Summary
Full Decision
ARBITRAL DECISION
I – REPORT
A) The Parties and Constitution of the Arbitral Tribunal
A…, SA, Legal Entity No. …, with registered office at … Street, Plot …, …, …, …-… - … hereinafter referred to as "Claimant", requested the constitution of a single Arbitral Tribunal, under the terms set forth in Article 2, No. 1, subparagraph a) and Article 10, Nos. 1 and 2 of Decree-Law No. 10/2011, of 20 January, hereinafter designated as "RJAT" and Ordinance No. 112 – A/2011, of 22 March, seeking the declaration of illegality of the levies of Unique Vehicle Circulation Tax (IUC) referring to the taxation periods from 2009 to 2012 and corresponding compensatory interest and default interest, in the total amount payable of €8,097.78, referenced with process numbers:
- … 2014 …; … 2014 …; … 2014 …; … 2014 …; … 2014 …; … 2014 …; … 2014 …; … 2014 …; … 2014…; … 2014 …; … 2014 …;... 2014 … and … 2014 ….
The request for constitution of the Arbitral Tribunal was submitted by the Claimant on 26-11-2014, was accepted by His Excellency the President of CAAD on 28-11-2014 and was immediately notified to the Tax and Customs Authority.
The Claimant chose not to appoint an arbitrator, whereby, under the terms set forth in No. 1 of Article 6 of RJAT, the undersigned was appointed on 28-01-2015 by the Deontological Council of the Centre for Administrative Arbitration as single arbitrator. The appointment was accepted and the parties were notified of the arbitrator's appointment, having shown no intention to refuse the appointment.
Thus, in accordance with the provisions of subparagraph c), No. 1, Article 11, of Decree-Law No. 10/2011, of 20 January, as amended by Article 228 of Law No. 66-B/2012, of 31 December (RJAT), the Single Arbitral Tribunal was constituted on 12-02-2015. On the same date, the Tax Authority was notified, in accordance with the terms and for the purposes set forth in Nos. 1 and 2 of Article 17 of RJAT, to submit its response within the legal period.
The Tax Authority submitted its response on 16-03-2015, in which it presents its defence by way of objection, which is hereby fully reproduced. On 6-04-2015 an Arbitral order was issued setting the date for the holding of the meeting provided for in Article 18 of RJAT and the parties were notified thereof. On 20/04/2015 the aforementioned meeting took place, in accordance with the minutes which are contained in the procedural management system and which are hereby fully reproduced.
B) THE CLAIM FORMULATED BY THE CLAIMANT:
The claimant is legally affected by the determination of the levies of Unique Vehicle Circulation Tax (IUC), since the same was charged to it, affecting its assets, whereby it has standing to request the constitution of the Arbitral Tribunal.
The Claimant formulates the present request for arbitral pronouncement seeking the illegality, with the consequent annulment, of the levies of Unique Vehicle Circulation Tax, relating to the taxation periods of 2009, 2010, 2011 and 2012, which gave rise to the tax enforcement proceedings instituted and already identified above.
It further alleges that it was never notified of the IUC levies in question, of which it only became aware following the institution of the corresponding tax enforcement proceedings, that is, on 2 September 2014, whereby it alleges that the present request is timely.
All these levies suffer from a defect of erroneous classification and quantification of the tax facts, as well as errors in the factual and legal assumptions.
