IUC Tax on Financial Leasing: Subjective Incidence and Legal Presumptions – CAAD Case 8/2015-T

ARBITRAL DECISION

| Claimant – A…, S.A. |
| Respondent - Tax and Customs Authority |

The Arbiter Dr. Sílvia Oliveira, appointed by the Deontological Council of the Administrative Arbitration Centre (CAAD) to form the Arbitral Tribunal, constituted on 18 March 2015, with respect to the case identified above, decided as follows:

1. REPORT

1.1 A…, S.A. (hereinafter referred to as "Claimant"), legal entity no. …, with registered office at Street …, no. …, …, in Lisbon, filed a request for arbitral pronouncement and constitution of a single arbitral tribunal, on 30 December 2014, pursuant to the provisions of article 4 and no. 2 of article 10 of Decree-Law no. 10/2011, of 20 January [Legal Regime of Arbitration in Tax Matters (RJAT)], in which the Tax and Customs Authority is the Respondent (hereinafter referred to as "Respondent").

1.2 The Claimant intends, in the said request for arbitral pronouncement, that the Arbitral Tribunal:

(i) "(…) deign to judge as well-founded, as proven, the (…) request for annulment of the tax acts regarding assessments of Single Vehicle Circulation Tax [IUC] (…) identified (…), on the grounds of erroneous qualification of the tax facts (…) and, as a consequence of the (…) arbitral decision, the Tax and Customs Authority should carry out the necessary procedures to extinguish the executive and misdemeanor proceedings underlying the acts of assessment annulled by the (…) arbitral decision".

1.3 The request for constitution of the Arbitral Tribunal was accepted by His Excellency the President of CAAD on 2 January 2015 and was notified to the Respondent on 15 January 2015.

1.4 The Claimant did not proceed with the appointment of an arbiter, wherefore, pursuant to the provisions of article 6, no. 2, letter a) of the RJAT, the undersigned was appointed as arbiter on 27 February 2015, by the President of the Deontological Council of CAAD, having the appointment been accepted within the deadline and terms legally provided.

1.5 On 27 February 2015, both Parties were duly notified of such appointment and did not manifest the will to refuse the appointment of the arbiter, pursuant to the combined terms of article 11 no. 1 letters a) and b) of the RJAT and articles 6 and 7 of the Deontological Code.

1.6 Thus, in conformity with the provisions of letter c) of no. 1 of article 11 of the RJAT, the Arbitral Tribunal was constituted on 18 March 2015, having been issued an arbitral order on the same date, to notify the Respondent to, pursuant to the provisions of article 17, no. 1 of the RJAT, present its reply, within a maximum period of 30 days and, should it wish, request the production of additional evidence.

1.7 On 27 April 2015, the Respondent filed its Reply, having defended itself by contesting and concluded that "the present request for arbitral pronouncement should be judged as unfounded, the disputed tax acts of assessment being maintained in the legal order, and the Respondent entity being absolved accordingly from the request".

1.8 On 28 April 2015, an arbitral order was issued whereby the Parties should pronounce, within a period of five days, on the possibility:

1.8.1. Of waiving the holding of the meeting referred to in article 18 of the RJAT, and

1.8.2. Of presenting arguments.

1.9 On 29 April 2015, the Respondent filed a request to the effect of agreeing to the waiver of the holding of the meeting provided for in article 18 of the RJAT "(…) also dispensing with the holding of arguments (oral or written), on the grounds that the Tribunal could immediately proceed to the decision phase".

1.10 On the same date, the Claimant filed a request agreeing to the waiver of the holding of the meeting referred to in article 18 of the RJAT, as well as dispensing with the presentation of arguments.

1.11 In these terms, by order of this Arbitral Tribunal, dated 3 May 2015, it was decided to dispense with the holding of the meeting referred to in article 18 of the RJAT as well as to dispense with the presentation of arguments, and the date of 8 June 2015 was designated for the purpose of delivering the arbitral decision, and the Claimant was further warned that "until the date of delivery of the arbitral decision it should proceed with the payment of the subsequent arbitral fee, pursuant to the provisions of no. 3 of article 4 of the Regulation of Fees in Tax Arbitration Proceedings and communicate such payment to CAAD".

2. CAUSE OF ACTION

2.1 The Claimant intends with the request for arbitral pronouncement the annulment of "three tax acts of assessment of Single Vehicle Circulation Tax (IUC) referring to fiscal year 2009, in the total amount of EUR 1,008.90 (…)".

2.2 "The Claimant is a credit institution that has as its corporate purpose the practice of operations permitted to banks, with the exception of receipt of deposits" and "within the scope of its activity (…) grants its clients financing for the purchase of motor vehicles", clarifying that "the financing of motor vehicles is formalized through the execution of":

2.2.1. "Loan contracts, in which the borrower grants in favor of the lender, as guarantee of integral payment of the loaned amount, a reservation of ownership of the motor vehicle, until integral payment of the loaned amount" or, alternatively,

2.2.2. "Financial leasing contracts".

2.3 The Claimant further states that "it was notified to exercise the right to Prior Hearing on the grounds that it was allegedly (…) the liable party for IUC, due in fiscal year 2009 and not yet assessed, referring to the 3 (three) vehicles (…) identified".

2.4 The Claimant further states that "it analyzed each one of the situations that were notified to it, not only those that (…) are object of the (…) request for arbitral pronouncement, but also others (…) of failure to pay IUC (…)" and "it made the payment of IUC in all situations in which, on the date of the genesis of the tax event subject to tax (…) it was the owner of the vehicle and the same was not being leased".

2.5 "In the other situations in which, on the date of the genesis of the tax event, the now Claimant was not the owner of the vehicle or the same was being leased, on that date, by virtue of the validity of a financial leasing contract (…) it understands that it is not the liable party for IUC (…)", "(…) because the requirements of the subjective incidence of the tax (…) are not satisfied".

2.6 Having opted "not to exercise the right to prior hearing (…)", the Claimant was notified by the Respondent "of the tax acts of assessment of IUC and the respective compensatory interest", having not agreed "with the understanding of the TA [Tax Authority], regarding the tax treatment of the situations of fact under analysis, wherefore it lodged a complaint, on 31 October 2013 against the tax acts of assessment".

2.7 Subsequently, "on 3 April 2014 (…) it was notified of the partial grant of the gracious complaint", the "Tax and Customs Authority having annulled only the tax assessments referring to the vehicle …-…-…[2], maintaining the remaining tax acts of assessment".

2.8 "On 22 April 2014, the now Claimant appealed hierarchically from the decision of the gracious complaint", having been notified on 17 December 2014, of the "decision of partial grant of the hierarchical appeal (…), in which the Tax and Customs Authority rejected the appeal (…) with respect to the registration plates …-…-…, …-…-…, …-…-…, given that, according to the understanding of the Tax and Customs Authority there was no registered financial leasing on the date of occurrence of the tax event".

