Supreme changes understanding after one year and changes decision on tax collection

Supreme changes understanding after one year and changes decision on tax collection
Supreme changes understanding after one year and changes decision on tax collection

BRASILIA – O Federal Supreme Court (STF) decided on the proposal to modify a decision of the Court itself in which the payment of the Tax on Transfer of Real Estate (ITBI) only at the time of registration of the property in the notary’s office. The decision was taken on trial in the virtual plenary, which ended with a score of 7 votes in favor and 4 against the change.

With the change, municipal laws come into force that determine the payment of ITBI before registration, as in the signing of the purchase and sale commitment term. Normally, municipalities charge between 2% and 3% of the value of the property.

With the change, municipal laws that determine the payment of ITBI before registration, as in the signing of the purchase and sale commitment term Photograph: Werther Santana/Estadão

In February of last year, the ministers decided that the collection of ITBI should only be made after the transfer of real estate property, which started to be carried out only by means of registration in a notary’s office. the municipality of Sao Paulo had filed an appeal against the decision of the State Court of Justice (TJ-SP) that considered the collection of ITBI illegal based on the assignment of rights signed in contracts for the purchase and sale of property between individuals.

In the trial taken to the virtual plenary last week, the Supreme judged a new appeal by the municipality of São Paulo. This time, city representatives asked the Court to reassess the decision. The case was distributed to President Luiz Fux, who voted to uphold the ruling handed down last year, in addition to recognizing the importance of the case and its potential impact on other processes. He was accompanied by ministers Alexandre de Moraes, Cármen Lúcia and Rosa Weber, who were eventually defeated.

Minister Dias Toffoli opened the divergence on the grounds that the thesis fixed by the Supreme in 2021 had not considered all the ITBI collection hypotheses under discussion in the process and defended the invalidation of the first decision. Like Fux, Toffoli defended the general repercussion and the constitutionality of the case, which must now have a new trial to analyze the merits. He was accompanied by ministers Ricardo Lewandowski, Luiz Edson Fachin, André Mendonça, Nunes Marques, Luís Roberto Barroso and Gilmar Mendes.

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“There is no precedent set in terms of general repercussion, which highlights the need for the Full Court to look in depth at the exact scope of the various situations referred to in the aforementioned provision, especially regarding the relevant discussion regarding the ITBI collection on assignment of rights related to the acquisition of property”, argued Toffoli.

The article is in Portuguese

Tags: Supreme understanding year decision tax collection

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