Process: 63/2019-T

Date: June 18, 2019

Tax Type: IRS

Source: Original CAAD Decision

Summary

CAAD Process 63/2019-T addressed whether Portugal's differential treatment of non-residents regarding capital gains taxation violated EU law on free movement of capital. The claimants, U.S. residents, sold Portuguese real estate in 2016 and were taxed on 100% of their capital gains (€47,293.35), while residents benefit from a 50% exclusion under Article 43(2) of the Portuguese Personal Income Tax Code (CIRS). The taxpayers argued this discriminatory treatment violated Article 63 of the Treaty on the Functioning of the European Union (TFEU), which guarantees free movement of capital between EU Member States and third countries. The Portuguese Tax Authority contended that amendments to Article 72 of the CIRS introduced by Law 67-A/2007 had remedied previous legislative defects identified by CJEU case law. The arbitration tribunal examined whether taxing non-residents more heavily than residents on real estate capital gains constitutes an unjustified restriction on capital movement. This case is significant for non-resident property owners in Portugal, particularly those from third countries outside the EU/EEA, as it tests the extraterritorial application of EU fundamental freedoms. The decision impacts how Portugal must structure its tax treatment of capital gains to comply with EU law principles of non-discrimination, even when taxpayers reside outside the European Union. The case demonstrates that CAAD arbitration provides an accessible mechanism for non-residents to challenge allegedly discriminatory IRS assessments without resorting to lengthy court proceedings.

Full Decision

ARBITRAL DECISION

I - REPORT

A - IDENTIFICATION OF THE PARTIES

Claimant: A... and B..., both residents in ... ..., New York, United States of America, holders respectively of tax identification numbers ... and ..., hereinafter referred to as Claimant or Taxpayer.

Respondent: Tax and Customs Authority, hereinafter referred to as Respondent or AT.

The Claimant filed a request for the constitution of an Arbitral Tribunal in tax matters and a request for an arbitral ruling, pursuant to the provisions of subparagraph a) of number 1 of article 2 and subparagraph a) of number 1 of article 10, both of Decree-Law no. 10/2011, of 20 January (Legal Framework for Arbitration in Tax Matters, hereinafter abbreviated as LBAT).

The request for the constitution of the Arbitral Tribunal was accepted by His Excellency the President of CAAD, and in accordance with the provisions of subparagraph c) of number 1 of article 11 of Decree-Law no. 10/2011, of 20 January, as amended by article 228 of Law no. 66-B/2012, of 31 December, the Tax Authority was notified on 2019-02-04.

The Claimant did not proceed with the appointment of an arbitrator, therefore, pursuant to the provisions of number 1 of article 6 and subparagraph b) of number 1 of article 11 of Decree-Law no. 10/2011, of 20 January, as amended by article 228 of Law no. 66-B/2012, of 31 December, the Ethics Council appointed Rita Guerra Alves as Arbitrator, and she accepted in accordance with the legally provided terms.

On 2019-03-20, the parties were duly notified of this appointment, and neither expressed any objection to it, in accordance with article 11 number 1, subparagraphs a) and b) of the LBAT and articles 6 and 7 of the Code of Ethics.

Thus, the Single Arbitral Tribunal was regularly constituted on 2019-04-09, in accordance with the provisions of articles 2, number 1, subparagraph a), and 10, number 1, of Decree-Law no. 10/2011, of 20 January, to examine and decide the subject matter of the present dispute, and the Tax and Customs Authority was automatically notified to submit its response, if it so wishes, as stated in the respective minutes.

By order of 2019-05-23, the meeting provided for in article 18 of the LBAT was waived, with the procedural process continuing with optional and simultaneous written arguments of 15 days each.

The Claimant and the Respondent submitted written arguments.

The parties are duly represented, possess legal personality and capacity, and are legitimate (articles 4 and 10, number 2, of the same instrument and article 1 of Order no. 112-A/2011, of 22 March).

The proceedings contain no nullities.

B - CLAIM

  1. The present Claimant filed a request for an arbitral ruling for a declaration of partial illegality of the tax assessment act in the context of Personal Income Tax, 2017..., for the year 2016, which fixed a tax payable of €6,621.07 (six thousand six hundred and twenty-one euros and seven cents).

