accordance with the provisions of Article 73 of the General Tax Law. Being a rule of tax incidence, any other understanding would be clearly contrary to the principles governing the tax legal relationship.

Thus, as to the historical element, it is important to note that the CIUC had its genesis in the creation, through DL 599/72, of 30 December, of the tax on vehicles, which already expressly enshrined that the tax was due by the owners of vehicles, it being presumed as such the persons in whose names the same were registered or matriculated.

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

However, in the CIUC, the legislator substituted the expression "it is presumed" for the expression "is considered", which in the perspective of the Respondent translated the enshrinement of a legal fiction, which is indefeasible. We do not consider that to be the case.

In truth, in the current version of the Code only the verb changed, the legislator now opting for the expression "is considered". It is certain that between the previous legislative versions and the current one, the LGT came into force, which expressly enshrined the principle contained in Article 73, from which it follows that in the matter of tax incidence any presumption always admits proof to the contrary. Therefore, it becomes immaterial the adoption of an express or implicit presumption, because, both one and the other are equally defeatable.

As results from what has already been set out in various arbitral decisions, now reinforced by the jurisprudence of the Superior Courts, we are faced with a defeatable presumption.

Moreover, as has already been stated above, being a rule of tax incidence, it would never be admissible the enshrinement of an indefeasible presumption. As affirm, Diogo Leite Campos, Benjamim Silva Rodrigues and Jorge Lopes de Sousa, in the annotation to No. 3, of Article 73, of the LGT, "presumptions in the matter of tax incidence can be explicit, revealed by the use of the expression presumed or similar (…). However, presumptions can also be implicit in norms of incidence, namely of objective incidence, when certain values of movable or immovable property are considered as constituting taxable matter, in situations where it is not impracticable to ascertain the real value".

Moreover, there are many examples of norms in which the verb "consider" is used to establish defeatable presumptions, as occurs with the provision in No. 2 of Article 21 of the CIRC, in Article 89-A of the LGT or in Article 40, No. 1 of the CIRS among others. This appears normal, namely, in the case of other fiscal norms in which the legislator used the formula "is considered" or "are considered", but attributing another sense to it, since these are expressions that, depending on the context, can assume a plurality of meanings, without from which the conclusion that the Respondent intends can be extracted.

Taking into account that the legal system should form a coherent whole, the examples above mentioned, as well as the doctrine and jurisprudence indicated, allow one to conclude that it is not only when the verb "presume" is used that we are faced with a presumption, but also the use of other terms or expressions, such as the term "is considered" can serve as a basis for presumptions. And, as mentioned above, being the literal element the first instrument of interpretation of the legal norm, in search of legislative thinking, it is important to confront it with the other elements of interpretation, namely the rational or teleological element, the historical element and the systematic element.

It appears settled that, in the matter of tax incidence, presumptions can be revealed by the expression "presumed" or by similar expression.

By way of example, Jorge Lopes de Sousa cites that in Article 40, No. 1 of the CIRS the expression "presumed" is used, whereas in Article 46, No. 2 of the same Code the expression "is considered" is used, there being no difference whatsoever between one and the other expression, both meaning, ultimately, the same: a legal presumption.

Thus, notwithstanding the CIUC having opted for the expression "is considered" instead of the expression "presumed", no substantive alteration is drawn therefrom, both having the same meaning, that is, the enshrinement of a defeatable presumption.

If we attend to the teleological element, an identical conclusion is imposed. In the statement of reasons of Draft Law No. 118/X of 07/03/2007, underlying Law No. 22-A/2007, of 29 June, the purpose of carrying out a "global and coherent reform of taxes linked to the acquisition and ownership of motor vehicles" is explicit, which results from the "imperious necessity of bringing clarity and coherence to this area of the fiscal system and the even more imperious necessity of subordinating it to the principles and concerns of an environmental and energy nature that nowadays mark the discussion of automobile taxation.

