The Complementary Bill – PLP 108/2024, constitutes the second regulatory text of the Tax Reform, and one of its modifications is regarding the Inter Vivos Real Estate Transfer Tax – ITBI, which applies when there is an onerous transfer of real estate ownership.
Currently, the collection of this tax is carried out only at the time of the effective transfer of property ownership, i.e., at the time of registration with the competent real estate registry, which is the taxable event requiring the payment of ITBI.
However, the interpretation of the exact moment when ITBI is levied has been a source of controversy between municipalities and courts.
Several municipalities argue that the taxable event occurs earlier, such as at the registration of the purchase and sale agreement. This leads notaries, fearing being held responsible for collecting the tax (according to article 134, VI of the National Tax Code – CTN), to demand advance payment.
The Superior Court of Justice (STJ), in AREsp 1.760.009, and the Supreme Federal Court (STF), in ARE nº 1.294.969 ED, uphold that the tax should be applied according to article 1.246 of the Civil Code, i.e., when the effective transfer occurs at the real estate registry.
Aiming to end the litigation, with the approval of PLP 108/2024, municipalities will be able to require the tax from the formalization of the respective transfer title, i.e., already at the signing of the contract or when the public deed of purchase and sale is executed.
This measure aims to resolve gaps and avoid situations where ITBI is not paid, especially in informal transactions such as “drawer contracts,” where the purchase and sale of real estate are not adequately formalized.
Although the bill is still under consideration and awaiting approval, its implementation will require updates to municipal legislation governing ITBI.
The Tax Advisory Department of Marins Bertoldi Advogados is closely monitoring the developments on this topic and is fully available to address any doubts and delve deeper into each specific case.
By Ana Caroline Ferreira e Ana Flavia Krueger