In summary, it bases its request, alleging the following:
a) The Claimant was notified to pay the IUC of the vehicle …-…-…, of 25 September 2003, through the citation of the enforcement proceeding No. … 2014 …, with reference to the year 2010; However, this vehicle was sold in May 2010 to the company "B… Angola, Lda, as per the invoice attached as doc. No. 2 to the arbitral request;
b) Therefore, in September 2010, the month in which the tax would be due, this vehicle was no longer the property of the Claimant;
c) As for the vehicle with registration …-…-…, of 2 September 1999, the Claimant was notified to pay the respective IUC, relating to the years 2009, 2010 and 2011 through the citation of enforcement proceedings Nos. … 2014 …, … 2014 …; … 2014 …, however this vehicle was sold to the company "C… SA, on 26 July 2004, as per Invoice and communication from the purchasing company attached as documents No. 4, 5 and 6, to the arbitral request;
d) Therefore, also with respect to this vehicle, the claimant was no longer the owner thereof with reference to the years in question, and with respect to the period in which the tax became due;
e) As for the vehicle of category C, with registration …-…-…, of 16 January 2009, the Claimant was notified to pay the respective IUC, relating to the year 2010 through the citation of the enforcement proceeding No. … 2014 …, however this vehicle was sold to the company "B… Angola", on 21 August 2009, as per Invoice attached as doc. No. 8 to the arbitral request;
f) Therefore, also with respect to this vehicle, the claimant was no longer the owner thereof with reference to the year in question and the period in which the IUC became due;
g) As for the vehicle with registration …-…-…, of 27 January 2009, the Claimant was notified to pay the respective IUC, relating to the year 2010 through the citation of the enforcement proceeding No. … 2014 …, however this vehicle was sold to the company "B… Angola, Lda", on 21 August 2009, as per Invoice attached as doc. No. 11 to the arbitral request;
h) Therefore, also with respect to this vehicle, the claimant was no longer the owner thereof with reference to the year in question and the period in which the tax became due;
i) As for the vehicle with registration …-…-…, of 6 April 2009, the Claimant was notified to pay the respective IUC, relating to the year 2010, through the citation of the enforcement proceeding No. … 2014 …, however this vehicle was sold to the company "B… Angola, Lda, on 23 October 2009, as per Invoice attached as doc. No. 14 to the arbitral request;
j) Therefore, also with respect to this vehicle, the claimant was no longer the owner thereof with reference to the year in question and the period in which the tax became due;
k) As for the vehicle with registration …-…-…, of 6 April 2009, the Claimant was notified to pay the respective IUC, relating to the year 2010, through the citation of the enforcement proceeding No. … 2014 …, however this vehicle was sold to the company "B… Angola, Lda", on 23 October 2009, as per Invoice attached as doc. No. 17 to the arbitral request;
l) Therefore, also with respect to this vehicle, the claimant was no longer the owner thereof with reference to the year in question and the period in which the tax became due;
m) As for the vehicle with registration …-…-…, of 6 April 2009, the Claimant was notified to pay the respective IUC, relating to the year 2010, through the citation of the enforcement proceeding No. … 2014 …, however this vehicle was sold to the company "B… Angola, Lda", on 23 October 2009, as per Invoice attached as doc. No. 20 to the arbitral request;
n) Therefore, also with respect to this vehicle, the claimant was no longer the owner thereof with reference to the year in question and the period in which the tax became due;
o) As for the vehicle with registration ...-…-…, of 12 January 2009, the Claimant was notified to pay the respective IUC, relating to the year 2010, through the citation of the enforcement proceeding No. … 2014…, however this vehicle was sold to the company "B… Angola, Lda", on 21 August 2009, as per Invoice attached as doc. No. 23 to the arbitral request;
p) Therefore, also with respect to this vehicle, the claimant was no longer the owner thereof with reference to the year in question and the period in which the tax became due;
q) As for the vehicle with registration …-…-…, of 27 April 2009, the Claimant was notified to pay the respective IUC, relating to the year 2010, through the citation of the enforcement proceeding No. … 2014 …, however this vehicle was sold to the company "B… Angola, Lda", on 23 October 2009, as per Invoice attached as doc. No. 26 to the arbitral request;
r) Therefore, also with respect to this vehicle, the claimant was no longer the owner thereof with reference to the year in question and the period in which the tax became due;
s) As for the vehicle of category C, with registration ..-…-…, of 12 July 1999, the Claimant was notified to pay the respective IUC, relating to the year 2010, through the citation of the enforcement proceeding No. … 2014 …, however this vehicle was sold to the company "B… Angola, Lda", on 21 July 2010, as per Invoice attached as doc. No. 29 to the arbitral request;
t) Therefore, also with respect to this vehicle, the claimant was no longer the owner thereof with reference to the year in question and the period in which the tax became due.
