Summary
Full Decision
ARBITRAL DECISION
The arbitrators José Poças Falcão (presiding arbitrator), Isaque Marcos Ramos and José Nunes Barata (members), designated by the Ethics Council of the Administrative Arbitration Centre to form the Arbitral Tribunal, agree as follows:
I. REPORT
A..., SA, hereinafter referred to as the Claimant, requested on 21 December 2018 the constitution of a collective arbitral tribunal in tax matters, pursuant to the provisions of articles 2, no. 1, subparagraph a) of Decree-Law no. 10/2011, of 20 January (Legal Regime of Tax Arbitration - RJAT) and articles 1, subparagraph a) and 2 of Ordinance no. 112-A/2011, of 22 March, for the purpose of resolving the dispute opposing it to the Tax and Customs Authority (hereinafter referred to as the Respondent).
A. Constitution of the Arbitral Tribunal
1. The request for constitution of the Arbitral Tribunal was accepted by the CAAD President on 21/12/2018 and automatically notified to the Claimant and the Tax and Customs Authority, with the President of the respective Ethics Council designating the signatories as arbitrators of the Collective Arbitral Tribunal, pursuant to article 6, no. 1 of the RJAT, which responsibility was accepted under the legally established terms.
2. On 08/02/2019, the Parties were notified of this designation, in accordance with the combined provisions of article 11, no. 1, subparagraph b), of the RJAT, articles 6 and 7 of the Ethics Code, and neither Party expressed an intention to refuse the designation of the arbitrators.
3. Accordingly, the Tribunal was constituted on 28/02/2019, in accordance with the provisions of subparagraph c), no. 1, article 11 of the RJAT, which was notified to the Parties on that date.
B. Relief Sought
The Claimant seeks that the Arbitral Tribunal proceed with the partial annulment of the assessment act for Additional Municipal Property Tax (AIMI) no. 2018..., effected through the collection document no. 2018... and, consequently:
a) That it be reimbursed the amounts paid as AIMI relating to the annulled portion of the aforesaid assessment, in the total amount of €230,442.11;
b) That the Respondent be condemned to pay to the Claimant, on this amount, compensatory interest provided for in articles 43 of the General Tax Law (LGT) and 61 of the Code of Tax Procedure and Process (CPPT).
C. Proceedings
Following notification of the date of constitution of the Arbitral Tribunal, on 28/02/2019, the subsequent procedural steps proceeded as follows:
On 28/02/2019, the Respondent was notified to present its response, in accordance with nos. 1 and 2 of article 17 of the RJAT, within a period of 30 days and, if desired, to request additional evidence production and to remit to the Arbitral Tribunal a copy of the administrative file, by electronic means;
On 29/03/2019 the Respondent presented its Response to the Request for Arbitral Pronouncement, remitted dispatch designating its legal representatives, and the Claimant was notified of all of this on 01/04/2019;
On 11/04/2019 the Claimant presented a request that the value of the case be maintained at €230,442.51, as requested in the arbitral pronouncement petition, and not €523,502.27, as the Respondent had sought in its Response;
On 16/04/2019 the Tribunal issued a dispatch in which it:
a) Dispensed with the holding of the meeting referred to in article 18 of the RJAT, unless expressly opposed and justified by either Party within five days;
b) Maintained the value assigned by the Claimant in the arbitral pronouncement petition as the value of the case; and
c) Deemed the examination of the listed witnesses to be unnecessary, unless expressly opposed and justified within five days, considering that there exists no controversy regarding the essential facts for the decision of the case, documentary evidence not challenged being sufficient;
The Tribunal thus determined the continuation of the proceedings by notifying the Parties to present optional written submissions, within a simultaneous period of twenty days.
The Tribunal set 30 June 2019 as the anticipated date for the rendering of the arbitral decision.
On 13/05/2019, both the Claimant and Respondent presented written submissions.
D. Relief Sought by the Claimant and Its Grounds
i. The Claimant is a Portuguese limited company with registered office and effective management in Portugal.
ii. The Claimant's corporate purpose includes, among other activities, real estate activity, that is, the purchase and sale of real property.
iii. On 14 August 2018, the Claimant was notified of the AIMI assessment act no. 2018..., relating to the year 2018, which resulted in an amount payable of €523,502.27, of which €230,442.51 relates to land for construction that does not have residential use.
iv. The Claimant considers that the AIMI assessment act identified above is affected by a defect of violation of law, by error regarding the presuppositions of law, consisting in the erroneous interpretation and application of the provisions of no. 2 of article 135-B of the IMI Code, for the reasons which shall be presented hereinafter.
v. The Claimant is the owner of the land for construction corresponding to the registration numbers U-..., U-..., U-..., U-..., U-..., U-..., U-..., U-... and U-... of the parish of ... and to the registration numbers U-..., U-..., U-..., U-..., U-..., U-..., U-..., U-..., U-..., U-..., U-..., U-..., U-..., U-..., U-..., U-..., U-..., U-..., U-..., U-..., U-..., U-..., U-..., U-... and U-... of the parish of ..., in the municipality of Lisbon.
vi. The land for construction owned by the Claimant has more than one use (residential, commercial or services), whereby its tax patrimonial value was determined taking into account the use associated with the final constructions projected for each of them.
vii. In the AIMI assessment identified above, the Claimant observed that the totality of the land for construction is being considered for purposes of AIMI incidence, regardless of its respective use.
viii. Now, having regard to the legislation applicable at the time of the facts, the Claimant considers that the assessment is incorrectly calculated, in that it should have been only €293,059.76, that is, corresponding only to the residential component of the tax patrimonial value of the land for construction.
ix. As such, the Claimant paid unduly as AIMI the amount of €230,442.51, by reference to land for construction whose use associated with the final construction projected for each of them was "commercial, industrial or services".
x. The objective incidence of AIMI is provided for in article 135-B of the IMI Code, which establishes, in its no. 1, that "[the] additional to the municipal property tax incides on the sum of the tax patrimonial values of urban properties situated in Portuguese territory of which the taxpayer is the owner".
xi. Now, no. 2 of the same article excludes from the incidence of AIMI "[…] urban properties classified as "commercial, industrial or services" and "other" in accordance with subparagraphs b) and d) of no. 1 of article 6 of this Code".
xii. In these terms, it follows that only urban properties devoted to residential purposes and land for construction, as defined in article 6 of the IMI Code, are covered by the AIMI regime.
xiii. Now, the Claimant considers that only land for construction whose use is "residential" should be subject to AIMI, with the tax patrimonial values of land for construction whose use is "commercial, industrial or services" being excluded from AIMI incidence.
xiv. In fact, that is the only interpretation that appears coherent with the legislative choice, embodied in no. 2 of article 135-B of the IMI Code, which excludes from the incidence of the tax urban properties classified as "commercial, industrial or services".