(...) the two new taxes that are now being created, the tax on vehicles and the unique circulation tax, constitute much more than the technical continuation of the figures created in the 70s and 80s that preceded them, geared predominantly to revenue collection, indifferent to the social cost resulting from automobile circulation. They constitute something different, figures already of the century in which we live, with which it is intended, certainly, to collect public revenue, but to collect it in the measure of the cost that each individual causes to the community."

In this line of thought the legislator enshrined the principle of equivalence, inscribed in Article 1 of the CIUC, as a fundamental principle in the operation of the tax, "thereby making clear that the tax, in its entirety, is subordinated to the idea that taxpayers should be burdened in the measure of the cost they cause to the environment and the road network, this being the reason for this tax figure. It is this principle that dictates the burdening of vehicles based on their respective ownership and until the moment of scrappage". The IUC, as a genuine environmental tax, chose as its passive subject the user, the polluter, in obedience to the polluter-pays principle.

This consideration is particularly relevant, also, for a correct interpretation of the meaning and scope to be given to the provision in No. 2, of Article 3 of the CIUC, relating to the case of lessees and other users of motor vehicles.

Thus, it can be said that the structuring principle of the reform of automobile taxation is precisely the incidence of taxation on the true user of the vehicle, this principle not being compatible with the "blind" reading of the letter of the law, which could, in fact, lead to taxing someone who was not an owner and, in that way, who was not the subject causing the "environmental and road cost" referred to in Article 1 of the CIUC.

In this conformity, considering the elements of interpretation of the law already mentioned above, we are led to the conclusion that the expression "is considered" has exactly the same meaning as the expression "is presumed", and therefore, should be understood that Article 3, No. 1, of the CIUC, enshrines a genuine presumption of ownership and not any fiction, and therefore such presumption is defeatable. Therefore, the passive subject of the tax is, in principle, the owner, because the law presumes that he himself uses the thing. But if it is proved that it is not the owner who makes use of the vehicle, but a third party, as occurs with lessees, then it will be this, the passive subject of the tax.

Thus, as to the subjective incidence of the tax, it is to be concluded that there are no changes relative to the situation previously in force under the Municipal Tax on Vehicles, Circulation Tax and Haulage Tax, as is indeed broadly recognized by doctrine, continuing to apply a defeatable presumption in this matter. This understanding is, moreover, the only one that appears adequate and in accordance with the principle of material truth and justice, underlying tax relationships, with the objective of taxing the real and effective owner and not the one who, due to circumstances of diverse nature, is sometimes nothing more than an apparent and false owner, because of appearing in the automobile register.

In this sense, also the arbitral decisions delivered in cases Nos. 150/2014-T and 220/2014-T, confirm the same understanding already embodied in earlier arbitral decisions, among which, the one invoked in the files by the Claimant. Further to this matter, and in the same sense, the Arbitral Judgment No. 63-2014-T, of 15 September, states that: "(…) if the legislator had, as the Respondent intends, established in law a non-presumptive qualification of who is the owner of vehicles (a legal fiction), it would thereby be establishing, through a different formulation, a rule entirely identical to the hypothetical rule mentioned. It would be making the subjective incidence of the tax rest on a legal fiction, in total disconnection with any economic substance as the basis of the subjective incidence. (…) And, if such is the case, it must also be concluded that Article 3, No. 1, can only establish a presumption of ownership of the vehicle, even with all the negative consequences that this conclusion will certainly entail, in terms of efficiency of tax administration."