C - GROUNDS OF THE CLAIM

  1. To support his request for an arbitral ruling, the Claimant alleged, with a view to declaring the tax assessment act illegal, the following:

  2. The claimants are residents of the USA.

  3. The Claimant, A..., acquired on 4 September 2008, by donation made by her grandmother, 50% of the immovable property described under property register entry ..., located on Rua ... ..., ...-... Lisbon.

  4. On 4 November 2016, the Claimant proceeded with the sale of the immovable property.

  5. The Claimants understand that the assessment is illegal, as it results from a violation of European Union law.

D - RESPONSE OF THE RESPONDENT

  1. The Respondent, duly notified for that purpose, timely submitted its response in which, in summary, it alleged the following:

  2. The matter for which the Tribunal's examination was requested essentially concerns the exclusion of capital gains tax incidence at 50% (as happens with residents), obtained by a non-resident in Portugal, nor resident in a Member State of the European Union (that is, resident in a third country) violating Community Law.

  3. The Respondent argues that the legal framework (as well as the declaration obligation) is no longer that which existed at the date of the Court of Justice of the European Communities ruling, taking into account that the law was amended by force of the addition of numbers 7 and 8 (now 9 and 10) to article 72 of the Personal Income Tax Code by Law no. 67-A/2007, of 31/12.

  4. Thus, the provision in number 2 of article 43 of the Personal Income Tax Code cannot be applicable to the case under analysis.

  5. For which reason, the amendment introduced to article 72 of the Personal Income Tax Code by Law no. 67-A/2007, of 31/12, cured the defect from which the national legislation suffered, in accordance with the judgment of the aforementioned ruling.

E - FACTUAL FINDINGS

  1. For the analysis of the question submitted for examination by the Tribunal, it is necessary to set out the relevant factual matter, based on the facts that were not contested and on the documentary evidence in the record.

  2. The Claimant, A..., acquired on 4 September 2008, by donation made by her grandmother, 50% of the immovable property described under property register entry ..., located on Rua ... ..., ...-... Lisbon.

  3. On 4 November 2016, the Claimant proceeded with the onerous sale of the immovable property, which generated capital gains.

  4. The assessment carried out by AT was levied on the totality of the capital gains obtained by the Claimant, in the amount of €47,293.35.

  5. The Claimants in 2016 are residents of the United States of America.

  6. The Claimant filed a request for gracious reconsideration to which number ...2018.... was assigned.

  7. The Claimant was notified of the decision refusing the request for gracious reconsideration on 23-03-2018.

  8. The Claimant filed a Hierarchical Appeal, to which number ...2018... was assigned.

  9. The Claimant was notified of the decision refusing the Hierarchical Appeal on 25-10-2018.

F - FACTS NOT PROVEN

  1. Of the facts with relevance for the decision of the case, all objects of concrete analysis, those not described in the factuality set out above were not proven.

G - ISSUES TO BE DECIDED

  1. Considering the position of the parties, adopted in the arguments presented by each, the central issues to be resolved, which must therefore be examined and decided, are:

A) The declaration of illegality of the tax assessment act in the context of Personal Income Tax, 2017..., for the year 2016, which fixed a tax payable of €6,621.07 (six thousand six hundred and twenty-one euros and seven cents).

B) The Respondent's request for a preliminary ruling to the CJEU.

C) Condemnation to the payment of compensatory interest.

I - SUBSTANTIVE LAW

  1. The substantive question to be examined consists in determining whether the norm established by national legislation in article 43 of the Personal Income Tax Code establishes a differentiation between residents and non-residents including residents in Third Countries, and specifically whether the tax base for Personal Income Tax purposes on capital gains derived from the onerous transfer of real rights over immovable property is (in)compatible with the freedom of movement of capital provided for in article 63 of the Treaty on the Functioning of the European Union, which corresponds to article 56 of the Treaty establishing the European Community, as it results in a less favorable tax regime for non-residents.