xv. Accordingly, the Claimant understands that an extensive interpretation should be made of the exclusion rule provided for in no. 2 of article 135-B of the IMI Code, in order to exclude from AIMI incidence also land intended for the construction of properties classified as "commercial, industrial or services".
xvi. An interpretation contrary to that defended by the Claimant appears materially unconstitutional, as it is incompatible with the principle of equality by considering as a taxable fact the ownership of land for construction of properties intended for commerce, industry and services and not the ownership of properties built thereon.
xvii. As such, the Claimant considers that land for construction with commercial, industrial or services use are not covered by the provisions of article 135-A of the IMI Code and, consequently, are not subject to AIMI.
xviii. This is because, having regard to the axiological foundation of AIMI, "[…] the ownership of real property assets intended for residential use of high value is a tendentially reliable indication of economic sufficiency, superior to that of the generality of citizens […]", but "[…] it cannot be considered that there exists a reliable indication of superior contributive capacity when one is faced with the ownership of rights over real properties intended for the exercise of economic activities (commercial, industrial, provision of services or similar), for these must be adequate to the functioning of the respective enterprises, and their dimension and correlative value are not an indication of sufficiency", as results from Arbitral Decisions rendered in proceedings nos. 669/2017-T and 8/2018-T.
xix. In this sense, it should be concluded, in the wake of the Arbitral Decision rendered at CAAD in proceeding no. 8/2018-T, that "[…] it will have constitutionally acceptable foundation the restriction of AIMI incidence to residential properties and land for construction of residential properties, which came to be enshrined in the wording of no. 2 of article 135-B of the IMI Code, in the interpretation that was adopted above".
xx. The understanding of the Claimant expressed in the present arbitral pronouncement petition is corroborated by numerous arbitral decisions, namely the Arbitral Decisions rendered at CAAD in proceedings nos. 668/2017-T, 669/2017-T, 675-2017-T, 677/2017-T, 679/2017-T, 681/2017-T, 686/2017-T, 687/2017-T, 688/2017-T, 694/2017-T and 8/2018-T.
xxi. Given the foregoing, the Claimant concludes that the AIMI assessment is affected by a defect of violation of law, by error regarding the presuppositions of law, consisting in the erroneous interpretation and application of the provisions of no. 2 of article 135-B of the IMI Code, in the part in which it considers subject to AIMI the component of the tax patrimonial value of land for construction that has been determined on the basis of the potential future uses of "services" and "commerce".
xxii. Now, having fully paid the AIMI assessment identified above, and since there was an error attributable to the services of the Tax Authority in the assessment of the tax, which resulted in the payment of tax in an amount higher than legally due, the Claimant petitions for the right to receive compensatory interest counted from the date of the improper payment of the tax until the date of processing of the respective reimbursement, in accordance with article 43 of the LGT and subparagraph a) of no. 1 of article 61 of the CPPT.
E. Response of the Respondent and Its Grounds
The Respondent, duly notified for this purpose, presented its Response in a timely manner, in which, in summary, it alleged the following:
i. The object of the request consists of the AIMI assessment relating to the year 2018, identified by no. 201..., in the amount of €523,502.27.
ii. The value of the case should, therefore, correspond to the value of the impugned act, not being the value noted finally of €523,502.27, which should be corrected accordingly, wherefore it requests its correction.
iii. On 01/01/2018, in accordance with no. 4 of article 8, by remission of no. 3 of article 135-A of the IMI Code, the Claimant was the owner of the properties in question.
iv. The determination of the TPV was carried out in accordance with what is recorded in the registry, in accordance with nos. 1 and 2 of article 135-C of the IMI Code.
v. The properties were not covered by the exclusions provided for in no. 2 of article 135-B, nor by no. 3 of article 135-C of the IMI Code.
vi. The AIMI incides on properties classified as residential and as land for construction — regardless of their potential use (given the fact that the law refers, without more, to article 6 of the IMI Code) — insofar as the same are not expressly contained in the rule of negative delimitation of incidence.
vii. In view of the foregoing, it may therefore be stated that, with regard to AIMI inciding on urban properties of which legal entities and equivalent structures are owners, usufructuaries or superficiaries (no. 2 of article 135-A of the IMI Code) the tax assumes the nature of a real tax, insofar as the modulation of the amount payable abstracts from the economic dimension of the entities, namely the qualification as a small, medium or large enterprise, as well as does not affect the totality of the net assets of the entities.
viii. In this way, with respect to legal entities and equivalent structures, AIMI has the nature of real taxation, thus reflecting the idea that the elements comprising the real property assets held by these entities perform, as a general rule, an economic function, and do not, therefore, represent mere accumulation of wealth.
ix. The legislator excluded from incidence urban properties classified as "industrial, commercial or services" and "other" but expressly chose to maintain other properties that also integrate the assets of companies, such as those classified as residential or land for construction, by not including them in the negative delimitation enshrined.
x. That is, it did not guarantee, nor did it intend to guarantee, in all cases that "the real property assets devoted to the exercise of any economic activity" would not be affected, contrary to what is said by the Claimant.
xi. Furthermore, the progressive character of AIMI only has manifestation in the sphere of taxpayers - natural persons and not when the taxpayers are legal entities or legal structures equivalent; accordingly, by pointing out that this is a tax on "real property wealth" it is necessary to refer this expression to its real economic dimension, all the more so since the concept of "wealth" or "fortune" proves adequate when relating to natural persons and not to legal entities.
xii. The exclusion from taxation of urban properties with purposes "industrial, commercial and services" and "other" clearly reflects the intention to mitigate the impact of AIMI on economic activities but does not push to its ultimate consequences the alleged intention to eliminate any and all impact of the tax.
xiii. The legislative choice enshrined in articles 135-A and 135-B, of qualifying as taxpayers natural persons and legal entities and any structures or centers of collective interests without legal personality that are owners, usufructuaries or superficiaries of urban properties situated in Portuguese territory with the classification as "land for construction" or "buildings or constructions for residential purposes", inevitably brought into the field of taxation, entities pursuing economic activities.
xiv. Therefore, nothing in the letter of the law authorizes the conclusion that the intention of the legislator of the AIMI was to exclude from taxation the "urban properties that are devoted to the exercise of an economic activity", for the only criterion relevant to delimiting the scope of objective incidence is, solely, the typology of classification of urban properties provided for in no. 1 of article 6 of the IMI Code, to which no. 2 of article 135-B expressly refers.
xv. The AIMI inciding on legal entities and equivalent structures has the nature of a real tax on real property assets comprised of urban properties that meet the types aimed at in no. 2 of article 135-B, regardless of the classes of assets in which they are classified – inventories, tangible fixed assets or non-current assets held for sale – whereby the Claimant is subject to AIMI for the urban properties of which it is owner, usufructuary or superficiary that meet the conditions set forth in that provision of the IMI Code.
