Aspecto quantitativo do IPTU e observância do princípio da legalidade: base de cálculo por lei ou base calculada pela lei?

Abstract

The present study focuses on the quantitative aspect of the tax incidence matrix of the Tax on Urban Property and Property Tax (IPTU), typically, the calculation basis, the capacity to institute, collect, inspect and collect belong to Municipalities, as outlined in the Magna Carta in art. 156, I. In spite of the existence of a majority in the doctrine and Superior Taxes, including an edition, by the Superior Court of Justice (STJ), summary statement No. 160, with the purpose of settling any controversy on the subject, this proves to be of great academic value because of the lack of research in the area as well as few discussions on the subject. It can be seen that there is a clear interpretative confusion between a real base of calculation of the calculation and calculated base allied to the incorrect application of the principle of legality, one of the constitutional limits to the power to tax, which generates a loss in the collection of Municipalities, Instead, they are plastered when the launching comes, bites the calculation basis, which is, otherwise, the real value of the property, as determined in art. 33 of the National Tax Code (CTN). Thus, a manifestation of transgression of the principle of separation of the three branches of government is observed, since the Legislative Branch is exercising the exclusive activity of the Executive Branch, considering that it performs a calculation of the IPTU calculation base in the concrete case - when it creates by means of a law, the Generic Plant of Values (PGV) - according to art. 142 of the CTN. Therefore, it will be defended in this succinct academic production that a creation and modification of the PGV prescribes a law, since, the principle of legality is complied with if the establishing law establishes that a basis of calculation of the IPTU is the value of the property, as determined by the CTN. Lastly, the method of deductive approach was used in the check-in study, and the interpretative method was used for the procedure method. Regarding the technique used, the direct research was carried out by the means of examining laws and judicial decisions, and an indirect one, verified through a bibliographic analysis on the subject.