Because it is so, the person registered in the automobile register must be allowed the possibility of presenting sufficient evidentiary elements to demonstrate that the true owner is, in fact, a person different from the one appearing in the register, and that initially, and in principle, was supposed to be the true owner. Otherwise, the supremacy of the formal truth of the register over the material truth would be accepted, and it would be admitted the gross violation of the fundamental fiscal principles stated and, moreover, of the principle contained in Article 73, of the LGT according to which there are no indefeasible presumptions in the matter of fiscal incidence. To all that is left above exposed there would be added the violation of the principles of legality, proportionality and justice, as well as the inquisitorial principle, respectively enshrined in Articles 55 and 58 of the LGT. This interpretation is, moreover, in harmony with the principle stated in Article 11, No. 3, of the General Tax Law, which establishes, in cases of doubt about the interpretation of tax norms that "the economic substance of the tax facts" should be considered and, on the other hand, with the principle of equality in the apportionment of public burdens, which requires that the taxation of taxpayers in general, whenever possible, rest on the economic reality underlying the tax facts.

At an identical conclusion the Central Administrative Court South arrived at in the aforementioned Judgment of 19-03-2015. The presumption of ownership resulting from the automobile register can be set aside "by means of proof showing the fact which is its object is not true."

We are thus led back to the question of the analysis of the means of evidence submitted to the files, to demonstrate conclusively that the fact contained in the register is not true.

For that matter, only thus is the principle of equivalence underlying the reform of the unique circulation tax fulfilled. As to this matter, the position set out in Arbitral Decision No. 286/2013-T, of 2 May 2014, is quite enlightening when it states that: "It is this principle (of equivalence) that dictates the burdening of vehicles based on their respective ownership and until the moment of scrappage, the common employment of a specific taxable base, the revision of the framework of tax benefits in force and the allocation of a portion of the revenue to the municipalities of their respective use. Now, to intend, as the Respondent does, that the legislator, in Article 3, No. 1 of the CIUC, fixed, whatever the underlying technical means, the subjective incidence of the tax on persons in whose names the vehicles are registered, with total independence of whether or not, in the relevant tax period, they hold the right of use of the vehicle, much less its ownership, would imply disregarding that purpose that presides the tax normativity, well manifested in the objective incidence and in the taxable base associated with the various categories of vehicles (cf. Articles 2 and 7 of the CIUC). Because an entry in the register, without correspondence with the underlying ownership, is of no avail for the satisfaction and fulfillment of such a purpose, because it is not the persons in whose names the vehicles are registered when they are not holders of rights over their use that cause environmental and road costs, but rather such environmental and road costs are caused by the true users of the vehicles, in accordance with the relevant substantive legal situations, even if they do not appear, as they should, in the automobile register. The register, in truth, proves or serves in no way as to the principle of equivalence established in Article 1 of the CIUC. Indeed, to assume that the determining element of the subjective tax incidence is simply and exclusively the automobile register also does not allow one to affirm a connection with any manifestation of contributory capacity relevant, which, as a rule, in taxes not strictly commutative, is indispensable, since there must exist, notwithstanding requirements of practicability, some effective connection between the tax and a premise that is materially relevant economically capable of founding the tax. The reason for being of the tax figure thus removes, the idea that its incidence is tied strictly and exclusively to the registration entry itself of the ownership of the tax vehicles and not to the substantive situations attributing the right of use of vehicles (Article 3, Nos. 1 and 2 of the CIUC) to which the register is intended to give publicity (cf. Article 1 and Article 5 of Decree-Law No. 54/75, of 12 February, with subsequent amendments, which regulates the automobile register)."

As to the second group of assessments impugned by the Claimant, allegedly by the existence of leasing contracts in force, it must be taken into account that, in harmony with all that is left above exposed, the legislator instituted an express rule for leasing contracts, in No. 2, of Article 3 of the CIUC, according to which, during the leasing contract, it is the lessees who are the passive subjects of tax, during the duration of the contract.

After the alienation of the vehicles, whether such alienation occurred in favor of the former lessees or whether it occurred in favor of third parties indicated by them, the new acquirers become passive subjects. Therefore, the lessor or financial entity that supports the conclusion of leasing contracts or loans for the acquisition of vehicles is never a passive subject of the IUC, with reference to the vehicles covered by the respective contracts.

For this purpose, the CIUC obliges the notification provided for in Article 19, so as to hold the lessors and financial entities responsible for providing the ATA with the elements necessary for tax collection.