xvi. The legislator chose to exclude from the objective incidence of this Additional urban properties classified as "commercial, industrial or services" and "other" in accordance with subparagraphs b) and d) of no. 1 of article 6 of this Code, as provided in no. 2 of article 135-B.
xvii. The legislator promoted the adoption of a new tax (AIMI) that incides on owners, usufructuaries or superficiaries of urban properties situated in Portuguese territory, on 1 January of the year to which the tax relates, with the exclusion of municipal companies and housing and social housing construction cooperatives, in accordance with article 135-A of the IMI Code.
xviii. And, it was precisely in these terms, that the TA proceeded with the AIMI assessments impugned, which was not contradicted in the arbitral petition.
xix. The Claimant considers that the TA, in the application it made of the rule, incurred in violation of article 135-B, no. 2, of the IMI Code, by unconstitutional interpretation thereof.
xx. The letter of the law does not allow the Claimant to impute to the TA error in its interpretation.
xxi. If one attends to the wording of article 135-B, no. 2 of the IMI Code, cited above, it follows that the legislator, specifically, only excluded from AIMI taxation urban properties classified as "commercial, industrial or services" and "other" in accordance with subparagraphs b) and d) of no. 1 of article 6 of the IMI Code.
xxii. The legislator chose to formulate the restriction having regard to the classification of the properties, with nothing in the letter of the law that indicates that such exclusion may be extended, namely to extend to other properties not included therein when devoted to a particular economic activity of the tax subject.
xxiii. The TA did not proceed with any unconstitutional interpretation of the rule, for it is not the TA that decides to include in AIMI taxation urban properties devoted to economic activities, but rather, because it is what results from article 135-B, no. 2 of the IMI Code, only urban properties classified as industrial, commercial or services and other are not taxed.
xxiv. The Claimant seeks an ab-rogating interpretation of the rule, introducing thereto a sense that was not enshrined by the legislator in the letter of the law, thus extending the scope of the exclusion from taxation so as to encompass the totality of the properties held by the same, contrary to the delimitation contained in no. 2 of article 135-B of the IMI Code, where only properties with a certain type of classification provided for in article 6 of the IMI Code are referenced.
xxv. The legislator in article 135-B, no. 2 of the IMI Code did not expressly exclude from taxation other urban properties than those "classified as "commercial, industrial or services" and "other" in accordance with subparagraphs b) and d) of no. 1 of article 6 of the IMI Code.
xxvi. The teleology of AIMI aims, first, to affect a portion of the assets of the taxpayers of the tax, inciding on the immovable property constituting a patrimonial asset, recognizable in law as capital of a particular entity (singular or collective), regardless of whether it is devoted to any productive process or income-generating, whereby it is believed to be this the purpose of no. 1 of article 135-B of the IMI Code.
xxvii. The legislator chose in no. 2 of that provision for a negative delimitation of incidence, excluding from AIMI real property that, by its potential devotion, may be economically recognized as factors of production, in the guise of capital, that is, as intermediate goods that, combined with the other factors of production, produce new utilities – economic goods that satisfy needs.
xxviii. For this purpose, it resorted to a criterion that convokes the structure of typologies of urban property provided for in article 6 of the IMI Code and that operates through the subtraction from AIMI of urban properties that, as a result of the licensing of use declared by the municipalities or, in its absence, of its normal destination, are conducted to the typologies of subparagraphs b) and d) of no. 1 of that provision.
xxix. The universe of urban properties subject to AIMI is determined by recourse to the remaining two typologies contained in no. 1 of article 6: residential urban properties and land for construction.
xxx. In this delimitation of real incidence it is evident that the criterion adopted is intended to be universally objective, inducing greater uniformity and equality in the treatment of the properties subject to taxation, to the detriment of other criteria that would appeal to case-by-case verifications about the actual destination given to the properties.
xxxi. The different valuation and taxation of a property with residential use as opposed to a property intended for commerce, industry or services results from the different suitability of the properties in question, which supports the different treatment given by the legislator that, for economic and social reasons, decided, within the scope of its discretion, to remove from the incidence of the tax the property intended for purposes other than residential.
xxxii. One is before a rule of objective incidence of general and abstract character, applicable indistinctly to all cases in which its respective presuppositions of fact and law are met.
xxxiii. At issue is merely a partial tax on certain manifestations of contributive capacity.
xxxiv. The criterion chosen by the legislator – the classification of urban properties as industrial, commercial or services and other – was precisely to the detriment of other criteria that would appeal to case-by-case verifications about the actual destination given to the properties.
xxxv. The negative delimitation of incidence was enshrined in objective incidence and not in subjective incidence.
xxxvi. The legislator removed from incidence urban properties used for purposes "industrial, commercial or services" and "other", but chose to maintain other properties that also form part of the assets of enterprises, that is, did not guarantee in all cases that "urban properties devoted to economic activities would not be subject to AIMI taxation".
xxxvii. Whereby it is more consonant with the letter and with the spirit of the law present in no. 2 of article 135-B of the IMI Code, the conclusion that the ratio legis that lay at the genesis of the exclusion of objective incidence, enshrined therein, was oriented toward the objective of removing from the subjection to the tax, above all, the properties that provide support to the development of economic activities, that is, that are held for use or provision of goods or services or for administrative purposes, not caring thus, generally, to "not overburden fiscally the taxpayers that, by force of their economic activities, hold property for the pursuit of their corporate purpose."
xxxviii. The goods in question and especially land for construction are not merely instrumental to the exercise of the activity; on the contrary, they form part of the economic activity, they are the object of commerce or industry, for they are intended for resale or, in the case of land for construction, also for transformation in the event that buildings are erected thereon for subsequent sale.
xxxix. Differently, the properties excluded from subjection to AIMI, in accordance with no. 2 of article 135-B of the IMI Code, are those that perform an instrumental function to the industrial, commercial or services economic activities, insofar as they constitute buildings that serve as support for the functioning of said activities, and are not in themselves generators of income.
xl. And even if the properties here in dispute that were taxed may prove to be instrumental to their activities, we have that the same are suitable to indicate that those legal persons are owners of goods that, in themselves, evidence a specific sufficiency in the face of other real property owners.
xli. Having regard to the objective formulation enshrined in article 135-B, no. 2, of the IMI Code, the case-by-case option defended by the Claimant was unquestionably removed by the legislator, in which it is treated to invoke elements of economic consistency much variable and contingent, which depend extensively on the manner of management, the situational circumstances of framework, the type of utilization realized of the properties, the situation in each year of the patrimonial assets held, all preventing the configuration of any uniform basis capable of leading to the affirmation that the normative solution that is the object of AIMI leads to an unjustified negative discrimination of such enterprises, all the more so when limited predial components of the patrimonial assets of the taxpayer are at issue.
