Summary
Full Decision
ARBITRAL DECISION
The arbitrator Dr. Henrique Nogueira Nunes, designated by the Deontological Council of the Centre for Administrative Arbitration to form the Arbitral Tribunal, constituted on 27 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, no. 1, paragraph a) and 10 of Decree-Law no. 10/2011, of 20 January (hereinafter "RJAT").
1.2. The request for arbitral pronouncement, as initially formulated, has as its immediate object the annulment of the act of express dismissal of the Complaint no. ...2018..., against the act of assessment of the Additional Municipal Property Tax ("AIMI") no. 2017... and as its mediate object the annulment thereof, in the total amount of € 3,025.27.
1.3. In support of its request, the Claimant alleges, 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 having regard to the spirit that presided over the Draft State Budget Law for 2017, from which the AIMI arose, it is to be concluded that the intention was to tax the ownership of real estate 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 test of the principle of taxpaying capacity, because the Claimant holds the properties in question within the scope of its activity and because of it and that property over the real estate consists, in the case of commercial companies of this type, in the patrimonial substratum of its economic activity, and in the realization of a truly essential means for the pursuit of its purpose, therefore the premise entirely fails that property over such real estate can constitute a manifestation of a (or of an increased) taxpaying capacity that, by itself, should be subject to removal by way of taxation.
(iv) And that taxation in AIMI must necessarily make a distinction between, on the one hand, the ownership of real estate property which, by itself, constitutes a manifestation of increased economic wealth, and on the other hand, the ownership of real rights over real estate intended for the exercise of an economic activity and which, as such, can be recognized as factors of production.
(v) That there exists an inequality on the material level between companies that pursue an economic activity that presupposes the holding of real estate, in relation to other companies whose activity does not result from the holding of real estate and that conditions have been created for the establishment of manifest situations of material inequality with companies that, holding real property, pursue therein a commercial, industrial or service activity.
(vi) That with the tax in question, companies owning real estate intended for the exercise of an economic activity are treated unequally, without any material basis of support, relative to companies that, for the same reason, own real estate 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 the real estate in the pursuit of their activity and, on the other hand, companies that allocate the real estate to industry, commerce and services, a differentiated treatment is conferred upon situations that, from the material point of view, are in all respects similar. In that measure, that the taxation in question constitutes a violation of the principles of taxpaying capacity, equality and proportionality - insofar as the fact of having in its inventory real estate for construction, exploitation or sale, in no way reveals a relevant taxpaying capacity worthy of being (differently and autonomously) taxed.
(viii) And that the assessment now under review violates the principle of fiscal 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 norm that treats in a very different way taxpayers who are in identical situations, with the measure of the difference not being assessed by their real taxpaying capacity and is based on a legal solution that is arbitrary and devoid of any perceptible or rational material basis.
(ix) And that by affecting the ownership of real estate intended for the exercise of an economic activity, without sufficient basis, article 135-B no. 2 of CIMI should be disapplied due to material unconstitutionality, insofar as it violates the principle of tax equality enshrined in articles 13 and 104, no. 3 of the CRP, and furthermore the violation of the principle of proportionality is verified, as the existence of a negative, uncritical, arbitrary and random differentiation is established, between, on the one hand, real estate (residential) held by companies that use them in the pursuit of their activity, and, on the other hand, real estate of equal value held by companies that allocate them to industry, commerce and services.
(x) Finally sustaining that in light of the constitutional fiscal principles in force, no. 2 of article 135-B of CIMI should be considered materially unconstitutional, insofar as it does not exclude from AIMI the building land that appears in the inventories of real estate development companies, by violation of the principles of equality and taxpaying capacity, inherent in articles 13 and 104, nos. 2 and 3, all of the CRP – to determine the annulment of the decision and assessment challenged.
(xi) For all the foregoing, it seeks the annulment of the administrative act and the tax act in dispute in these proceedings with all legal consequences.
1.4. The Tax and Customs Authority, hereinafter referred to as "Respondent" or "AT", replied, in summary, as follows:
(i) It comes to defend itself by counter-claim.
(ii) That the legislator excluded from the scope of application urban real estate classified as "industrial, commercial or for services" and "other" but expressly chose to maintain other real estate that also constitute part of the companies' assets, such as those classified as residential or building land, by not including them in the negative delimitation provided for.
(iii) That is, it neither guaranteed, nor intended to guarantee, in all cases that real estate property allocated to the exercise of any economic activity would not be affected.
(iv) That the understanding advocated by the Claimant, namely, that in the exclusion of taxation provided for in Article 135-B, no. 2 of CIMI, are the real estate classified as building land whose potential purpose is not residential, is clearly ab-rogating the law, disguised as a legislative impulse, as well as unconstitutional.
(v) And that in light of the Constitutional Court's decisions on the constitutional conformity of Item 28 of the TGIS, it is axiomatic that all the argument raised by the Claimant, wishing to ascribe, based on the jurisprudence of the Constitutional Court, any non-conformity – non-existent, be it underlined, to the full extent of AIMI –, in particular of the assessment now in dispute with the fundamental law, has no whatsoever basis.
(vi) And that the legislative option of qualifying as passive subjects natural persons and legal persons and any structures or centers of collective interests without legal personality that are owners, usufructuaries or superficiaries of urban real estate situated in Portuguese territory, with classification as "building land" or "buildings or constructions for residential purposes", inevitably brought, into the field of taxation, entities that pursue economic activities and that nothing in the letter of the law authorizes the conclusion that the intention of the legislator of AIMI has been to exclude from taxation urban real estate that is allocated to the exercise of an economic activity.
(vii) Since the only criterion relevant for delimiting the scope of objective scope of application is, solely, the typology of classification of urban real estate, provided for in CIMI, to which the AIMI regime expressly refers.
(viii) And that it did not perform any unconstitutional interpretation of the norm, since it is not it that decides to include, in the taxation in AIMI, urban real estate allocated to economic activities, but rather, because that is what results from Article 135-B no. 2 of CIMI, only urban real estate classified as industrial, commercial or for services and others are not taxed.