Cumulation of Claims

2.9 In this connection, the Claimant states that "it does not agree with the understanding of the TA, for the reasons it expounds below, which are common to the 3 tax acts of assessment of IUC (…) and, for that reason, in the name of the principle of procedural economy and in conformity with the provided" in law, "it proceeds with the cumulation of the 3 requests for annulment of the tax acts of assessment of IUC (…)".

Substantive Law Grounds

2.10 In this matter, the Claimant states that "the genesis of the legal relationship of tax presupposes the cumulative verification of the three necessary assumptions[3] for its emergence", namely, (i) "the real element", (ii) "the personal element" and (iii) "the temporal element".

2.11 With respect to real incidence, the Claimant states that "the vehicles (…) object of the IUC assessments being challenged in the present request (…), are all registered in Portugal in the year 2009, wherefore the assumption of the real incidence of IUC is verified".

2.12 Regarding temporal incidence, the Claimant further states that "the vehicles (…) are all registered in Portugal in the year 2009 (…) wherefore the period of taxation corresponds to the year that begins on the date of registration or on each of its anniversaries".

2.13 Regarding personal incidence, the Claimant considers, "(…) in the interpretation of the norm of personal incidence (…)" that "shall be considered separately (…) the grammatical element and the logical element, subdividing the latter into three elements (…)", namely, (i) "the historical element", (ii) "the rational element" and (iii) "the systematic element".

The Grammatical Element

2.14 "At the level of personal incidence, the liable parties for the tax are the owners of the vehicles and are equated to owners the financial lessees, the purchasers with reservation of ownership, as well as other holders of purchase option rights by virtue of a leasing contract", namely, "the legislator presumes that the owners are the persons in whose name the vehicles are registered, considering as such the natural or legal persons, of public or private law, in whose name the same are registered".

The Historical Element

2.15 The Claimant further states that "the presumption established in article 3 of the current IUC code was also enshrined in the previous taxes, which were abolished upon the entry into force" of that code, since "the norms of incidence prior to the validity of the IUC enshrined a legal presumption expressed and rebuttable, while the legislator of the IUC (…) opted for a mere implicit presumption (also rebuttable)".

2.16 In this connection, the Claimant states that "implicit presumptions (…) do not expressly establish whether they are rebuttable or irrebuttable" wherefore (…) it will have to be considered, at least after the entry into force of the LGT as always being rebuttable presumptions" given that from then "(…) all irrebuttable presumptions expressly enshrined came to admit proof to the contrary", as well as "also the implicit presumptions that were enshrined in law (…)".

2.17 "In sum, whether expressed or implicit, presumptions in tax incidence norms are always rebuttable and, for that reason, the fact that the legislator of the IUC opted for an implicit presumption (…) instead of an expressed presumption (…) in no way affected in substance" according to the Claimant, " as far as this matter is concerned, the content and scope of the delimitation of the liable party of the tax".

The Rational Element

2.18 In this connection, the Claimant argues that "it appears to be an error of law to characterize the incidence norm (…) under analysis as being a legal fiction, this because there is an unequivocal logical connection between the two facts referred to in the norm, namely: the owner of the vehicle and the entity appearing in the register as being the owner".

2.19 In effect, the Claimant argues that "it appears clear that in the case (…) in question we are not facing a legal fiction but rather a legal presumption" wherefore, taking into account "the legislative thinking underlying the IUC, which aims to burden the users of the vehicles with the tax burden, because these are entities that have the potential to pollute capable of generating environmental costs for society in general", "an incidence norm (…) that ignores the connection between the liable parties of the tax and the use of the vehicle is contrary (…) to the underlying ratio legis (…) of automobile taxation".

The Systematic Element

2.20 "And by this being (…) the principle underlying the taxation of the IUC, the legislator was concerned with considering as liable parties not only the owner, but also the financial lessee and other users of the vehicle with a character of permanence (…)", wherefore if one were to admit "the interpretation of the norm in question as being a legal fiction (…) that considers as liable party of the IUC the entity in whose name the motor register is inscribed, without admitting proof to the contrary (…) it suffers from a systematic incoherence (…) and, for that reason, is an interpretation contrary to law (…)".

2.21 Finally, in this connection, in the context of systematic interpretation, the Claimant reiterates that "the fact that an incidence norm, based on a legal fiction of this type, would be materially unconstitutional (…) because if a rebuttable legal presumption enshrined in an incidence norm is unconstitutional, by violation of the principle of equality, a fortiori an incidence norm based on a legal fiction (…) would also be unconstitutional, on the same grounds (…)".[4]

2.22 According to the Claimant, in view of "the foregoing it appears to be indisputable that the legal presumption (…) in question is rebuttable, wherefore the liable party of the IUC is the owner (or financial lessee or the purchaser with reservation of ownership) (…) provided that sufficient evidence is made to rebut the legal presumption arising from the register".

2.23 For the purpose of sufficient evidence to rebut the presumption, the Claimant "presents for each vehicle, a document proving that the vehicle was leased, presents a document proving (the contract) the existence of a financial leasing valid on the date of occurrence of the IUC generating fact and also attaches a copy of the registration in the Conservatory of Motor Vehicle Registration (…) where the financial leasing is annotated".

2.24 Thus, the Claimant concludes that "not being the liable party, the assumption of personal incidence of the tax is not verified and, consequently, one of the three cumulative assumptions necessary for the emergence of the tax obligation is not verified" wherefore "all 3 tax acts of assessment of IUC are affected by error as to the factual assumptions (…) which constitute a vice of violation of law (…) capable of being alleged to substantiate the annulment of the tax acts of assessment of IUC (…)".

3. REPLY OF RESPONDENT

3.1 The Respondent in the reply presented defended itself by contesting and presented, in summary, the following arguments:

Regarding Error as to Assumptions

3.2 In this connection, the Respondent argues that the "allegations of the Claimant cannot in any way proceed, because it makes an interpretation and application of the legal norms subsumable to the case sub judice notoriously erroneous" because "the understanding advocated (…) incurs not only in a skewed reading of the letter of the law, but also in the adoption of an interpretation that does not heed the systematic element, violating the unity of the regime enshrined in all of the IUC Code and, more broadly, in the entire legal-tax system and also stems from an interpretation that ignores the ratio of the regime enshrined in the article in question, and also in all of the IUC Code".

The Subjective Incidence of IUC

3.3 In this regard, the Respondent argues that "the first equivocation underlying the interpretation defended by the Claimant is related to a skewed reading of the letter of the law" (…) because this establishes that "the liable parties for the tax are the owners of the vehicles, being considered as such the persons (…) in whose name the same are registered".

3.4 In these terms, the Respondent further states that "it is imperative to conclude that (…) the legislator expressly and intentionally established that shall be considered as (…) owners (…), the persons in whose name the (…) the vehicles are registered, because it is this interpretation that preserves the unity of the legal-tax system", thus defending the rejection of the establishment of presumption by the legislator.

