Post by firoj8240 on Jan 11, 2024 3:17:23 GMT
Article 156, CF, determines that it is up to municipalities to impose a tax on the "inter vivos" transfer, for any reason, by onerous act, of real estate, by nature or physical accession, and of real rights over real estate, except those of guarantee, as well as assignment of rights to its acquisition. SpaccaA recent controversy arose with the decision of the STJ, in Repetitive Theme 1.113 , whose rapporteur was minister Gurgel de Fariawho, among other provisions, understood that the ITBI calculation basis could not be the same as IPTU, although, in the respective rules, the same expression "market value" is used. In fact, the CTN, which publishes general tax rules (article 146, III, CF), establishes that the basis for calculating IPTU is the market value of the property (article 33). It appears that the old "tax on the transfer of real estate and rights relating to them", which was exclusively the responsibility of the states, also had as its calculation basis the market value of the assets or rights transferred (article.
This second tax requires a modulated reading , as before CF/88 the tax jurisdiction to collect transfer tax resided only in the states, whether "inter vivos" or "cause of death". In 1988 this was split and the municipalities began to have the competence to tax the aforementioned "inter vivos" operations (ITBI), with only the "cause of death" uses registration information regarding location (neighborhood), size, type of construction, etc. Did the STJ decide correctly? The ruling states that the market value, for ITBI purposes, "does not prevent the specific market valuation of each property transacted from Betting Number Data fluctuating within the average parameter, depending, for example, on the existence of other equally relevant and legitimate circumstances for determining the real value of the thing, such as the existence of improvements, the state of conservation and the personal interests of the seller and buyer in adjusting the price" .
The logic exposed is correct, which starts from the conception that one thing is the value of the transaction , another is the value of the good . We all know that a property can be registered with the municipality as having a "market value" of R$100.00, but, for various reasons, it ends up being sold for R$200.00 or R$80.00. This implies an amount different from the "registered market value", and is closer to the "practiced value", which, as seen, can be higher or lower. As a corollary of this understanding, the ruling states that "in view of the principle of objective good faith, the value of the transaction declared by the taxpayer is presumed to be consistent with the average market value of the property transacted, a presumption that can only be rebutted by the tax authorities if this value immediately proves to be incompatible with reality" . The ruling discusses issues relating to the modalities for launching the ITBI, which I will not address for the purposes of this presentation.
This second tax requires a modulated reading , as before CF/88 the tax jurisdiction to collect transfer tax resided only in the states, whether "inter vivos" or "cause of death". In 1988 this was split and the municipalities began to have the competence to tax the aforementioned "inter vivos" operations (ITBI), with only the "cause of death" uses registration information regarding location (neighborhood), size, type of construction, etc. Did the STJ decide correctly? The ruling states that the market value, for ITBI purposes, "does not prevent the specific market valuation of each property transacted from Betting Number Data fluctuating within the average parameter, depending, for example, on the existence of other equally relevant and legitimate circumstances for determining the real value of the thing, such as the existence of improvements, the state of conservation and the personal interests of the seller and buyer in adjusting the price" .
The logic exposed is correct, which starts from the conception that one thing is the value of the transaction , another is the value of the good . We all know that a property can be registered with the municipality as having a "market value" of R$100.00, but, for various reasons, it ends up being sold for R$200.00 or R$80.00. This implies an amount different from the "registered market value", and is closer to the "practiced value", which, as seen, can be higher or lower. As a corollary of this understanding, the ruling states that "in view of the principle of objective good faith, the value of the transaction declared by the taxpayer is presumed to be consistent with the average market value of the property transacted, a presumption that can only be rebutted by the tax authorities if this value immediately proves to be incompatible with reality" . The ruling discusses issues relating to the modalities for launching the ITBI, which I will not address for the purposes of this presentation.