(ix) Therefore, having the assessment challenged been made in accordance with the provisions of law, it is not foreseeable, then, where the violation of law imputed to it may reside.
(x) It being certain that the contrary understanding, namely, that in the exclusion of taxation provided for in Article 135-B, no. 2 of CIMI are the real estate classified as building land whose potential purpose is not residential, is clearly ab-rogating the law, transposed as a legislative impulse, as well as unconstitutional.
(xi) The taxation in question did not result from a creative interpretation thereof, but from mere application of the law and, as is now uniformly recognized in case law, cannot disapply legal norms on the basis of unconstitutionality.
(xii) Therefore, and in sum, it could not/cannot refuse the application of a norm, 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, no. 2 of the CRP, Article 3, no. 1 of the CPA and Article 55 of the LGT.
(xiii) As for the unconstitutionality of the AIMI regime, by violation of the principles of equality (Article 13 of the CRP) and taxpaying capacity (Article 104, no. 3 of the CRP), it understands that from the norms established do not result unjustified differences in treatment between taxpayers contrary to those constitutional principles, since the choices inherent in the delimitation of the objective scope of AIMI are made within the margin of freedom of legislative configuration.
(xiv) Indeed, it understands that the different valuation and taxation of a real estate property with residential allocation, compared to a real estate property intended for commerce, industry or services, results from the different aptitude of the real estate in question, which supports the different treatment given by the legislator who, for economic and social reasons, decided, within its margin of legislative freedom, to remove from the scope of the tax real estate intended for purposes other than residential.
(xv) It understands that it is unequivocal that this is a norm of objective scope of a general and abstract character, applicable indiscriminately to all cases in which the respective factual and legal assumptions are met.
(xvi) Therefore, it seeks the total dismissal of this present request for arbitral pronouncement, the tax assessment act challenged remaining in the legal order and the Respondent being absolved accordingly from the claim, all with the due and legal consequences.
1.5. The Tribunal deemed it appropriate to dispense with the holding of the first meeting of the Arbitral Tribunal in accordance with the arbitral order notified to the parties pursuant to article 18 of the RJAT. Both parties were equally notified to submit Submissions, should they wish to do so, having elected not 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, in accordance with article 2 of the RJAT.
The parties have legal status and capacity, are shown to be legitimate and are regularly represented (cf. articles 4 and 10, no. 2 of the RJAT and article 1 of Ordinance no. 112-A/2011, of 22 March).
No procedural defects were identified.
2. QUESTION TO BE DECIDED
The sole question put before the Tribunal for review is the constitutional conformity of no. 2 of article 135-B of CIMI.
It is, therefore, in light of the thema decidendum configured by the Claimant in its arbitral petition that the Tribunal shall review the claim.
3. FACTUAL MATTER
With relevance to the review and decision on the merits, the following facts are deemed proven:
A) The Claimant is a commercial joint-stock company dedicated to the activity of real estate development.
B) The Claimant is the owner of the urban real estate mentioned in the assessment in dispute in these proceedings, namely building land.
C) The real estate in question are recorded as "inventories" in the Claimant's sphere (document no. 2 attached to the proceedings by the Claimant).
D) The Claimant holds the said real estate with the purpose of proceeding with their exploitation through sale or lease, with the same being intended for the Claimant's exploitation within the scope of its economic activity.
E) Following the entry into force of the AIMI regime (on 1 January 2017), the now Claimant was notified of the AIMI assessment in question in these proceedings (cf. document no. 2 attached by the Claimant in the proceedings).
F) The Claimant voluntarily paid the tax that was assessed to it (document no. 3 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 proceedings that have not been proven.
5. BASIS FOR THE DECISION ON FACTUAL MATTERS
As regards the essential facts, the established matter is configured in an identical manner by both parties and the Tribunal's conviction was formed on the basis of the documentary (official) elements attached to the proceedings and discriminated above, whose authenticity and veracity was not questioned by either party.
It should be noted that the Tribunal does not have the duty to rule on all the matters alleged, instead having the duty to select only that which is relevant to the decision, taking into account the cause (or causes) of action that substantiate(s) the claim formulated by the Claimant as plaintiff (cf. articles 596, no. 1 and 607, nos. 2 to 4, of the C.P.Civil, in the wording given to it by Law 41/2013, of 26/6) and to state whether it considers it proven or not proven (cf. article 123, no. 2, of the CPPT).
According to the principle of free evaluation of evidence, the Tribunal bases its decision, in relation to the evidence produced, on its intimate conviction, formed from the examination and evaluation 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, no. 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 the principle of free evaluation not dominate in the evaluation of the evidence produced.
6. LAW
On the thema decidendum, the arbitrator of this Singular Tribunal has already had the opportunity to analyze and rule in the arbitral proceeding that was processed at CAAD under no. 664/2017-T, there in a Collective Arbitral Tribunal, adhering to the decision rendered therein, with nothing in the meantime justifying a change in the position assumed in that award.
In fact, it should be noted that very recently the Constitutional Court, in proceeding no. 752/2018, rendered Decision no. 299/2019, without dissenting votes as to the decision-making segment, in an appeal filed from a decision rendered by this center of arbitration that specifically reviewed the constitutional conformity of AIMI, having confirmed the appealed decision and not ruled the norm extracted from article 135-A of CIMI unconstitutional, in the sense of including, in the scope of application of the additional to IMI, "building land" for purposes of commerce, industry, services and others, choosing not to take notice relative to the norm of article 135-A of the said CIMI, in the sense of including, in the subjective scope of application of the tax, entities that hold real estate property as an inevitable consequence of the economic activity they develop.
The additional to IMI was instituted by Law no. 42/2016, of 28 December (State Budget Law for 2017), which added to the IMI Code chapter XV integrated by articles 135-A to 135-K.
In article 135-A the subjective scope of application of the tax is defined, establishing that "passive subjects of the additional to the municipal property tax are natural persons or legal entities that are owners, usufructuaries or superficiaries of urban real estate situated in Portuguese territory", being "equated to legal entities any structures or centers of collective interests without legal personality that appear in the records as passive subjects of the municipal property tax".