3.5 Thus, the Respondent argues that "in view of this wording it is manifestly not possible to invoke that it is a presumption, as the Claimant argues (…) it being, instead, a clear option of legislative policy adopted by the legislator, whose intention (…) was that, for purposes of IUC, shall be considered owners those who appear as such in the motor register"[5], wherefore, for the Respondent, "article 3 of the IUC Code does not contain any legal presumption (…)".

The Interpretation That Does Not Heed the Systematic Element, Violating the Unity of the Regime

3.6 The Respondent understands that "from the articulation between the scope of the subjective incidence of IUC and the constitutive fact of the corresponding tax obligation it follows unequivocally that only the legal situations object of registration (…) generate the emergence of the tax obligation (…)" being that this is "considered due on the first day of the taxation period (…)".

3.7 That is, "the moment from which the tax obligation is constituted presents a direct relationship with the issuance of the registration certificate, in which must appear the facts subject to registration".

3.8 Thus, "in the absence of such registration (…) the owner will be notified to comply with the corresponding tax obligation, because the Respondent (…) will not have to proceed with the assessment of the tax on the basis of elements that do not appear in registers and public documents and, as such, authentic (…) wherefore the failure to update the register will be attributable in the legal sphere of the liable party of the IUC and not in that of the Portuguese State, as the active party in this Tax".

3.9 The Respondent further argues that, "if one were to accept the position defended by the Claimant (…) the Respondent would have to proceed with the assessment of IUC with respect to that other person identified by the person appearing in the motor register to whom it had first assessed IUC (…)".

3.10 "In turn, after assessing IUC with respect to that other person, this one could also allege and prove that in the meantime it had already celebrated (…) financial leasing (…) with another third party, but that this one also did not register (…)", "(…) and so on successively (…)", "placing (…) at risk the statute of limitations for the tax" and, therefore, in the view of the Respondent, "such a reading cannot in any way be followed".

The Interpretation That Ignores the Teleological Element of Legal Interpretation

3.11 In this sense, the Respondent argues that, taking into account the tenor of parliamentary debates[6] surrounding the approval of Decree-Law no. 20/2008, of 31 January, "it results unequivocally that IUC is due by the persons appearing in the register as owners of the vehicles", in order to "avoid the problems (…) related to the fact that there are many vehicles not registered in the name of the real owner".[7]

3.12 In fact, according to the position defended by the Respondent, "the new regime of IUC taxation came to substantially alter the regime of automobile taxation, with the liable parties of the tax now being the owners appearing in the register of ownership (…)".

3.13 Thus, according to the Respondent, "it is clear that the tax acts in question do not suffer from any vice of violation of law", in that in light of the provisions of the applicable legislation, "it was the Claimant, in the capacity of owner appearing in the Conservatory of Motor Vehicle Registration, the liable party of IUC with respect to the 3 vehicles".

Regarding the Documents Attached for the Purpose of Rebutting the Presumption

3.14 In this matter, the Respondent understands that being "the Claimant, in the capacity of owner appearing in the Conservatory of Motor Vehicle Registration, the liable party of IUC (…) all the reasoning advocated by the Claimant is tainted with error, it not being possible to rebut the legal presumption established".

3.15 "However (…) accepting that it is admissible to rebut the presumption in light of the case law (…), it will still be important to appreciate the documents attached by the Claimant and their probative value for such rebuttal".

3.16 In effect, the Respondent contests the position of the Claimant regarding the "illegality of the IUC assessments (…) referring to those 3 vehicles in that the same were object of financial leasing contracts celebrated by the Claimant" because, according to the Respondent, "serious doubts are raised by the alleged financial leasing contracts presented (…)":

3.16.1. "With respect to the vehicle …-…-…, there was no registered financial leasing on the date of occurrence of the tax event (September)" given that "the supposed financial leasing contract refers to the date of 05-03-2009" when, on that date, "the Claimant was not even the owner of the vehicle (…)".

3.16.2. "As to the vehicle …-…-…, there was no registered financial leasing on the date of occurrence of the tax event (April)", given that "the supposed financial leasing contract refers to the date of 05-04-2009" when, on that date, "the Claimant was not even the owner of the vehicle (…)".

3.16.3. "Finally, with respect to the vehicle …-…-…, there was no registered financial leasing on the date of occurrence of the tax event (April[8]), given that "(…) ownership only began on 28-05-2009"

3.17 According to the Respondent, "even if one were to conclude that we are facing financial leasing contracts granted by the Claimant, the claims here raised would in any case fail (…) for two reasons":

3.17.1. "In the first place because pursuant to no. 1 of no. 2 both of article 5 of Decree-Law no. 54/75 of 12 February (Motor Vehicle Registration Code) are subject to registration, being this obligatory", namely, the financial leasing, "and it is certain that considering the provisions of no. 1 of article 4 of the IUC Code, this must be requested within a period of 60 days from the fact".

3.17.2. "In the second (…) place it was always incumbent upon the Claimant to demonstrate having complied with the accessory obligation imposed by article 19 of the IUC Code", namely, "(…) obliged to furnish to the Tax Authority the data relating to the identification of the users of the leased vehicles".

3.18 Now, according to the Respondent, "the Claimant made no proof of compliance with this obligation, as indeed it was incumbent upon it, wherefore necessarily the intended rebuttal of article 3 here in question must fail", wherefore it will be "inescapable to conclude that it is the liable party of the tax".

The Interpretation Non-Conforming to the Constitution

3.19 In this connection, the Respondent understands that "the interpretation conveyed by the Claimant shows itself contrary to the Constitution, in that such interpretation results in the violation of the principle of legal trust, of the principle of efficiency of the tax system and of the principle of proportionality".[9]

The Responsibility for Payment of Arbitral Costs

3.20 In this respect, the Respondent argues that "the registration of ownership constitutes an essential element in the information system between the Respondent and other public entities (…) and with the law enforcement forces (…) for the purpose of exchanging information necessary to the assessment and inspection of (…) IUC".

3.21 Thus, "the transfer of ownership of motor vehicles is not susceptible to being controlled by the Respondent, as there exists no accessory declarative obligation regarding this matter (…) meaning that IUC is assessed in accordance with the information timely transmitted from the Institute of Registers and Notaries".

3.22 In summary, the Respondent argues that "IUC is not assessed in accordance with information generated by the Respondent itself (…)" wherefore "the Claimant having not taken care of updating the motor register (…) it is inescapable to conclude that the Claimant did not proceed with the diligence that was required of it", leading "(…) the Respondent to limit itself to giving compliance with the legal obligations to which it is bound (…)".[10]

3.23 "Therefore, it was not the Respondent who gave cause to the filing of the request for arbitral pronouncement, but rather the Claimant itself" wherefore, consequently, "the Claimant should be condemned to payment of the arbitral costs arising from the present request for arbitral pronouncement (…)".

