The Federal Supreme Court (STF) will reexamine the possibility of the levy of ITBI (Tax on the Transfer of Real Estate) on the assignment of rights relating to a commitment to purchase and sell real property.
In the virtual session concluded on 8/26, the Plenary, by a majority of votes, accepted an appeal (motion for clarification) from the Municipality of São Paulo in Extraordinary Appeal with Interlocutory Appeal (ARE) 1294969, with general repercussion (Theme 1124). With the decision, the Court will rediscuss the merits of the controversy.
In the ARE, the municipality challenged, before the Supreme Court, a decision of the State Court of Justice (TJ-SP) that considered illegal the levy of ITBI having as its triggering event the assignment of rights arising from a commitment to purchase and sell real property entered into between private parties.
Its argument was that this commitment is an intermediate transaction between the conclusion of the commitment itself (originating transaction) and the sale to a third-party buyer (subsequent transaction), and that, according to the Federal Constitution (article 156, item II), the registration at the notary’s office is irrelevant for the levy of the tax.
In a judgment held in February 2021, the STF considered that the decision of the TJ-SP was in accordance with the Court’s understanding that the triggering event of ITBI occurs as of the transfer of real property ownership, effected through registration at the notary’s office.
In the motion for clarification, the municipality argued, however, that the prevailing case law deals only with the transfer of real property ownership.
Absence of current precedents
In the opinion leading the judgment, Justice Dias Toffoli accepted the argument and explained that the precedents adopted in the judgment of the ARE deal with the hypotheses of a commitment to purchase and sell real property or a promise to assign rights. However, the controversy, in this case, refers to the assignment of rights relating to the commitment to purchase and sell.
Toffoli observed that article 156, item II, of the Federal Constitution provides three hypotheses for the levy of the tax – two related to transfer and one to assignment – in which the case at hand would fall. However, according to him, in the most recent discussions at the Supreme Court regarding ITBI, there was no in-depth debate on this last hypothesis, and only in old judgments, still under the validity of the 1946 Constitution, was the matter the subject of more solid discussions.
The Justice noted that the thesis established in the judgment of the ARE, that the triggering event of ITBI is the effective transfer of real property ownership, does not encompass the hypothesis discussed in the appeal. He further emphasized that there is no precedent established under general repercussion regarding the hypotheses of item II of article 156 of the Federal Constitution, which, in his view, evidences the need for the Court to examine, in depth, the scope of the various situations mentioned in the provision, especially the assignment of rights relating to the acquisition of real property.
New judgment
In his opinion, the Justice accepted the motion for clarification to recognize the existence of a constitutional matter and its general repercussion, but without reaffirming case law, which leads the matter to be submitted to a new judgment on the merits. The understanding was followed by Justices André Mendonça, Nunes Marques, Edson Fachin, Luís Roberto Barroso, Ricardo Lewandowski, and Gilmar Mendes.
Absence of omission
The reporting justice of the appeal, Justice Luiz Fux, voted to reject the motion for clarification, considering that the legal questions raised by the parties were adequately decided with the application of the prevailing case law.
For him, there is no omission, contradiction, or obscurity that would justify modifying the decision. This understanding was followed by Justices Rosa Weber and Cármen Lúcia and by Justice Alexandre de Moraes.
Read also
ITBI is not levied on the assignment of real property rights
← Back to blog