In turn, article 135-B defines the scope of objective application, stipulating the following:
"Article 135-B
Objective scope of application
1 - The additional to the municipal property tax applies to the sum of the tax property values of urban real estate situated in Portuguese territory of which the passive subject is the owner.
2 - Excluded from the additional to the municipal property tax are urban real estate classified as "commercial, industrial or for services" and "other" pursuant to paragraphs b) and d) of no. 1 of article 6 of this Code."
The reference made in no. 2 of article 135-B to article 6 of the IMI Code is intended to characterize what is understood by urban real estate "commercial, industrial or for services" and "other" for purposes of the exclusion from the scope of application of the additional to the tax.
In fact, the municipal property tax (IMI) applies to the tax property value of rural and urban real estate 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 real estate, of rural real estate, of urban real estate and of mixed real estate (articles 2 to 5). Article 6, in turn, establishes the species of urban real estate, stipulating the following:
"1 - Urban real estate is divided into:
a) Residential;
b) Commercial, industrial or for services;
c) Building land;
d) Other.
2 - Residential, commercial, industrial or for services are buildings or constructions licensed for such purposes or, in the absence of a license, which have as their normal purpose each of these purposes.
3 - Building land is considered to be land situated within or outside an urban settlement, for which a license or authorization has been granted, or for which prior notice has been admitted or favorable prior information has been issued for a subdivision or construction operation, and also those that have been declared as such in the acquisition title, except for land where the competent entities prohibit any of those operations, namely those located in green areas, protected areas or which, in accordance with municipal land use planning plans, are allocated to spaces, infrastructure or public facilities.
4 - Land falling within the provision of paragraph d) of no. 1 includes land situated within an urban settlement that is not building land nor is it covered by the provision of no. 2 of article 3, and also buildings and constructions licensed or, in the absence of a license, which have as their normal purpose purposes other than those referred to in no. 2 and also those in the exception of no. 3."
The legislator, in defining the negative delimitation of the scope of application of the tax by reference to urban real estate classified as "commercial, industrial or for services" and "other" pursuant to paragraphs b) and d) of no. 1 of article 6 of the IMI Code, is precisely referring to this typology of real estate in accordance with the characterization that the Code itself attributes to it.
The exclusion from the tax thus covers real estate classified as commercial, industrial or for services, understood as buildings or constructions licensed for these purposes or which have as their normal purpose each of these purposes. Said exclusion encompasses, furthermore, the residual species referred to in paragraph d) of no. 1 of article 6, therein including land situated within or outside an urban settlement that is not building land or rural real estate and also buildings and constructions that do not fall within any of the previous classifications.
The scope of objective application, as a result of the reference to article 6, was thus defined not only by reference to a certain species of urban real estate, 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 such real estate for commercial, industrial and service purposes or other.
As was decided in arbitral proceeding no. 664/2017-T:
"Having the law defined the scope of application of the tax as it did, resorting to technical legal concepts used elsewhere in the system, it is certainly with that meaning that the applicative scope of the legal provision must be defined. The norms, sometimes, bear more than one meaning and then the positive function of the text translates into giving stronger support to or more strongly suggesting one of the possible meanings. But if the legislator resorted to special technical-legal language, to express with greater precision its thinking, it falls to the interpreter to avail itself of the technical-legal meaning of the expressions used, dispensing with the use of 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 to Legitimizing Discourse, Coimbra, 1993, p. 182).
As it is necessary to conclude, the intended extension of the legislative formula used to real estate allocated to the company's economic activity, independently of the specific characterization as commercial, industrial or service real estate, has no place in light of the general criteria of legal hermeneutics."
(…)
"In fact, article 135-B of the IMI Code limited itself to exclude from the additional to the tax urban real estate classified as "commercial, industrial or for services" and "other", referring to the characterization that is made in article 6 of that Code as to these species of urban real estate.
As we have seen, that provision distinguishes, in its no. 1, between real estate "residential", "commercial, industrial or for services", "building land" and "other" and defines in subsequent numbers the normative criteria on which the classification of urban real estate in any of those species depends. Building land is, as results from no. 3 of that article 6, land that has been covered by a subdivision operation or construction license and is not intended for other purposes of an urbanistic nature, and is not confused with real estate classified as "commercial, industrial or for services", which are those that are licensed for these purposes or, in the absence of a license, have as their normal purpose each of these purposes.
Having the legislator defined a clause of exclusion by express and precise reference to certain species of urban real estate, which are immediately identifiable in the context of the law, it is not possible to carry out an extensive interpretation so as to include other typologies that the legislator manifestly did not wish to consider. It is not even possible to arrive at that interpretative result on the basis of mere considerations of a pragmatic order or teleological identity.
Even if it were justified, from a fiscal policy perspective, to confer on building land intended for buildings for commercial, industrial or service purposes the same status as came to be attributed to real estate classified as "commercial, industrial or for services", the fact remains that this was not the legislative choice, which limited itself to excluding from the scope of application of the tax these types of real estate and not those others that could potentially be used for those same purposes."
The Claimant alleges, in essence, that AIMI, in its current meaning, does not pass the test of the principle of taxpaying capacity, because the Claimant holds the real estate in question within the scope of its activity and because of it and that property over the real estate consists, in the case of commercial companies of this type, in the patrimonial substratum of its economic activity, and in the realization of a truly essential means for the pursuit of its purpose, therefore the premise entirely fails that property over such real estate can constitute a manifestation of a (or of an increased) taxpaying capacity that, by itself, should be subject to removal by way of taxation.
It maintains that taxation in AIMI must necessarily make a distinction between, on the one hand, the ownership of real estate property which, by itself, constitutes a manifestation of increased economic wealth, and on the other hand, the ownership of real rights over real estate intended for the exercise of an economic activity and which, as such, can be recognized as factors of production, existing an inequality on the material level between companies that pursue an economic activity that presupposes the holding of real estate, in relation to other companies whose activity does not result from the holding of real estate and that conditions have been created for the establishment of manifest situations of material inequality between the Claimant and companies that, holding real property, pursue therein a commercial, industrial or service activity. In that measure, it understands that the taxation in question constitutes a violation of the principles of taxpaying capacity, equality and proportionality - insofar as the fact of having in its inventory real estate for construction, exploitation or sale, in no way reveals a relevant taxpaying capacity worthy of being (differently and autonomously) taxed.