3.24 In these terms, the Respondent concludes the reply presented to the effect that "the present request for arbitral pronouncement should be judged as unfounded, the tax acts of assessment being maintained in the legal order, (..) the Respondent entity being absolved (…) from the request".

4. PROCEDURAL ORDER

4.1 The request for arbitral pronouncement is timely, as presented within the deadline provided in letter a) of no. 1 of article 10 of the RJAT.

4.2 The parties enjoy legal personality and legal capacity, are legitimate as to the request for arbitral pronouncement and are duly represented, pursuant to the provisions of articles 4 and 10 of the RJAT and of article 1 of Ordinance no. 112-A/2011, of 22 March.

4.3 The Tribunal is regularly constituted, pursuant to the provisions of article 2, no. 1, letter a), articles 5 and 6, all of the RJAT and is competent as to the appreciation of the request for arbitral pronouncement formulated by the Claimant.

4.4 The cumulation of claims is legal, as the assumptions required in article 3, no. 1 of the RJAT are verified, namely, the success of the claims depends, essentially, on the appreciation of the same factual circumstances and on the interpretation and application of the same principles or rules of law.

4.5 No nullities were identified in the proceeding.

4.6 There are no exceptions or preliminary matters that need to be decided, wherefore nothing prevents the decision on the merits of the case.

4.7 In these terms, the following shall be the questions to be decided:

4.7.1. Does article 3 of the IUC Code establish or not a rebuttable presumption as to the owners of motor vehicles, while liable parties of the tax, so as to rule out the presumption that those considered as such are the persons in whose name the same are registered?

4.7.2. Did the Claimant manage to demonstrate, in the matter of arbitral proceedings, that it was not, on the date of the IUC assessments object of this proceeding, the liable party of the tax, succeeding in rebutting the presumption referred to in the previous point?

4.7.3. Do the IUC assessments made by the Respondent suffer, in consequence, from illegality, in view of the provisions of the applicable legislation?

5. FACTUAL MATTERS

5.1 Of the Proven Facts

5.2 The Claimant is a credit institution that has as its corporate purpose the practice of operations permitted to banks, with the exception of receipt of deposits (as per Doc. no. 2 attached with the Request).

5.3 Thus, within the scope of its activity, the Claimant grants to its clients financing for the purchase of motor vehicles, with such financing being formalized through the execution of (i) loan contracts or (ii) financial leasing contracts.

5.4 The Claimant, within the scope of its activity, was notified in 2013 of the following official assessments of IUC "Notification for Prior Hearing", dated 21 August 2013, as per copies of documents attached to the proceeding:

5.5 The Claimant did not exercise the right to prior hearing, in accordance with the terms and for the legal purposes (as per article 12 of the Request).

5.6 The Claimant was notified of the following official IUC assessments, which are at the origin of this Request for Arbitral Pronouncement:

5.7 The Claimant presented, on 31 October 2013, a Gracious Complaint (no. … 2013 …) against the acts of assessment of IUC identified above[11], as per copy attached with the Request (Doc. no. 5).

5.8 Notwithstanding the Gracious Complaint referred to in the previous point having been partially granted, by order of 31 March 2014 (Office no. … of 01.04.14), the tax acts object of this request were maintained (as per copy of Doc. no. 6 attached with the Request).

5.9 The Claimant presented, on 22 April 2014, a Hierarchical Appeal relative to the decision of partial rejection of the Gracious Complaint identified above (as per copy of Doc. no. 7 attached with the Request).

5.10 The Hierarchical Appeal, identified in the previous point, was object of partial grant, communicated by order of 20 November 2014 (Information …/2014, of 7 October 2014), but the tax acts object of this request were maintained (as per copy of Doc. no. 8 attached with the Request).

5.11 With relevance to the decision of the request, it is considered as proven the existence of Financial Leasing Contracts, in the period to which the IUC assessments refer, of the vehicles identified in point 5.4., supra, taking into account the documentary evidence attached to the file for that purpose by the Claimant, namely:

5.11.1. Copy of the Financial Leasing Contracts celebrated for each of the vehicles identified in point 5.4., supra, between the Claimant (Lessor) and the respective Lessees (as per copy of Doc. no. 9 attached with the Request);

5.11.2. Copy of Information issued by the Ministry of Justice (respectively, by the Conservatory of Motor Vehicle Registration of Lisbon, for the vehicles …-…-… and …-…-… and by the 2nd Conservatory of Real Property Registration of Oeiras, for the vehicle …-…-..) confirming the information contained in the Financial Leasing Contracts identified in the previous point, regarding the ownership of the said vehicles and beginning and end of each of the Contracts (as per copy of Doc. no. 10 attached with the Request).

5.12 In summary, from the documents referred to in points 5.11.1. and 5.11.2., supra, the following information can be extracted, briefly:

5.13 No other facts capable of affecting the decision on the merits of the request were proven.

5.14 Of the Facts Not Proven

5.15 No facts were verified as unproven with relevance to the arbitral decision.

6. LEGAL GROUNDS

The Subjective Incidence of IUC

6.1 The question underlying here will be that of the verification of the legality of the IUC assessments, notified to the Claimant and object of this Request for Arbitral Pronouncement.

6.2 In effect, in the request for arbitral pronouncement the Claimant invokes the circumstance that "(…) on the date of the genesis of the tax event (…)", the vehicles object of assessment of IUC were leased, "(…) by virtue of the validity of a financial leasing contract (…)" wherefore the Claimant understands that it was not the liable party of IUC.

6.3 In this connection, the Claimant considers itself not to be the liable party of the tax that was assessed to it, because in accordance with the provisions of article 3, no. 1 of the IUC Code, there is enshrined a rebuttable presumption, namely, that admits proof to the contrary, in particular, through the demonstration that the motor vehicles at the origin of the IUC assessments were leased to third parties on the date of the occurrence of the tax generating event in the year 2009.

6.4 To the contrary, the Respondent considered that the provisions of article 3, no. 1 of the IUC Code do not contain any legal presumption and that, on the contrary, it expressly and intentionally established that shall be considered as owners the persons in whose name the vehicles are registered.

6.5 In this connection, it will be necessary to answer the question of whether, being in effect on the date of occurrence of the tax generating event, for each of the vehicles identified in point 5.4., supra, a financial leasing contract, who was, for purposes of the provisions of article 3, nos. 1 and 2 of the IUC Code, the liable party of IUC - the Lessee or the entity Lessor, owner of the vehicle, in whose name the registration of the property right is recorded?

6.6 Now, being this the main question to be decided in the present case, it will thus be necessary to determine the subjective incidence of IUC, in accordance with the provisions of its respective Code and to take a position regarding the said subjective incidence norm so as to ascertain whether or not it establishes a legal presumption.