In truth, the burden of knowing whether or not there is a leasing contract in force at the date of the tax facts, when it begins and when it ends, falls on the Claimant and not on the ATA. If the latter does not receive information in timely manner about the existence and conditions of the contract, it can only be guided by the information at its disposal, consulting the registration bases and/or the IMTT.

Once again, we are led to the question of the analysis of the means of evidence presented by the Claimant to achieve the purpose of demonstrating the existence of such contracts and their respective period of validity.

In summary, as to the legal questions enunciated, the position of the arbitral tribunal in the present files, endorsing the positions already previously embodied in the various arbitral decisions rendered, is the following:

• As to the first group of situations mentioned by the Claimant, referring to the 61 IUC assessments relating to vehicles whose ownership was transferred prior to the taxable event, it is considered that the presumption inscribed in No. 1, of Article 3 of the CIUC, configures a defeatable presumption, which corresponds to the interpretation most suited to the pursuit of the objectives sought by the legislator;

• As to the second group of situations mentioned by the Claimant, referring to the cases of assessments relating to vehicles used by the respective lessees by virtue of leasing contracts that prove to exist at the time of the tax facts, it seems evident that those responsible for payment of the IUC are the lessees themselves, since any other understanding would imply accepting the possibility of taxing legal or natural persons without responsibility in the production of any environmental damage, while the real causes of such damage would not be subject to tax, frustrating in absolute the purposes of regulation of the law itself, that is, its true ratio legis.

For all that is set out above, the understanding set out in the judgment delivered by the Administrative and Fiscal Court of Penafiel, within the scope of case No. 210/13.0BEPNF, which has been repeatedly invoked by the Tax and Customs Authority, cannot be endorsed, namely, when it affirms that "the ownership and actual possession of the vehicle is irrelevant for the verification of the subjective and objective incidence and of the taxable event of the tax". For that matter, the understanding set out in this Judgment, far from representing a settled understanding on this matter, came to be contradicted by the understanding recently set out in the Judgment of the TCA South, of 19-03-2015, already mentioned above.

b) As to the Legal Value of Automobile Registration

The treatment of the previous questions already anticipates, in some way, the assessment of this other matter, which concerns determining what legal value the automobile registration holds.

Pursuant to the provision of No. 1, of Article 1 of DL 54/75, of 12 February, which instituted the Motor Vehicle Property Register, "the registration of vehicles has essentially the purpose of giving publicity to the legal situation of motor vehicles and their trailers, with a view to the security of legal commerce". Article 7 of the Land Register Code, supplementary legislation to the automobile register, adds 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 automobile property register (and not only) does not have a constitutive nature, but merely a declarative one, permitting only the registration in the register to presume the existence of the right and its ownership. Therefore, the presumption resulting from the register can be defeated by proof to the contrary, which, moreover, is consistent with the understanding set out in the assessment of the previous questions.

And this is so precisely because, pursuant to the provision of Article 408 of the Civil Code, except for exceptions provided for in law, the constitution or transfer of real rights over a determined thing is given by mere effect of the contract, its validity not depending on the registration in the register.

In the case of a contract for the purchase and sale of a motor vehicle, the law not providing any exception for the same, the contract has real effect, the acquirer becoming its owner, independently of the register, just as the person registered in the register will cease to be the owner, notwithstanding the fact that he may still appear, for some time or even very long, in the register as such.

It should also be noted that the transfers made are enforceable against the Respondent, notwithstanding the provision in No. 1, of Article 5 of the Land Register Code, which provides: "facts subject to registration only produce effects against third parties when registered."

This is because the TA is not a third party for registration purposes, in the context provided for in the law. The notion of third parties for registration purposes is enshrined in No. 4 of the same Article 5: third parties, for registration purposes, are those who have acquired from a common author rights that are incompatible with each other, which manifestly is not the case of the TA.

