Summary
Full Decision
ARBITRAL DECISION
The arbitrator Dr. Henrique Nogueira Nunes, appointed by the Deontological Council of the Centre for Administrative Arbitration to constitute the Arbitral Tribunal, constituted on 5 December 2018, hereby decides as follows:
I – REPORT
1.1. A... S.A., Legal Entity No. ..., hereinafter referred to as the "Claimant", requested the constitution of the Arbitral Tribunal pursuant to Articles 2, paragraph 1, subparagraph a) and 10 of Decree-Law No. 10/2011, of 20 January (hereinafter "RJAT").
1.2. The request for arbitral ruling, as initially formulated, has as its immediate object the annulment of the tacit rejection of the Gracious Complaint No. ...2018..., against the assessment act for the Additional Municipal Property Tax ("AIMI") No. 2017... and as its mediate object the annulment thereof, in the total amount of € 3,817.48.
1.3. To substantiate its request, the Claimant attributes, in summary, the following defects:
(i) The tax act in question materializes the violation of the most basic canons of equality, proportionality and taxpaying capacity.
(ii) That given the spirit which presided over the Proposal for the State Budget Law for 2017, from which the AIMI emerged, it is to be concluded that it was intended to tax the ownership of real property by revealing a superior taxpaying capacity of those who hold it, thus implementing the principle of fair distribution and taxpaying capacity.
(iii) That the AIMI, in its current meaning, does not pass the scrutiny of the principle of taxpaying capacity, insofar as it holds the properties in question within the scope of its activity and because of it, and that property over the properties consists, in the case of commercial companies of this type, in the patrimonial substrate of its economic activity, and in the realization of a true means essential to the pursuit of its purpose, wherefore the premise that property over such properties can constitute a manifestation of (or of an increased) taxpaying capacity that, by itself, should be subject to withdrawal through taxation absolutely fails.
(iv) And that taxation in AIMI must necessarily make a distinction between, on the one hand, the ownership of real property which, by itself alone, constitutes a manifestation of increased economic affluence, and on the other hand, the ownership of real rights over properties intended for the exercise of an economic activity and which, as such, may be recognized as factors of production.
(v) That there exists an inequality at the material level between companies pursuing an economic activity that presupposes the holding of properties, in relation to other companies whose activity does not derive from the holding of properties, and that conditions have been created for the constitution of manifest situations of material inequality with companies that, holding real property, pursue therein a commercial, industrial or service provision activity.
(vi) That with the tax in question, companies owning properties intended for the exercise of an economic activity are treated unequally, without any material basis of support, relative to companies which, for the same reason, are owners of properties classified as "commercial, industrial or for services" – which are exempt from AIMI.
(vii) And that with the negative, uncritical, arbitrary and random differentiation between, on the one hand, companies that use properties in the pursuit of their activity and, on the other hand, companies that assign properties to industry, commerce and services, a differentiated treatment is conferred upon situations which, from a material point of view, are in all respects similar. In this measure, taxation in question constitutes a violation of the principles of taxpaying capacity, equality and proportionality – insofar as the fact of having in its inventory properties for construction, exploitation or sale, in no way demonstrates a relevant taxpaying capacity worthy of being (differently and autonomously) taxed.
(viii) And that the assessment now under consideration violates the principle of tax equality provided for in Article 13 of the CRP and the principle of taxpaying capacity provided for in Article 104 of the CRP, insofar as it is based on a rule that treats contributors in identical situations very differently, with the measure of difference not being assessed by their real taxpaying capacity and is based on a legal solution that is arbitrary and devoid of any perceivable or rational material basis.
(ix) And that by applying to the ownership of properties intended for the exercise of an economic activity, without sufficient basis, Article 135-B, paragraph 2 of the CIMI should be disapplied as materially unconstitutional, insofar as it violates the principle of tax equality enshrined in Articles 13 and 104, paragraph 3 of the CRP, further verifying the violation of the principle of proportionality, since there is evidence of a negative, uncritical, arbitrary and random differentiation between, on the one hand, properties (residential) held by companies that use them in the pursuit of their activity, and, on the other hand, properties of equal value held by companies that assign them to industry, commerce and services.
(x) It concludes by maintaining that in light of the prevailing constitutional fiscal principles, paragraph 2 of Article 135-B of the CIMI should be deemed materially unconstitutional, in that it does not exclude from the AIMI land for construction that appear in the inventories of companies with real estate purpose, by violation of the principles of equality and taxpaying capacity, inherent in Articles 13 and 104, paragraphs 2 and 3, all of the CRP – determining the annulment of the decision and assessment contested.
(xi) For all the foregoing, it seeks the annulment of the administrative act and the tax act in crisis in the proceedings with all legal consequences.
1.4. The Tax and Customs Authority, hereinafter referred to as the "Respondent" or "AT", responded, in summary, as follows:
(i) It comes to defend itself by challenge.
(ii) That the legislator excluded from application urban properties classified as "industrial, commercial or for services" and "other" but expressly chose to maintain other properties that also form part of the assets of companies, such as those classified as residential or land for construction, by not including them in the negative delimitation enshrined.
(iii) That is, it did not guarantee, nor intended to guarantee, in all cases that the real property attached to the exercise of any economic activity would not be affected.
(iv) That the understanding advocated by the Claimant, which is that in the exclusion from taxation provided for in Article 135-B, paragraph 2 of the CIMI, are properties classified as land for construction whose potential purpose is not residential, is clearly abrogating of the law, cloaked as legislative impulse, as well as unconstitutional.
(v) And that in light of the decisions of the Constitutional Court on the constitutional conformity of Item 28 of the TGIS, it is axiomatic that all the arguments raised by the Claimant, wanting to attribute, based on the jurisprudence of the Constitutional Court, any non-conformity – non-existent, it is stressed ad nauseam, to the AIMI –, in concrete the assessment now in dispute with fundamental law, has no basis whatsoever.
(vi) And that the legislative option to qualify as passive subjects natural and legal persons and any structures or centers of collective interests without legal personality that are owners, usufructuaries or superficiaries of urban properties situated in Portuguese territory, with classification as "land for construction" or "buildings or constructions for residential purposes", inevitably brought, into the field of taxation, entities pursuing economic activities and nothing in the letter of the law authorizes concluding that the intention of the legislator of the AIMI was to exclude from taxation urban properties that are affected to the exercise of an economic activity.
(vii) Because the only relevant criterion for delimiting the scope of objective incidence is, solely, the typology of classification of urban properties, provided for in the CIMI, to which the AIMI regime expressly refers.