u) It was the responsibility of the acquiring entities to proceed with the transfer of ownership or the cancellation of the registrations with the IMTT.
v) It is certain that the numerous enforcement proceedings only arose for reasons beyond the claimant's will and the levies attributed to it appear to be completely undue.
w) Pursuant to the provisions of Article 3, No. 1 and Article 6 of CIUC, the legal regime in force, using the elements contained in the motor vehicle registry, the legislator established, simultaneously, enshrines a subjective incidence norm which establishes, merely, a legal presumption, all the more so that in the tax legal order we can find the verb "consider" used with a presumptive sense;
x) It is, therefore, a presumption, whose refutation is permitted by Article 73 of LGT; the Claimant indicates, in this regard, several examples extracted from the legal system in force, being that the registry has merely declarative effects, in order to disclose the legal situation of vehicles;
y) It further invokes, in its defence, that the obligation to proceed with registration rests upon the new owners/acquirers.
z) It further alleges that it is demonstrated by the documentation attached to the case that, at the date of the respective tax facts, the claimant was no longer the owner of the vehicles identified in the case; that the transmission of ownership occurs by mere effect of the contract, in accordance with the provisions of No. 1 of Article 408 of the Civil Code.
aa) It finally invokes the objectives to be achieved with the IUC regime, namely, the burden on taxpayers in measure of the environmental effect that the use of vehicles causes; it invokes various case law and doctrine in defence of the positions it presents as grounds of law of the arbitral request.
bb) It concludes that the claimant is not the passive subject of the tax that was attributed to it with reference to the vehicles and years in question, petitioning for the declaration of illegality of these IUC levies, in the total amount of €8,097.78, with all legal consequences.
C – THE RESPONSE OF THE RESPONDENT
The Respondent, duly notified for this purpose, presented its response in a timely manner in which, by way of objection, it alleged, in summary, the following:
a) By way of exception, the Tax Authority invokes the untimeliness/lapse of the request for arbitral pronouncement, by virtue of the provisions of Article 10, No. 1, subparagraph a) of RJAT and Article 102 of CPPT;
b) It alleges that the claimant was not notified of the tax levies which it contests, nor would it have to be, by virtue of the provisions of Article 16, No. 2 of CIUC which provides that the levying of IUC is done by the passive subject themselves through the internet (…), being mandatory for legal entities.
c) Thus, on 26/04/2013 the claimant became aware of the levies, having done so spontaneously and voluntarily, as indeed results from the respective legal imperatives; by the prints extracted from the IUC levying system of the Respondent, the Claimant issued on 2013/04/26, via the internet, with its own access password, the respective levies, access passwords (payment slips) which it claims not to know, as results from pages 2 to 25 of the administrative process (PA).
d) Considering that the levies contested by the Claimant have payment limit dates comprised between 30-09-2009 and 01-10-2012, the Tax Authority concludes that the presentation of the present arbitral request did not occur in a timely manner. It invokes in defence of its understanding various arbitral case law.
e) Considering that the levy with the most recent payment limit date ended on 2012-10-01, the 90-day period that it had to present the request for arbitral pronouncement would end in January 2013, a date much earlier than when it presented the present arbitral request, that is, 26-11-2014. It concludes for the dismissal of the action, in accordance with the provisions of Article 89, No. 1 of CPTA and Article 576, No. 2 of CPC, applicable ex vi Article 29, subparagraphs c) and e) of RJAT, respectively.
