Eliminating the mandatory reporting of these gains could have a direct impact on the incidence of tax. For this reason, constitutionalist José Luís Moreira da Silvaconfirms the 'risk of unconstitutionality'.
'The incidence, rate, tax benefits and guarantees for taxpayers can only be changed by Parliament. And here we have the question of the incidence of the tax,' he emphasises, quoting Article 103(2) of the Constitution.
Faced with this 'legal uncertainty', it remains to be seen whether the President of the Republic will request a preventive review of the constitutionality of the decree, suspending its effects within eight days of receiving it. If the judges at Ratton Palace confirm that the decree is unconstitutional, the Head of State cannot promulgate it and will have to return it to the government.
If the legal text passes Marcelo Rebelo de Sousa's sieve, the constitutionalist states that 'Parliament can raise a review of the decree at the request of 10 deputies, within 30 days of publication, excluding periods of suspension of the functioning of the Assembly of the Republic'.
'The law can also be suspended until a decision is made by the deputies to confirm or reject it,' he adds. However, if Parliament approves changes to the decree, 'the problem of organic unconstitutionality is resolved, because the decree becomes a law of the Assembly of the Republic,' he clarified.
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