On these same questions the Constitutional Court in the very recent award identified above had the opportunity to rule, determining as follows in summary:
"In the first place, taxation of patrimony cannot be seen as mere alternative or substitute for taxation of income, as it constitutes an autonomous purpose of the tax system, to which the ordering plan of the Fundamental Law attributes, alongside the general financial function, a specific redistributive function (articles 103, no. 1, and 104, no. 3 of the Constitution).
Now, it is not seen how the statutory pursuit of activities of promotion or exploitation of real estate permits to set aside, as to all subjects whose activity in that branch implies the holding of rights over real estate, the taxation of real estate wealth of which they are owners.
(…)
the political-legislative option of taxation incides on the wealth directly revealed by the very ownership of a patrimonial value - in the species, the wealth resulting from the ownership of rights over urban real estate of a certain typology. The objective cutting resulting from the reference to certain categories normatively provided for in article 6 of the IMI Code, does not modify the essence of AIMI, as a static and analytical tax on urban real estate property, without relevance to the income that such economic asset may generate.
In truth, the choice of the taxable fact of AIMI falls on economically relevant reality, since the ownership of an urban real estate property constitutes, in itself, a manifestation of wealth - and a measurable wealth, as social and legal significance is attributed to it of a market value -, revealing a special economic strength, superior to that of the generality of citizens, which potentiates negotiating position in legal commerce in general, in particular the capacity to obtain financing. It expresses an affluence, which is not in any way undermined by the manner in which it was obtained (it remains unchanged if the ownership of rights over urban real estate 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 patrimony is taxed, one is not taxing income a second time, one is taxing something different" ("Taxpaying Capacity, Income and Patrimony", Fiscal Affairs - Magazine of Law and Fiscal Management, no. 23, Coimbra, 2005, p. 39).
That has been, moreover, the understanding adopted by the Court in the face of an identical problem. Indeed, the question of whether the very holding of real estate is apt to reveal increased taxpaying capacity, independently of the legal nature of the passive subject and of the economic activity undertaken thereby, especially the operation of an activity of a real estate nature, has already been appreciated by constitutional case law, with reference to the tax which AIMI replaced. In Decision no. 378/2018, the Plenary reviewed the constitutional conformity of the norm contained in item 28.1. of the General Table of Stamp Tax, in the part in which it imposes annual taxation on the ownership of building land whose construction, authorized or foreseen, is for residential purposes, whose tax property value is equal to or greater than €1,000.00. It did so within the scope of an appeal provided for in article 79-D, because there was a conflict of judgments between Decisions no. 250/2017 and 568/2016, setting aside 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 recognizing that the ownership of the real property and its social allocation constitute sure indices of taxpaying capacity. The following can be read in the said award:
"It must (...) be underlined that the tax provided for in Item 28.1., as is proper for taxes on patrimony, delimits its scope of application by exclusive reference to the ownership of certain patrimonial values, "independently 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 tax on patrimony, it also does not individualize or distinguish the respective passive subjects by resorting to any criterion other than precisely the ownership of those patrimonial values. Thus, it applies indiscriminately to natural persons and legal persons and, within this category, to associations, foundations and commercial companies, independently of the branch of economic activity in which the latter operate and of the specific commercial risks existing in the respective sectors of activity, indeed proper to all and any commercial activity.
(...)
As was referred to, the norm in question starts from the weighing of concrete legal-patrimonial situations, delimited as a function of the tax property value of the real property and its normal social allocation, integrating in its subjective scope of application a set of undetermined contributors in accordance with a uniform criterion: the ownership of building land of buildings for residential purposes of high tax property value. In relation to none of them is their concrete economic-financial situation (income or profits), their nature (singular or collective), organizational structure (business or non-business), concrete legal form assumed (commercial company or other) and, much less, the diverse sectors of activity in which they may possibly operate the traders covered and the risks inherent to each of those branches of activity evaluated.
The mere statistical probability of being affected by the question in question commercial companies dedicated to real estate development, associated with the weighing of economic variables of uncertain verification, such as the economic impact of the tax in that particular branch of commercial activity – whose value, moreover, will not cease to be considered as a cost of the activity -, does not constitute a sufficiently solid reason to support a judgment of unconstitutionality of the norm in question, in the specific hypothesis under review, considering, furthermore, the negative character of the control of constitutionality dictated by the principle of equality.
As is emphasized in Decision no. 711/2006, in passage transcribed in Decision no. 590/2015, "[t]o ascertain (...) the existence of a particularism sufficiently distinct to justify an inequality of legal regime, and to decide in that ascertainment, is a task that primarily falls to the legislator, who holds the primacy of the concretization of constitutional principles and the corresponding freedom of configuration. For this reason, the principle of equality presents itself fundamentally, in the seat of the control of constitutionality, as a negative principle (...) – as a prohibition of arbitrariness".
Despite the structural differences of the tribute here in question, referred to above, this understanding remains valid and is transposable to the review of the question placed in the present appeal. In accordance with the purpose, structure and nature of the norm sindicalized, the economic premise attended to by the legislator in AIMI is that the economic strength revealed by the holding of rights over a patrimonial accrual constituted by real estate property/properties urban residential and/or building land persists, manifesting, in the categories of goods targeted by the legislator – residential properties and building land -, the taxpaying capacity of the contributor, independently of the object – especially, of the corporate purpose - which the subject dedicates itself, that is, even if the activity chosen is the economic exploitation of urban real estate.
Contrary to what is defended by the appellant, there exists no support for considering that the rationality underlying the definition of the new partial tax on patrimony is not compatible with what it designates as the burdening of the real estate sector and, in the species, with the normative discipline of real estate investment funds.
And, as was already said in Decision no. 378/2018, it does not follow from the constitutional program of equalization of taxation through taxes on patrimony any requirement of positive discrimination of companies, especially of companies in the real estate branch, compared to the remaining contributors subject to that type of taxes."
Determining further.