f) Even if not so understood, the respondent alleges in its response that the Claimant has no reason regarding the alleged error of classification of the passive subject of tax, since the understanding propounded by the Claimant incurs, from a skewed reading of the letter of the law, as from the adoption of an interpretation that does not heed the systematic element, violating the unity of the regime enshrined in the entire CIUC and, more broadly, in the entire legal-tax system and further results from an interpretation that ignores the ratio of the regime enshrined in the article in question, and also in the entire CIUC;
g) It bases its allegation on the provisions of Nos. 1 and 2, of Article 3 of CIUC, emphasizing that the legislator did not use the expression "are presumed", as it could have done, moreover in a manner similar to what occurs in other legal norms, exemplifying some situations provided for in law;
h) It thus understands that in cases where the tax legislator uses the expression "shall be considered", it is not establishing a presumption, but rather a legislative option to consider as owners those who appear as such in the registry; to understand that the legislator enshrined here a presumption would be unequivocally to carry out an interpretation against the law;
i) It thus concludes that in the case of the present proceedings, the legislator expressly and intentionally established that those persons in whose names the same are registered shall be considered as such, since this is the interpretation that preserves the unity of the tax legal system and any other interpretation would be to ignore the teleological element of interpretation of law: the ratio of the regime enshrined in the article in question, and also in the entire CIUC; it reinforces this allegation by invoking that this is the understanding followed by the case law of our courts expressed in the judgment handed down by the Administrative and Tax Court of Penafiel, in the context of Process No. 210/13.0BEPNF; it also invokes Recommendation No. 6-B/2012 – Proc. No. R-3478/10, of 22/06/2012, of the Ombudsman.
j) It concludes that Article 3 of CIUC does not contain any legal presumption, and by the lack of merit of the arbitral request, since the tax acts in question 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 CIUC and Article 6 of the same code, it was the Claimant, in its capacity as owner, the passive subject of IUC, as attested by the Information regarding the history of ownership of the vehicles in question, issued by the Motor Vehicle Registry Office;
k) In the Tax Authority's view it is undeniable that the Real Property Registry Code applies subsidiarily to the Motor Vehicle Registration Regulation, however, the Real Property Registry Code is not subsidiary legislation of the IUC Code, whereby IUC became, in accordance with the provisions of Article 3 of CIUC, due by the persons who appear in the registry as owners of the vehicles;
l) Any other interpretation would be to ignore the teleological element of interpretation of law; it would, furthermore, be an interpretation at odds with the Constitution;
m) The Tax Authority alleges that, should this not be the case, it would still have to be considered that the probative documents submitted by the Claimant are not capable of refuting the presumption of the registry, given the unilateral nature of the invoice, the fact that it may bear a supposed transaction that may not actually happen, due to lack of acceptance by the other party and, lastly, because the company acquiring the vehicles (with the exception of the vehicle with registration …-…-…) alleges to have sold the vehicles to the company B… Angola, with headquarters in Luanda, being this a company held by the Claimant, operating in Angola, whereby the non-compliance with the registry obligations is not at all a fact alien to or totally beyond the control of the Claimant.
n) Finally, it further alleges that the documents submitted to the case by the Claimant are not sufficient for the refutation of the presumption.
o) It concludes seeking the upholding of the dilatory exception deduced, or, if not so understood, the lack of merit of the arbitral request and the maintenance of the levying acts contested, absolving the respondent entity of all requests, with the due and legal consequences.
II - PROCEDURAL REQUIREMENTS
The Arbitral Tribunal is regularly constituted. It is materially competent, in accordance with Article 2, No. 1, subparagraph a) of Decree-Law No. 10/2011, of 20 January.
The Parties have legal personality and legal capacity, are legitimate and are legally represented (See Article 4 and Article 10 No. 2 of DL No. 10/2011 and Article 1 of Ordinance No. 112/2011, of 22 March).
Regarding the joinder of claims, seeking the joint appreciation of the legality of IUC levies, relating to the years 2009 to 2012, despite constituting autonomous acts, the requirements provided for in No. 1, Article 3, of RJAT and Article 104 of CPPT being met, the joinder is to be admitted. Thus, the joinder of claims for declaration of illegality of all tax levying acts of IUC and respective compensatory interest associated therewith is accepted in the same arbitral request, given the identity of the tax and the appreciation of the tax acts in question depending on the appreciation of the same circumstances of fact and the application of the same legal rules. The legal requirements permitting the joinder of claims are thus met, in accordance with the provisions in Articles 104 of CPPT and Article 3, No. 1 of RJAT, considering the identity of the tax and the jurisdiction of the tribunal, which is accepted by this Tribunal.
