Request for a preliminary ruling from the Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa — CAAD) (Portugal) lodged on 27 February 2020 — RC v Autoridade Tributária e Aduaneira

(Case C-103/20)

Language of the case: Portuguese

Referring court

Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa — CAAD)

Parties to the main proceedings

Applicant: RC

Defendant: Autoridade Tributária e Aduaneira

Questions referred

1. Do Articles 12 EC, 18 EC, 39 EC, 43 EC and 56 EC preclude national legislation, such as that in dispute in the main proceedings, that, by default, subjects capital gains resulting from the disposal of immovable property situated in a Member State, where that disposal was made by a resident of another Member State, to tax treatment different from that which would apply, in relation to the same type of transaction, to capital gains realised by a resident of the State in which that immovable property is situated, but provides that the non-resident taxable person can elect to be taxed in the same way as a resident taxable person?

2. Specifically, do those provisions of EU law preclude the coexistence of:

a rule according to which a special rate of tax of 28% applies to capital gains on immovable property realised by non-residents;

a rule according to which only 50% of the balance of capital gains realised in a year is taken into account in relation to disposals made by residents; and

a rule according to which residents in another EU Member State can elect to be taxed at the general rates applicable to residents (instead of the special rate applicable to non-residents) provided they aggregate their entire income, including income obtained inside and outside the territory of that Member State, on the same terms as apply to residents?

3. That is to say, do the provisions of EU law preclude a non-resident from having to elect between

(i)    being taxed on 100% at the special rate; or

(ii)    being taxed on 50%, in the same way as residents, at the rates applicable to residents provided they aggregate their entire income on the same terms as apply to residents?

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