The Superior Court of Justice, under the rite of repetitive special appeals (Theme 1.113), established three theses regarding the calculation of Real Estate Transfer Tax (ITBI) in purchase and sale transactions.
The decision put an end to a long-standing discussion on how the tax should be levied, especially since the amount stipulated by the municipalities was usually much higher than the price agreed by the parties to the real estate deal, as it was calculated on the sale value, completely ignoring the value of the actual sale of the property.
As a result of this reality, the STJ held that the tax base corresponds to the value of the property under normal market conditions, regardless of the calculation base used to demand the IPTU.
It was also established that the value of the transaction declared by the taxpayer is presumed to be in line with the market value, which presumption can only be overturned through administrative proceedings, and it was also recognized that it is impossible for the municipality to arbitrate the tax base in advance based on a reference value that it establishes unilaterally, as is the case with the venal value.
As a result of the decision, the tax collection of municipalities has suffered a great impact, because countless taxpayers (especially those domiciled in the Municipality of São Paulo) have filed a lawsuit for refund of amounts overpaid in the last 5 (five) years, whose claims have been judged in favor of the taxpayer, both in the first instance and in the Court of Justice itself.
The basis of the rulings has been the illegality of charging a higher amount than that which actually corresponds to the real estate transaction, and recognizing that the refund must be increased by interest on arrears and monetary correction.
There is no doubt that the very correct theses established in the judgment on this issue mean a great victory for taxpayers, who in addition to being refunded the amounts unduly collected, also no longer have to make the payment calculated on an exorbitant amount, giving greater legal certainty to real estate transactions.
However, it is necessary that, when carrying out the real estate purchase and sale transaction, the taxpayer gathers and keeps on file proof of the value actually transacted, because of the possibility of the tax authorities instituting administrative proceedings to ascertain any inaccuracy in the declared value or the unreliability of the respective declaration.
