A constitucionalidade e legalidade da incidência tributária do itbi nos negócios jurídicos que envolvam cessão de direitos sobre bens imóveis

Abstract

The present work aims to analyze issues related to the incidence of the Interim Real Estate Transfer Tax (ITBI), specifically, in relation to the assignment of rights. The theme is revealed as troubled, both from the doctrinal point of view and from the jurisprudential bias. In this succinct production, it is defended the legitimacy of incidence of the ITBI on the assignment, for consideration, of rights over real estate, in view of the express provision Constitution and legal (National Tax Code). In spite of the normative clarity, the Federal Supreme Court and the Superior Court of Justice have not admitted the assignment as a hypothesis generating the ITBI tax, binding it as covered by the hypothesis transmission of real rights over real estate. Therefore, for the higher courts, there would be no hypothesis to speak of cession as an autonomous generator of the tribute now requested. In this case, for the aforementioned Courts, only the taxable event of the said tax would be consolidated and perfected when the title to the property was registered, even though between the negotiating act of the original owner and the actual acquisition of the property by the final purchaser, There were numerous other compulsory legal relationships for consideration: assignments of rights inherent to ownership. It will be argued, in the present production, that municipalities are encouraged to issue complementary laws, considering the transfer of rights as a hypothesis distinct from the transmission of real rights and therefore taxable regardless of registration,The legal transaction or the drafting of the public deed, in view of the fact that such assignment is of a compulsory nature, not requiring the constituency of the registration, proper to the rights in rem. Research on the materiality of the assignment of rights in ITBI will matter in doing studies on doctrine and jurisprudence. In this sense, it is applied as a method of approach, the deductive, which starts from general arguments seeking to understand particular aspects. Regarding the methods of procedures, the structuralist method was used, as the moment of the ITBI generating event in Brazil was analyzed. As for the research technique, direct documentation was used - based on the analysis of STF and STJ judgments on the subject - as well as the indirect documentation research technique through a bibliographic and documentary survey on the subject.