  2. The Claimant argues that the inclusion by AT in taxable income of the totality of capital gains resulting from the transfer of the real right over the immovable property is subject to an error of law, since only 50% of its value should have been considered, by application of the provision in number 2 of article 43 of the Personal Income Tax Code, thereby constituting a violation of the provision in article 63 of the Treaty on the Functioning of the European Union (corresponding to article 56 of the Treaty establishing the European Community) by virtue of its discriminatory effect.

  3. The Respondent, for its part, argues that the legal framework, as well as the declaration obligation, currently in force is no longer that which existed at the date of the ruling of the Court of Justice of the European Communities, taking into account that the law was amended by force of the addition of numbers 7 and 8 (now 9 and 10) to article 72 of the Personal Income Tax Code by Law no. 67-A/2007, of 31/12, whereby the provision in number 2 of article 43 of the Personal Income Tax Code cannot be applicable to the case under analysis.

  4. Thus, let us examine whether the differentiation provided for by the national legislator is or is not in accordance with Community law, especially with the freedom of movement of capital and with the principle of non-discrimination, provided for in articles 63 and 18 of the Treaty on the Functioning of the European Union (TFEU).

  5. Article 63 of the Treaty on the Functioning of the European Union states the following: Article 63 (ex-article 56 TEC) 1. Within the scope of the provisions of this chapter, all restrictions on the movement of capital between Member States and between Member States and third countries are prohibited. 2. Within the scope of the provisions of this chapter, all restrictions on payments between Member States and between Member States and third countries are prohibited.

  6. Returning to the case record, we have that the Claimants are residents of the USA, a third country in relation to the Member State, therefore it is necessary to examine whether they are covered by the principle of freedom of movement of capital, provided for in article 63 of the TFEU.

  7. On this question, there is abundant case law delivered by the Court of Justice of the European Union, as well as by the Supreme Administrative Court and by the Arbitral Tribunal of CAAD, to the effect that article 72, number 2 of the Personal Income Tax Code is discriminatory, as it limits the incidence of tax to 50% of capital gains realized only for residents in Portugal and excludes from this limitation capital gains realized by a resident in another Member State or third countries, thereby violating the freedom of movement of capital, provided for in article 63 of the TFEU.

  8. Indeed, there are two moments to consider regarding the provision in article 72 of the Personal Income Tax Code, before and after the amendments brought by the 2008 State Budget through Law no. 67-A/2007.

  9. With regard to the legislation in force at the date of the facts, we highlight articles 43, numbers 1 and 2, and article 72, number 1, subparagraph a) and numbers 9 and 10, all of the Personal Income Tax Code.

  10. Article 43, numbers 1 and 2 establishes the following: 1 - The value of income qualified as capital gains is that corresponding to the balance determined between capital gains and losses realized in the same year, determined in accordance with the following articles. 2 - The balance referred to in the preceding number, concerning transfers carried out by residents provided for in subparagraphs a), c) and d) of number 1 of article 10, whether positive or negative, is only considered at 50% of its value.

  11. And article 72, number 1, subparagraph a) and numbers 9 and 10, establishes the following: 1 - The following shall be taxed at an autonomous rate of 28%: a) Capital gains provided for in subparagraphs a) and d) of number 1 of article 10 earned by non-residents in Portuguese territory that are not attributable to a permanent establishment situated therein; (...) 9 - Residents in another Member State of the European Union or of the European Economic Area, provided that in the latter case there is an exchange of information on tax matters, may opt, with regard to the income referred to in subparagraphs a) and b) of number 1 and in number 2, for the taxation of that income at the rate that, in accordance with the table provided for in number 1 of article 68, would be applicable in the case of being earned by residents in Portuguese territory. 10 - For the purposes of determining the rate referred to in the preceding number, all income is taken into account, including that obtained outside this territory, under the same conditions as are applicable to residents.

  12. With regard to the amendments of Law no. 67-A/2007, in essence, it maintained the taxation of capital gains at the special rate, adding numbers 7 and 8, now numbers 9 and 10 (resulting from the amendment by Law no. 66-B/2012, of 31 December).

  13. The norm of article 43, number 2 of the Personal Income Tax Code was subject to examination by the Court of Justice of the European Union, at a date prior to those amendments of Law no. 67-A/2007, of 31/12.

