2023-06-29 23:30:05
Market value of the property should be the basis for calculating ITBI, says judge
The calculation of the basis for charging the Tax on the Transfer of Real Estate Property (ITBI) must be the market value of the property, with the State being prohibited from stipulating any amount used as a reference without the participation of the taxable person — in the case, the owner.
With this reasoning, Judge Jerry Adriane Teixeira, of the 2nd Special Court of the Public Treasury of the Federal District, condemned the DF government to reimburse R$ 15,281.02 to a company that acquired 32 lots, each with a value of R$ 165,303. Despite this purchase price, the DF assigned different numbers to the ITBI calculation base for each of the lots, which vary between R$ 166,000 and R$ 263,000.
“It happens that, in case of disagreement with the value of the sale declared by the taxpayer, the administration must initiate an administrative process in order to arbitrate the amount due, in accordance with what determines article 148 of the CTN”, wrote the judge.
“The Superior Court of Justice established the understanding that the public administration cannot unilaterally define the ITBI calculation base based on an established reference value without the participation of the taxable person.”
The magistrate also argued that, according to the jurisprudence of the STJ, “the value of the transaction is the correct one to indicate the incidence of the referred tax, as declared by the taxpayer himself, being reserved to the Treasury, if it so understands, the right to question the informed value “.
The company that will be compensated was represented by the lawyer Ana Carolina Osoriospecialist in Real Estate Law and member of the Real Estate and Urban Law Commission of the OAB-DF.
“The requirement of ITBI on a value different from that declared by the parties in the contract represents a maneuver used by the DF and municipalities to illegally increase the collection. Fortunately, the Judiciary has recognized the illegality and assured taxpayers the compensation of the amount paid in excess”, says the attorney on the decision.
Source: Conjure
#Market #property #collection #ITBI