Last Friday (August 26th, 2022) the Supreme Federal Court (“STF”), through virtual plenary, decided to cancel a decision that determined that the Tax due on the transmission of real estate (“ITBI”) should be collected at the time when the property is registered before Real Estate Registry. The reason for such cancellation, after a year and a half of the fixation of the thesis was a procedural “confusion”.

As of today, no date has been set for the retrial, but due to the annulment the municipal laws that establish the collection of the ITBI in the moment before registration in registry will remain in effect, as occurs with the signing of the pre-contract agreement.

The procedural “confusion” had as justification that the process analyzed in February 2021 had different technical issues, in which the taxpayer had acquired a property before the construction end and made the sale of the same before the apartment was delivered by the construction company.

The case was filed when the construction company stated that could only carry out a deed of the property in favor of the third acquirer if it was proven the payment of the ITBI by the first acquirer; a discussion that, in the opinion of the magistrates, differs from the thesis fixed.

The understanding for the cancellation of the fixed thesis was presented by Minister Dias Toffoli and accompanied by Ministers Ricardo Lewandowski, Edson Fachin, André Mendonça, Nunes Marques, Luís Roberto Barroso and Gilmar Mendes. In the opposite direction, ministers Rosa Weber, Carmen Lúcia and the Court president Luiz Fux understood that the subject already has jurisprudence in the Court and did not need a new discussion.

We emphasize the importance of the matter and the attention that must be given to any transaction involving the change of ownership of real estate.