6.7 In this dispute, if the said presumption is enshrined there, it must be verified whether the same is susceptible to being rebutted (as the Claimant argues) or if, on the contrary, it is established expressly and irrebuttably, that the persons in whose name the vehicles are registered are the owners, for purposes of subjective incidence of IUC (as the Respondent argues).

6.8 However, and before proceeding to interpret the provisions of article 3, no. 1 of the IUC Code, it is relevant to bear in mind the provisions of article 11 of the General Tax Law (LGT), in that tax norms should be interpreted in accordance with the general principles of interpretation and, as well, the provisions of article 9 of the Civil Code that establish the rules and elements for the interpretation of norms.

6.9 In fact, the interpretative activity is, as Francesco Ferrara refers, "the most difficult and delicate operation that the jurist can dedicate himself to (…)" for "(…) the interpreter should seek not what the legislator wanted, but what in the law appears objectively wanted (…)" (underlined in original).[12]

6.10 Thus, for the same author, understanding the law "is not only to seize in a mechanical manner the apparent and immediate sense that results from the verbal connection; it is to inquire with depth into the legislative thinking, descend from the verbal surface to the intimate concept that the text encloses and develop it in all its possible directions" (underlined in original).[13]

6.11 As Baptista Machado refers[14] "the legal provision presents itself to the jurist as a linguistic utterance, as a set of words that constitute a text. To interpret evidently consists of extracting from that text a determined sense or content of thought. The text contains multiple senses (polysemy of the text) and frequently contains ambiguous or obscure expressions (…)" wherefore "(…) although apparently clear in its verbal expression and bearing only one sense, there is still the need to account for the possibility that the verbal expression has betrayed the legislative thinking – a phenomenon more frequent than it might appear at first sight" (underlined in original).

6.12 Thus so that we can conclude whether article 3, no. 1, of the IUC Code establishes (i) a rebuttable presumption regarding who should be considered liable party of the tax on the basis of the Motor Vehicle Register or if (ii) the Legislator intended expressly and intentionally to determine, on the basis of the Motor Vehicle Register, who should be considered the liable party of IUC, it is fundamental first to heed the letter of the Law.

6.13 In these terms, in accordance with the provisions of article 3, no. 1 of the IUC Code, "the liable parties for the tax are the owners of the vehicles, being considered as such the natural or legal persons, of public or private law, in whose name the same are registered" (underlined in original).

Literal Element

6.14 Now, in accordance with the literal element of the referred norm, the question centers on the expression "considered as such" used by the Legislator.

6.15 In fact, the letter of the Law does not refer to the expression "presumed", as appeared in the diplomas preceding the present Code, being thus questionable whether the nature of presumption continues or not to be present in the norm under analysis.

6.16 In this sense, by way of example, it is verified that in article 243, no. 3 of the Civil Code and in articles 45, no. 6 and 89-A, no. 4 of the LGT, the expression "is considered" is also used and, nevertheless, we are facing legal presumptions wherefore, in accordance with the general norms of interpretation, it is considered that the minimum of verbal correspondence is assured, for purposes of determining the legislative thinking that is objectified in the norm in question.[15]

6.17 And, as Karl Larenz affirms[16], if "the literal sense in most cases is not sufficient as an interpretive criterion, precisely because it still permits various interpretations", it is also true that, if accompanied by other elements it is quite relevant and indicative of the true sense of the norm under analysis, pointing to the effect that the expression "considered as such" is equivalent to the expression previously used of "presumed as such" (underlined in original).

Historical Element

6.18 Nevertheless, and still within the scope of the elements of interpretation in accordance with article 9 of the Civil Code, it is important also to heed the historical element.

6.19 In the view of Baptista Machado[17], this element "comprises all materials related to the history of the provision, namely: the evolutionary history of the institute, the figure or the legal regime in question (…); the so-called sources of law, or the legal or doctrinal texts that inspired the legislator in the elaboration of the law (…); the preparatory works" (underlined in original).

6.20 In this connection, the legislator, in defining the subjective incidence of the Municipal Tax on Vehicles (IMV), the Tax on Circulation (ICI) and the Tax on Haulage (ICA), taxes abolished by IUC, established that "the tax is due by the owners of the vehicles, being presumed as such, pending proof to the contrary, the persons in whose name the same are registered or recorded" (underlined in original).

6.21 In these terms, as to this element of interpretation it is demonstrated that the antecedents of the IUC Code established a presumption that the registered owners in the Conservatory of Motor Vehicle Registration are liable parties of IUC.

6.22 With respect to IUC, notwithstanding it continuing to attribute to the owners of the vehicles the quality of liable parties, the legislator opted to use a formulation different from the incidence norm, abandoning the expression "(…) being presumed as such, (…)" in favor of the expression "(…) being considered as such (…)".

6.23 In consequence, it is clear that the understanding underlying the provisions of that article of the IUC Code provides for a rebuttable presumption, relative to which the semantic question in no way alters the interpretive sense of the norm.[18] [19]

6.24 If the understanding followed in prior decisions[20] on the same matter is adopted, we understand that the conclusion should be that, in fact, article 3, no. 1, of the IUC Code establishes a presumption, as it is not the substitution of the expression "being presumed" by the expression "being considered" that causes this norm to cease to establish a presumption.

6.25 In fact, we understand that we are facing a mere semantic matter, which in no way alters the content of the norm in question, wherefore:

6.25.1. For there to be a legal presumption, it is necessary that the norm establishing it adapts to the respective legal concept (set out in article 349 of the Civil Code), for which it is irrelevant whether the same be explicit (revealed by the use of the expression "are presumed") or merely implicit.[21] [22]

6.25.2. On the other hand, the freedom of configuration of the legislator is limited by fundamental principles enshrined in the Constitution of the Portuguese Republic (CRP), in particular, the principle of equality, whose relevance is pertinent in the case under analysis.[23]

6.26 In this connection, "taxation in conformity with the principle of contributive capacity will imply the existence and maintenance of an effective connection between the tax performance and the economic assumption selected for the object of the tax, requiring, therefore, a minimum of logical coherence of the diverse hypotheses (…) provided in law with the corresponding object of the same" (underlined in original).[24]

6.27 It is in the sense of the legal concept of presumption and in respect of the constitutional principles of equality and contributive capacity that the legislator attributes full efficacy to the presumption derived from the Motor Vehicle Register adopting it, as such, in the definition of the subjective incidence of this tribute, established in no. 1 of article 3 of the IUC Code.

6.28 In effect, as to the importance of the Motor Vehicle Register, it is important to note that registration serves to publicize the legal situation of goods and, as well, to presume that a right exists over those and that the same belongs to the holder, as it appears in the register.

Rational and Teleological Element

6.29 It will now be the turn to use the rational or teleological element which has the greatest importance for determining the sense of the norm under analysis, because, according to the author Menezes Cordeiro[25], "interpretation is today dominated by the teleological factor".

