A incidência do imposto sobre a transmissão onerosa inter vivos de bens imóveis e de direitos reais sobre imóveis, bem como sobre a cessão de direitos a sua aquisição, nos atos relativos ao contrato de promessa de compra e venda de imóveis

Abstract

This study proposes to analyze, in a non-exhaustive way, the relationship between the pre-contract agreement of immovable property and the Immovable Property Transfer Tax (ITBI), which is a municipal tax that can be of great relevance to the budget of this public entity, in case it promotes good revenue and incentives for the growth of the real estate sector. It is intended to explain the main real property rights, their relationship with immovable property, their forms of acquisition, and the differentiation between terms and concepts that, if not better explained, can lead to a wrong understanding of the subject. It will also analyze the structure of preliminary contracts, their requirements and forms, and, more specifically, the commitment to purchase and sell immovable property, with emphasis on the prospective buyer's right, its nature, and forms of constitution and transmission. ITBI is studied based on the main tax incidence rule, which allows for a more in-depth look at the criteria that make up the tax legal norm, namely, material, temporal, spatial, personal, and quantitative. In addition, the relationship between the ITBI and the aforementioned preliminary contract is analyzed in the light of the provisions of the Federal Constitution, specialized doctrine, municipal laws of Fortaleza/CE and São Paulo/SP, and national jurisprudence prioritizing the judgments of the Ceará Court of Justice and its evolution of understanding over time of the understanding of the Federal Supreme Court on the matter, which standardized the treatment of the matter. Finally, final considerations are made in the sense that ITBI, in accordance with the Federal Constitution, focuses on the assignment of promissory purchase and sale contracts of immovable property, as it is the assignment of the right to purchase, regardless of notary registration. However, it is noteworthy that the understanding that must be followed by the Brazilian Judiciary, as it is unified by the Supreme Court, is that ITBI does not apply to property purchase and sale commitments, whether in their contract signature, registration, or assignment. Keywords: Immovable Property Transfer Tax. Pre-contract Agreement of Immovable Property. Acquisition Right. Real Property Rights. Incidence Hypothesis.