The transfer of ownership of a movable asset, even if subject to registration, as occurs with a motor vehicle, operates by mere effect of the contract, in accordance with the provisions of Article 408, No. 1, of the Civil Code. The contract of purchase and sale has a real nature, that is, the transfer of ownership of the thing sold, or the transfer of the alienated right, has as its cause the contract itself. Motor vehicles are movable assets, the transfer of whose ownership does not obey any special formalism. In Portuguese law, the fact that determines the transfer of ownership of a movable asset (even if subject to registration) is the contract expressed by the will of the parties. So much so that the buyer becomes the owner of the vehicle sold through the conclusion of the contract of purchase and sale, independently of the register, which is taken as a condition of effectiveness and enforceability against third acquirers.

Thus, the proof of the existence of this contract of purchase and sale can be effected by any means, an invoice being an appropriate accounting document for this purpose, as for many others, namely fiscal, since from this document are processed the main taxes to which this entity is subject, as occurs with the Corporate Income Tax or with the determination of VAT. In this sense, it is not accepted that one questions its evidentiary force solely for the purpose of proof of transfer of ownership of the vehicle, under penalty of falling into a legal absurdity of, from the same document, recognizing that the transaction existed for purposes of incidence of income tax but did not exist for purposes of proving the purchase and sale (precisely the same that generated said income tax). On this point, we do not follow the understanding of the respondent, namely, when it questions its evidentiary value solely by virtue of its unilateral character. In truth, Invoices are documents that are endowed with particular legal and accounting force distinct, by virtue of the rules in force in the seat of VAT and Income Tax, it being certain that Invoices entitle sales, transactions or service provisions that are presumed true by virtue of the presumption of truthfulness instituted in Article 75 of the LGT. This rule is, moreover, a basic principle of accounting organization and fiscal essential to security in the functioning of commercial transactions. But, being a presumption, nothing prevents the demonstration of its falsity or inadequacy in the face of the legal requirements established in Article 36 of the CIVA. This is also, in this case, a defeatable presumption, with the burden of proof falling on the ATA.

Now, in the case of the present files, the ATA questions the truthfulness of the invoices submitted to the files by the Claimant, as will be seen next.

In summary, since the presumption resulting from the register is defeatable, it remains to analyze whether in the case in question in the present files such presumption was or was not defeated.

Thus, the invoices presented by the Claimant benefit, as stated, from the presumption of truthfulness contained in Article 75 of the LGT, provided they comply with the legal requirements and demonstrate the correspondence to the factual reality that the Claimant intends to demonstrate in the files: the transfer of ownership of the vehicles.

The analysis of the evidentiary value of the documents in the files is therefore fundamental to the final decision, namely, to ascertain whether the Claimant succeeded or failed to defeat the presumption.

C) As to the Evidentiary Value of the Documents in the Files to Defeat the Presumption

As results from the proven matter in the present files, at the date of the tax facts referenced to the years 2009 to 2012, the vehicles identified in the Map annexed to the arbitral petition appeared in the automobile register as being the property of the Claimant.

Given all that has been set out above as to the applicable regime in this seat, it remains to analyze whether the Claimant presented sufficient and adequate means of evidence to set aside the presumption resulting from the automobile register. The means of evidence submitted to the files by the Claimant consist of 42 documents which are, precisely, the second copies of the invoices relating to the vehicles in the MAP annexed to the arbitral petition and respective tax assessments.

The Claimant did not submit copies of the declarations of sale of the vehicles it alleges to have alienated prior to the occurrence of the tax facts.

It also did not submit the leasing contracts it alleges to be in force, at the date of the occurrence of the tax facts, and finally it also did not submit proof of the assessment previously effected and paid, with reference to the last two cases in which it alleges duplication of collection.

From the AP submitted by the ATA, the same documents (invoices) submitted as annexes to the present arbitral petition appear, being that from the same neither copies of the leasing contracts, nor copies of the declarations of sale of the vehicles appear, nor finally does a document result from the AP from which the prior payment of the alleged IUC relating to the last two assessments impugned can be extracted.