xlii. The legislator in extending the scope of incidence to entities whose corporate purpose coincides with the exercise of economic activities demonstrated that it was not its intention to leave out of the reach of AIMI all properties whose ownership belongs to such entities, under penalty of creating a tax incentive for the transfer of property by natural persons.
xliii. For purposes of substantiating its position, the Respondent invokes various doctrine and jurisprudence.
xliv. In the understanding of the Respondent, the interpretation of the Claimant, clearly ab-rogating the law, violates the constitutional principle of separation and interdependence of powers, enshrined in articles 2 and 111 of the Constitution of the Portuguese Republic (CRP), constituting the same as reference and limit to the powers of cognition of courts in the exercise of their function within the State of Law (cfr. articles 202 and 203 of the CRP) and, as well, the principle of legality formulated in no. 2 of article 103, subparagraph i) of no. 1 of article 165 all of the CRP.
xlv. The only and exclusive species of properties existing in our legal order are those set forth in article 6 of the IMI Code:
a) Residential;
b) Commercial, industrial or services;
c) Land for construction;
d) Other.
xlvi. Neither the Claimant, nor the judge can create a new species of property under penalty of flagrantly violating the most basic constitutional principles of separation and interdependence of powers and legality.
xlvii. Administrative bodies and agents have no competence to decide the non-application of rules as to which doubts of constitutionality are raised, in accordance with no. 2 of article 266 of the CRP and no. 1 of article 3 of the Code of Administrative Procedure (CPA), contrary to Courts that, in accordance with article 204 of the CRP, are prevented from applying unconstitutional rules, being attributed the competence for diffuse and concrete review of constitutional conformity.
xlviii. Whereby, and in sum, the TA could not/cannot refuse the application of a rule or fail to comply with the law by invoking or questioning its constitutionality, for it is subject to the principle of legality, as established in articles 266, no. 2 of the CRP, 3, no. 1 of the CPA and 55 of the LGT.
xlix. Founded on doctrine and jurisprudence which it invokes, the Respondent understands that the principle of equality requires that what is necessarily equal be treated equally and what is essentially different be treated as different, not preventing, however, differentiation of treatment, but only arbitrary, unreasonable discriminations, that is, distinctions of treatment that do not have justification and sufficient material foundation.
l. Contributive capacity beyond income and use of goods is also expressed, according to law, through the ownership of assets, as enshrined in no. 1 of article 4 of the LGT.
li. The choices underlying the delimitation of objective incidence of AIMI, made within the margin of "legislative conforming freedom", do not constitute a violation of the principle of equality, due to the fact that taxpayers with equal contributive capacity may be unequally affected by the tax by reason of the different weight that urban properties for residential purposes and land for construction may represent in their respective global assets.
lii. The AIMI aims, in a first moment, to affect a portion of the assets of the taxpayers of the tax, inciding on immovable property constituting a patrimonial asset, recognizable in law as capital of a particular entity (singular or collective), regardless of whether it is devoted to any productive process or income-generating, whereby it is believed to be this the purpose of no. 1 of article 135-B of the IMI Code.
liii. Coming then the legislator, in a second moment, to negatively delimit the incidence of the tax, excluding from AIMI real property that, by its potential devotion, may be economically recognized as factors of production, in the guise of capital, that is, as intermediate goods that, combined with the other factors of production, produce new utilities – economic goods that satisfy needs.
liv. The legislator resorted to a criterion that convokes the structure of typologies of urban property provided for in article 6 of the IMI Code and that operates through the subtraction from AIMI of urban properties that, as a result of the licensing of use declared by the municipalities or, in its absence, of its normal destination, are conducted to the typologies of subparagraphs b) and d) of no. 1 of that provision.
lv. Whereby the universe of urban properties subject to AIMI is determined by recourse to the remaining two typologies contained in no. 1 of article 6: residential urban properties and also land for construction.
lvi. The criterion adopted is intended to be universally objective, inducing greater uniformity and equality in the treatment of the properties subject to taxation, to the detriment of other criteria that would appeal to case-by-case verifications about the actual destination given to the properties.
lvii. It is, therefore, a rule of objective incidence of general and abstract character, applicable indistinctly to all cases in which its respective presuppositions of fact and law are met.
lviii. The legislator defined a specific economic presupposition constitutionally valid for achieving the goal of taxation of realities particularly revealing of wealth and thus legitimizing a complementary contribution for budgetary consolidation.
lix. The AIMI respects a partial taxation of assets without specifically targeting enterprises or a specific type of enterprise, for it comprises all manner of taxpayers that are owners of the real rights set forth over the properties in question, regardless of whether they assume an entrepreneurial character or not, thus encompassing, beyond companies, foundations, associations, natural persons.
lx. It is manifest that among the interests clearly protected by the Constitution is the collection of taxes in order to satisfy public needs (cfr. article 103, no. 1 of the CRP), whereby the duty to contribute to public expenditures by way of taxes is an immanent limit to rights of property and freedom of economic initiative.
lxi. There exists no significant influence on the ownership of properties by enterprises dedicated to their commercialization, given that AIMI does not have general scope, but has its scope of application restricted to urban properties situated in Portugal regardless of the nature of the owner, usufructuary or superficiary.
lxii. That is, the only data that may be relevant centers on the assessment of the ownership of a urban property situated in Portugal.
lxiii. It will not, therefore, be the circumstance that other taxpayers holding similarly valuable real property assets are exempt from the tax, that will justify a specific constitutional censure of the rule under review.
lxiv. Land for construction do not amount to mere rights of construction, of future things, and all of them are autonomous goods that, even by their natural scarcity, always have intrinsic economic value and, normally, quotation in the real estate market, that is, can be sold, exchanged, given as guarantee of obligations.
lxv. Differently, the properties excluded from subjection to AIMI, in accordance with no. 2 of article 135-B of the IMI Code, are those that perform an instrumental function to industrial, commercial or services economic activities, insofar as they constitute buildings that serve as support for the functioning of said activities, and are not in themselves generators of income.
lxvi. And even if the taxed properties may prove to be instrumental to the economic activity, we have that the same are suitable to indicate that that legal person is the owner of goods that, in themselves, evidence a specific sufficiency in the face of other real property owners.
lxvii. That is, the circumstance that a given good is worth, as "a factor of wealth production" is not sufficient to contradict the finding that the corresponding owner holds a property only accessible to one with peculiar contributive capacity and, thus, capable of bearing an additional contribution for the desired budgetary consolidation.
lxviii. It would only be possible to understand otherwise if the specific quality of the taxpayer and/or its nature were projected in the normative criterion under review.