The proceeding does not suffer from defects that would render it void.
Having regard to the tax administrative process, the documentary evidence submitted to the case, it is necessary now to present the factual matter relevant to the understanding of the decision, which is fixed as follows.
III - FACTUAL FINDINGS
A) Proven Facts
As relevant factual matter, this tribunal finds proven the following facts:
a) The Claimant is a commercial company engaged in civil construction and public works, with registered office at … Street, plot …, …, …, …-…, ….
b) The Claimant, within the scope of its commercial activity, is a participating entity in the share capital of the company B…, Lda, with NIPC …, with registered office at … Street, No. …, …, Luanda, Republic of Angola.
c) At the date of the tax facts the Claimant appeared, in the databases of the motor vehicle registry, as owner of the vehicles identified in the present proceedings, namely:
i. Motor vehicles with registrations …-…-… (Category D), of 25-09-2003; …-…-… (Category C) of 2-09-1999; …-…-… (category C) of 16-01-2009; …-…-… (Category C) of 27-01-2009, of 27-01-2009; …-…-… (category C) of 06-04-2009; …-…-… (Category C) of 06-04-2009; …-…-… (Category C) of 06-04-2009; …-…-… (Category C) of 12-01-2009; …-…-… (Category C) of 27-04-2009 and …-…-… (Category C) of 12-07-1999.
d) On various dates the Claimant issued Invoices Nos. …/2010, …/2004, …/2009, …/2009, …/2009, …/2009, …/2009, …/2009, …/2009, …/161 of 21-07-2010, attached to the annex to the arbitral request, respectively, as documents Nos. 2, 6, 8, 11, 14, 17, 20, 23, 26, 29, which document the sales of the vehicles mentioned in the case;
e) From the Invoices mentioned above it appears as purchaser the company B… Angola Lda, with the exception of the vehicle with registration …-…-…, which was sold to the company "C… SA, with NIPC …, with registered office at …, Km …, …, …-…;
f) The claimant became aware of the tax levies through consulting its page on the Tax Administration portal, with its own access password, on 26-04-2013, as appears from the documents attached to pages 2 to 25 of the PA;
g) The Claimant was cited of the institution of the enforcement proceedings identified in the present proceedings, instituted due to non-payment of the referred IUC levies, on 02-09-2014;
h) The Claimant submitted the present request for constitution of an arbitral tribunal, to challenge the IUC levies relating to the aforementioned vehicles, on 26-11-2014.
B) UNPROVEN FACTS
There are no unproven facts of relevance to the decision to be issued.
C) SUBSTANTIATION OF PROVEN FACTS
The facts described above were taken as proven based on the documents which the parties submitted to the present proceeding, the Claimant in annex to the claim filed and the Tax Authority in the response presented and respective Administrative Process.
IV – QUESTIONS TO BE DECIDED AND LEGAL SUBSTANTIATION
It is necessary, then, to appreciate and decide the questions to be settled:
a) Preliminary question: exception of untimeliness/lapse of the arbitral request;
b) Decision and substantiation of the legal questions raised by the parties.
Regarding the preliminary question raised by the Tax Authority, it is necessary to analyze from the outset the possible untimeliness of the submission of the arbitral request, since the decision of this question conditions or prejudices the knowledge of the legal questions raised by the parties.
The Claimant submitted the present arbitral request on 26 November 2014, as results from the entry in the procedural management system of the Centre for Administrative Arbitration (CAAD).
The Claimant alleges that the timeliness of the arbitral request should be assessed by reference to the dates of the citations of the enforcement proceedings identified in the present proceedings, since it was never notified of the tax levies that gave rise to the institution of the said enforcement proceedings.
