For years, the tax authorities calculated the added value based on the assessment used for the IMT and not the real value of the sale of the property. The Constitutional Court has declared this unconstitutional practice and will oblige the return of the money charged to taxpayers.
The Constitutional Court (TC) declared unconstitutional the practice of the Tax and Customs Authority (AT) to calculate real estate value Based on the assessment value used for IMTinstead of the real value of sale, whenever it was inferior. This decision, made on May 6, has retroactive effects and requires the tax authorities to correct the cases affected by 2014, and may result in the return of misappropriate amounts charged to many taxpayers.
The problem lies in the way the AT interpreted the IRS code for several years. The law allows, in certain situations, that the added value are calculated based on the assigned patrimonial value For the purposes of the Municipal Tax on the Onnerous Transmissions of Real Estate (IMT), if it is higher than the value of the declared sale, explains the.
However, the general tax law already provided that the taxpayer could contrarydemonstrating the real value of the transaction. Nevertheless, the OT often ignored this possibility, insisting on the automatic application of the highest, practical value that the TC now considers violating the principle of contributory capacity and, therefore, of tax equality.
The paradigmatic case involves a Leiria taxpayer who, in 2006, sold a property for 150 thousand euros. AT, considering the value of the assessment for IMT of 350,800 euros, calculated the added value based on this higher value, ignoring bank evidence presented by the taxpayer about the actual value of the sale. This behavior, common before the legal change of 2014, motivated successive judicial decisions against the tax authorities.
With three TC judgments in the same vein, the prosecutor requested the abstract inspection of the norm, now culminating in its declaration of unconstitutionality with general mandatory force. This requires AT to review all similar processes still pending and to return the amounts improperly charged with interest.
The Ministry of Finance has already confirmed that the OT will comply with the decision, stressing that the same does not affect settlements after 2015since the IRS code has, from that date, to expressly predict the prevalence of the real value of the sale, provided that it is proven by the taxpayer.