  14. It being that it is unanimous in the case law, as will be further elaborated, that the amendments of Law no. 67-A/2007 did not eliminate the discriminatory effect, maintaining the violation of Community norms.

  15. One should examine decisions rendered to the effect that the norm is discriminatory, including after the amendments of Law no. 67-A/2007, of 31/12.

  16. In case no. C-443/06, of 11 October, of the Court of Justice of the European Union, known as the Hollmann ruling, although prior to Law no. 67-A/2007, it addressed this question, where it was decided that "Article 56 EC [now article 63 of the TFEU] must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which subjects capital gains resulting from the transfer of an immovable property situated in a Member State, in the case in point in Portugal, when such transfer is carried out by a resident of another Member State, to a tax burden higher than that which would apply, in relation to this same type of transaction, to capital gains realized by a resident of the Member State where such immovable property is situated."

  17. In this same vein, national case law has decided, before and after amendments of Law no. 67-A/2007, of 31/12, respectively in rulings of the Supreme Administrative Court of 16 January 2008, in case number 439/06 of 22 March 2011, in case number 1031/10 of 30 April 2013, in case number 1374/12 and, more recently in case number 1172/14 of 03 February 2016, all of which can be consulted at www.dgsi.pt.

  18. Following the case law of the CJEU and the Supreme Administrative Court, there is abundant arbitral case law delivered by CAAD, in particular, the decisions rendered in case numbers: 45/2012-T; 127/2012-T; 748/2015-T; 89/2017-T; 370/2018-T; 617/2017-T; 520/2017-T; 399/2017-T; 89/2017-T; 478/2015-T; 96/2015-T, no. 617/2017-T, no. 583/2018, no. 600/2018, all of which can be consulted at www.caad.pt.

  19. The question submitted for examination in the present proceedings is identical to the question on which the aforementioned rulings have already pronounced, which were, moreover, rendered in the context of the same legislation, therefore we do not see any reason not to follow this case law which, in a manner we believe to be unanimous, has been followed, and with which we agree and subscribe to in full.

  20. The differentiated regime for the taxation of immovable capital gains realized by non-residents in Portuguese territory establishes a discrimination incompatible with the principle of freedom of movement of capital, a fundamental principle of the European Union, notwithstanding the amendments introduced to the Personal Income Tax Code by Law no. 67-A/2007, of 31 December, reflected in the addition of the current numbers 9 and 10 of article 72 of the Personal Income Tax Code.

  21. The CJEU thus considered in the Hollmann ruling that "although direct taxation is within the competence of the Member States, they must exercise that competence in respect of Community law" and that the discriminatory treatment of non-residents was based on the fact that "while a non-resident is subject to a rate of 25% [28% in 2017] on the taxable base corresponding to the totality of capital gains realized, the consideration of only half of the taxable base corresponding to capital gains realized by a resident enables the latter to benefit systematically, to that extent, from a lower tax burden, whatever the rate of taxation applicable to the totality of his income, since, according to observations made by the Portuguese Government, the taxation of the income of residents is subject to a table of progressive rates whose highest bracket is 42%." (48% in 2017, plus the solidarity surcharge of 2.5% or 5%).

  22. As decided by the CJEU in the Gielen ruling, delivered on 18/03/2010, "the option of alignment allows a non-resident taxpayer (...) to choose between a discriminatory tax regime and another supposedly non-discriminatory regime", and "this choice is not capable of excluding the discriminatory effects of the first of these two tax regimes."

  23. The Supreme Administrative Court has also pronounced itself in an identical manner, stating, notably, that "I - The provisions of the EC Treaty, which govern the European Union, take precedence over rules of ordinary national law, in accordance with the terms defined by the organs of European Union law, provided they respect the fundamental principles of a democratic rule of law state. II - It is incompatible with Community law, as it restricts the movement of capital which article 56 of the EC Treaty enshrines, the provision in number 2 of article 43 of the Personal Income Tax Code, by non-application to residents outside national territory of the limitation of taxation to 50% of capital gains realized which it provides for residents within national territory." – see the ruling delivered in case no. 01172/14, on 3 February 2016.

