ITBI ON THE PROMISE OF PURCHASE AND SALE
The National Tax Code of 1966 established the tax on the transfer of real estate property and rights related thereto, defining the transfer of property and the transfer of rights in rem on real estate as a taxable event (art. 35).
The 1988 Constitution delimits the competence of municipalities to institute a tax on the transfer of real estate and real property rights (art. 156 II).
The right of the purchasing party was listed in the list of real rights in the enactment of the Civil Code of 2002 (article 1.205, VII), providing that the real right is acquired with the contract registered with the Real Estate Registry Office (article 1.417).
Therefore, the onerous transmission of rights in rem is the taxable event of ITBI.
Considering the legislations above and the municipal legislations that instituted and regulate the ITBI on the purchase and sale promise, we will now analyze the controversial points regarding the requirement of the registrars, as "tax inspectors", regarding the due collection of the tax for the subsequent registration of the purchase and sale promise contract:
The purchase and sale promise by itself, in the scope of the law of obligations, does not generate ITBI assessment, since the taxable event would be the contract in the scope of the real law, which only occurs with the registration in the real estate registry (art.1417). Therefore, from this standpoint, the official could not require the presentation of the tax certificate when the deed is registered for recording, since the tax would only be due after the contract was recorded. To remedy this point, the municipal legislation of Belo Horizonte, for example, determines that the ITBI tax must be paid prior to registration of the deed (articles 9 and 11, Law 5.492/88).
Wouldn't the purchase and sale promise be a preliminary agreement, aiming at the effective transmission of the asset in a later moment? However, according to the aforementioned legislations, both would be taxable events for the ITBI, even if the preliminary and the final contract have the purpose of transmitting the ownership of the same property. The applicability of the ITBI tax on the right in rem of the promissory buyer and on the final acquisition of the same property is open to question. Perhaps the ideal would be to treat this issue as an anticipation of the collection of the tax on the registration of the purchase and sale commitment, pursuant to §7, art. 150 of the CRF/88, whereby the taxable event would be the subsequent effective transmission of the property.
Furthermore, some discuss the unconstitutionality of municipal laws that institute/regulate the ITBI for the promise of purchase and sale. But if the Federal Constitution itself delimits the transfer of in rem rights over real estate as a taxable event, where would such unconstitutionality lie? In order to find an answer, let us proceed to the historical interpretation of the legislation: the Federal Constitution dates back to 1988, therefore, the Civil Code in force at that time was the 1916 Code, which did not include the promise to purchase and sale in the list of rights in rem. Therefore, it is understood that the legislator, when defining the transmission of rights in rem on real estate as a hypothesis of incidence of the tax, was not thinking of the promise to purchase and sell, which, until then, did not have the status of a right in rem. Only in 2002 did the promissory purchaser's right start to be listed as a real right, making the tax chargeable, as well as its chargeability questionable.
With regard to this dispute, when an administrative doubt proceeding is opened, given the requirement of the registrar for the collection of the tax, some doubts are judged to have merit, ratifying the relevance of the requirement, and others are dismissed, in which the judging body releases the promissory buyer from presenting the required certificate.
The fact is that this matter remains controversial and has not been overcome or settled by case law.
Ana Carolina Fernandes Costa
Post-graduate student in Notarial and Registral Law, CEDIN