Understand when ITBI must be paid and what the correct rate is.
11 de December de 2024, às 22:26
Alcemir Junior
The Real Estate Transfer Tax (ITBI) is a municipal tax and, therefore, each municipality can decide on the basis for calculating this tax, which generates numerous administrative and judicial proceedings.
In order to standardize the issue, reducing or ending litigation, the STJ has established that:
"a) the basis for calculating the Real Estate Transfer Tax (TBI) is the value of the property transferred under normal market conditions, and is not linked to the IPTU tax base, which cannot even be used as a tax floor;
b) the value of the transaction declared by the taxpayer is presumed to be in line with the market value, which can only be overturned by the tax authorities through regular administrative proceedings (art. 148 of the CTN);
c) the Municipality cannot previously arbitrate the ITBI calculation basis based on a reference value that it establishes unilaterally".
In other words, the calculation basis must be the value declared by the parties, and it is up to the municipality to initiate administrative proceedings and demonstrate the arguments for increasing this basis.
Another important point in this decision is when payment is due. The decision held that payment is only due when the contract has been registered with the real estate registry, and that it is illegal to charge based on private instruments that have not been registered with the real estate registry.
Firms and professionals who are well-informed on tax and real estate matters should be consulted to help the parties from the moment of negotiation, for the proper drafting of the contractual instrument, to the finalization of the respective notarial acts and real estate registrations.
In order to standardize the issue, reducing or ending litigation, the STJ has established that:
"a) the basis for calculating the Real Estate Transfer Tax (TBI) is the value of the property transferred under normal market conditions, and is not linked to the IPTU tax base, which cannot even be used as a tax floor;
b) the value of the transaction declared by the taxpayer is presumed to be in line with the market value, which can only be overturned by the tax authorities through regular administrative proceedings (art. 148 of the CTN);
c) the Municipality cannot previously arbitrate the ITBI calculation basis based on a reference value that it establishes unilaterally".
In other words, the calculation basis must be the value declared by the parties, and it is up to the municipality to initiate administrative proceedings and demonstrate the arguments for increasing this basis.
Another important point in this decision is when payment is due. The decision held that payment is only due when the contract has been registered with the real estate registry, and that it is illegal to charge based on private instruments that have not been registered with the real estate registry.
Firms and professionals who are well-informed on tax and real estate matters should be consulted to help the parties from the moment of negotiation, for the proper drafting of the contractual instrument, to the finalization of the respective notarial acts and real estate registrations.