(viii) And that it did not proceed to any unconstitutional interpretation of the rule, because it is not it who decides to include, in AIMI taxation, urban properties affected to economic activities, but rather, because it is what results from Article 135-B, paragraph 2 of the CIMI, only urban properties classified as industrial, commercial or for services and others are not taxed.
(ix) Wherefore, having the contested assessment been carried out in accordance with the law, it is not foreseen, therefore, where the violation of law attributed to it may lie.
(x) And it is certain that the contrary understanding, which is that in the exclusion from taxation provided for in Article 135-B, paragraph 2 of the CIMI, are properties classified as land for construction whose potential purpose is not residential, is clearly abrogating of the law, transposed as legislative impulse, as well as unconstitutional.
(xi) The taxation in question did not result from its creative interpretation, but from mere application of the law and, as is already uniformly recognized in jurisprudence, cannot disapply legal rules on the grounds of unconstitutionality.
(xii) Wherefore, and in summary, it could not/cannot refuse to apply a rule, or fail to comply with the law, invoking or questioning its constitutionality, as it is subject to the principle of legality, as per Article 266, paragraph 2 of the CRP, Article 3, paragraph 1 of the CPA and Article 55 of the LGT.
(xiii) As to the unconstitutionality of the AIMI regime, by violation of the principles of equality (Article 13 of the CRP) and taxpaying capacity (Article 104, paragraph 3 of the CRP), it understands that the rules enshrined do not result in unjustified differences in treatment between taxpayers in violation of those constitutional principles, insofar as the choices inherent to the delimitation of the objective incidence of the AIMI are made within the margin of freedom of legislative shaping.
(xiv) In effect, it understands that the different valuation and taxation of a property with residential allocation, in relation to a property intended for commerce, industry or services, results from the different aptitude of the properties in question, which sustains the different treatment given by the legislator that, for economic and social reasons, decided, within its shaping freedom, to exclude from the incidence of the tax properties intended for ends other than residential.
(xv) It understands that it is unequivocal that one is dealing with a rule of objective incidence of general and abstract character, applicable indiscriminately to all cases in which the respective factual and legal assumptions are met.
(xvi) Wherefore it seeks the total dismissal of the present request for arbitral ruling, with the tax act of assessment contested remaining in the legal order and absolution, in accordance, of the Respondent from the request, all with the proper legal consequences.
1.5. The Tribunal decided to dispense with the holding of the first meeting of the Arbitral Tribunal in accordance with the arbitral dispatch notified to the parties according to the provision of Article 18 of the RJAT.
Both parties were equally notified to present Arguments, if they wished, having not chosen to do so.
A deadline was set for the purpose of rendering the arbitral decision until the end of the legal deadline.
* * *
1.6. The Tribunal was regularly constituted and is competent ratione materiae, according to Article 2 of the RJAT.
The parties have legal standing and capacity, show themselves legitimate and are regularly represented (cf. Articles 4 and 10, paragraph 2 of the RJAT and Article 1 of Ordinance No. 112-A/2011, of 22 March).
No procedural defects were identified in the case.
2. QUESTION TO BE DECIDED
The sole question presented to the Tribunal's examination is the constitutional conformity of paragraph 2 of Article 135-B of the CIMI.
It is, therefore, in light of the thema decidendum configured by the Claimant in its arbitral petition that the Tribunal will examine the request.
3. FACTUAL MATTER
With relevance to the examination and decision on the merits, the following facts are deemed proven:
A) The Claimant is a joint-stock commercial company that engages in the activity of real estate promotion.
B) The Claimant is owner of the urban properties mentioned in the assessment in crisis in these proceedings, namely two urban properties with residential destination and one plot of land for construction.
C) The properties in question are accounted for as "tangible fixed assets" in the Claimant's sphere (document No. 2 attached to the proceedings by the Claimant).
D) The Claimant holds the said properties with the aim of carrying out their exploitation through sale or lease, with the same being intended for the exploitation of the Claimant within the scope of its economic activity.
E) Following the entry into force of the AIMI regime (on 1 January 2017), the Claimant was notified of the AIMI assessment in question in these proceedings (cf. document No. 3 attached by the Claimant to the proceedings).
F) The Claimant voluntarily paid the tax that was assessed to it (document No. 5 attached to the proceedings by the Claimant).
4. UNPROVEN FACTS
There are no other facts with relevance to the decision on the merits of the case that were not proven.
5. REASONING FOR THE DECISION ON FACTUAL MATTER
As to the essential facts, the settled matter is configured identically by both parties and the Tribunal's conviction was formed based on the documentary (official) elements attached to the proceedings and discriminated above, whose authenticity and truthfulness was not contested by either party.
It is to be noted that the Tribunal does not have the duty to rule on all the matters alleged, but rather has the duty to select only those which are relevant to the decision, taking into account the cause (or causes) of action which substantiate(s) the request formulated by the Claimant as plaintiff (cf. articles 596, paragraph 1 and 607, paragraphs 2 to 4, of the C.P.Civil, in the wording given to it by Law 41/2013, of 26/6) and to record whether it considers it proven or unproven (cf. article 123, paragraph 2, of the CPPT).
According to the principle of free assessment of evidence, the Tribunal bases its decision, regarding the evidence produced, on its intimate conviction, formed from the examination and evaluation which it makes of the means of proof brought to the proceedings and in accordance with its experience of life and knowledge of persons (cf. article 607, paragraph 5, of the C.P.Civil, in the wording given to it by Law No. 41/2013, of 26/6). Only when the probative force of certain means is pre-established in Law (e.g., full probative force of authentic documents - cf. article 371, of the C.Civil) does not the principle of free assessment of evidence dominate in the appraisal of the evidence produced.
6. ON THE LAW
On the thema decidendum, the arbitrator of this Singular Tribunal had the opportunity to analyze and rule in the arbitral proceedings that took place at the CAAD under the number 664/2017-T, there in Collective Arbitral Tribunal, adhering to the decision rendered therein, there being nothing in the meantime to justify altering the position assumed in that judgment.
Indeed, it should be noted that very recently the Constitutional Court, in case No. 752/2018, came to render Judgment No. 299/2019, without dissenting votes as to the decision-making segment, in an appeal presented from a decision rendered by this center of arbitration which precisely examined the constitutional conformity of the AIMI, having confirmed the appealed decision and not judged unconstitutional the rule extracted from Article 135-A of the CIMI, in the sense of including, within the scope of application of the additional to the IMI, "land for construction" for purposes of commerce, industry, services and others, choosing not to take knowledge regarding the rule of Article 135-A of said CIMI, in the sense of including, within the subjective scope of application of the tax, entities that hold real property as an inevitable consequence of the economic activity they develop.