6.30 Thus, as to the rational and teleological element, it is important to note that the IUC has underlying it the principle of equivalence, enshrined in article 1 of its respective Code, a principle which came to embody environmental concerns by establishing that the tax should burden the taxpayers for the environmental and road costs caused by automobile circulation, namely, the polluter must pay (a principle that also underlies article 66, no. 2, letter h) of the CRP and Community Law).[26]

6.31 As Sérgio Vasques writes[27], "in obedience to the principle of equivalence, the tax must be shaped with attention to the benefit that the taxpayer derives from public activity, or with attention to the cost that it imputes to the community by its own activity" wherefore "a tax on automobiles based on a rule of equivalence will be equal only if those who cause the same road wear and the same environmental cost pay the same tax; and those who cause different wear and environmental cost, pay different tax also" (underlined in original).

6.32 In effect, what is intended to be achieved through the establishment of the said principle is to make the damages that befall the community, arising from the use of motor vehicles, be assumed by their owner-users, as costs that only they should bear.

6.33 Being known the scale of environmental damage caused by motor vehicles, the logic and coherence of the system of automobile taxation, in general, and of the regime inscribed in the IUC Code, in particular, point to the effect that the polluter must pay, associating thus the tax to the environmental damage caused.

6.34 These are matters of considerable importance in the economy of the IUC, and which cannot be left aside, consistently, in the interpretation of article 3, relative to the subjective incidence of that tax.

6.35 In these terms, corresponding the taxation (in the matter of IUC) of the real polluters to an important end sought by law, in light of the elements of rational and teleological character of interpretation, it is incumbent to conclude that no. 1 of article 3 of the IUC Code establishes a rebuttable presumption.[28]

6.36 In summary, it is important to stress that the said elements of interpretation, whether those related to literal interpretation, whether those concerning the logical elements of interpretation, of a historical nature or of a rational order, all point to the effect that the expression "considered as such" has a sense equivalent to the expression "presumed as such", and should, thus, be understood that, it is reiterated, the provisions of no. 1 of article 3 of the IUC Code establish a legal presumption.

6.37 Now, in accordance with the provisions of article 349 of the Civil Code, presumptions are the inferences that law (or the judge) draws from a known fact to establish an unknown fact.

6.38 In this manner, presumptions constitute means of proof, having this the function of demonstrating the reality of facts (article 341 of the Civil Code), wherefore he who has the legal presumption in his favor is relieved of making proof of the fact to which it leads (article 350, no. 1 of the Civil Code).

6.39 However, presumptions, except in cases where the law prohibits it, may be rebutted, through proof to the contrary (article 350, no. 2 of the Civil Code) and, in the case of presumptions of tax incidence, these are always rebuttable, as expressly provided in article 73 of the LGT.

6.40 In fact, these presumptions of tax incidence may be rebutted through the proper contradictory procedure, provided in article 64 of the Code of Tax Procedure and Process (CPPT) or, alternatively, through a gracious complaint or judicial challenge of the tax acts that are based on them.

6.41 On the establishment in article 3, no. 1 of the IUC Code of a rebuttable presumption several arbitral decisions have already pronounced themselves in that sense.[29]

6.42 In these terms, the answer that should be given to the question formulated in point 4.7.1., supra will be that article 3 of the IUC Code effectively establishes a rebuttable presumption as to the owners of motor vehicles, so as to be able to rule out the presumption that those considered as such are the persons in whose name the same are registered.[30]

The Subjective Incidence of the Tax During the Validity of the Financial Leasing Contract

6.43 The Legal Regime of Financial Leasing Contracts (proved by Decree-Law no. 149/95, of 24 June, with the amendments introduced to it in the meantime), establishes that it is an obligation of the Lessor, among others, "to grant the enjoyment of the goods for the purposes to which they are intended".

6.44 On the other hand, the same statute establishes the obligations of the Lessee in particular, that of "paying the rents", that of "assuring the preservation of the good and not making imprudent use of it", as well as that of "using and enjoying the leased good".

6.45 Taking into account the obligations transcribed above, by way of example, for both parties of a Financial Leasing Contract, it will be possible to conclude that during the validity of a contract of that nature, although the Lessor continues as owner of the good in question, only the Lessee has the exclusive enjoyment of the leased good, using it as if he were the true owner.

6.46 Additionally, let it be noted that the financial lessee is equated to owner, for purposes of the provisions of no. 1 of article 3 of the IUC Code, namely, the same would be to say that it will be this one that should be considered as liable party of IUC (see article 3, no. 2 of that Code).

6.47 Thus being, the Lessor not having, by legal and contractual imposition, the potential for use of the vehicle and the Lessee having the exclusive enjoyment of the automobile, we reaffirm the conclusion that, in our view, the ratio legis of the IUC Code mandates that, pursuant to the provisions of no. 2 of its article 3, it be the Lessee who is responsible for payment of the tax, given that it is he that has the potential for use of the vehicle and causes the road and environmental costs inherent to it.

6.48 In fact, the same conclusion is reached when verifying the importance given to the users of the leased vehicles, in accordance with the provisions of article 19 of the IUC Code, whereby the entities that proceed, namely, to the Financial Leasing of vehicles are obliged to furnish to the TA (former DGCI), the tax identity of the users of the leased vehicles, for purposes of the provisions of article 3 of the IUC Code.

6.49 In these terms, and giving answer to the question formulated in point 6.5., supra, it is the understanding of this Arbitral Tribunal that if, on the date of occurrence of the tax generating event, a Financial Leasing Contract is in effect that has as its object a motor vehicle, the liable party of the tax is not the Lessor but rather, in light of the provisions of no. 2 of article 3 of the IUC Code, the Lessee, because it is this one that has the enjoyment of the vehicle and, as such, the inherent polluting potential (independently of the registration of the property right remaining in the name of the Lessor).

The Rebuttal of the Presumption

6.50 In view of the above, concluding that the liable party of the tax is the Lessee, should the vehicles object of IUC assessment be, on the date of the tax generating event (in 2009), Leased under a Financial Leasing Contract, and establishing article 3, no. 1 of the IUC Code a rebuttable presumption, it remains to analyze whether this presumption was effectively rebutted by the Claimant, as results from the provisions of article 73 of the LGT.

6.51 What the Claimant proposes to prove, according to the results of the file, is that on the date of the tax generating event of IUC (in April, May and September 2009), the motor vehicles that gave rise to the acts of assessment object of the Request for Arbitral Pronouncement were leased under 3 Financial Leasing Contracts (identified in point 5.12., supra), attaching for the purpose of proof:

6.51.1. Copy of the Financial Leasing Contracts celebrated for each of the vehicles identified in point 5.4., supra, between the Claimant (Lessor) and the respective Lessees, duly signed by both parties;

6.51.2. Copy of Information issued by the Ministry of Justice (respectively, by the Conservatory of Motor Vehicle Registration of Lisbon, for the vehicles …-…-… and …-…-… and by the 2nd Conservatory of Real Property Registration of Oeiras, for the vehicle …-…-…) confirming the information regarding the Financial Leasing Contracts identified above, as to the ownership of the said vehicles and beginning and end of each of the Leasing Contracts.