"Indeed, no. 2 of article 135-B of CIMI contains a norm of non-subjection to taxation (or of tax relief strictly speaking), in the modality of tax exclusion, a species accepted in no. 2 of article 4 of the Statute of Tax Benefits (Decree-Law no. 215/89, of 1 July, lastly altered by Law no. 71/2018, of 31 December), and defined as a structural measure of a normative character that establishes express negative delimitations of the scope of application.
By virtue of that norm, are excluded from the scope of objective application of AIMI – the sum of the tax property values of urban real estate of which the passive subject is owner – urban real estate classified by tax law as "commercial, industrial or for services" and "other", which introduces, as is proper of the normative typology, an inequality of treatment between the passive subjects of the tax: while the owners of urban residential real estate and building land (referred to in paragraphs a) and c) of article 6 of CIMI) are obliged to AIMI, the owners of real estate with commercial, industrial, service or other purposes, whose normal destination is not residential or construction (referred to in paragraphs b) and d) of article 6 of CIMI), are not obliged to such addition.
It can be said that, while exception to the general rule of the scope of application of the corresponding tax, such norms 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 justification: "the obtaining of a certain objective of special importance" (SALDANHA SANCHES, Manual of Fiscal Law, Coimbra Ed., 3rd Ed., 2007, pp. 457-458).
Nevertheless, the relation of equality presupposed in the norm of scope of application does not have the same content as the relation of equality required by the norm of non-scope of application. That norm, because it describes the taxable event of the tax obligation, cannot fail to attend to the economic strength that the contributor has to support the tax; already the norm of non-scope of application, because it defines a negative element of the type of the tax legal fact, must attend to the criterion chosen by the legislator in the delimitation of that negative element. That is, the norms differentiate themselves both by their effects and by their purposes: while the norm of scope of application represents an interference in the patrimonial sphere of the contributor, referring to the withdrawal of the monetary benefit of the contributor to the State, the norm of tax exclusion projects more comprehensive economic effects, of which the mitigation of the negative impact in the patrimonial sphere of the contributor is an instrument; while the norm of scope of application has as its objective the collection of revenue, the norm of non-scope of application functionalizes the tax to other purposes.
These differences project themselves on the constitutional parameter against which the normative justification must be assessed. The norm of scope of application, because it consubstantiates an onerousness for the patrimony of contributors, is bound to distribute the tax burden as a function of the capacity each one has to pay the tax – principle of tax capacity; already the norm of tax exclusion, because it creates situations of tax favoritism, beyond the need to ensure respect for the principle of proportionality, as a function of the purposes it proposes to achieve, must ensure that the criterion of tax relief applies to realities that show themselves equal in light of that criterion – principle of equality. Thus, in the first typology, the relation of equality is established through a judgment of comparison of contributors in light of the criterion of taxpaying capacity; in the norm of non-scope of application, the relation of equality is established through the confrontation of persons or situations in light of the distinctive criterion or tertium comparationis of which the legislator availed itself for extrafiscal reasons. In the latter, considering the effects of de-taxation or mitigation that the tax exclusion provokes in the patrimony of contributors, there is not properly a problem of taxation without correspondence in the taxpaying capacity of the passive subject; in this way, by not electing the facts on which the tax incides, the problem does not reside in the observance of the principle of taxpaying capacity, as a premise of taxation.
18. The introduction of the said differentiation in the internal structure of AIMI rests eminently on reasons of economic policy: to protect the economic activity of companies owning urban real estate.
Indeed, it was through reasons of an extrafiscal nature that the legislator justified in Draft Law no. 37/XIII the norm of tax exclusion, referring that with it the intention is 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 tax on patrimony is constitutionally legitimate, by being devoted to the realization of a priority responsibility of the State: the promotion of economic structures (articles 9, paragraph d), and 81, paragraph a) of the Constitution), which presupposes the proper functioning of economic activities.
To pursue that objective of economic policy, it is evident that the tax exclusion does not present itself as inappropriate, unnecessary or excessive, since the tax relief constitutes one of the instruments of fiscal policy with aptitude and capacity to pursue the objective of protection and stimulation of the economic activities targeted. Indeed, the protection of commerce, as well as of industries, of services or other economic activities, is an extrafiscal interest that can prove to be of greater magnitude than the gains obtained via the collection of AIMI revenue.
This does not mean, however, that the legislator proposed to set aside taxation in AIMI of all economic activities, or that it did so as a function of the nature of the passive subjects, aiming to set aside the impact of the tax on entities whose assets integrate urban real estate, especially on subjects of an entrepreneurial nature.
Again, the vision proposed by the appellant comprises a deviation relative to the economic premise of the tax and to its structure: this does not envisage, dynamically, the taxpaying capacity of passive subjects as a function of the development of a particular economic activity; nor does the occasion legis support the understanding that the legislator, through the norm sindicalized, sought to eliminate any financial impact on the activity of economic agents, namely of legal entities that dedicate themselves to exploiting an activity comprised in the real estate sector, an economic sector in which the portion of costs (deductible for IRC purposes) resulting from taxation on urban real estate property will presumably be superior.
In truth, the mentions, during the preparatory work, to the non-affectation of "economic activity" by the tax being introduced, must be contextualized with reference to the initial structure of the tax, in which the elements of progressivity rested on criteria relative to the nature of the activity pursued by the passive subject, either by way of the exclusion of the scope of application of real estate allocated to tourism activity, or by way of the exemption up to 6,000,000.00€ of real estate held by passive subjects engaged in productive activity. And, it is important to underscore, even in the cutting of the scope of application of the Draft Law, the business activity of "purchase and sale of real estate" was expressly set aside from the exemption, signaling a differentiated treatment in the modulation of the tax, contrary to the idea that the legislator of AIMI rejected the taxation of all and any economic activity that had as patrimonial substratum goods transactionable in nature of a real estate nature. From that initial moment, a difference of treatment between economic agents is emphasized, distinguishing those for whom urban real estate constitutes essentially a commodity.