The additional to the IMI was established by Law No. 42/2016, of 28 December (State Budget Law for 2017), which added to the IMI Code Chapter XV comprised of Articles 135-A to 135-K.
In Article 135-A, the subjective incidence of the tax is defined, establishing that "passive subjects of the additional to the municipal tax on real property are natural or legal persons who are owners, usufructuaries or superficiaries of urban properties situated in Portuguese territory", being "equated to legal persons any structures or centers of collective interests without legal personality that appear in the registries as passive subjects of the municipal property tax".
In turn, Article 135-B defines the scope of objective incidence, stipulating the following:
"Article 135-B
Objective incidence
1 - The additional to the municipal tax on real property applies to the sum of the tax patrimonial values of urban properties situated in Portuguese territory of which the passive subject is owner.
2 - Excluded from the additional to the municipal tax on real property are urban properties classified as 'commercial, industrial or for services' and 'other' pursuant to subparagraphs b) and d) of paragraph 1 of Article 6 of this Code."
The referral made in paragraph 2 of Article 135-B to Article 6 of the IMI Code is intended to characterize what is understood by urban properties 'commercial, industrial or for services' and 'other' for purposes of exclusion from the scope of application of the additional to the tax.
In fact, the municipal property tax (IMI) applies to the tax patrimonial value of rural and urban properties situated in Portuguese territory, as results from Article 1 of the IMI Code, and the subsequent articles define, for purposes of the tax, the concepts of property, of rural properties, of urban properties and of mixed properties (Articles 2 to 5). Article 6, in turn, establishes the species of urban properties, stipulating the following:
"1 - Urban properties are divided into:
a) Residential;
b) Commercial, industrial or for services;
c) Land for construction;
d) Other.
2 - Residential, commercial, industrial or for services are buildings or constructions licensed for such purpose or, in the absence of a license, which have as normal destination each of these purposes.
3 - Land for construction is considered land situated within or outside an urban agglomeration, for which a construction or subdivision license or authorization has been granted, prior communication admitted or favorable prior information issued regarding a subdivision or construction operation, and also those that have been so declared in the acquisition deed, except for land in which the competent entities prohibit any of those operations, namely those located in green areas, protected areas or which, according to municipal land planning, are assigned to public spaces, infrastructure or equipment.
4 - The provisions of subparagraph d) of paragraph 1 include land situated within an urban agglomeration that are neither land for construction nor are covered by the provision of paragraph 2 of Article 3, and also buildings and constructions licensed or, in the absence of a license, which have as normal destination purposes other than those referred to in paragraph 2, and also those of the exception in paragraph 3."
The legislator, in defining the negative delimitation of the incidence of the tax by reference to urban properties classified as 'commercial, industrial or for services' and 'other' pursuant to subparagraphs b) and d) of paragraph 1 of Article 6 of the IMI Code, is precisely referring to this typology of properties in accordance with the very characterization which the Code attributes to it.
The exclusion from the tax thus encompasses properties classified as commercial, industrial or for services, understood as such buildings or constructions licensed for those purposes or which have as normal destination each of these purposes. Said exclusion covers, furthermore, the residual species referred to in subparagraph d) of paragraph 1 of that Article 6, therein including land situated within or outside an urban agglomeration that are neither land for construction nor rural properties and also buildings and constructions that do not fit into any of the previous classifications.
The scope of objective incidence, as an effect of the referral to that Article 6, was thus defined not only by reference to a certain species of urban properties, but also by reference to the administrative procedure through which the classification was made or, in the absence of a license, to the normal destination of those properties for commercial, industrial and services purposes or other.
As was decided in arbitral proceedings No. 664/2017-T:
"Having the law defined the scope of application of the tax as it did, resorting to legal technical concepts used elsewhere in the system, it is surely with that sense that the scope of application of the legal provision must be defined. Rules, at times, encompass more than one meaning and then the positive function of the text is translated into giving stronger support or more strongly suggesting one of the possible meanings. But if the legislator resorted to special legal-technical language, to express its thinking with greater precision, it falls to the interpreter to make use of the legal-technical meaning of the expressions used, dispensing itself from using circumstantial elements that could only lead to an interpretative result not intended by the legislator (cf., in this sense, Baptista Machado, Introduction to Law and Legitimizing Discourse, Coimbra, 1993, p. 182).
As is required to be concluded, the intended extension of the legislative formula used to properties affected to the company's economic activity, regardless of the specific characterization as commercial, industrial or service properties, has no place in light of the general criteria of legal hermeneutics."
(…)
"In fact, Article 135-B of the IMI Code merely limited itself to excluding from the additional to the tax urban properties classified as 'commercial, industrial or for services' and 'other', referring to the characterization which is made in Article 6 of that Code as to those species of urban properties.
As we have seen, that provision distinguishes, in its paragraph 1, between properties "residential", "commercial, industrial or for services", "land for construction" and "other" and defines in the subsequent paragraphs the regulatory criteria on which depends the classification of an urban property in any of those species. Land for construction are, as results from paragraph 3 of that Article 6, land that has been subject to a subdivision or construction licensing operation and are not intended for other urban development purposes, and do not confuse with properties classified as "commercial, industrial or for services", which are those that are licensed for those purposes or, in the absence of a license, have as normal destination each of those purposes.
Having the legislator defined a clause of exclusion by express and precise reference to certain species of urban properties, which are immediately identifiable in the context of the law, it is not possible to effect an extensive interpretation so as to include therein other typologies which the legislator manifestly did not wish to consider. One cannot even arrive at such an interpretative result based on mere considerations of a pragmatic nature or teleological identity.
Even if it were justified, from a fiscal policy perspective, to accord to land for construction intended for buildings for commercial, industrial or services purposes the same status that came to be attributed to properties classified as "commercial, industrial or for services", the fact is that was not the legislative option, which merely limited itself to excluding from the scope of application of the tax these types of properties and not those others which potentially could be used for these same purposes."
The Claimant alleges, in essence, that the AIMI, in its current meaning, does not pass the scrutiny of the principle of taxpaying capacity, insofar as the Claimant holds the properties in question within the scope of its activity and because of it, and that property over the properties consists, in the case of commercial companies of this type, in the patrimonial substrate of its economic activity, and in the realization of a true means essential to the pursuit of its purpose, wherefore the premise that property over such properties can constitute a manifestation of (or of an increased) taxpaying capacity that, by itself, should be subject to withdrawal through taxation absolutely fails.
