Definição dos aspectos jurídicos da base de cálculo do ITBI à luz da jurisprudência do STJ

Abstract

The objective of this paper is to discuss the ITBI calculation basis, especially with regard to the theses established by the Superior Court of Justice, in the context of a repetitive appeal, in the judgment of Resp No. 1937821-SP. To this end, the methodology chosen was the bibliographic research, allowing us to proceed with a review of the literature of the main scientific works in the area of Law, specifically Tax Law. The results showed that the understanding of the majority doctrine and the jurisprudence of the STJ converge in the sense that the basis for calculating the ITBI is the market value of the property under normal market conditions. This orientation has the following repercussions: i) the ITBI calculation basis is not linked to the IPTU; (ii) the value of the transfer declared by the taxpayer is presumed to be consistent with the market value and can only be removed by means of an administrative proceeding; iii) it is not possible to adopt a reference value previously defined by the Municipal Tax Authorities to set the ITBI calculation basis. The conclusion reached is that these legal theses are supported by Brazilian law and represent the best interpretation of the rules of the national tax system, even though the matter is pending pacification by the Federal Supreme Court.