  24. Although in this ruling the issue concerned not a violation of article 63 of the TFEU but of article 49 of the TFEU, we consider entirely applicable to the present claim the conclusion reached by that court that the recognition of such an effect on the aforementioned choice would have the consequence of validating a tax regime that would continue, in itself, to be discriminatory.

  25. It was proven in the record that, in the assessment in question, AT taxed the totality of capital gains obtained by the Claimant at the rate of 28%.

  26. Considering the provision in article 43, number 2 of the Personal Income Tax Code, we are faced with a discriminatory regime incompatible with Community Law, by violation of article 63 of the Treaty on the Functioning of the European Union. It remains to be seen whether the alignment option, introduced into the Portuguese tax system following the delivery of the Hollmann ruling, contained in numbers 8 to 10 of article 72 of the Personal Income Tax Code, in force at the date of the tax fact, makes it possible to dispel the judgment of discrimination of the CJEU on the restrictive provision of number 2 of article 43 of the Personal Income Tax Code for non-resident taxpayers.

  27. It is true that, following the ruling delivered by the CJEU on 11/10/2007, case number C-443/06, known as the Hollmann ruling, the national legislator, with the aim of adapting the national tax system to the decision rendered in this ruling, introduced, through Law no. 67-A/2007, of 31 December, the possibility for residents in another Member State of the European Union to opt, with regard to the income referred to in numbers 1 and 2 of article 72 of the Personal Income Tax Code, for the taxation of that income at the rate that, in accordance with the table provided for in number 1 of article 68, would be applicable in the case of being earned by residents in Portuguese territory.

  28. The solution inserted by the legislator to circumvent the discrimination contained in that national provision imposes an additional burden on non-residents compared to residents.

  29. Therefore, although the national legislator has enshrined the possibility for the non-resident taxpayer to opt for the taxation applicable to residents, the truth is that such possibility does not eliminate the essential discriminatory effect of the differentiation of regimes provided for in national legislation between residents and non-residents, which is thus a violation of articles 63 and 18 of the TFEU.

  30. In light of the principle of the primacy of Community law, enshrined in article 8, number 4 of the Portuguese Republic Constitution, the case law of the CJEU, in the area of Community law, binds the national courts, therefore this tribunal cannot decide differently from what has already been decided by the CJEU, in the context of the same legal question and the same legislation.

  31. The AT submits a request for a preliminary ruling to the CJEU, therefore we shall next examine the request of the Tax and Customs Authority.

  32. Pursuant to article 8, number 4 of the Portuguese Republic Constitution, "the provisions of the treaties which govern the European Union and the norms emanated from its institutions, in the exercise of their respective competencies, are applicable in the internal order, in accordance with the terms defined by European Union law, with respect for the fundamental principles of a democratic rule of law state."

  33. As has been peacefully understood by case law and is a corollary of the obligation to make a preliminary ruling provided for in article 267 of the TFEU (which replaced article 234 of the Treaty of Rome, former article 177), the case law of the CJEU has a binding character for national courts, when it concerns matters related to European Union Law. And when a question of interpretation and application of European Union Law is raised, national courts must submit the question to the CJEU through a preliminary ruling.

  34. However, when Community law is clear, there is a precedent in European case law, and the interpretation and application of European Union Law already results from the case law issued by the CJEU, it becomes unnecessary to proceed with such a consultation.

  35. See in this regard the ruling delivered by the CJEU on 06-10-1982, Cilfit case, Proc. 283/81. Even when the questions in question are not strictly identical (the doctrine of clarifying pronouncement) and when the correct application of European Union Law is so obvious as to leave no room for any reasonable doubt as to how to resolve the question of European Union Law raised (the doctrine of the clear pronouncement) (idem, number 14).

  36. Note the recently decided by the Supreme Administrative Court, ruling of 20-02-2019, case no. 0901/11.0BEALM 0692/17, without raising the necessity for a preliminary ruling, concluded on the illegality of the regime that results from the combination of article 43, number 2, with article 72 of the Personal Income Tax Code, in a situation in which capital gains were realized in 2010, therefore already during the force of the Law no. 67-A/2007.

  37. In the case in question, and as previously stated, it is concluded that the illegality of the application of the discriminatory regime is not cured by the possibility of its removal, dispensing with the need for a preliminary ruling.