It maintains that taxation in AIMI must necessarily make a distinction between, on the one hand, the ownership of real property which, by itself alone, constitutes a manifestation of increased economic affluence, and on the other hand, the ownership of real rights over properties intended for the exercise of an economic activity and which, as such, may be recognized as factors of production, there existing an inequality at the material level between companies pursuing an economic activity that presupposes the holding of properties, in relation to other companies whose activity does not derive from the holding of properties, and that conditions have been created for the constitution of manifest situations of material inequality between the Claimant and companies that, holding real property, pursue therein a commercial, industrial or service provision activity. In this measure, it understands that taxation in question constitutes a violation of the principles of taxpaying capacity, equality and proportionality – insofar as the fact of having in its inventory land for construction, exploitation or sale, in no way demonstrates relevant taxpaying capacity worthy of being (differently and autonomously) taxed.
On these same issues the Constitutional Court in the very recent judgment identified above had the opportunity to rule, determining as briefly follows:
"From the outset, taxation of property cannot be seen as a mere alternative or substitute for taxation of income, as it constitutes an autonomous purpose of the tax system, to which the organizing plan of the Fundamental Law attributes, alongside the general financial function, a specific redistributive function (Articles 103, paragraph 1, and 104, paragraph 3 of the Constitution).
Now, it is not apparent that the statutory pursuit of activities of real estate promotion or exploitation allows one to exclude, as to all subjects whose activity in that branch implies the holding of rights over properties, the taxation of the real property wealth of which they are owners.
(…)
the political-legislative option of taxation is based on wealth directly revealed by the very ownership of a patrimonial value – in this case, wealth deriving from the ownership of rights over urban real property of a certain typology. The objective scope resulting from the referral to certain categories normatively provided for in Article 6 of the IMI Code does not modify the essence of the AIMI, as a static and analytical tax on urban real property, without considering the income that this economic asset may generate.
In truth, the choice of the AIMI tax fact falls upon economically relevant reality, because the ownership of an urban real property constitutes, in itself, a manifestation of wealth – and a measurable wealth, because a market value is socially and legally attributed to it –, revealing a special economic power, superior to that of the generality of citizens, which enhances negotiating position in legal commerce in general, especially the capacity to secure sources of financing. It expresses an affluence, which is not shown to be infirmed in any way by the manner in which it was obtained (it remains unchanged if the ownership of rights over urban properties is acquired by onerous or gratuitous act), or by its allocation to an economic activity, which may or may not generate profit: as SÉRGIO VASQUES emphasizes, '[W]hen the substance of property is taxed one is not taxing income a second time, one is taxing something different' ('Taxpaying Capacity, Income and Property', Taxation - Journal of Tax Law and Management, No. 23, Coimbra, 2005, p. 39).
This has, moreover, been the understanding adopted by the Court in addressing an identical problem. Effectively, the question of whether the very holding of property is apt to reveal increased taxpaying capacity, independent of the legal nature of the passive subject and the economic activity developed by this, notably the exploitation of an activity of real estate character, was already appreciated by constitutional jurisprudence, with reference to the tax which AIMI replaced. In Judgment No. 378/2018, the Plenary examined the constitutional conformity of the rule contained in item 28.1. of the General Stamp Tax Table, in the part in which it imposes annual taxation on the ownership of land for construction whose building, authorized or provided, is for residential purposes, whose tax patrimonial value is equal to or greater than €1,000.00. It did so within the context of appeal provided for in Article 79-D, because there was a conflict of judgments between Judgments No. 250/2017 and 568/2016, removing the understanding that in that tax the business nature of the passive subject was disregarded and manifestations of wealth and factors of production of that same wealth were confused, while at the same time recognizing that the ownership of the real property and its social allocation constitute sure indices of taxpaying capacity. The judgment may be read as follows:
'It must (...) be stressed that the tax provided for in Item 28.1., as is proper to property taxes, delimits its scope of application by exclusive reference to the ownership of certain patrimonial values, "irrespective of the function performed by such assets (productive capital, application of funds or savings or durable consumption)" (Summary Decision No. 214/2017). On the other hand, being a property tax, it also does not individualize nor distinguish its respective passive subjects by resorting to any criterion other than precisely the ownership of those patrimonial values. Thus, it applies indiscriminately to natural and legal persons and, within that category, to associations, foundations and commercial companies, irrespective of the economic branch in which the latter operate and of the specific commercial risks existing in their respective sectors of activity, moreover proper to any and all commercial activity.
(...)
As referred to, the rule in question departs from the consideration of concrete juridical-patrimonial situations, delimited in function of the tax patrimonial value of the property and its normal social allocation, integrating in its subjective scope of application a indeterminate set of taxpayers according to a uniform criterion: the ownership of land for construction of buildings for residence of high tax patrimonial value. In relation to none of them is their concrete economic-financial situation (income or profits), their nature (natural or legal), organization structure (entrepreneurial or non-entrepreneurial), concrete legal form assumed (commercial company or other) and, much less, the diverse sectors of activity in which they possibly operate and the risks inherent to each of those branches of activity, valued.
The mere statistical probability of being affected by the rule in question commercial companies dedicated to real estate promotion, associated with the consideration of uncertain variable verification economic variables, such as the economic impact of the tax in that particular branch of commercial activity – whose value, moreover, will not fail to be considered as a cost of activity –, does not constitute a sufficiently solid reason to support a judgment of unconstitutionality of the rule in question, in the specific hypothesis under examination, considering, furthermore, the negative character of constitutional control dictated by the principle of equality.
As is noted in Judgment No. 711/2006, in a passage transcribed in Judgment No. 590/2015, '[t]o investigate (...) the existence of a particularism sufficiently distinct to justify an inequality of legal regime, and to decide in that investigation, is a task that primarily falls to the legislator, who holds the primacy of realization of constitutional principles and the corresponding freedom of shaping. For this reason, the principle of equality presents itself fundamentally, in the seat of constitutionality review, as a negative principle (...) – as a prohibition of arbitrariness'.
Notwithstanding the structural differences of the tribute here under consideration, mentioned above, this understanding is maintained as valid and is transposable to the examination of the question placed in the present appeal. In accordance with the scope, structure and nature of the rule under judicial review, the economic premise attended to by the legislator in the AIMI is that the economic force revealed by the ownership of rights over an accumulation of patrimonial property consisting of urban property(ies) residential and/or land for construction, persists, manifesting, in the categories of goods targeted by the legislator – residential properties and land for construction –, the taxpaying capacity of the taxpayer, regardless of the object – notably, of the corporate purpose – to which the subject is dedicated, that is, even if the activity elected is the economic exploitation of urban properties.
