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Justice forces Salvador to launch ITIV for the declared value of the property – Article

The thesis of repetitive appeal 1,113 of the Superior Court of Justice (STJ) has based the decisions handed down by the Court of Justice of the State of Bahia so that the Municipal Finance Department of Salvador (SEFAZ) issues the municipal collection document (DAM) referring to the collection of the Inter Vivos Transfer of Real Estate Tax – ITIV, according to the market value of the property declared by the taxpayer. Salvador City Hall insists that the value of the transferred property is not the purchase price of the property, contesting the injunctions issued.

In the brilliant decision of the 13th Court of the Public Treasury of Salvador, in Civil Writ n. 8097955-08.2022.8.05.0001, the Illustrious Judge Andrea Paula Matos Miranda assured the plausibility of the request due to the relevance of the reasoning (fumus boni iuris) and the presence of the danger of delay (periculum in mora), when the taxpayer requested that it be recognized the illegality of the collection of the ITIV of Salvador based on the value unilaterally established by the treasury administration.

He asserted that “the declared value of the transaction is consistent with the market value of the asset, since the National Tax Code (CTN) in its article 38 establishes that the ITIV calculation basis is the market value of the assets or rights transferred and by market value is understood the market value of the good, therefore, the granting of the preliminary injunction is mainly due to the presumption of veracity of the declaration, resulting from the application of the principle of good faith”.

He adds that “the market value of a property is influenced by several factors, such as location, size, built-up area, state of conservation, improvements, so that there is no way to establish this value in advance. In this line, the value indicated by the taxpayer must prevail. The danger of damage is also configured in the type, considering that the non-payment required by the tax authorities will cause losses to the Petitioner, who will be unable to formalize the real estate registration, and if collected for a greater amount, it will have difficulties to recover the undue amount later”.

In this way, the request for injunctive relief was granted, obliging the coercive authority, namely the Municipal Secretary of Finance of Salvador or its agents, to issue the ITIV payment DAM, based on the value of the transaction declared by the taxpayer. , not allowing the tax to be arbitrated by the tax administration. It is urgent that the Municipal Executive Power act quickly to adapt the procedures of SEFAZ, under penalty of causing serious damage to the treasury in the face of successive decisions unfavorable to the Salvadoran tax authorities.

*Karla Borges is a professor of tax law

*Articles reproduced in this space do not necessarily represent the opinion of Bahia Notícias

The article is in Portuguese


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