Therefore, it falls to the Tribunal to assess, in light of the documents at its disposal and which are only those that the Claimant itself submitted to the files and those contained in the AP submitted by the ATA (which are, practically coincident, with the exception of those relating to the assessments annulled by decision rendered within the scope of the gracious reclamation process that preceded the present request for arbitral pronouncement) whether the Claimant succeeded in defeating or not the presumption resulting from the automobile register.

Following the terms in which the Claimant configured its petition, three distinct groups of situations must be distinguished. Let us see therefore:

A) As to the first group of situations relating to the first 61 assessments identified in the Map annexed to the arbitral petition:

The Claimant alleges that, at the date in which the tax facts occurred, it had already transferred the ownership of the vehicles to third acquirers. To prove this it submits the second copies of Invoices, in which the vehicle registration number, the Customer No., the identification of the recipient are mentioned. In the descriptive each document has a distinct mention, for example: in Doc. No. 1 the mention is of "residual value", whereas in Docs. 3, 7 and 8 the mention is of "sale of credit asset", whose meaning leaves us many doubts as to whether it may have an underlying transfer of ownership. But already in doc. No. 5 in the descriptive appears "Total loss insurance", whose meaning also raises many doubts for us as to the type of transaction underlying.

In addition, in all second copies of invoices submitted to the files, the expression "valid after good collection" appears. This mention appears in all documents submitted to the files by the Claimant. Thus, it seems evident that the descriptives of the documents under analysis do not allow one to conclude, without more, as to the existence of underlying purchases and sales, given the diversity of situations described. But, such doubt could have been clarified and proof of transfer of ownership would be demonstrated, if the Claimant had submitted to the files copies of the declarations of sale relating to each of the vehicles in question, which had to be issued and delivered to the respective buyers for the conclusion of the deal and subsequent alteration of the property register. Certainly, if all these transfers of ownership existed, the declarations of sale were properly completed and the documentary process conveniently concluded with the issuance of the receipt, because financial entities do not as a rule send the documents that finalize the process to the new owner without first checking payment of the value of the last invoice, residual value and associated charges. This is precisely why the documents submitted to the files contain the indication of "valid after good collection". Of course, the Claimant, given the size and business structure it has all processes properly organized and copies of all documents formalizing the business. It is not credible that it only has second copies of invoices.

Having arrived here, it is important to add that in the case of automobile acquisition financing through leasing contracts or of identical nature, the finalization of the process can lead to the acquisition of the vehicle by the contract holder himself or by a third party indicated by him, it being that the Client can choose not to pay the residual value and opt to formalize a new contract for acquisition of a new vehicle, with the prior one remaining in the ownership of the financial entity.

In summary, invoices are means of proof of the occurrence of transfers of ownership if accompanied by something more that leaves no doubt as to the materialization of that specific deal with that acquirer who is identified in the document and with indication of the dates of conclusion and completion of the contract. Now, the Claimant did not submit other documents, beyond said second copies, from which it results proved that the deal was completed. It was incumbent on the Claimant to make such proof and had the opportunity to do so.

Finally, within the scope of the Gracious Reclamation this matter had already been raised and within the scope of the right of hearing the Claimant did not submit other elements of proof, namely copies of the contracts and leasing, declarations of sale, or receipts or proof of payments of the invoiced amounts.

Abundant arbitral jurisprudence has been requiring that proof of transfer of ownership be effected by submission of the respective invoices accompanied by other elements that do not allow any doubt as to the actual materialization of the deal. This understanding was endorsed, in essence, in the Judgment TCA South of 19-03-2015. In this matter, moreover, one must recall the jurisprudence of the Judgment TCA South, already mentioned above, in which it is clear that the proof of the invoice can be complemented with any other from which the existence, payment or settlement of the transaction results.