  38. In these terms, there is no doubt that the assessment in question, in the part that considers as the basis for taxation of capital gains realized by the Claimant more than 50% of its value, lacks legal foundation, which determines the illegality of the assessment in question, and declares the request for an arbitral ruling to be meritorious.

I - ISSUES WHERE KNOWLEDGE IS PREJUDICED

  1. The tribunal has the duty to pronounce on all issues, refraining from pronouncing on issues it should not know (closing segment of number 1 of article 125 of the Tax Procedural Code). However, the issues within the tribunal's cognition powers are, in accordance with number 2 of article 608 of the Code of Civil Procedure, applicable subsidiarily to tax arbitral proceedings, by referral of article 29, number 1, subparagraph e) of the LBAT, "the issues that the parties have submitted for its examination, except those whose decision is prejudiced by the solution given to others (...)."

In light of the solution given to the question concerning the requirements for the taxation of the Claimant's income under the regime applicable to non-residents, knowledge of the remaining issues included in the request for an arbitral ruling is prejudiced.

J - COMPENSATORY INTEREST

  1. The Claimant further seeks the payment of compensatory interest.

  2. Given the above, the assessment in the part covered by the annulment results from an error of fact and law attributable exclusively to the tax administration, insofar as the Claimant fulfilled its duty of declaration.

  3. In truth, it was demonstrated that the Claimant paid the tax in question in an amount higher than that which is due. Thus and by force of the provisions of articles 61 of the Tax Procedural Code and 43 of the General Tax Law, the Claimant is entitled to compensatory interest due, such interest to be computed from the date of payment of the undue tax (annulled) until the date of issuance of the respective credit note, the period for payment of which runs from the date of commencement of the period for voluntary execution of the present decision (article 61, numbers 2 to 5 of the Tax Procedural Code), all at the rate determined in accordance with the provision in number 4 of article 43 of the General Tax Law.

  4. In light of all the above and the invoked legal norms, the Claimant's request is granted.

H - DECISION

Given all the above, the present Arbitral Tribunal decides:

  1. To judge the request for a declaration of illegality of the tax assessment act in the context of Personal Income Tax, 2017..., for the year 2016, which fixed a tax payable of €6,621.07 (six thousand six hundred and twenty-one euros and seven cents) as well-founded.

  2. To condemn the Respondent to refund to the Claimant such amount wrongfully assessed and paid, plus the payment of compensatory interest already accrued for the period between the date of payment of the tax until its return, as well as the payment of future compensatory interest to run from the date of notification of this decision until complete and full payment, all in accordance with numbers 2 to 5 of article 61 of the Tax Procedural Code, at the legal rate determined in accordance with the provision in number 4 of article 43 of the General Tax Law until complete reimbursement.

The value of the case is fixed at €6,621.07 (six thousand six hundred and twenty-one euros and seven cents), corresponding to the value of the assessment, having regard to the economic value of the case as measured by the value of the tax assessment in question, and in accordance the costs are fixed at €612.00 (six hundred and twelve euros), at the charge of the Respondent, in accordance with article 12, number 2 of the Tax Arbitration Framework, article 4 of the Tax Procedural Code Rules and Table I annexed hereto. – number 10 of article 35, and numbers 1, 4 and 5 of article 43 of the General Tax Law, articles 5, number 1, subparagraph a) of the Tax Procedural Code, 97-A, number 1, subparagraph a) of the Tax Procedural Code and 559 of the Code of Civil Procedure).

Notify.

Lisbon, 18 June 2019.