Let us then see if the arbitral request was submitted within the legally provided period.
Pursuant to the provisions in subparagraph a) of No. 1 of Article 10 of RJAT, the request for arbitral pronouncement must be presented within 90 days, counted from the facts provided for in Nos. 1 and 2 of Article 102 of CPPT.
Now, as results from the provisions in No. 1, subparagraph a), of Article 102 of CPPT, the said 90-day period is calculated from the end of the voluntary payment period for tax liabilities.
Thus, No. 1 of Article 10 of RJAT provides as follows:
"The request for constitution of an arbitral tribunal is presented:
a) Within 90 days, counted from the facts provided for in Nos. 1 and 2 of Article 102 of the Code of Tax Procedure and Process, regarding acts susceptible of autonomous challenge and, as well, of the notification of the decision or the end of the legal period for decision of hierarchical appeal;"
In turn, subparagraph a) of No. 1 of Article 102 of CPPT provides:
"1 - The challenge shall be presented within three months counted from the following facts:
(…)
a) end of the voluntary payment period for tax liabilities legally notified to the taxpayer".
In this conformity, it is necessary to assess the terms of application of these legal provisions to the specific case of the Unique Vehicle Circulation Tax (IUC), in light of the legal regime of this tax, provided for in CIUC.
The Claimant alleges not to have been notified of the levies which it here challenges, having become aware of their existence when cited in tax enforcement proceedings, which occurred on 2014/09/02. Therefore, the question that is posed for appreciation is whether and when the Claimant became aware of the IUC levies in question in the present arbitral request, since thereon depends the decision on the untimeliness of the submission of the arbitral request.
According to the elements which result from the PA submitted by the Tax Authority, it is verified that the Claimant became aware of the IUC levies on 26/04/2013, by its own initiative, having done so by consulting the Tax Administration Portal. In the Tax Authority's allegation, it is invoked that this is the correct and adequate procedure in regard to the taxation of unique vehicle circulation tax, resulting from the respective legal imperatives that it is incumbent upon the taxpayer to access the respective levies and issue the respective payment slips within the due periods. In other words, it is not legally provided for, in regard to IUC, the notification to the taxpayer of the amount of tax to be paid, having been that the choice of the legislator.
The Tax Authority itself thus recognizes that the Claimant was not, in fact, notified of the levies which it contests in the tax enforcement proceedings, nor would it have to be, since, pursuant to No. 2 of Article 16 of CIUC, the "levying of the tax is done by the passive subject themselves through the internet in the conditions of registration and access to electronic statements, being mandatory for legal entities".
As results from the PA and is proven by the "prints" extracted from the IUC levying system of the Respondent, the Claimant issued on 2013/04/26, via the internet, with its own access password, the respective levies/documents (payment slips) - see pages 2 to 25 of the PA.
As we have seen, it results from the law itself (Article 16, No. 2 of CIUC) that, in regard to IUC levying, there is no place for any other notification, since it is incumbent upon the passive subject themselves to proceed with the respective issuance of levies and payment slips, in conformity with the procedure proper to self-assessment legally provided for, which is mandatory for legal entities.
In truth, the Claimant when accessing on 2013/04/26 its page as a taxpayer, proceeded in conformity. However, at that time, despite having verified and ascertained without any margin for doubt that the vehicles in question were still in the system as being its property, it did nothing. It being certain that the law provides for guarantees proper to the taxpayer to defend itself in this type of situation. Thus, the Claimant could and should have submitted a request for administrative cancellation for the annulment of the IUC levies. Which it did not do. Neither did it lodge the respective challenge within the legally provided period, counting from the payment limit date, or, by this having already been exceeded, from the knowledge of the injurious acts, under the provisions of subparagraph f) of Article 102 of CPPT.
