Request for a preliminary ruling from the Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa – CAAD) (Portugal) lodged on 29 March 2021 – VX v Autoridade Tributária e Aduaneira

(Case C-224/21)

Language of the case: Portuguese

Referring court

Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa – CAAD)

Parties to the main proceedings

Applicant: VX

Defendant: Autoridade Tributária e Aduaneira

Questions referred

Must Article 63 TFEU, read in conjunction with Article 65(1) TFEU, be interpreted as meaning that it precludes a personal income tax scheme which a Member State operates as part of direct taxation and which, in the case of non-resident taxable persons and earnings from capital gains realised through the sale of immovable property situated in that Member State, combines two legal regimes, under one of which (i), a special proportional flat rate of 28% is applied to all earnings from capital gains (the tax base), calculated in accordance with the general rules for the determination (quantification, quantum) of such earnings, while, under the other (ii), the rules for residents apply, meaning that, once earnings realised from capital gains have been calculated in accordance with those general rules, account is taken of only half (50%) of those earnings (the tax base) and those earnings (50% of the capital gains) are ― compulsorily ― cumulated (by increment, aggregation) with the other income which the taxable person has earned worldwide that year, in order then to determine the tax rate applicable to the totality of those incomes on the basis of the general schedule applicable to residents (comprising rates, arranged by band, ranging from 14.5% to 48% which can be increased by a maximum rate of 5% if the total amount of income exceeds certain thresholds), that tax rate being applicable, in the case of non-residents, exclusively to the abovementioned income, that is to say to capital gains from property, which are taken into account in the proportion of 50% (whereas, in the case of residents, the rate so calculated is applied to the abovementioned income and the other income earned that year)?

It is to be noted that a non-resident taxable person must opt for one or other of the available regimes on the income tax return which he or she is in any event obliged to submit in the Member State [in question] (Portugal), whether he or she chooses to be taxed under the general regime for non-residents [set out in point (i) above] or elects to be taxed under the regime applicable to residents [as set out in point (ii) above], and on which he or she must tick one of those two options. It must be observed that the obligation for non-residents to file a return (submission of a form 3 income tax return) existed even before the adoption of the legislative amendment whereby the possibility of opting for the regime applicable to residents was included on the official form

It may be noted that, when opting to be taxed under the regime applicable to residents, a non-resident must specify (on the return itself) the total amount of all the income he has earned worldwide during the year.

Must Article 63 TFEU, read in conjunction with Article 65(1) TFEU, be interpreted as meaning that it precludes a personal income tax scheme which a Member State operates as part of direct taxation and under which, while, in the case of (a) residents, earnings from capital gains, reduced by 50% (the tax base), are compulsorily cumulated with any other income which the taxable person may have earned worldwide during the same year (with no opt-out option), the sum thereof determining the resident’s total annual income, to which the progressive tax rates, arranged by band, that comprise the general schedule are applied (after personal reductions and deductions have been made), in the case (b) of non-residents, a special flat rate is applied to total earnings from capital gains (the tax base) (once the value of those earnings has been determined in accordance with the same rules as apply to residents)?

It should be noted that, in case (a), the progressive rates range between 14.5% and 48%, and the upper marginal rate can be increased by up to 5% if the total amount of income exceeds a certain threshold, while, in case (b), the special rate is 28%.

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