To the contrary of what is defended by the appellant, there is no basis to consider that the rationality underlying the definition of the new partial tax on property is not compatible with what it designates as burdening of the real estate sector and, in this case, with the normative discipline of real estate investment funds.
And, as was already said in Judgment No. 378/2018, there does not arise from the constitutional program of tax equalization through property taxes any requirement for positive discrimination of companies, notably companies in the real estate branch, relative to the remaining taxpayers subject to this type of taxes."
More specifically determining.
"Effectively, paragraph 2 of Article 135-B of the CIMI contains a rule of non-tax subjection (or of strict sensu tax relief), in the modality of tax exclusion, a species adopted in paragraph 2 of Article 4 of the Statute of Tax Benefits (Decree-Law No. 215/89, of 1 July, last amended by Law No. 71/2018, of 31 December), and defined as a structural measure of a normative character which establishes express negative delimitations of incidence.
By virtue of that rule, excluded from the scope of objective incidence of the AIMI – the sum of the tax patrimonial values of urban properties of which the passive subject is owner – are urban properties classified by tax law as 'commercial, industrial or for services' and 'other', which introduces, as is proper to the normative typology, an inequality of treatment among the passive subjects of the tax: while the owners of residential urban properties and land for construction (referred to in subparagraphs a) and c) of Article 6 of the CIMI) are obliged to the AIMI, the owners of properties with commercial, industrial, for services or other purposes, whose normal destination is not residential or construction (referred to in subparagraphs b) and d) of Article 6 of the CIMI), are not obliged to such addition.
It can be said that, as an exception to the general rule of application of the corresponding tax, such rules live 'in a permanent relation of tension with the principle of distribution of tax burdens according to the principle of taxpaying capacity', which binds them to a special legitimation: 'the attainment of a certain economic objective of special importance' (SALDANHA SANCHES, Manual of Tax Law, Coimbra Ed., 3rd Ed., 2007, pp. 457-458).
Nevertheless, the relationship of equality presupposed in the rule of incidence does not have the same content as the relationship of equality required by the rule of non-incidence. That rule, because it describes the taxable event, cannot fail to attend to the economic force which the taxpayer has to bear the tax; already the rule of non-incidence, because it defines a negative element of the type legal tax fact, must attend to the criterion chosen by the legislator in the delimitation of that negative element. That is, the rules differentiate themselves both by their effects and by their purposes: while the rule of incidence represents an interference in the sphere of the taxpayer's property, referring to the withdrawal of the monetary payment from the taxpayer to the State, the rule of tax exclusion projects more comprehensive economic effects, of which the mitigation of negative impact in the sphere of the taxpayer's property is instrument; while the rule of incidence has the objective of tax collection, the rule of non-incidence functionalizes the tax to other purposes.
These differences project themselves on the constitutional parameter in face of which the normative justification must be assessed. The rule of incidence, because it embodies a burden on the patrimony of taxpayers, is bound to apportion the tax burden according to the capacity which each one has to pay the tax – principle of taxpaying capacity; already the rule of tax exclusion, because it creates situations of tax relief, in addition to the need to assure respect for the principle of proportionality, according to the ends it proposes to achieve, must assure that the criterion of tax relief applies to realities that appear equal in light of that criterion – principle of equality. Thus, in the first typology, the relationship of equality establishes itself through a judgment of comparison of taxpayers in light of the criterion of taxpaying capacity; in the rule of non-incidence, the relationship of equality establishes itself through the confrontation of persons or situations in light of the distinctive criterion or tertium comparationis of which the legislator made use for extrafiscal reasons. In this latter, considering the effects of relief or mitigation which tax exclusion provokes in the patrimony of taxpayers, a proper problem is not presented of taxation without correspondence in the taxpaying capacity of the passive subject; in this way, for not electing the facts on which the tax applies, the problem does not lie in compliance with the principle of taxpaying capacity, as a presupposition of taxation.
18. The introduction of the referred differentiation in the internal structure of the AIMI rests eminently on reasons of economic policy: to protect the economic activity of companies holding urban properties.
In fact, it was through reasons of an extrafiscal nature that the legislator justified in Proposal for Law No. 37/XIII the rule of tax exclusion, referring that with it is intended to 'avoid the impact of this tax on economic activity'. The pursuit of that objective – the protection of the economy – in the modulation of a property tax is constitutionally legitimate, being aimed at the realization of a priority incumbency of the State: the promotion of economic structures (Articles 9, subparagraph d), and 81, subparagraph a) of the Constitution), which presupposes the proper functioning of economic activities.
To pursue that objective of economic policy, it is patent that the tax exclusion does not present itself as inadequate, unnecessary or excessive, as the tax relief constitutes one of the instruments of fiscal policy with aptitude and capacity to pursue the objective of protection and stimulus of the economic activities targeted. Effectively, the protection of commerce, as well as of industries, of services or other economic activities, is an extrafiscal interest that may prove to be of greater magnitude than the gains obtained through the collection of AIMI revenue.
This does not mean, however, that the legislator proposed to exclude taxation in AIMI from all economic activities, or that it did so according to the nature of the passive subjects, aiming to exclude the impact of the tax on entities whose assets integrate urban properties, notably on subjects of an entrepreneurial nature.
Again, the vision proposed by the appellant entails a deviation relative to the economic premise of the tax and its structure: this does not view, dynamically, the taxpaying capacity of the passive subjects according to the development of a determined economic activity; nor does the occasion legis support the understanding that the legislator, through the rule under judicial review, sought to eliminate any financial impact on the activity of economic agents, namely of legal persons dedicated to exploiting an activity comprised in the real estate sector, economic sector in which the share of costs (deductible in IRC) deriving from taxation on urban real property will predictably be superior.
In truth, the mentions, during the preparatory works, to the non-affection of 'economic activity' by the tax that was being introduced, must be contextualized with reference to the initial structure of the tax, in which the elements of progressivity rested on criteria relating to the nature of the activity pursued by the passive subject, whether by way of exclusion of the application of properties affected to tourist activity, or by way of exemption up to 600,000.00€ of properties held by passive subjects entrepreneurial affected to productive activity. And it is important to underline, even in the scope of incidence of the Proposal for Law, the entrepreneurial activity of 'purchase and sale of properties' was expressly excluded from the exemption, signaling a differentiated treatment in the modulation of the tax, contrary to the idea that the AIMI legislator rejected the taxation of any and all economic activity that had as patrimonial substrate transactionable goods of a real estate nature. Already in that initial moment, a difference in treatment among economic agents is marked, distinguishing those for whom urban properties constitute essentially a commodity.