lxix. Real property, including land for construction, are goods in the economic sense, because their utility and scarcity allows them to be assigned a market price.
lxx. The legislator within its margin of freedom of conforming the factual-legal realities that constitute the basis of AIMI incidence, denotes the concern of encompassing only urban properties classified as buildings for residential purposes held for sale, in the same state in which they are acquired or after a transformation, devoted to rental or otherwise exploited and, as well, land for construction held for sale or for the erection of buildings thereon, with the understanding that these realities may integrate, with greater or lesser weight, the assets of natural persons or legal entities and other equivalent structures.
lxxi. The Respondent understands that article 135-B, no. 2 of the IMI Code is unconstitutional, when interpreted in the sense that the exclusion from taxation provided therein are also properties classified as land for construction whose potential end is not residential, for it violates the constitutional principle of separation and interdependence of powers, enshrined in articles 2 and 111 of the CRP, constituting the same as reference and limit to the powers of cognition of courts in the exercise of their function within the State of Law (cfr. articles 202 and 203 of the CRP), as well as the constitutional principle of equality (cfr. article 13 of the CRP) and, as well, the principle of legality formulated in articles 103, no. 2 and 165, no. 1, subparagraph i), all of the CRP, which is hereby stated for all legal purposes.
lxxii. With regard to the payment of compensatory interest, for all that it has alleged, the Respondent understands that the same are not owed if it is concluded that there is unconstitutionality of the legal regime of AIMI, for in its capacity as a body of the Public Administration it has no competence to decide the non-application of rules as to which doubts of constitutionality are raised.
lxxiii. In conclusion, the Respondent requests that the arbitral pronouncement petition be judged as entirely without merit by not proven, and, consequently, absolved of all requests, in the terms above petitioned, all with the due and legal consequences.
lxxiv. And, should this not be understood, it requests, by appeal to the provisions of article 280, no. 3 of the CRP and article 72, no. 3 of the Law of the Constitutional Court, that notification be made to the Public Prosecutor of the arbitral decision that shall be rendered.
E. Questions to be Decided
In view of the positions assumed by the Parties in accordance with the arguments presented, the following questions must be examined and decided:
a) The legality of the assessment in question, in the portion of €230,442.51, relating to the incidence of AIMI on land for construction with potential future uses of "services" and "commerce";
b) The existence, or not, of the right to interest, under article 43 of the LGT, in the event that the assessments are annulled and the reimbursement of the amounts petitioned is determined, which would have been unduly paid, at the legal rate and until effective restitution;
c) Responsibility for the payment of arbitral costs.
F. Procedural Presuppositions
The Arbitral Tribunal is regularly constituted and is materially competent, in accordance with the provisions of subparagraph a), no. 1, article 2, of the RJAT.
The Parties enjoy legal personality and capacity, are legitimate and are regularly represented in accordance with articles 4 and 10, no. 2, of the RJAT and article 1 of Ordinance no. 112/2011, of 22 March.
The proceedings are not affected by defects that affect its validity.
II. FACTS
§1. Proven Facts
With relevance for the examination of the questions raised, the Tribunal considers the following facts as proven:
1. The Claimant is a Portuguese limited company with registered office and effective management in Portugal.
2. The Claimant's corporate purpose includes, among other activities, real estate activity, that is, the purchase and sale of real property.
3. On 14 August 2018, the Claimant was notified of the AIMI assessment act no. 2018..., relating to the year 2018, which resulted in an amount payable of €523,502.27, of which €230,442.51 relates to land for construction that does not have residential use.
4. The Claimant proceeded with the payment of the assessed tax.
5. The Claimant, in the pursuit of its corporate purpose, is the owner of land for construction corresponding to registration numbers U-..., U-..., U-..., U-..., U-..., U-..., U-..., U-... and U-... of the parish of … and registration numbers U-..., U-..., U-..., U-..., U-..., U-..., U-..., U-..., U-..., U-..., U-..., U-..., U-..., U-..., U-..., U-..., U-..., U-..., U-..., U-..., U-... U-..., U-..., U-... and U-... of the parish of ..., in the municipality of Lisbon.
6. The land for construction owned by the Claimant has more than one use (residential, commercial or services), whereby its tax patrimonial value was determined by the Tax and Customs Authority having regard to the use associated with the final constructions projected for each of them (residential, commercial or services).
7. In the AIMI assessment in question, the totality of the land for construction was considered, for purposes of AIMI incidence, regardless of its respective use.
8. The request for arbitral pronouncement was presented on 29/10/2018.
§2. Substantiation of Proven Facts
The facts given as proven are based on the documents indicated with respect to each one of them, and on the factual elements carried into the proceedings by the Parties, insofar as their adherence to reality was not questioned.
§3. Unproven Facts
There exist no unproven facts with relevance for the examination of the questions to be decided.
III. LEGAL MATTERS
1. Of the Alleged Defect of Violation of Law by Error Regarding Presuppositions of Law
As results from the allegations of the Claimant, there are two questions of a legal nature to which this Tribunal must respond. The first passes through knowing whether the AIMI assessment act identified above is affected by a defect of violation of law, by error regarding the presuppositions of law, namely by erroneous interpretation and application of the provisions of no. 2 of article 135-B of the IMI Code.
The second, to ascertain whether an understanding to the contrary is, or is not, unconstitutional by violation of the principle of equality.
Let us examine, above all, the applicable legislation.
The Additional to the IMI was instituted by Law no. 42/2016, of 28 December (State Budget Law for 2017), which added to the IMI Code chapter XV comprised of articles 135-A to 135-K.
The subjective incidence of the tax is defined in no. 1 of article 135-A in terms of which:
"1 - The taxpayers of the additional to the municipal property tax are natural or legal persons who are owners, usufructuaries or superficiaries of urban properties situated in Portuguese territory".
In turn, article 135-B defines the scope of objective incidence, establishing the following:
"1 - The additional to the municipal property tax incides on the sum of the tax patrimonial values of urban properties situated in Portuguese territory of which the taxpayer is the owner.
2 - Urban properties classified as «commercial, industrial or services» and «other» in accordance with subparagraphs b) and d) of no. 1 of article 6 of this Code are excluded from the additional to the municipal property tax."
For its part, and with relevance for the present case, article 6 of the IMI Code establishes:
"1 - Urban properties divide into:
a) Residential;
b) Commercial, industrial or services;
c) Land for construction;
d) Other.
2 - Residential, commercial, industrial or services are buildings or constructions licensed for such purposes or, in the absence of a license, that have as their normal destination each of these purposes" – bold ours.
The first question that arises is whether, having regard to the aforesaid normative provision, it was the legislator's intention to exempt properties in the category "land for construction" provided that these are intended for the construction of properties devoted to purposes "commercial, industrial or services".