6.52 In the matter of opposition to the evidence presented by the Claimant, the Respondent came to question the existence of the Financial Leasing Contracts on the dates of occurrence of each of the tax events object of the Arbitral Request, based on the information contained in the "Vehicle Registration Management System"

6.53 However, taking into account the copies attached by the Claimant regarding the information issued by the respective Conservatories (identified in the previous point) as to:

6.53.1. The registration of ownership in favor of the Claimant of each of the vehicles object of assessment of IUC and,

6.53.2. The registration of the Financial Leasing Contract – identification of the respective Lessees, as well as the beginning and end of each contract, this Tribunal found no reasons to challenge the veracity of the copies and of the documents that gave them origin (referred to above), reason for which it considered proven the facts contained therein, as per points 5.11. and 5.12., supra.

6.54 The circumstance that it was not raised, by the Respondent, the falsity of the documents from which the photocopies were extracted but, only, doubts were raised as to the content of the attached leasing contracts (regarding the date of beginning of each leasing), this is not sufficient to challenge the veracity and authenticity of the original documents and of the copies extracted from them for purposes of proof (which was appreciated taking into account the provisions of article 370 and following of the Civil Code.

6.55 In this connection, given that the rebuttal of the legal presumption obeys the rule contained in article 347 of the Civil Code, whereby the full legal proof can only be contradicted by means of proof that shows it not to be true the fact that is its object, taking into account the above, it will be inescapable to conclude that the Claimant managed to prove that, on the date of the occurrence of the tax events under analysis (2009), the liable parties of IUC resulting from the assessments in question were the Lessees of the respective Financial Leasing Contracts already identified, wherefore it is understood that the presumption derived from the registration of the Motor Vehicle Register (in favor of the Lessor) was rebutted.

6.56 Consequently, the Claimant having demonstrated that, on the date of the IUC assessments, it was not the liable party of the tax, the answer is affirmative to be given to the question formulated in point 4.7.2., namely, that it succeeded in rebutting the presumption of article 3 of the IUC Code.

6.57 In this manner, in accordance with the provisions of article 16 of the IUC Code, the Respondent was not competent to assess the tax to the Claimant, as the person in whose name the vehicles object of assessments are registered (in accordance with the provisions of article 3 of the IUC Code).

6.58 In consequence, the answer will also be affirmative to the question formulated above in point 4.7.3., namely, that the IUC assessments made by the Respondent suffer, as a consequence of the above, from illegality, and should, therefore, be annulled.

The Payment of Indemnificatory Interest

6.59 In accordance with the provisions of no. 5 of article 24 of the RJAT "payment of interest is due, independently of its nature, according to the terms provided in the general tax law and in the CPPT", from which it results that an arbitral decision is not limited to the appreciation of the legality of the tax act.

6.60 As Jorge Lopes de Sousa refers "it is included in the competencies of the arbitral tribunals that function in the CAAD the fixing of the effects of the arbitral decision that may be defined in a judicial challenge proceeding, in particular, the annulment of the acts the declaration of illegality of which is requested, the condemnation of the Tax and Customs Authority in the payment of indemnificatory interest (…)"[31][32]

6.61 Thus, in tax arbitral proceedings there will be place to the payment of indemnificatory interest, pursuant to the provisions of articles 43, nos. 1 and 2, and 100 of the LGT, when it is determined that there was an error attributable to the services from which results payment of the tax debt in an amount higher than legally due (underlined in original), it not being necessary that the same be requested in the petition[33][34], as is the case with the Request for Arbitral Pronouncement under analysis.

6.62 However, it will be important to heed the provisions of the articles referred to above, in that the right to indemnificatory interest will depend on the verification of an error attributable to the services, from which resulted payment of the tax debt in an amount higher than legally due.

6.63 In summary, the right to indemnificatory interest presupposes that tax higher than due has been paid and that such fact derives from error (of fact or of law) attributable to the services of the Respondent.

6.64 In the case under analysis, by promoting the official assessments of IUC considering the Claimant as liable party of this tax, the Respondent limited itself to giving compliance with the provisions of no. 1 of article 3 of the IUC Code, which, as has already been analyzed above, attributes such quality to the persons in whose name the vehicles are registered, with no error visible that could be attributed to it.

6.65 On the other hand, also as already concluded, the said norm has the nature of legal presumption, from which there results, for the Respondent, the right to assess the tax and demand it from the persons in whose name the vehicles are registered, without need of proving the facts that lead to them, as expressly provided in no. 1 of article 350 of the Civil Code.

The Responsibility for Payment of Arbitral Costs

6.66 In consonance with the previous point, and pursuant to the provisions of article 527, no. 1 of the Code of Civil Procedure (CCP) in effect (ex vi 29, no. 1, letter e) of the RJAT), it should be established that will be condemned in costs the Party that has given cause to them or, if there is no winning of the action, who from the proceeding took benefit.

6.67 In this connection, no. 2 of the said article specifies the expression "has given cause", according to the principle of loss, understanding that gives cause to the costs of the proceeding the defeated party, in the proportion in which it is.[35]

6.68 In these terms, the responsibility as to arbitral costs should be attributed to the Respondent.

7. DECISION

7.1 In harmony with the provisions of article 22, no. 4, of the RJAT, "the arbitral decision issued by the arbitral tribunal includes the fixing of the amount and the distribution between the parties of the costs directly resulting from the arbitral proceeding".

7.2 In this connection, the basic rule relating to responsibility for proceedings expenses is that the Party that has given cause to them should be condemned, with it being understood that gives cause to the costs of the proceeding the defeated party, in the proportion in which it is (article 527, nos. 1 and 2 of the CCP in effect).

7.3 In the case under analysis, taking into account the above, the principle of proportionality imposes that the entire responsibility for costs be attributed to the Respondent.

7.4 In these terms, taking into account the conclusions defined in the Previous Chapters, this Arbitral Tribunal decided:

7.4.1. To judge as well-founded the Request for Arbitral Pronouncement presented by the Claimant, annulling the respective tax acts, with the consequences arising from that;

7.4.2. To condemn the Respondent in the payment of the costs of the present proceeding.

Value of the Proceeding: In conformity with the provisions of articles 306, no. 2 of the CCP, article 97-A, no. 1 of the CPPT and article 3, no. 2 of the Regulation of Fees in Tax Arbitration Proceedings the value of the proceeding is fixed at EUR 1,008.90.

Pursuant to the provisions in Table I of the Regulation of Fees of Tax Arbitration Proceedings, the value of the costs of the Arbitral Proceeding is fixed at EUR 306.00, payable by the Respondent, in accordance with article 22, no. 4 of the RJAT.