In the final wording, the criteria resting on the economic activity of the taxpayer were substituted by the referral to the species of urban properties established in Article 6 of the IMI, thus summoning to the sphere of the AIMI the same criteria and justifications in which the basis of objective incidence of the IMI rests, while at the same time the solution of exemption up to 600,000.00€ was excluded, eliminating the progressive element based on personal considerations from the taxation of legal persons and equivalents. In that configuration, the scope of objective incidence of the tax was significantly reduced, for excluded the application relative to all properties with commercial allocation and for services (even those owned by companies whose corporate purpose is the purchase and sale of properties), beyond the species 'other', and that is the legislator's option to lessen the impact of the tax on the business fabric and preserve its competitiveness, notably in international markets (in that sense, JOSÉ PIRES, The Additional to the IMI..., p. 50).
Then, and as the appealed decision refers, the rational of the delimitation of the incidence of the tax in question does not derive from the economic activity exercised by the passive subject, but rather, as in the IMI, from the social allocation of the urban property.
19. Effectively, from the provision of paragraph 1 of Article 6 of the IMI Code results a division of urban properties, which, according to paragraph 2 of the same precept, makes their classification dependent, for effect of the qualification of properties as residential, commercial, industrial or for services, in the first place on the use assigned by licensing and, in the absence of a license, on the criterion of normal allocation. To the contrary of what is defended, it is not a mere formal classification, rather the expression of material difference between the patrimonial realities weighed.
Thus, taking the four examples advanced by the appellant in its arguments, illustrating the criticism of arbitrariness (conclusions EEEE, FFFF and HHHH, transcribed above), the non-taxation in AIMI of urban properties licensed for the industrial purpose, held by entity pursuing that branch of activity (hypothesis A), as well as properties licensed for services activity, such as a hotel or settlement held by entity of the tourism branch (hypothesis B), find rational justification in the fact that real property is integrated, from an economic point of view, by intermediate goods, means through which the purpose that determines its tax classification is pursued, which is coherent with the legislative purpose to mitigate the impact of the new external fiscal charge on economic activity, in particular on exporting activity. Differently, in the juridical-subjective situations dealt with in hypotheses C and D (at their root identical, because the circumstance that the tax does not apply to the entire urban real property patrimony of the passive subject makes irrelevant the distinction between subjects who hold only properties classified as residential and those who are owners, to use the terminology of the appellant, of 'a diversified portfolio of various types of urban properties'), the taxation in AIMI of real property for residential lease roots in the fact that the property constitutes the very object of the economic agent's operation.
One may object that passive subjects who acquire residential urban properties for sale or land for construction of buildings, whatever their purpose, and who make that their social activity, hold properties for an ultimate purpose of a commercial nature. It will then be said that the difference to which the legislator attends – excluding these properties from the scope of the rule of tax relief – does not possess sufficient nature and weight to justify differentiated treatment.
However, the tax situation of those companies is already considered within the IMI. Effectively, in cases of acquisition of properties for resale and of land for construction, it is provided for in subparagraphs d) and e) of paragraph 1 of Article 9 of the CIMI the non-subjection to the IMI for three and four years, respectively, and, by force of subparagraph a) of paragraph 3 of Article 135-C of the same instrument, non-subjection to the AIMI, in relation to passive subjects who are assessed for the exercise of that activity. During the period of 'non-taxation' there is no tax effect to consider in the IMI seat, with the property not being a qualified reality as property for tax purposes. The reason for the non-consideration of taxation is found in the fact that the property during that period of time is understood as merchandise for the other tax purposes. As JOSÉ PIRES emphasizes (Lessons on Property and Stamp Taxes, Almedina, 3rd edition, 2015, p. 415), 'the tax regime in IMI of properties bought for resale is justified by the principle that this is not a tax on merchandise but on wealth, for which it does not apply to properties for resale that are considered merchandise in the assets of a company exercising that activity. It is for that reason that the legislator took care to place systematically this regime in the chapter on the incidence of the tax and not in that of exemptions or in the Statute of Tax Benefits. It is also for that reason that the Law defines that the subjection of those properties to tax only begins at the end of the third year following the one in which they were allocated to the exchangeable assets of companies. For that reason, and conversely, before that moment in which taxation begins there exists no subjection to tax.'
In relation to this species of property only is there differentiation in the structure of the AIMI after three and four years of holding properties for sale or construction. However, after that deadline, there is reasonable sufficient reason to distinguish, in light of the normative criterion under scrutiny, the different species of urban properties, because the function they came to perform already differentiates them from urban properties covered in the rule of tax exclusion, attending to the extrafiscal purpose sought by it.
Moreover, on the same constitutional questions and invoking what was then decided in the arbitral decision rendered in arbitral proceedings No. 664/2017-T:
"Reverting to the situation of the case, it is worth noting – as stands out from the Report of the Budget for 2017 (p. 60) – that the creation of the additional to the IMI, as a complementary tax on urban real property, aimed to introduce in taxation 'an element of progressivity of a personal basis, taxing more highly the larger patrimonies', and, in that sense, it is compatible with the principle of progressivity of the tax to which paragraph 3 of Article 104 of the Constitution refers, which has as a corollary the tendential imposition of higher taxation on those who have higher taxpaying capacity.
It has likewise been understood that the taxation of property, alongside the taxation of income, constitutes a projection of taxpaying capacity, functioning as an extension of personal tax on income and as the reinforcement of qualitative discrimination (Sérgio Vasques, 'Taxpaying Capacity, Income and Property', Taxation – Journal of Tax Law and Management, No. 23, Coimbra, 2005, pp. 33 and 36).
(…)
The ownership of real property, for purposes of sale and transformation, with a view to obtaining economic results, does not cease to constitute a patrimonial asset that is revelatory of an increased taxpaying capacity, which goes beyond the tax that applies to taxable profit by reason of the economic activity developed. What is at issue, consequently, is not the taxation of actual income earned by those entities through the activity developed, but the complementary taxpaying capacity that derives from the ownership of the patrimony and which by itself can facilitate the securing of credit or the reinforcement of its negotiating position in the conclusion of contracts (idem, p. 36).
(…)
In addition to which, in line with what was understood in the arbitral judgment of 17 March 2016, rendered in proceedings No. 507/2015-T, a distinction must be established between the ownership of real property destined for residential purposes which constitutes, in itself, a tending sure index of economic affluence, superior to that of the generality of citizens, and the ownership of rights over properties intended for the exercise of commercial, industrial, services provision or similar activities which may be recognized as factors of production and whose size and patrimonial value constitutes, not so much a manifestation of wealth, but a standard of adequacy to the functioning of the company.
