A base de cálculo do ITBI no contexto jurídico brasileiro: o impacto das decisões do STJ e do STF

Abstract

Taxation, an essential instrument for the organization and functioning of societies, has a long history in Brazil, marked by transformations that reflect the country's political and economic evolution. The Real Estate Transfer Tax (ITBI), collected by municipalities, is crucial for financing public policies, but the definition of its calculation basis has generated intense legal controversy, impacting the relationship between the tax authorities and taxpayers. This paper analyzes the impact of decisions by the Superior Court of Justice (STJ) and the Federal Supreme Court (STF) on the ITBI tax base. The research covers the history of Brazilian taxation, from the colonial period to the consolidation of ITBI in the 1988 Constitution. In addition, the fundamental concepts of ITBI are presented, such as calculation basis, triggering event, active and passive subjects. Based on the analysis of Special Appeal No. 1.937.821-SP, the work examines the thesis established by the STJ that the ITBI calculation basis should be the market value of the property, unrelated to the venal value used for the IPTU. The study also explores Extraordinary Appeal No. 1.412.419, filed by the Municipality of São Paulo against the STJ's decision, and its developments in the STF, highlighting the monocratic decision by Justice Cármen Lúcia, who upheld the STJ's position. The research investigates the consequences of these decisions for municipalities, with the need to intensify inspections to prevent the undervaluation of real estate. It also addresses the challenges in the relationship between the tax authorities and taxpayers, which is marked by mistrust, and the need for legislative reforms to ensure a fairer and more transparent tax system. Finally, the monograph analyzes concrete cases that demonstrate the tendency of case law to align itself with the understanding of the Supreme Courts. The decisions of the STJ and STF on the calculation basis of ITBI represent a step forward in the search for a fairer and more efficient tax system, providing greater legal certainty for taxpayers and municipalities.