In other words, the question is whether the exclusion provided for in no. 2 of article 135-B of the IMI Code should be interpreted extensively.
The answer, we advance from the outset, is negative and follows from the general principles of legal hermeneutics contained in article 9 of the Civil Code applicable to Tax Law through no. 1 of article 11 of the General Tax Law.
Let us see:
According to no. 1 of article 9 of the Civil Code, "Interpretation should not be limited to the letter of the law, but should reconstruct from the texts the legislative thought, having especially in account the unity of the legal system, the circumstances in which the law was elaborated and the specific conditions of the time in which it is applied".
As Francesco Ferrara states, to interpret the sense of the law, the interpreter avails himself of several means: "First, it seeks to reconstruct the legislative thought through the words of the law, in their linguistic and stylistic connection, it seeks the literal sense. But this is the lowest degree, the initial form of interpretive activity. The words may be vague, equivocal or deficient and offer no guarantee of faithfully and completely reflecting the thought: the literal sense is merely the possible content of the law: in order to say that it corresponds to the mens legis, it must be subject to criticism and control."
And it continues: "Now, in this task of interrelating and valuing that accompanies the apprehension of literal sense, logical elements intervene, and doctrine points to elements of a systematic, historical and rational or teleological order".
Availing itself of the interpretive elements just mentioned, the interpreter will ultimately arrive at one of the following results or modalities of interpretation: declaratory interpretation, extensive interpretation, restrictive interpretation, revocatory interpretation and enunciative interpretation.
With regard, in particular, to extensive interpretation it applies when "the interpreter comes to the conclusion that the letter of the text falls short of the spirit of the law, that the verbal formula adopted errs in defect, for it says less than what was intended to be said. He then enlarges or extends the text, giving it a scope in conformity with the legislative thought, that is, making the letter of the law correspond to the spirit of the law. It will not be a lacuna of the law, because the cases not directly encompassed by the letter are undoubtedly encompassed by the spirit of the law".
Subsuming the aforesaid principles to the case at hand, it will be said, from the outset, what is the literal element that follows from articles 135-A, no. 1 and 135-B, nos. 1 and 2, of the IMI Code is clear and lends itself to no interpretive doubt. By referring, in no. 1 of article 135-B, to subparagraphs b) and d) of no. 1 of article 6 of the same legal compendium, leaving out of the exclusion rule subparagraph c) it is manifest that it was its intention to tax these "properties" regardless of their respective use.
Furthermore, the literal element is not of minor importance. In fact, the letter of the law, or grammatical element is the first element to convoke in legal hermeneutics, and it should be presumed that the legislator knew how to express his thought in adequate terms (no. 3 of article 9 of the Civil Code).
It should also be noted that this conclusion is not called into question by the remaining interpretive elements.
In fact, the tax in question was added to the legal order by Law no. 42/2016, of 28 December (which approved the State Budget for 2017). In the Report accompanying said Law one can read regarding the AIMI:
"To avoid the impact of this tax on economic activity, the scope of incidence excludes rural, mixed, industrial and tourism-related properties, and further allows enterprises the exemption of properties devoted to their productive activity up to €600,000. The possibility of deduction of the amount of tax paid to the collection relating to property income constitutes additionally an incentive to rental and productive use of assets."
This rational found coherence in the version contained in the Bill of General State Budget, which, for no. 2 of article 135-B of the IMI Code, provided the following wording:
"2 - Urban properties classified in the species "industrial", as well as urban properties licensed for tourism activity, the latter provided that their destination is duly declared and proven, are excluded from the additional to the municipal property tax."
It happens that the final version of the bill approved by the Assembly of the Republic was different and extended the exemption to properties classified as "commercial, industrial or services" eliminating the reference to tourism activity.
More. The provision proceeds to classify properties by express reference to article 6 of the IMI Code which, as is known, refers only to their respective use which, in turn, depends on a formal requirement which is their licensing.
As was written in the Arbitral Decision, rendered in proceeding no. 664/2017-T:
"The exclusion from the tax thus encompasses properties classified as commercial, industrial or services, meaning thereby buildings or constructions licensed for such purposes or which have as their normal destination each of these purposes. It further encompasses the residual species referred to in subparagraph d) of no. 1 of that article 6, including therein the land situated within or outside an urban agglomeration that is neither land for construction nor rural property and further buildings and constructions that do not fall into any of the previous classifications.
The scope of objective incidence, by effect of the remission to that article 6, was thus defined not only by reference to a certain species of urban properties, but also by reference to the administrative procedure through which the classification was effected or, in the absence of a license, to the normal destination of such properties for the purposes of commerce, industry and services or other."
Nothing, therefore, in the teleological element, leads to the conclusion that it was the legislator's intention to exclude from the incidence of AIMI land for construction, regardless of its respective use.
The same may be said with respect to the systematic element. In fact, analyzed the AIMI within the general framework of the IMI, with which it is umbilically interlinked, it has been understood that, for the determination of the TPV of land for construction it is irrelevant the use of the projected construction. On this matter the Supreme Administrative Court pronounced itself in an Judgment dated 20/04/2016, and rendered in proceeding 0824/15 (Fonseca Carvalho) in which it was written:
"It follows from this rule that the formula above transcribed has application only to the urban properties therein discriminated, that is, those which being already built are for residential use, commerce, industry and services.
However, the legislator did not include therein land for construction that it also classifies as urban property in article 6 of the IMI Code.
For the determination of the tax patrimonial value thereof there is the rule of article 45 already mentioned where only the area of implantation of the building to be constructed and the adjacent land and the characteristics of no. 3 of article 42 are relevant.
The remaining coefficients are not included therein because they can only relate to buildings, as such.
The use coefficient can only be relevant having regard to the proven use of the built property and also the comfort and quality coefficients.
Such multiplying coefficients of tax patrimonial value relate only to what is built but have no real basis of support in the potential that the land for construction offers."
And, further ahead, in the same judgment:
"But having regard to reality the legislator enshrined for the determination of the tax patrimonial value of this species of property a specific rule – that contained in article 45 where it is reiterated that the value of the area of implantation of the building to be constructed and the value of the land adjacent to the implantation are taken into account as well as the characteristics of accessibility, proximity, services and location described in no. 3 of article 42. Having regard to the approved construction project and the provisions of no. 2 of article 45 of the IMI Code.
Which means that in the determination of its tax patrimonial value of land for construction the mathematical formula enshrined in article 38 of the IMI Code does not apply.
(…)
In land under construction the approved buildings are merely potential and it is the value of that constructive capacity, generating an increase in patrimonial value or wealth for its owner, that is sought to be taxed. And not factors not yet materialized."
