Tax Law, Corporate Law and Compliance
RECENT DECISION STJ UNDERSTAND THAT BASIS FOR CALCULATING THE ITBI MAY BE GREATER THAN THE PROPERTY TAX Autor: Camila Quadros Oliveira OAB/RS 78.854 Área Tributária e Societária da Scalzilli.fmv Adv.& Assoc.
The Superior Court of Justice ( STJ ) , in a unanimous decision of the 2nd Class, held that the Tax on the Transfer of Real Estate ( ITBI ) should be calculated on the effective value of the sale of the asset, even if it is larger than the market value adopted as the basis for calculating the release of Urban Real Estate Tax ( property tax ) .
The contested decision , by the Court of Justice of São Paulo ( TJSP ) , had determined that the basis of calculation of ITBI was equal to the property tax , as determined by the National Tax Code ( CTN ) , it could not coexist two market values .
If the Municipality itself , to establish the basis for calculating property taxes , the property evaluates finding a market value , there is no reason , when measuring the base for calculating the ITBI , find another market value.
This understanding explains what in practice is already occurring and , in a way, it might even be considered advantageous to taxpayers , such as enabling the differentiation of market values when analyzing one or other tax , prevents Municipality majorem bases calculation of property tax, higher cost real estate transactions only .
On the other hand , the understanding is harmful , because it would be more appropriate and logical that the value applied was the same , because we are dealing with the same property and the same municipality , there is no reason to differentiate between market values .
