A somewhat unsympathetic theme, “taxes” are a matter of considerable importance within the real estate industry. This is because the negotiations involving real estate bring, almost always, the obligation to bear these charges. The most relevant taxes from the real estate point of view are ITBI, ITD (or ITCMD), IPTU and ITR.
The ITBI (Imposto de Transmissão de Bens Imóveis = Real Estate Transfer Tax) is the tax due for the transmission (commonly the buy-and-sell transaction) of real estate. It is an onerous act, that is, it presupposes the payment of a certain amount. The assignment of rights relating to the transfer of real estate, or the transfer of real rights, is also subject to its impact.
STF. Precedent 326. It is legal to apply the inter vivo transmission tax on the transfer of the useful domain.
The Causa Mortis and Donation Transmission Tax (ITCMD = Imposto de Transmissão Causa Mortis e Doação) is the tax due in the processing of inheritances and donations “in life”. It is a tax of state competence (each federation state of Brasil), different from ITBI and IPTU, charged by the Municipality where the property is located. In the case of the donation, the tax is due and will be charged by the donor’s state of domicile.
The Property Tax and Urban Territorial Property, famous IPTU (Imposto Predial e Territorial Urbano), generates controversy in rental contracts. This is because, in the cold letter of the law, there are those who understand that they are the taxable person of the tax (the one who is required by law to bear the burden) only the owner, and it is never possible to transfer such obligation to a mere owner, such as the lessee. However, this provision is in the specific legislation itself (Código Tributário Nacional = National Tax Code) and many brokers reinforce it, as a general rule, in the text of the contracts, at the request of the lessor, and the lessee who agreed freely, expressly and consciously cannot perform the task.
CTN. Art. 34. The taxpayer is the owner of the property, the holder of its useful domain, or its owner in any capacity.
Finally, the ITR (Imposto Territorial Rural = Rural Territorial Tax) is the tax owed to the Federal Government, which generates property, useful domain or possession of property in rural areas. A somewhat problematic detail is precisely the definition of “rural” in this context, since the simple addressing of property within the limits of the so-called “urban area” may not be sufficient to establish the impact of the property tax on the property. STF and STJ (Supremo Tribunal Federal and Superior Tribunal de Justiça) recognize the strength of Article 15 of Decree-Law No. 57 of 1966 regarding the applicability of ITR to properties located in the urban perimeter, but with a rural destination.