As was written in the Judgment of that same Court dated 16/05/2018 and rendered in the context of proceeding 0986/16 (Ascensão Lopes) such conclusion "makes complete sense and gives coherence to the system of IMI taxation since the coefficients provided in this formula can only concern what is already built, which is not the case of land for construction subject to specific taxation, yes, but in which cannot be considered for purposes of patrimonial evaluation factors not yet materialized".
In the context of AIMI, having regard to what has already been expounded regarding the nature of this taxation (as an additional to the IMI), there will be no justifications for diverging from such criterion, that is, for considering that the holding of "land for construction" with buildings projected for different purposes, signals different contributive capacities – cfr. in this sense, also the Decision of CAAD dated 06/09/2018 and rendered in the context of proceeding 690/2017-T (José Pedro Carvalho).
In this sense, and from the systematic point of view, the different treatment given to land for construction (with a certain use) from already built urban properties also does not clash.
The same may be said with respect to the historical element. Having examined the amendment proposals presented in parliamentary debate it is verified that the proposal of the Parliamentary Group of the Socialist Party which, approved, gave rise to the final wording, refers, in the statement of reasons:
"Amendments to the Additional to the IMI resulting from public debate since the presentation of the proposal, ensuring the absence of impact on economic activity, greater progressivity of the tax and the strengthening of taxation of real property assets held by entities resident in tax havens".
This is, therefore, a vague expression, without relevant interpretive content. Nothing in the preparatory works can lead to the conclusion that it was the legislator's intention to exclude from AIMI taxation properties in the category "land for construction" devoted to commerce or services.
Given the foregoing, and in conclusion, it is understood that the requisites on which the necessity of extensive interpretation depends do not obtain, in the case at hand. It is not demonstrated, in particular, that the legislator minus dixit quam voluit.
Now, "in the absence of other elements that induce the choice of the less immediate sense of the text, the interpreter should opt in principle for that sense that best and most immediately corresponds to the natural meaning of the verbal expressions used, and namely to their technical-legal meaning, in the supposition (not always exact) that the legislator knew how to express his thought correctly.
In the case at hand, having regard to the departure from the proposed wording in which relevance was given to the use of the property, there is no reason to conclude that the legislator did not know how to express its thought in adequate terms, as must be presumed, by force of article 9, no. 3, of the Civil Code."
The verbal content of the law is the limit, within the purpose or ratio underlying it and the system in which it is inserted, which cannot be surpassed by the interpreter. As Manuel de Andrade refers, "Only to the extent of the tolerance of the text and the elasticity of the system is the interpreter able to resolve for an interpretation that gives the law a sense more just and suited to the demands of life".
In the case at hand, it seems to us that the literal content leaves no margin for any doubts.
As was written in the Arbitral Decision dated 26 June 2018 and rendered in proceeding no. 664/2017-T (Carlos Fernandes Cadilha) regarding no. 2 of article 135-B of the IMI Code: "Having the law defined the scope of incidence of the tax through technical legal concepts used elsewhere in the system, it is certainly with that sense that the scope of applicability of the legal provision must be defined. Norms sometimes have more than one meaning and then the positive function of the text translates to giving stronger support or suggesting more strongly one of the possible senses. But if the legislator resorted to special technical-legal language, to express with greater precision his thought, it falls to the interpreter to avail himself of the technical-legal meaning of the expressions used, dispensing with circumstantial elements that could only lead to an interpretive result not intended by the legislator (cfr., in this sense, Baptista Machado, Introduction to Law and to Legitimizing Discourse, Coimbra, 1993, p. 182) – bold ours.
And it concludes:
"In fact, article 135-B of the IMI Code limited itself to excluding from the additional to the tax properties classified as «commercial, industrial or services» and «other», referring to the characterization that is effected in article 6 of that Code as to those species of urban properties."
As we have seen, that provision distinguishes, in its no. 1, among properties "residential", "commercial, industrial or services", "land for construction" and "other" and defines in subsequent numbers the normative criteria on which depends the classification of an urban property in any one of those species. Land for construction are, as results from no. 3 of that article 6, the land that have been covered by a subdivision operation or building license and are not intended for other urbanistic purposes, and do not confuse with properties classified as "commercial, industrial or services", which are those that are licensed for those purposes or, in the absence of a license, have as their normal destination each of those purposes.
Having the legislator defined an exclusion clause by express and precise reference to certain species of urban properties, which are immediately identifiable in the context of the law, it is not possible to effect an extensive interpretation so as to include other typologies that the legislator manifestly did not wish to consider. Not even being able to arrive at that interpretive result on the basis of mere considerations of a pragmatic order or of teleological identity.
Even if justified, from a fiscal policy perspective, to confer on land for construction intended for buildings for commercial, industrial or services purposes the same status that came to be attributed to properties classified as "commercial, industrial or services", the fact is that such was not the legislative choice, which limited itself to excluding from the scope of incidence of the tax such types of properties and not those others that could potentially be used for those same purposes" – bold ours.
In the same sense, and beyond the judgments already invoked see, for example, 04 May 2018, rendered in the context of proceeding no. 675/2017 (Jorge Lopes de Sousa), of 16 July 2018, rendered in the context of proceeding 676/2017-Ta (Fernanda Maçãs).
2. Of the Alleged Substantive Unconstitutionality by Violation of the Principle of Equality
The Claimant further considers that an interpretation contrary to that which it propounds will be materially unconstitutional by violation of the principle of equality, basing its position on arbitral decisions which it considers favorable to its position.
It should be said, from the outset, that it is not correct.
In fact, the question underlying the present case was recently examined by the Judgment of the Constitutional Court (Plenary) no. 299/2019, dated 21 May 2019 and rendered in proceeding 752/2018 (Fernando Ventura).
With relevance for the present case, it was written therein:
"21. Beyond the broader critique of the objective incidence of AIMI that has been examined, the appellant specifically problematizes the situation of land for construction. It points to the fact that the normative sense impugned involves the taxation of land for construction with use established for purposes of commerce, industry, services or other, when the subjection to AIMI is excluded with respect to buildings built for these same purposes, regardless of their actual use. It considers that one is faced with legal-subjective situations deserving of the same treatment, without there existing a material reason that constitutionally legitimizes the difference. Also on this point it is not correct, for it places in confrontation realities materially distinct, in light of the tax fact and the economic presupposition of AIMI.
In truth, the incidence of the tax on «land for construction», as defined in no. 2 of article 6 of the IMI Code, follows from the fact that construction rights or subdivision operations have been constituted therein, whether by way of administrative act granting a license or authorization, whether by the tacit recognition resulting from the admission of prior communication, whether, further, by the favorable response to a request for prior information or issuance of prior information favorable to a subdivision or construction operation. Accessorily, the legislator also accepted, as a criterion of use for the construction of the land, that it be expressly acquired for such purpose and that it possess constructive viability.