The Arbitrator

Rita Guerra Alves

Frequently Asked Questions

Automatically Created

How are capital gains from property sales taxed for non-residents in Portugal under Article 43(2) of the IRS Code?
Under Article 43(2) of the Portuguese IRS Code, capital gains from property sales by non-residents are generally taxed on 100% of the gain, whereas Portuguese residents benefit from a 50% exclusion that effectively reduces their taxable capital gains by half. This differential treatment creates a significantly higher tax burden for non-residents selling Portuguese real estate. Non-residents are subject to autonomous taxation on their Portuguese-source income, with capital gains taxed at specific rates without the benefit of exclusions available to residents. The Tax Authority argued that amendments to Article 72 CIRS in 2007 addressed previous discrimination issues, but taxpayers continue to challenge whether full taxation of non-resident capital gains complies with EU law principles.
Why was the 50% capital gains exclusion for non-residents ruled incompatible with EU law on free movement of capital (Article 63 TFEU)?
The 50% capital gains exclusion available only to Portuguese residents was challenged as incompatible with Article 63 TFEU because it creates unjustified discriminatory treatment between residents and non-residents. Article 63 TFEU guarantees free movement of capital between Member States and between Member States and third countries, prohibiting restrictions unless objectively justified. The Court of Justice of the European Union has held that tax provisions which deter non-residents from investing in a Member State's real estate by imposing heavier taxation constitute prohibited restrictions on capital movement. Since resident taxpayers can exclude 50% of capital gains while non-residents face taxation on 100% of gains, this differential creates a disincentive for cross-border investment. Portugal cannot justify this discrimination merely based on residence status, particularly when both categories of taxpayers derive identical income from Portuguese sources.
Can non-resident taxpayers in Portugal challenge IRS capital gains tax assessments through CAAD arbitration?
Yes, non-resident taxpayers can challenge IRS capital gains tax assessments through CAAD (Centro de Arbitragem Administrativa) arbitration, as demonstrated in Process 63/2019-T. The Legal Framework for Arbitration in Tax Matters (LBAT - Decree-Law 10/2011) explicitly permits taxpayers, regardless of residence status, to submit disputes concerning tax assessments to arbitration. In this case, U.S. residents successfully initiated arbitration proceedings after their hierarchical appeal was denied. Non-residents must first exhaust pre-arbitration remedies (gracious reconsideration and hierarchical appeal) before accessing CAAD. The arbitration process offers advantages including faster resolution compared to tax courts, appointment of specialized arbitrators, and binding decisions. Non-residents must ensure proper legal representation and Portuguese tax identification numbers. CAAD arbitration has become an increasingly important forum for non-residents to challenge discriminatory tax treatment under both Portuguese law and EU principles.
What was the outcome of CAAD Process 63/2019-T regarding discriminatory taxation of non-resident capital gains?
CAAD Process 63/2019-T resulted in a finding that Portugal's taxation of non-resident capital gains at 100% while allowing residents a 50% exclusion constituted discriminatory treatment incompatible with EU law on free movement of capital. The arbitral tribunal examined Article 43(2) CIRS in light of Article 63 TFEU and CJEU case law establishing that unjustified differential treatment of non-residents restricts capital movement. Despite the Tax Authority's argument that 2007 amendments to Article 72 CIRS had remedied previous legislative defects, the tribunal found that the fundamental discrimination persisted. The decision required Portugal to apply the 50% capital gains exclusion to non-residents on the same basis as residents, reducing the taxpayers' assessment from taxation on €47,293.35 to taxation on approximately half that amount. This landmark decision has implications for all non-resident property sellers in Portugal and may require legislative reform to ensure compliance with EU fundamental freedoms.
How does the CJEU case law on Article 63 TFEU affect Portuguese taxation of real estate capital gains for non-EU residents?
CJEU case law on Article 63 TFEU significantly impacts Portuguese taxation of real estate capital gains for non-EU residents by extending non-discrimination principles beyond intra-EU situations to third countries. Article 63 TFEU protects capital movement between Member States AND between Member States and third countries, with limited exceptions. The CJEU has consistently held that tax measures creating less favorable treatment for non-residents constitute restrictions on capital movement unless objectively justified by overriding reasons of public interest and proportionate to legitimate objectives. Portugal cannot maintain differential capital gains taxation merely because investors reside outside the EU. Previous CJEU rulings identified discrimination in Portuguese tax law, prompting the 2007 amendments to Article 72 CIRS. However, Process 63/2019-T demonstrates that structural discrimination persists when Article 43(2) excludes non-residents from the 50% capital gains exemption. This case law requires Portugal to either extend resident benefits to non-residents or justify differences based on objective distinctions in taxpayer situations, which mere residence location cannot satisfy under TFEU principles.