Aula 11 - O que é ITBI e onde ele incide?

Summary

In this detailed video, Marcos Adriano Silva, a seasoned accountant and lawyer, discusses the complexities of the ITBI (Tax on the Transfer of Real Estate), a key topic for those involved in succession planning, holding companies, and property transactions. He explores the intricacies of ITBI’s application, particularly in relation to the transfer of real estate to holdings for asset protection or succession planning. Silva also delves into constitutional exemptions and important court rulings, providing viewers with valuable insights into how to navigate ITBI in real estate transactions and business structuring effectively.

Takeaways

• 😀 ITBI (Tax on Transfer of Real Estate) is a key tax in real estate transactions, especially in succession planning and holding structures.
• 😀 ITBI is applicable when there is an onerous transfer (i.e., a paid transaction) of real estate or real rights, according to Article 156 of the Brazilian Constitution.
• 😀 The main difference between ITBI and ITCMD (Inheritance and Donation Tax) is that ITBI applies to transactions involving the exchange of goods for payment, while ITCMD applies in cases of inheritance or donation.
• 😀 ITBI is paid by the buyer, not the seller, in a standard real estate transaction.
• 😀 In holding structures, ITBI becomes relevant when transferring properties to a company's capital stock, especially for planning succession or protecting assets.
• 😀 A key question arises when property is transferred from personal ownership to a holding company: while it may seem like a mere internal change, it is an onerous transfer and may trigger ITBI.
• 😀 The base calculation of ITBI is typically the municipal property value (valor venal), not the price paid in the contract, and can differ from the value of the transaction.
• 😀 A constitutional exception exempts ITBI for property transfers to a company for capital formation, as long as the company's main activity is not real estate trading or leasing.
• 😀 When a company buys real estate, ITBI applies only if the company's primary activity is not real estate business (buying, selling, leasing). This is assessed by the company’s revenue over the past two years.
• 😀 Recent court rulings have clarified that the ITBI base calculation is the market value (valor venal), which must be substantiated by a formal evaluation, not simply the municipality’s valuation or the contract price.

Q & A

What is the ITBI tax, and when does it apply?

ITBI (Imposto sobre a Transmissão de Bens Imóveis) is a tax applied to the transfer of real estate properties between individuals or entities. It applies when there is an onerous transaction involving real estate, meaning the property is being sold or exchanged for a value. The tax does not apply to non-onerous transactions, such as donations or inheritance.

How is ITBI different from ITCMD?

ITBI applies to the transfer of real estate through a sale or purchase (onerous transaction), whereas ITCMD (Imposto sobre Transmissão Causa Mortis e Doação) applies to transfers due to inheritance or donation (non-onerous transaction).

Who is responsible for paying the ITBI tax in a real estate transaction?

The purchaser of the property (the acquirer) is responsible for paying the ITBI tax in a real estate transaction, not the seller.

How does ITBI apply in the context of estate planning with holdings?

In estate planning, when a property is transferred to a holding company, the ITBI tax may apply if the transfer is deemed onerous. This typically happens when the property is integrated into the company's capital, which can be considered a transaction involving value exchange.

What is the significance of the concept of 'onerous transaction' in relation to ITBI?

An 'onerous transaction' refers to an exchange where value is transferred, such as in a sale or a property transfer in return for shares in a holding company. Even if no cash changes hands, the exchange of assets (property for shares) can trigger ITBI if it is considered an onerous operation.

Can a holding company be exempt from ITBI when transferring real estate?

Yes, a holding company can be exempt from ITBI if the property is integrated into the company as part of capital contribution, and the company does not engage in real estate sales, leasing, or related activities as its primary business. However, the exemption only applies if the company’s activities are not focused on real estate transactions.

What is the significance of the 'preponderant activity' clause in relation to ITBI exemption?

The 'preponderant activity' clause means that for a holding company to be exempt from ITBI, its main business activity cannot be the buying, selling, or renting of real estate. If more than 50% of the company’s revenue comes from these activities, ITBI will apply.

How does the recent decision in theme 796 impact ITBI exemption?

Theme 796, issued by the Superior Court of Justice (STJ), clarified that when a real estate property is integrated into a holding, the ITBI tax may still apply to the difference between the market value and the property's declared value, even if the company qualifies for an exemption based on its activities.

What is the base calculation for ITBI, and how is it determined?

The base calculation for ITBI is typically the 'valor venal' or market value of the property, which is determined by the municipality. This may differ from the actual sale price listed in the transaction document, as the tax is based on the value considered appropriate by the local authority, not necessarily the amount the buyer and seller agreed upon.

What are the consequences if the municipality overestimates the property value for ITBI calculation?

If a municipality overestimates the value of a property for ITBI purposes, the taxpayer can challenge the assessment through legal means. The base value for ITBI should reflect the true market value, and if the municipality's value deviates significantly from this, the taxpayer can request a re-evaluation through a formal process, often involving an expert appraisal.