A Base de cálculo do ITBI no município de São Paulo e o entendimento jurisprudencial acerca do tema

Abstract

The present work aims to outline considerations about the calculation basis of the Real Estate Transfer Tax (ITBI) in the Municipality of São Paulo, as well as to analyze the current understanding of the jurisprudence on the subject. Initially, general aspects of the tax will be pointed out, then the modifications of Municipal Law No. 11,154/1991 will be analyzed, specifically the addition of articles 7-A and 7-B, objects of consideration by the Court of Justice of the State of São Paulo (Civil Unconstitutionality Allegation No. 0056693-19.2014.8.26.0000) and, subsequently, the Incident for the Resolution of Repetitive Demands No. 2243516-62.2017.8.26.0000 (Theme 19). Next, the focus will be given to the recent decision of the Superior Court of Justice, issued in Special Appeal No. 1.937.821/SP (Topic 1.113), which established the understanding that the calculation basis of the ITBI is not linked to that of the Urban Property and Territorial Tax (IPTU) and that the value of the transaction declared by the taxpayer enjoys the presumption that it is consistent with the market value, therefore, it must be used as a basis for calculating the tax, except through the regular initiation of its own administrative proceeding (article 148 of the CTN).