And, in accordance with the normal functioning of the market, the ownership of rights over a plot of land relative to which construction or subdivision rights have already been constituted or which is recognized as meeting conditions of constructive viability, configures a wealth susceptible of autonomous evaluation from what may be built, by force of the legally founded expectation that comes to be incorporated in the legal-subjective sphere of its owner. As José Pires refers (Lessons on Taxes on Patrimonial Assets..., p. 140):
«On the market, the value of land for construction 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 depends on public powers, which is its construction potential, namely the authorized volume and the characteristics of a reality that does not yet exist, which is the urban property that will be able to be built on it.
The value of land for construction corresponds, fundamentally, to a legal expectation, embodied in a right to construct thereon a property with certain characteristics and with certain value. It is that expectation of production of wealth materialized in a property to be built that makes the value of the assets and wealth of the owners of the land for construction increase, once the land is considered as being for construction. For that reason, the greater the value of the properties to be built, the greater is the value of the land for construction.
We must take into account that on the land nothing is yet built, but the mere constitution of a right to construct thereon makes its value increase immediately. Moreover, the measure of that value also always depends on the value of the property that will be built thereon. It is thus that the market mechanisms function and it was also thus that the legislator conceived the model for valuation of land for construction».
The recognition by the legislator that land for construction translates a patrimonial position of its owner and its own market value, renders useless the invocation of the purpose and the value corresponding to the property that may be built thereon: land for construction and built property are not economic realities equivalent or assimilable, in the domain of taxation of urban real property assets. So it was affirmed by the Court, with emphasis on the pronouncement of the Plenary in the already-mentioned Judgment no. 378/2018, doctrine entirely transposable to the norm of AIMI here reviewed:
«[It is] clear that, for the effect of application of the Code of Stamp Tax, just as for the effect of application of the IMI Code, a land for construction is not equal to an urban property, whether it is for housing or for other purposes (...). But, precisely because it is so, it is not possible to make tax criteria act retroactively, even if merely for purposes of analysis or legal construction, which apply only after the construction of the building, not before it.
As was emphasized, what is relevant for purposes of application of the norm of heading 28.1 is the legal-patrimonial situation existing on the date of the tax obligation payment due date, and thus, by reference to the concrete tax fact existing on that date should be evaluated the existence, or not, of a rational or reasonable foundation for justifying the legal-tax consequences that immediately emerge from it.
The legally relevant transformations that the object of ownership comes to undergo during the passage of time, starting from that moment, resulting, namely, from the possibility of a building being constructed on land for construction of lower value, configure hypotheses of verification and content uncertain, even considering the existence of a licensing in those terms, which may come to be altered or not even used. They cannot, therefore, be decisively relevant in the evaluation of the constitutionality of norms, or segments of them, which, by virtue of its occurrence will cease to be applicable».
Also within the scope of incidence of AIMI, even though guided by a personal perspective, it cannot be denied that land for construction are well distinct from urban properties already constructed and devoted to a specific purpose by way of licensing or normal use. In fact, and resting, as has been seen, the reason for the non-taxation of urban properties, 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, so as to increase economic growth -, land for construction can only contribute to that goal in potential, in a hypothetical and conditional future, for even if a right to construct has been formed, nothing prevents the change of will of its owner as to the destination to give to the property. Beyond which, what is relevant for purposes of annual AIMI taxation is the tax patrimonial value of the property existing and recorded on the registry, for one cannot tax a future and eventual contributive capacity, but only the current and effective contributive capacity. Land for construction constitutes an economic asset with patrimonial value, in itself revealing the contributive capacity of its owner, and is, therefore, constitutionally legitimized in its inclusion in the patrimonial set globally subject to AIMI, regardless of what is actually implanted thereon.
22. From the provisions of article 41 of the IMI Code, which establishes the use coefficients for purposes of calculation of tax patrimonial value, the appellant questions the reason why the index fixed by the legislator for commercial properties and for services is higher than that of residential properties (conclusion OOOO, which repeats verbatim the formulation and the note appended to article 123 of the body of the allegations), after which she develops argumentation voted to convince that the use for commerce, industry or services "is not exclusive to properties classified as "commercial, industrial and 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 from incidence with respect to «all "land for construction" that have a (potential) use for commerce, industry, services or other» (conclusions ZZZZ to WWWWW).
It becomes evident that, on that point of the appeal, as on others (cfr. last paragraph of point 8, above), we are faced with argumentation situated on the infraconstitutional plane, voted to affirm the verification of error of judgment, by deficient interpretation of ordinary law, as follows from the titling of that segment of the appeal – «the (illegal) disregard of the legal criterion of the use of the property» - and 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 the IMI». Now, the Court appealed from rejected the interpretation defended by the appellant, considering it without «any basis in light of the general criteria of legal hermeneutics», which judgment, it is repeated, is imposed on this Court as a given.
But, beyond this discussion about ordinary law, the appellant argues that «it constitutes discriminatory and arbitrary treatment the taxation in AIMI of a "land for construction" with a potential use for [purposes of commerce, industry, services or other], while it is not taxed in this same Additional a building built with this same potential use», affirmation which is rooted in the consideration of use coefficients (Ca) and location coefficients (Cl) both in the calculation of tax patrimonial value of built properties, as of land for construction (article 45 of the IMI Code),
This view rests on the presupposition, which we have already seen as incorrect, that the ratio of the tax requires that incidence be cut according to a case-by-case evaluation of the use of the property to an economic activity. Rather, the legislator mobilized the same objective normative criteria on which depends the classification of an urban property in any one of the species provided for in article 6 of the IMI Code, for which it is irrelevant whether the owner of the property uses in all its latitude, or does not use at all – for reasons of opportunity or otherwise - the suitability of the same for the purpose for which it is licensed or which it normally is intended. Such consideration would be relevant in another model of taxation of assets and calculation of its respective value, in which the product-income were taken into account, which is not that which came to be positivized in the reform operated in 2003. In this, the criterion of real or market value prevailed to ascertain its respective value, from the rigid categories provided for in article 6. (On the various models of taxation of assets and their evolution in Portugal, cfr. CASALTA NABAIS, «Regarding the Additional to the Municipal Property Tax», cit., pp. 32-45; and JOSÉ PIRES, Lessons on Taxes on Patrimonial Assets..., pp. 16-32, and The Additional to the IMI..., pp. 29-38).
The specific criteria for calculation of tax patrimonial value invoked by the appellant do not place themselves outside that paradigm, not intending the use coefficient regulated in article 41 to reflect a rationality different from that underlying the classification of the 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 interpretive doubts (of which an example is the question resolved in the Judgment of the Supreme Administrative Court, plenary formation, of 21 September 2016, proceeding no. 01083/13, accessible at www.dgsi.pt), from the
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