In the final wording, the criteria resting on the economic activity of the contributor were replaced by the reference to the species of urban real estate established in article 6 of the IMI, thus convening to the sphere of AIMI the same criteria and justifications on which the objective basis of application of the IMI rests, while the solution of exemption up to 600,000.00€ was set aside, eliminating the element of progressive basis personal of the taxation of legal persons and those equated. In this configuration, the scope of objective application of the tax was significantly reduced, by the setting aside of the scope of application relative to all real estate with commercial allocation and for services (even those titled by companies whose corporate purpose is the purchase and sale of real estate), in addition to the species "other", this being the legislator's option to mitigate the impact of the tax on the business fabric and preserve its competitiveness, especially in international markets (in that sense, JOSÉ PIRES, The Additional to IMI..., p. 50).
Then, and as the appealed decision refers, the rationale of the delimitation of the scope of application of the tax in question does not flow from the economic activity exercised by the passive subject, but rather, as in the IMI, from the social allocation of the urban real estate.
19. Indeed, from the provision of no. 1 of article 6 of the IMI Code results a division of urban real estate, which, pursuant to no. 2 of the same provision, makes the respective classification dependent, for the purpose of the qualification of real estate as residential, commercial, industrial or for services, first and foremost on the use assigned by licensing and, in the absence of a license, on the criterion of normal allocation. Unlike what is defended, this is not a mere formal classification, but rather the expression of material difference between the patrimonial realities considered.
Thus, taking the four examples advanced by the appellant in its submissions, illustrating the critique of arbitrariness (conclusions EEEE, FFFF and HHHH, transcribed above), the non-taxation in AIMI of urban real estate licensed for the industrial purpose, held by an entity that pursues that branch of activity (hypothesis A), as well as real estate licensed for service activity, such as a hotel or settlement held by an entity in the tourism branch (hypothesis B), finds rational justification in the fact that real estate property is integrated, from an economic point of view, by intermediate goods, means through which the purpose is pursued that determines its tax classification, which is coherent with the legislative purpose of mitigating the impact of the new fiscal externality on economic activity, especially on exporting activity. Differently, in the legal-subjective situations addressed in hypotheses C and D (in their root identical, since the circumstance that the tax does not incide on all of the passive subject's urban real estate patrimony renders irrelevant the distinction between subjects that hold only real estate classified as residential and those that are owners, to use the appellant's terminology, of "a diversified portfolio of several types of urban real estate"), the taxation in AIMI of real estate property for residential lease is rooted in the fact that the real property constitutes the very object of the operation of the economic agent.
One might object that passive subjects who acquire urban residential real estate for sale or building land for buildings, whatever their purpose, and who make this their social activity, hold the real estate for an ultimate purpose of a commercial nature. It will be said, then, that the difference to which the legislator attends – excluding these real estate from the scope of the tax relief norm - does not possess nature and weight sufficient to justify a differentiated treatment.
However, the tax situation of such companies is already considered within the IMI itself. Indeed, in cases of acquisition of real estate for resale and of building land, provision is made in paragraphs d) and e) of no. 1 of article 9 of CIMI the non-subjection to IMI for three and four years, respectively, and, by virtue of paragraph a) of no. 3 of article 135-C of the same enactment, non-subjection to AIMI, in relation to passive subjects that are taxed for the exercise of that activity. During the period of "non-taxation" there is no tax effect to consider for IMI purposes, the real property not being a reality qualified as real estate for tax purposes. The reason for the non-consideration of taxation is found in the fact that the real property during that lapse of time is understood as merchandise for the other tax purposes. As JOSÉ PIRES emphasizes (Lessons on Taxes on Patrimony and Stamp Tax, Almedina, 3rd edition, 2015, p. 415), "the tax regime in IMI of real estate purchased for resale is justified by the principle that this is not a tax on merchandise but on wealth, therefore it does not apply to real estate for resale that are considered merchandise in the assets of a company that exercises that activity. It is for this reason that the legislator took care to place systematically this regime in the chapter of the scope of application of the tax and not in that of exemptions or in the Statute of Tax Benefits. It is also for this reason that the Law defines that the subjection of such real estate to tax only begins at the end of the third year following that in which they were affected to the assets interchangeable of companies. For this reason, and in the contrary sense, before that moment in which taxation begins there exists no subjection to tax".
In relation to this species of real estate there is only differentiation in the structure of AIMI after three and four years of the holding of real estate for sale or construction. However, after that deadline, there is reason sufficiently strong to distinguish, in light of the normative criterion under scrutiny, the different species of urban real estate, since the function they have come to perform already differentiates them from urban real estate covered in the tax exclusion norm, attending to the extrafiscal purpose pursued thereby.
In fact, on the same questions of constitutionality and convening what was then decided in the arbitral decision rendered in arbitral proceeding no. 664/2017-T:
"Reverting to the situation of the case, it is fitting to note - as appears from the Report of the Budget for 2017 (p. 60) - that the creation of the additional to IMI, as a complementary tax on urban real estate property, aimed to introduce in taxation "an element of progressivity of a personal basis, taxing more highly the more substantial heritages", and, in that sense, it is compatible with the principle of progressivity of the tax to which no. 3 of article 104 of the Constitution refers, which has as its corollary the tendential imposition of greater taxation on those who have greater taxpaying capacity.
It has been understood, likewise, that the taxation of patrimony, alongside the taxation of income, constitutes a projection of taxpaying capacity, functioning as an extension of the personal tax on income and as the reinforcement of qualitative discrimination (Sérgio Vasques, "Taxpaying capacity, income and patrimony", Fiscal Affairs – Magazine of Fiscal Law and Management, no. 23, Coimbra, 2005, pp. 33 and 36).
(…)
The ownership of real estate property, for purposes of sale and transformation, in view of 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 incides on the taxable profit by reason of the economic activity developed. What is at issue, therefore, is not the taxation of the actual income earned by those entities through the activity developed, but the complementary taxpaying capacity that flows from the ownership of patrimony and which by itself can facilitate the obtaining of credit or the reinforcement of its negotiating position in the celebration of contracts (idem, p. 36).