Let it be notified.

Lisbon, 8 June 2015

The Arbiter

Sílvia Oliveira

[1] The drafting of the present decision is governed by the spelling prior to the Orthographic Agreement of 1990, except transcriptions made.

[2] The vehicle to which this registration corresponds is not the object of the Request for Arbitral Pronouncement presented (note of this Arbitral Tribunal).

[3] In this connection, the Claimant cites, among many other authors, Freitas Pereira, M. H., "Fiscality", 3rd Edition, Almedina, Coimbra, 2009).

[4] In this connection, the Claimant cites Constitutional Court Decision no. 348/97 and Casalta Nabais (1994) in "Tax Contracts" (Reflections on their Admissibility), p. 279, in which it is stated that the presumption "must be compatible with the principle in analysis, which passes, whether through the constitutional illegitimacy of absolute presumptions in that they prevent the taxpayer from proving the non-existence of the contributive capacity sought in the respective law, whether through the requirement of suitability of relative presumptions to present the economic assumption taken into account".

[5] To reinforce this understanding, the Respondent cites the decision handed down in the context of Case no. 210/13.0BEPNF of the Administrative and Fiscal Court of Penafiel (having attached a copy of this decision with the Reply presented - Doc. no. 2), whereby "the lack of registration in the name of the new acquirer causes the subjective incidence of IUC (art. 3, no. 1, of the IUC Code) to be maintained in the holder of the property right registered in the Conservatory of Motor Vehicle Registration and to be the responsible party for the assessment and payment of IUC, independently of its actual transfer".

[6] Relating to the session of 12 March 2008.

[7] Similarly, the recommendation no. 6-B/2012 of the Ombudsman, dated 22 June 2012, is cited, whereby it is stated that "(…) with the approval of Law no. 22-A/2007, of 29 July, statute that approved the Code of Single Vehicle Circulation Tax and which came to substantially alter the regime of automobile taxation (…) the liable parties of the tax came to be the owners appearing in the register of ownership, independently of the circulation of the vehicles on the public way (…)" wherefore "at the fiscal level (…) the Single Vehicle Circulation Tax is due by the persons appearing in the register as owners of the vehicles".

[8] In accordance with the information contained in the note of assessment of IUC/2009, the month of registration is May and not April, as stated by the Respondent in its Reply, being that the date indicated by it as being that of the beginning of the Financial Leasing Contract (02-04-2009) does not coincide with the date indicated by the Claimant in the documentation presented (28-04-2009) – see Chapter 5.

[9] In this sense, the Respondent cites the statement of reasons referring to the Bill of Law no. 118/X, namely, the bill for comprehensive reform of automobile taxation.

[10] In this connection, the Respondent cites the Arbitral Decision handed down in the context of Case no. 26/2013.

[11] Together with other tax acts that are not the object of this Request for Arbitral Pronouncement.

[12] See Francesco Ferrara, "Interpretation and Application of Laws", 2nd Edition, Coimbra, 1963, p. 134/135.

[13] See Francesco Ferrara, work cited, p. 128.

[14] In this connection, see "Introduction to Law and to Legitimizing Discourse", p. 175/176.

[15] Note that, as to the second legal provision referred to, Jorge Lopes de Sousa considers there to be a rebuttable presumption of notification, for purposes of counting the deadline for the right to assess (see "Code of Tax Procedure and Process" Annotated, Vol. I, 6th Edition, Áreas Editora, S.A., Lisbon 2011, p. 388).

[16] In this connection, see "Methodology of Legal Science", Calouste Gulbenkian Foundation, 2nd ed., 1969, p. 369.

[17] In his work "Introduction to Law and to Legitimizing Discourse", p. 184.

[18] In this sense, Jorge Lopes de Sousa states that "in the matter of tax incidence, presumptions may be revealed by the expression is presumed or by a similar expression" (in CPPT, 6th Edition, Áreas Editora. Lisbon, 2011, p. 589) (underlined in original).

[19] Also in the same sense, A. Brigas Afonso and Manuel Teixeira Fernandes (in "Tax on Vehicles and Single Vehicle Circulation Tax", Coimbra Editora, 2009, p. 187) consider that "there were no alterations regarding the situation that was in effect within the extinct IMV, ICI and ICA".

[20] In this sense see, in particular, the arbitral decisions handed down in Cases 14/2013-T, 26/2013-T, 27/2013-T, 34/2014-T and 42/2014-T.

[21] In this sense, see Jorge Lopes de Sousa, CPPT, 6th Edition, Áreas Editora. Lisbon, 2011, page 586.

[22] See AC STA Case 441/11, of 29 February 2012 and AC STA Case 381/12, of 2 May 2012.

[23] In effect, at the tax level, the principle of equality is translated into the generality and abstraction of the norm that creates the essential elements of the tribute, in accordance with the contributive capacity of each one.

[24] See AC TC Case 343/97, of 29 April.

[25] In this connection, see "Treatise on Portuguese Civil Law I", General Part, Volume 1, 2nd ed., 2000, Almedina, p. 557.

[26] With the signing, on 7 February 1992, in Maastricht, of the Treaty of European Union, the aforementioned principle came to appear as support for Community policy in the environmental domain (see article 130-R, no. 2).

[27] In "Special Consumption Taxes", Almedina, 2000, p. 110 and 122.

[28] In this connection, according to Francesco Ferrara [in "Interpretation and Application of Laws", 2nd Edition, Coimbra, 1963, p. 130, "(…) legal interpretation is by its nature essentially teleological"].

[29] See, in particular, the arbitral decisions handed down in Cases 14/2013-T, 26/2013-T, 27/2013-T, 73/2013-T, 170/2013-T and 67/2014-T and 115/2014-T.

[30] In this connection, see AC TCAS 08300/14, of 19 March 2015, whereby it can be read that "IUC is legally configured to function in integration with the motor vehicle register, which is inferred, from the outset, from article 3, no. 1, of the IUC Code, a norm where a legal presumption is established that the holder of the motor register is its owner, being that such presumption is rebuttable, by force of article 73 of the LGT" (underlined in original).

[31] See Leite de Campos, Diogo, Silva Rodrigues, Benjamim, Sousa, Jorge Lopes, "General Tax Law - Annotated and Commented", 4th Ed., 2012, p. 116).

[32] On indemnificatory interest one may see from the same Sousa, Jorge Lopes, Interest in tax relations, in "Fundamental Problems of Tax Law", Lisbon, 1999, p. 155 et seq).

[33] See AC STA Case no. 1052/04, of 30 November 2004.

[34] See Leite de Campos, Diogo, Silva Rodrigues, Benjamim, Sousa, Jorge Lopes, "General Tax Law - Annotated and Commented", 4th Ed., 2012, p. 869).

[35] Thus, the Parties should be condemned taking into account the principle of proportionality, namely, being attributed to them the responsibility for costs, in the proportion in which they are the defeated party.