Thus there appears to exist constitutionally acceptable grounds for the restriction of the application of the additional to the tax to residential properties by comparison with properties classified as commercial, industrial or for service provision, with the invoked unconstitutionality being excluded based on violation of the principles of equality and taxpaying capacity."
As to the invoked unconstitutionality resulting from the discrimination operated by the rule of Article 135-B of the IMI Code, as to land for construction (considering that one of the properties in question in the present case is land for construction), also the Arbitral Tribunal constituted under No. 664/2017-T had the occasion to analyze, deciding:
"On this level of analysis, it must be taken into account that we are dealing with diverse tax facts. In one case, the law subjects to taxation urbanizable land that constitutes an economic asset by effect of its aptitude for construction. In another case, the law excludes from the tax the built patrimony that performs an instrumental function relative to productive activity.
There is no necessary connection between these two realities. Land for construction has its own patrimonial value that constitutes, in itself, an indicator of taxpaying capacity that is susceptible to being the object of an autonomous tax on property, independent of its eventual and future use through the implantation of a building for commercial, industrial or services purposes. The already built patrimony that is classified as commercial, industrial or services property already has an instrumental function relative to a certain productive activity that the legislator, within its margin of free shaping, may wish to safeguard within the framework of its incumbencies for the promotion of economic and social development, which have constitutional grounding (Article 81 of the Fundamental Law).
It is therefore possible to discern sufficient material grounds to distinguish between these different tax facts for the purpose of property taxation."
As well as the Constitutional Court itself in the above-cited judgment No. 299/2019.
"In addition to the broader criticism of the objective incidence of the AIMI that has been examined, the appellant specifically problematizes the situation of land for construction. It points to the fact that the impugned normative sense entails the taxation of land for construction with allocation established for purposes of commerce, industry, services or other, when subjection to AIMI is excluded relative to properties built for those same purposes, regardless of their actual use. It considers that one is facing juridical-subjective situations worthy of the same treatment, without there existing a material reason that constitutionally legitimizes the difference. Also on this point the appellant is not correct, because it places in confrontation materially distinct realities, in light of the tax fact and the economic premise of the AIMI.
In truth, the application of the tax on 'land for construction', as defined in paragraph 2 of Article 6 of the IMI Code, derives from construction rights or subdivision operations having been constituted therein, either by way of an administrative act of granting a license or authorization, either by the tacit recognition resulting from the admission of prior notice, either, still, by the favorable response to a request for prior information or issuance of favorable prior information regarding a subdivision or construction operation. Accessorily, the legislator also accepted, as a criterion of allocation to the construction of the land, that this be acquired expressly for that effect and that it possess constructive viability.
And, according to the normal functioning of the market, the ownership of rights over land relative to which construction or subdivision rights have already been constituted, or is recognized to meet conditions of constructive viability, configures a wealth susceptible to autonomous evaluation of what may be built, by force of the legally founded expectation that begins to incorporate the legal sphere of its owner. As JOSÉ PIRES refers (Lessons on Property and Stamp Taxes..., p. 140):
'On the market, the value of land for construction does not depend solely on its intrinsic characteristics, such as its area and its location or its orography. More important than that is a factor that is extrinsic to it and that depends on public powers, which is its construction potential, namely the authorized volumetry and the characteristics of a reality that does not yet exist, which is the urban property that will be able to be constructed thereon.
The value of land for construction corresponds, fundamentally, to a legal expectation, embodied in a right to construct thereon a property with certain characteristics and a certain value. It is that expectation of wealth production materialized in a property to be built that causes the value of the patrimony and the wealth of the owners of land for construction to increase, as soon as the land comes to be considered as being for construction. For that reason, the greater the value of the properties to be built, the greater is the value of the land for construction.
We must consider that on the land nothing is yet built, but the mere constitution of a right to construct thereon immediately causes its value to increase. Furthermore, the measure of that value always also depends on the value of the property that will be built thereon. It is thus that market mechanisms function and it is also thus that the legislator conceived the model of evaluation of land for construction.'
The recognition by the legislator that land for construction translates a patrimonial position of its owner and its own market value, makes useless the invocation of the purpose and corresponding value of the property that may be built thereon: land for construction and built property are not equivalent or assimilable economic realities, in the domain of taxation of urban real property. Thus it was affirmed by the Court, with emphasis on the pronouncement of the Plenary in the already referred Judgment No. 378/2018, doctrine entirely transposable to the rule of the AIMI here under judicial review:
'[I]t is clear that, for the purpose of the application of the Stamp Tax Code, as well as for the purpose of the application of the CIMI, land for construction is not equal to urban property, whether for residential or other purposes (...). But, precisely because it is so, it is not possible to retroactively effect, even if for purposes of mere analysis or legal construction, tax criteria that only apply after the construction of the building, not before it.
As was stressed, what is relevant for purposes of application of the rule of item 28.1. is the juridical-patrimonial situation existing at the date of the tax payment obligation maturity, being, therefore, by reference to the concrete tax fact existing on that date that the existence, or not, of a rational or reasonable basis to justify the juridical-tax consequences that immediately emerge from it should be evaluated.
The juridically relevant transformations which the object of property may undergo during the course of time, from that moment on, deriving, namely, from the possibility of coming to be built on land for construction of lower value, configure hypotheses of verification and uncertain content, even considering the existence of a licensing in those terms, which may come to be altered or not even be used. They cannot, therefore, be decisively relevant in the evaluation of the constitutionality of rules, or segments thereof, which, by virtue of their occurrence will no longer be applicable.'
Also within the scope of application of the AIMI, even if guided by a personal perspective, one cannot fail to recognize that land for construction is well distinct from already built urban properties and affected to a specific purpose by way of licensing or normal use. In truth, and resting, as was seen, the reason for the non-taxation of urban properties, commercial, industrial, for services or other, on the purpose of promoting the proper functioning of economic activities – which implies the creation of stimuli to the reaffection of resources to productive ends, so as to increase economic growth –, land for construction can only contribute to that desideratum in potency, in a hypothetical and conditional future, because even if a right to construct has been formed, nothing prevents the change in will of its owner regarding the destination to give the property. In addition, what is relevant for purposes of annual taxation in AIMI is the tax patrimonial value of the existing property appearing in the registry, because one cannot tax a future and eventual taxpaying capacity, but only the present and effective taxpaying capacity. Land for construction constitutes an economic asset with patrimonial value, in itself revealing taxpaying capacity of its owner, being therefore constitutionally legitimized its inclusion in the patrimonial sum globally subject to AIMI, independent of what may be effectively implanted therein.