Furthermore, the Claimant had sufficient control over the treatment of the procedure for alteration of the motor vehicle registry and/or cancellation of the registrations, given that the acquirer of the vehicles (with the exception of the vehicle with registration …-..-…) is a company of the group, headquartered in Angola, in which the Claimant itself is a partner and, therefore, an interested party. Therefore, the argument of being totally alien to compliance with the obligation to promote the registration and/or cancellation of the registrations does not hold. On the contrary, having regard to the tax responsibilities at stake, it had therein a direct interest and the obligation to ensure that the acquiring company complied with all the formalities inherent thereto. An obligation increased by virtue of it being, as has been said, a group company, headquartered in Angola, which reinforces the obligation of care of the seller.
However, the essential question under discussion, by way of a preliminary question, centers on the alleged lack of notification of the levies and possible untimeliness of the arbitral request.
In the first place, for all that has been set out above, this Tribunal understands that, in the case of the present proceedings, taking into account the legal rules in force regarding IUC and the procedure of self-assessment legally provided for, there was no lack of notification attributable to the Tax Authority.
Indeed, it is only in the absence or delay of the levy attributable to the passive subject, or in the case of error, omission, lack or any other irregularity that prejudices the collection of tax that the Tax Authority, now Respondent, must proceed, within the period of lapse of the levy, to the official levying based on the elements at its disposal notifying the passive subject to proceed with the respective payment in conformity with what is established in No. 2 of Article 18 of CIUC.
Furthermore, already by way of repetition, in the case of the proceedings the self-assessment was operated by initiative of the Claimant itself, on 26-04-2013. Therefore, it should within the legally provided period (90 days counted from the payment limit date), exercise all the guarantees of challenge at its disposal. Which did not happen.
Thus, it is incumbent to conclude that the Respondent is correct when it alleges that the Claimant "was notified, or at the very least surely, became aware of the levies in question on 2013/04/26. And such could only have been so, otherwise how could the Claimant make the exact correspondence between the levies it claims not to know and the respective enforcement proceedings."
We arrive at this conclusion further, as well alleged by the Respondent, by the analysis of the postal citations attached to the arbitral request, which only identify the debt in coercive collection through the levy number, tax, period, amount exigible and associated default interest, but without any mention of the identification of the vehicle, namely the registration as an element identifying the IUC in default, whereby the only element that allowed the Claimant to identify the debt for which it was cited in the enforcement proceeding is the number of the levy/document of origin, to which it had access on the portal, on the aforementioned date.
In sum, the Claimant, by voluntarily extracting the IUC levies on 2013/04/26, became aware on that date of the same levies, without need for other notification, in conformity with the procedure legally provided for in Article 16, No. 2 of CIUC.
Finally, it is noted from the consultation of the PA that, having the Claimant issued the respective IUC levies on 26/04/2013, the Claimant, as was incumbent upon it, in accordance with No. 2 of Article 16 of CIUC, the respective issuance of the levies here subject to challenge, occurred already beyond the respective legal period, both of levy and of payment, provided for in Article 17 of CIUC.
Indeed, the levies contested by the Claimant present as payment limit dates the dates comprised between 2009/09/30 and 2012/10/01, being that the issuance of the said levies only occurred on 26/04/2013. Therefore, this is the reference date for the counting of the period for challenge.
Let us then see the counting of the period. It is undisputed that the counting of the period to lodge the challenge must observe the rules of Article 279 of the Civil Code, as expressly results from the provisions of No. 1, of Article 20 of CPPT. The counting of the period occurs in consecutive days and is not suspended during judicial holidays, being inapplicable the provisions of Article 144 of the CPC, whose scope is restricted to judicial periods (adjective).[1]
An understanding shared by the case law of the superior courts, as well as by arbitral case law, set forth, among others, in the arbitral decisions rendered in proceedings Nos. 35/2012-T; 83/2012-T; 188/2013-T, 353/2014-T, among others.
Thus, it is the understanding of this Arbitral Tribunal, in a manner similar to that set forth in the aforementioned arbitral decisions, that the arbitral nature of this tribunal and the application of the tax arbitration regime do not entail any modification concerning the nature, modalities and form of counting of periods, as is extracted from the reading of RJAT, and much less concerning substantive periods, which form an integral part of the statute material of the tax credit right itself.