(…)
Moreover, in line with what was understood in the arbitral award of 17 March 2016, rendered in proceeding no. 507/2015-T, it will be necessary to establish a distinction between the ownership of real estate property intended for housing which constitutes, in itself, a generally sure index of economic wealth, superior to that of the generality of citizens, and the ownership of rights over real estate intended for the exercise of commercial, industrial activities, provision of services or the like which can be recognized as factors of production and whose dimension and patrimonial value constitutes, not so much a manifestation of wealth, but a standard of adequacy to the functioning of the company.
It thus appears to exist constitutionally acceptable basis for the restriction of the scope of application of the additional to the tax to residential properties as compared with real estate classified as commercial, industrial or for the provision of services, thus being set aside the invoked unconstitutionality based on the violation of the principles of equality and taxpaying capacity."
With regard to the invoked unconstitutionality resulting from the discrimination operated by the norm of article 135-B of the IMI Code, regarding construction land (considering that the real estate in question in these proceedings are building land) the Arbitral Tribunal that was constituted under no. 664/2017-T also had the opportunity to analyze, deciding:
"At this plane of analysis, it must be borne in mind that we are faced with diverse taxable facts. In one case, the law subjects to taxation buildable land that constitutes an economic asset by effect of its aptitude for construction. In another case, the law excludes from the tax constructed property that performs an instrumental function relative to productive activity.
There is not a necessary connection between these two realities. Building land has its own patrimonial value which constitutes, in itself, an indicator of taxpaying capacity that is susceptible to being the object of an autonomous tax on patrimony, independently of its eventual and future utilization through the implantation of a building for commercial, industrial or service purposes. Constructed property that is classified as commercial, industrial or service real estate already has an instrumental function relative to a certain productive activity that the legislator, within its margin of free configuration, may intend to safeguard within the framework of its responsibilities for the increment of economic and social development, which have constitutional basis (article 81 of the Fundamental Law).
It is thus possible to discern, consequently, a sufficiently material basis for distinguishing between these different taxable facts for purposes of taxation of patrimony."
As well as the Constitutional Court itself in the cited award no. 299/2019.
"Beyond the broader critique of the objective scope of AIMI that has been under review, the appellant problematizes specifically the situation of building land. It points to the fact that the normative sense impugned comprises the taxation of building land with allocation established for purposes of commerce, industry, services or other, when subjection to AIMI is excluded relative to built real estate for those same purposes, independently of its actual use. It considers that one is faced with legal-subjective situations deserving of the same treatment, without there existing a material reason that legitimizes constitutionally the difference. Also at this point reason is not with it, as it places in confrontation materially distinct realities, in light of the taxable fact and the economic premise of AIMI.
In truth, the scope of application of the tax to "building land", as defined in no. 2 article 6 of the IMI Code, flows from therein having been constituted construction rights or proceed to subdivision operations, either by way of administrative act of granting of license or authorization, or by the tacit recognition resulting from the admission of prior notice, or, still, by the response favorable to request for prior information or issuance of favorable prior information to a subdivision operation or construction operation. Accessorily, the legislator also took in, as criterion of allocation to the construction of the land, that this be acquired expressly for that purpose and that it possess constructive viability.
And, in accordance with the normal functioning of the market, the ownership of rights over land relative to which construction rights or subdivision rights have already been constituted or which 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 comes to incorporate the legal-subjective sphere of its owner. As JOSÉ PIRES refers (Lessons on Taxes on Patrimony..., p. 140):
"In the market, the value of building land does not depend only 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 the public authorities, which is its building potential, namely the authorized volumetry and the characteristics of a reality that still does not exist, which is the urban real property that can be built on it.
The value of building land corresponds, fundamentally, to a legal expectation, consubstantiated in a right to construct thereon a real property with certain characteristics and with certain value. It is that expectation of production of wealth materialized in an immovable to be built that causes the value of patrimony to increase and the wealth of owners of building land, as soon as the land comes to be considered as being for building. For this reason, the greater the value of the real property to be built, the greater is the value of the building land.
We must bear in mind that nothing is built on the land, but the mere constitution of a right to build thereon causes its value to increase immediately. Moreover, the measure of that value always also depends on the value of the real property that will be built thereon. This is how market mechanisms function and it was also thus that the legislator conceived the model of evaluation of building land".
The recognition by the legislator that building land translates a patrimonial position of its holder and a value of its own market, renders useless the convening of the purpose and the value corresponding to the real property that may be built thereon: building land and constructed real property are not economically equivalent or assimilable realities, in the domain of the taxation of urban real estate property. Thus it was affirmed by the Court, with emphasis on the pronouncement of the Plenary in the already referred to Decision no. 378/2018, doctrine entirely transposable to the norm of AIMI here sindicalized:
"[It is] clear that, for the purpose of the application of the Stamp Tax Code, as well as for the purpose of the application of CIMI, building land is not equal to urban real property, whether for residential or other purposes (...). But, precisely because it is thus, it is not possible to cause retroactively, 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 emphasized, what is relevant for purposes of the application of the norm of item 28.1 is the legal-patrimonial situation existing on the date of the vesting of the obligation of payment of the tax, being, therefore, by reference to the concrete taxable fact existing on that date that the existence, or not, of a rational or reasonable basis for justifying the legal-tax consequences that immediately emerge therefrom should be evaluated.
The juridically relevant transformations that the object of the property may undergo in the course of time, from that moment on, resulting, namely, from the eventuality of coming to be built in building land of lesser value, configure hypotheses of verification and content of uncertain content, even considering the existence of licensing in those terms, which may come to be altered or not even utilized. They cannot, therefore, be decisive in the evaluation of the constitutionality of norms, or segments thereof, which, by virtue of their occurrence will cease to be applicable".
