See what changes in the ITBI collection of the property after the STF decision

The STF (Supreme Federal Court) annulled its own understanding of February last year on the payment term of the ITBI (Imposto sobre Transmissão de Bens) of real estate.

With the decision, the date of collection is again defined by municipal laws, by which, in general, payment is made upon signing the commitment to buy and sell the property, even without real estate registration.

The Court will re-examine the matter. A trial date, however, has not yet been set.

The foot on the brake of the STF occurred after voting in the plenary last Friday (26). Most ministers concluded that there had been “procedural confusion” when considering a request for extraordinary appeal.

In the 2021 judgment, the Court defined that the ITBI collection would only occur with the effective transfer of the property by the real estate registry in a notary, and not in the assignment of rights, a step prior to the actual purchase.

The city of São Paulo, supported by Abrasf (Brazilian Association of Finance Secretariats of Brazilian Capitals), appealed, claiming that the precedents used as jurisprudence by the STF referred to only one of the three hypotheses of tax payment and different from the one discussed in the trial process.

The court accepted the request and decided to re-examine the thesis fixation.

According to lawyer Marcelo Tapai, the STF will need to analyze the charge on the assignment, because without the mandatory registration, the country opens the way to a parallel market that does not pay tax.

“If a person can transfer a property to another without the need for registration, we will see an increase in drawer contracts”, he says.

Who pays the ITBI

ITBI must be paid by anyone who buys a property to formalize the transaction. Until it is paid off, the definitive deed is not drawn up.

The issuance of the ticket and the calculation of the tax are carried out by the municipality where the property is located. The value is calculated on the real valuation of the property.

As it is a municipal tax, each city has its own collection. The Constitution establishes a maximum limit of 5% of the value of the asset. Currently, municipalities apply a percentage that varies from 2% to 3%.

In São Paulo, which charges 3% of ITBI, anyone who buys a property valued at R$500,000, without financing, will pay R$15,000 in tax, for example.

For financed properties and housing programs there is a tax discount.

Each prefecture has its rules on ITBI installments. In São Paulo, the tax must be paid in a single installment. Late payment generates interest of 1% per month and a daily fine of 0.33% on the tax amount, limited to 20%, in addition to monetary restatement by the IPCA.