Controvérsias sobre a base de cálculo do ITBI no tema repetitivo n.º 1.113 do Superior Tribunal de Justiça: uma análise crítica das teses e da legislação pertinente a partir da delimitação do conceito de valor venal

Abstract

This research aims to debate the basis for calculating the ITBI, which has assumed notable academic and socioeconomic relevance in establishing the theses for Repetitive Theme No. 1,113, before the Superior Court of Justice (STJ). What means the venal value to Law? Is it configured as something different from the price agreed in the legal transaction? Which of the two should be taken into account in the aforementioned tax? Both? In this context, what weight should be given to the price declared by the parties? Starting from the hypothesis that there are flaws in the judgment, the general objective is to critically analyze the set of regulations that gave rise to the controversy and the positions established in the precedent. Initially, the contours of the investigation are outlined in an approach that describes the relevant norms of the Municipality of São Paulo and, also, the discourses present in the procedural trajectory taken within the scope of the Judiciary. Further on, other areas of knowledge are recruited to present the notions of equilibrium price (Economics); market value (Valuation Engineering); and fair value (Accounting). Through a comparative approach, it is argued that, except for specific nuances, such concepts are equivalent to that of the expression 'venal value", delimited by national legal tradition as being the estimated amount that would be obtained from the sale of the good, in cash, under normal conditions market, different from the price agreed in the legal transaction. Next, the debate regarding which greatness should comprise the quantitative criterion of exaction is worked through a dialectical approach, where the various opposing discourses are described and discussed, in order to defend the thesis that it must correspond to the traditional legal concept venal value. Once the assumptions are established, dialectics is used again to achieve the intended general objective. In relation to paulistana legislation, the provision of an ambiguous calculation basis and arbitration based on simple disagreement are criticized. In the context of judicial decisions, are criticized the misunderstanding of the concept of venal value; the inadequate application of the arbitration technique; the foundations and arguments used to allow the practice of different values in ITBI and IPTU; and the decision to consider the table of reference values illegal.