A decisão do TJUE no processo C-388/19
: discriminação dos sujeitos passivos não residentes ou residentes em Portugal?

  • Giovana Pagano Baptista (Student)

Student thesis: Master's Thesis

Abstract

The Personal Income Tax has assumed, in the part that regulates real estate capital gains, enormous jurisprudential protection in recent years. As it is a direct tax levied on a large number of taxable persons, it has generated a lot of controversy between the Portuguese courts and the Portuguese legislator, even reaching the fundamental mechanism of EU law: the preliminary ruling to the Court of Justice of the European Union. With this study, we intend to give relevance to the controversy discussed in this time hiatus regarding capital gains from property income, in particular the difference in regime between residents and non-residents in Portugal, which has been the subject of successive legislative changes. The truth is that the regime, which made use of the residence criterion to distinguish the taxation method, was considered discriminatory towards non-residents in our territory and, consequently, incompatible with European Union Law, in concrete violation of freedom of movement of capitals. In this regard, emphasizing the guidance for pending cases carried out by the Portuguese Tax Authority within the scope of the Supreme Administrative Court's jurisprudence standardization decisions, the discrimination identified by the TJUE in relation to non-residents was reversed, starting to be identified in in relation to taxpayers resident in Portugal, who are now disadvantaged in their regime. We will address some arguments defended in this jurisprudential discord until, finally, culminate in the analysis of the proposal for the year of 2023 National State Budget that intends to put an end to this discussion.
Date of Award15 Jun 2023
Original languagePortuguese
Awarding Institution
  • Universidade Católica Portuguesa
SupervisorMarta Vicente (Supervisor)

Keywords

  • Real estate capital gains
  • Taxation according to residence
  • Negative harmonization
  • Restrictions on the movement of capital
  • Discrimination
  • Reverse discrimination

Designation

  • Mestrado em Direito

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