Also within the scope of application of AIMI, even if guided by a personal perspective, it cannot fail to be recognized that building land are quite distinct from urban real property already constructed and allocated 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 real property, commercial, industrial, for services or other in the purpose of promoting the proper functioning of economic activities – which implies the creation of stimuli to the reallocation of resources to productive purposes, in order to increment economic growth -, building land can only contribute to that desideratum in potency, in a hypothetical and conditional future, since even if a construction right has been formed, nothing prevents the change of will of its owner relative to the purpose to give to the real property. Furthermore, what is relevant for purposes of the annual taxation in AIMI is the tax patrimonial value of the existing real property and contained in the matrix, since one cannot tax a future and eventual taxpaying capacity, but only the current and effective taxpaying capacity. Building land constitutes an economic asset with patrimonial value, in itself revelatory of taxpaying capacity of its owner, being, therefore, constitutionally legitimate its inclusion in the patrimonial accrual globally subject to AIMI, independently 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 calculation of the tax patrimonial value, the appellant questions the reason why the index fixed by the legislator for commercial real property and for services is superior to that of residential properties (conclusion OOOO, which repeats ipsis verbis the formulation and the note appended in article 123 of the body of the submissions), after which develops argumentation devoted to convincing that the allocation to commerce, industry or services "is not exclusive of real property classified as 'commercial, industrial and for services' and that the semantic enunciation of no. 2 of article 135-B of the IMI Code should be interpreted in the sense of applying the exclusion of scope of application relative to "all 'building land' which have a (potential) allocation to commerce, industry, services or other" (conclusions ZZZZ to WWWWW).
It shows that, at that point of the appeal, as at others (cf. last paragraph of point 8, above), we are faced with argumentation situated at the infraconstitutional plane, devoted to affirming the verification of error of judgment, by deficient interpretation of ordinary law, as flows from the title of that segment of the appeal – "the (unlawful) disregard of the legal criterion of the allocation of the real property" - and of the affirmation 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 legal-tax regime of IMI". Now, the Court appealed affirmed 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 imposed on this Court as a given.
But, beyond that discussion on ordinary law, the appellant argues that "it constitutes discriminatory and arbitrary treatment the taxation in AIMI of a 'building land' with a potential utilization for [purposes of commerce, industry, services or other], while there is not taxed in this same Additional a built real property with this same potential utilization", affirmation which is rooted in the weighing of the allocation coefficients (Ca) and of location (Cl) both in the calculation of the tax patrimonial value of constructed real property, as of building land (article 45 of the IMI Code).
This vision rests on the premise, which we have already seen is incorrect, that the ratio of the tax imposes that the scope of application be cut based on a case-by-case evaluation of the allocation of the real property to an economic activity. To the contrary, the legislator mobilized the same objective normative criteria on which depends the classification of urban real property in any of the species provided for in article 6 of the IMI Code, for which it is irrelevant that the owner of the real property utilizes it in all its latitude, or does not utilize it 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 a weighing would be relevant in another model of taxation of patrimony and of calculation of the respective value, in which income-product was attended to, which is not that which came to be positivated in the reform operated in 2003. In this, the criterion of real or market value won to ascertain the respective value, from the rigid categories provided for in article 6 (on the various models of taxation of patrimony and its evolution in Portugal, cf. CASALTA NABAIS, "Regarding the Additional to the Municipal Property Tax", cit., pp. 32-45; and JOSÉ PIRES, Lessons on Taxes on Patrimony..., pp. 16-32, and The Additional to IMI..., pp. 29-38).
The specific criteria for calculation of the tax patrimonial value invoked by the appellant are not placed outside that paradigm, the allocation coefficient regulated in article 41 not intending to reflect a rationality different from that underlying the classification of the real property or its nature. Even if the norms of articles 38, 41, 42 and 45 of the IMI Code, by their greater concretization, may give rise to interpretative doubts (of which an example is the question resolved in the Decision of the Supreme Administrative Court, plenary formation, of 21 September 2016, proceeding no. 01083/13, accessible at www.dgsi.pt), from the outset the classification of real property contained in article 6 of CIMI serves as a fundamental instrument of reference", as "structural and ontological classification" (JOSÉ PIRES, Lessons on Taxes on Patrimony..., pp. 111 and ...).
On the other hand, it is clear that, obeying the teleology of the norm of no. 2 of article 135-B of the IMI Code to the desideratum of not excessively burdening real estate assets with intermediate function within the business organization of the passive subject, as to building land that functional nexus is not yet established with sufficient guarantee, since its owner is absolutely not prevented from changing will relative to the purpose to give to the real property, in order to destine to the construction of real property for residential purposes building land initially licensed for construction with other destinations. Already in the case of real property built, with purposes of commerce, industry, services or other, even if one cannot exclude the possibility of there coming to exist non-conformity between normal use and that materialized, especially in cases in which there is no licensing, or other intervention constitutive of rights of the public authorities, assumes the legislator that the probability of such a deviation is sparse and, in that measure, that the risk shows itself insufficient to place in crisis the conformation of the tax. Such an empirical evaluation, which does not show itself unreasonable, situates itself in the margin of freedom of configuration of the democratic legislator, not falling to the Court to proceed to its scrutiny within the scope of control of equality, in its negative vertent, here convened."
In light of all the above set forth, this Arbitral Tribunal understands that the norm of no. 2 of article 135-B of CIMI does not suffer from the pointed vices of material unconstitutionality by violation of the principles of equality, proportionality and taxpaying capacity (articles 13, 18, no. 2 and 104, no. 3, of the Constitution) in this same sense having very recently decided 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 of additional to IMI is rendered moot.
7. DECISION
In light of the above, this Singular Arbitral Tribunal decides:
To rule the request for arbitral pronouncement totally unfounded.
* * *
The value of the case is fixed at Euro 3,025.27, in accordance with the provisions of articles 3, no. 2 of the Regulation of Costs in Tax Arbitration Proceedings (RCPAT), 97-A, no. 1, paragraph a) of CPPT and 306 of CPC.
The Claimant is condemned to costs in the amount of Euro 612.00 under article 22, no. 4 of RJAT and Table I appended to RCPAT, in accordance with the provisions of articles 12, no. 2 of RJAT and 4, no. 4 of RCPAT.
Let notice be given.
Lisbon, 6 June 2019.
The Arbitrator,
(Henrique Nogueira Nunes)
Text drawn up by computer, pursuant to article 131, no. 5 of the Code of Civil Procedure, applicable by reference to article 29, no. 1, paragraph e) of RJAT.
The wording of this arbitral decision is governed by the orthography prior to the Orthographic Agreement of 1990.
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