As to the position already set out in some arbitral decisions, according to which "an invoice is not apt to prove the conclusion of a bilateral contract such as purchase and sale, since that document does not reveal in itself an essential and unequivocal declaration of will (i.e., acceptance) by the supposed acquirer" it is important to state that the invoked lack of evidentiary force must be properly contextualized and analyzed in function of the constraints of the specific case. Not being able to resile into requirements of impossible or diabolic proof.

Moreover, as to the question of proof, the increased difficulty of proof of negative facts must have as a corollary, by virtue of the constitutional principle of proportionality, a lesser evidentiary requirement by the part of the applicator of the law, giving relevance to less relevant and convincing proofs than those that would be required if such difficulty did not exist, applying the Latin maxim "iis quae difficilitoris sunt probationis leviores probationes admittuntur".

These evidentiary requirements must be accompanied by the due cautions and imposed by the principle of proportionality, under penalty of the imposition of requirements of proof that would make it impossible to set aside the presumption, transforming it into an absolute and indefeasible presumption, which is altogether unacceptable. Thus, the requirements of proof for the defeat of the presumption cannot be so exacting that they result in a practical impossibility of defeating the presumption or, in other words, can only achieve its defeat if the alienator proves having effected the registration itself, replacing the acquirer himself, inverting the normal rules of functioning of the register. That would be a solution equivalent to rendering the presumption indefeasible, which is considered unacceptable pursuant to what is already set out above.

This Tribunal understands that the Invoice accompanied by other elements (declarations of sale, contracts, receipts or others) allows, with reasonableness, to ascertain whether the deal was materialized or not. To require proof from the submission of this type of documents appears reasonable and proportional, especially when the Claimant is a financial entity that conducts all its activity concentrated in automobile acquisition financing operations, which is characterized by the conclusion of written contracts, properly documented, from their beginning until their end.

Now, in the case of the present files, the truth is that the Claimant did not submit sufficient means of evidence to defeat the presumption resulting from the register, therefore the petition formulated by the Claimant must be inadmissible.

B) As to the second group of situations mentioned by the Claimant:

The Claimant alleges the existence of leasing contracts in force at the time of the occurrence of the tax facts. However, once again, the Claimant failed to accomplish proof, because it did not submit to the files the referred leasing contracts, in force.

The Claimant did not submit a single contract, therefore the Tribunal cannot deem its existence as proved, as well as the essential elements of such contracts, such as their initial and final term, to assess the truthfulness of what is alleged by the Claimant, as to their validity in the periods in which the tax facts occurred.

Also within the scope of the Gracious Reclamation procedure, the Claimant did not submit a copy of the leasing contracts it invoked as the basis of its petition. It nonetheless had a second opportunity to submit to the AP such contracts, in the deadline for prior hearing, but it did not, therefore, neither from the documents submitted by the Claimant nor from the AP submitted to the files can the Tribunal extract sufficient evidentiary elements for what the Claimant alleges.

Moreover, within the scope of the Gracious Reclamation procedure, in the Map drawn up by the ATA itself, it is possible to verify the following explanatory mention as to the document descriptive: "2 – The IUC of this year is the responsibility of A…; a financial leasing or equivalent contract with start and end dates is registered in the AT database in compliance with the provision of Article 19 of the CIUC; however no physical proof of the existence of said contract was made" – see Map attached to the Reclamation – page 6/6.

To this matter, there is no doubt that it was incumbent on the Claimant to prove the physical existence of the contracts, for this Tribunal to be able to assess the conditions and deadlines contained in them, and in accordance assess the responsibility or not of A… for the payment of the IUC. Therefore, also in this part the Claimant's petition must be inadmissible, due to absolute lack of proof of the leasing contracts whose existence it alleges.

C) As to the situations of duplication of collection

Finally, the Claimant alleges, with respect to the last two situations described in the Map annexed to the arbitral petition, that the assessments should be annulled on the ground of duplication of collection, since the Claimant had previously effected payment of such amounts.