To which is added, that it results from the provisions of Article 29 of RJAT, the subsidiary application of the norms of a procedural or tax procedural nature, of the norms on organization and process in the administrative and tax courts, of the Administrative Procedure Code and of the Civil Procedure Code.
In light of all that which is set out above, it results that in the case of the present arbitral request, it is indisputable that we are dealing with a period of a substantive nature.
Now, as results from the provisions in subparagraph a) of No. 1 of Article 10 of RJAT, the request for arbitral pronouncement must be presented within 90 days, counted from the facts provided for in Nos. 1 and 2 of Article 102 of CPPT. And, as results from No. 1, subparagraph a), of Article 102 of CPPT, from this results, in subparagraph a), the initial calculation of the end of the period occurs from the payment limit date for voluntary tax liabilities. In the case of the present proceedings, this period had long passed before the filing of the present arbitral request.
However, even considering the date on which the taxpayer became aware of the tax levies, that is, 26/04/2013, as the reference date for counting the period, even this had already lapsed at the time that the present arbitral request was filed at the Centre for Administrative Arbitration, that is, 26/11/2014.
Considering that the Claimant contested various IUC levies, whose payment limit date for the most recent levy ended on 2012/10/01, the 90-day period which it had to present the Request for Arbitral Pronouncement would end in January 2013, a date much earlier than the date of submission of the arbitral request. The same results if we consider the calculation of the period counted from the moment the Claimant became aware of the levies, as provided for in subparagraph f), of No. 1 of Article 102 of CPPT, which sets as the initial term of the calculation of the 90 days provided for in No. 1 of Article 10 of RJAT "the knowledge of the injurious acts of the legitimately protected interests".
As has been said, taking into account the specificities of the specific case, the tribunal, even if it considered as the relevant date for the beginning of the calculation of the period the date of knowledge of the IUC levies contested, cannot but conclude for the lapse of the right to challenge by untimeliness in its submission.
As a consequence, the Tribunal considers the exception invoked by the Tax Authority to be well-founded, in accordance with the provisions set forth in Article 89, No. 1, subparagraph h) of CPTA and Article 576, No. 2 of CPC, applicable ex vi subparagraph c) of Article 29 of RJAT, absolving the respondent of the request, by lapse of the right of action.
In this regard, it should further be noted that it has been the understanding of the Supreme Administrative Court that, "verified the lapse of the right of action, by untimeliness of the initial petition presented, it is necessary the absolution of the Public Treasury from the request and not from the action, since the lapse of the right of action prevents the production of the legal effect of the facts set forth by the author, see, among others, judgments of this STA, dated 22/05/2013, 05/02/2015 and 22/04/2015, respectively, appeals Nos. 0340/13, 01775/13 and 01194/14." – See Supreme Administrative Court Judgment of 17/06/2015, at www.dgsi.pt.
Having said this, the knowledge of the remaining legal questions raised by the parties is prejudiced.
VI - DECISION
For all the foregoing, the tribunal decides:
a) To uphold the exception of untimeliness of the request for arbitral pronouncement;
b) As a consequence, to absolve the Respondent of the request, by lapse of the right of action.
VALUE OF PROCESS: In accordance with the provisions of Articles 305, No. 2 of the CPC, Article 97-A, No. 1, subparagraph a), of CPPT and Article 3, No. 2 of the Regulation of Costs in Tax Arbitration Proceedings, the value of the process is fixed at €8,097.78.
COSTS: Pursuant to the provisions of Article 22, No. 4, of RJAT and in accordance with Table I attached to the Regulation of Costs in Tax Arbitration Proceedings, the amount of costs is fixed at €918.00, to be borne by the Claimant.
Let it be registered and notified.
Lisbon, 29 July 2015
The single arbitrator,
(Maria do Rosário Anjos)
[1] In this sense see Lopes de Sousa, J. in CPPT Annotated, Vol. I, 6th Edition, page 270 et seq.
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