22. From the provision of Article 41 of the IMI Code, which establishes the allocation coefficients for purposes of calculating tax patrimonial value, the appellant questions the reason why the index set by the legislator for commercial and services properties is superior to that of residential properties (conclusion OOOO, which repeats ipsis verbis the formulation and note placed on Article 123 of the body of arguments), after which it develops argumentation aimed at convincing that the allocation to commerce, industry or services 'is not exclusive of properties classified as "commercial, industrial and for services"' and that the semantic enunciation of paragraph 2 of Article 135-B of the IMI Code should be interpreted in the sense of applying the exclusion of incidence relative to 'all "land for construction"' that have a (potential) allocation to commerce, industry, services or other' (conclusions ZZZZ to WWWWW).
It is apparent that, on that point of the appeal, as on others (cf. last paragraph of point 8, above), we are faced with argumentation situated on the infraconstitutional level, aimed at affirming the verification of an error of judgment, by deficient interpretation of ordinary law, as derives from the title of that segment of the appeal – 'the (illegal) failure to consider the legal criterion of allocation of the property' – and the assertion that the understanding adopted is 'contrary to the spirit of the law and to the very unity of the legal system, particularly the unity of the juridical-tax regime of the IMI'. Now, the Court of first instance rejected the interpretation defended by the appellant, considering it without 'any place in light of the general criteria of legal hermeneutics', a judgment which, it is repeated, is binding on this Court as a given.
But, in addition to that discussion on ordinary law, the appellant argues that 'it constitutes a discriminatory and arbitrary treatment the taxation in AIMI of a "land for construction"' with potential use for [purposes of commerce, industry, services or other], while a built property with this same potential use is not taxed in this same Additional', an affirmation that is rooted in the consideration of allocation coefficients (Ca) and location coefficients (Cl) both in the calculation of tax patrimonial value of built properties and of land for construction (Article 45 of the IMI Code).
This vision rests on the premise, which we have already seen to be incorrect, that the ratio of the tax imposes that incidence be cut according to a case-by-case evaluation of the allocation of the property to an economic activity. To the contrary, the legislator mobilized the same objective normative criteria on which depends the classification of an urban property into any of the species provided for in Article 6 of the IMI Code, for which it is irrelevant whether the property owner uses in its full extent, or does not use at all – for reasons of opportunity or others – the aptitude of the same for the purpose for which it is licensed or to which it is normally destined. Such consideration would be relevant in another model of taxation of property and of calculation of its respective value, in which income-product would be attended to, which is not that which came to be positivized in the reform operated in 2003. In that one, the criterion of actual or market value to ascertain the respective value, departing from the rigid categories provided for in Article 6, won. (on the various models of property taxation and their evolution in Portugal, cf. CASALTA NABAIS, 'Regarding the Additional to the Municipal Tax on Real Property', cit., pp. 32-45; and JOSÉ PIRES, Lessons on Property and Stamp Taxes..., pp.16-32, and The Additional to the IMI..., pp. 29-38).
The specific criteria for calculation of tax patrimonial value invoked by the appellant are not placed outside that paradigm, with the allocation coefficient regulated in Article 41 not intending to reflect a rationality different from that underlying the classification of the property or its nature. Even if the rules of Articles 38, 41, 42 and 45 of the IMI Code, by their greater specificity, may raise interpretative questions (of which an example is the question settled in the Judgment of the Supreme Administrative Court, plenary formation, of 21 September 2016, case No. 01083/13, accessible at www.dgsi.pt), by and large from the classification of properties contained in Article 6 of the CIMI serves as a fundamental instrument of reference', as 'structural and ontological classification' (JOSÉ PIRES, Lessons on Property and Stamp Taxes..., pp.111 and ff.).
On the other hand, it is clear that, obeying the teleology of the rule of paragraph 2 of Article 135-B of the IMI Code to the desideratum of not excessively burdening real property assets with intermediate function within the business organization of the passive subject, as to land for construction this functional nexus is not yet established with sufficient assurance, since its owner is not at all prevented from altering the purpose regarding the destination to give the property, so as to destine for the construction of properties for residential use land initially licensed for construction with other designations. Already in the case of properties built with purposes of commerce, industry, services or other, even if one cannot exclude the possibility of coming to exist non-conformity between normal use and that materialized, notably in cases in which there is no licensing, or other intervention constitutive of rights of public powers, the legislator assumes that the probability of such a deviation is scarce and, in that measure, that the risk shows itself insufficient to place in crisis the conformation of the tax. Such empirical evaluation, which does not show itself to be unreasonable, situates itself in the margin of freedom of shaping of the democratic legislator, not falling to the Court to proceed to its scrutiny within the scope of equality review, in its negative aspect, here invoked.'
In light of all the above stated, this Arbitral Tribunal understands that the rule of paragraph 2 of Article 135-B of the CIMI does not suffer from the pointed defects of material unconstitutionality by violation of the principles of equality, proportionality and taxpaying capacity (Articles 13, 18, paragraph 2 and 104, paragraph 3, of the Constitution), deciding very recently in that same sense the Constitutional Court itself.
In light of the legal solution given to the case sub judice, the request for reimbursement of the amounts paid by the Claimant as title to the additional to the IMI is rendered moot.
7. DECISION
In light of the foregoing, this Singular Arbitral Tribunal agrees to:
Judge the request for arbitral ruling to be wholly unmeritorious.
* * *
The value of the case is set at Euro 3,817.48, in accordance with the provision of Articles 3, paragraph 2 of the Regulations for Costs in Tax Arbitration Proceedings (RCPAT), 97-A, paragraph 1, subparagraph a) of the CPPT and 306 of the CPC.
The Claimant is condemned to costs in the amount of Euro 612.00 under Article 22, paragraph 4 of the RJAT and Table I annexed to the RCPAT, in accordance with the provision of Articles 12, paragraph 2 of the RJAT and 4, paragraph 4 of the RCPAT.
Notify accordingly.
Lisbon, 4 June 2019.
The Arbitrator,
(Henrique Nogueira Nunes)
Document prepared by computer, according to Article 131, paragraph 5 of the Civil Procedure Code, applicable by referral of Article 29, paragraph 1, subparagraph e) of the RJAT.
The writing of this arbitral decision is governed by the spelling prior to the Orthographic Agreement of 1990.
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