Now, once again, with respect to this allegation the Claimant does not submit any means of proof of the payment effected. Now, according to the general rules of burden of proof already mentioned above, the proof of the fact falls to those who allege it, in this case, the Claimant.

Surprisingly, it does not submit proof of such payment. It merely alleges that it paid "as can be easily verified by the ATA through access to the Claimant's tax records."

Now, there is an equivocation by the Claimant as to the burden of proof. The arbitral petition is directed to a Tribunal and not to the TA, it being certain that it does not fall to the Tribunal nor even to the Respondent entity to prove the facts alleged by the Claimant.

Moreover, the circumstance that the Claimant, like any taxpayer, especially of business structure, can access via the internet through the Finance Portal and extract proof of such payment to submit to the files. Not having made proof of the prior payment it alleges, this tribunal cannot consider such fact as proved.

Consequently, the alleged duplication of collection is not proved, therefore also in this matter the petition is considered inadmissible.

V - OF THE PETITION AND THE RIGHT TO PAYMENT OF INDEMNITY INTEREST

Given all the above set out regarding the decision of the previous questions, knowledge of this petition is prejudiced.

VI - DECISION

In light of the foregoing, this Arbitral Tribunal decides:

A) To consider inadmissible the exception raised by the Respondent;

B) To judge the present arbitral petition entirely inadmissible.

VII - VALUE OF THE PROCESS

In accordance with the provisions of Articles 305, No. 2 of the CPC, Article 97 - A, No. 1, paragraph a), of the CPPT and Article 3, No. 2 of the Costs Regulation in Tax Arbitration Processes, the value of the process is fixed at €10,771.91.

VIII - COSTS

In accordance with the provisions of Article 22, No. 4, of the RJAT and in accordance with Table I annexed to the Costs Regulation in Tax Arbitration Processes, the amount of costs is fixed at €918.00, to be borne by the Claimant.

Let it be registered and notified.

Lisbon, 30 July 2015

The Singular Arbitrator,

(Maria do Rosário Anjos)

[1] In this sense, cf: PARDAL, F. RODRIGUES. "The use of presumptions in tax law", in Science and Fiscal Technique, No. 325-327, page 20 et seq.

[2] In this sense, see Article 3 of the Regulation of the Tax on Vehicles, annexed to the said DL 599/72, of 30 December.

[3] To this matter, cf. LOPES DE SOUSA, J. (2011) Tax Procedure and Process Code Annotated and Commented. Volume I. 6th Edition. Áreas Publisher: Lisbon. Page 589 et seq.

[4] Cf. Cit. Work, page 590 et seq.

[5] In this sense, see, among others, the following Judgments of the STJ: Judgment STJ of 31.05.1966, in Case No. 060727 (Relator: Counsellor Lopes Cardoso), decision specifically relating to the automobile register; Judgment STJ of 5.05.2005 (Relator: Counsellor Araújo Barros) and Judgment STJ of 14.11.2013, in Case No. 74/07.3TCGMR.G1.S1 (Relator: Counsellor Serra Baptista) excellent in affirming the predominance of the principle of substance over form, the proof by any suitable means, of who is substantively the holder of the ownership right, being valid, which serves to defeat the presumption of the register.

[6] To this matter, see among others, the arbitral decision delivered in case No. 130/2014 – T.

[7] Cf., among others, the decisions delivered in arbitral cases Nos. 130/2014-T; 46/2014 – T; 125/2014-T, 212/2014-T; 217/2014T and 231/2014T, all in the sense of considering that the Invoice is a suitable means of proof provided it is accompanied by the respective loan or leasing contracts and/or other means of proof that allows one to conclude that the deal was materialized until completion.

[8] In this sense, see Manuel de Andrade - «Elementary Notions of Civil Process», 1979, page 203; Opinion of the STJ No. 4/83 of 11-7-1983, in OR, I series, of 27-08-1983; Judgment STA of 17/10/2012, in case No. 0414/12, among others.