SUPERIOR COURT OF JUSTICE SENDS PROPERTY TRANSFER TAX DISCUSSION TO THE SUPREME COURT
Justice Og Fernandes of the Superior Court of Justice (STJ) authorized the processing of an Extraordinary Appeal to the Supreme Court (STF), with respect to the discussion on the Property Transfer Tax (ITBI) calculation basis. The 1st Section of the STJ had decided that the ITBI should be levied on the transaction value as declared by the taxpayer, declaring, however, that that the Municipality may present another valuation of the estate based on the actual market value.
Municipalities, however, usually use a reference value attributed to the properties as a basis for calculating the ITBI. There are variations between different municipalities, but, generally, the calculation basis considers the basis for tax on real estate property (IPTU), complemented by other information of similar transactions in the same region.
In view of the possible difference between the values set by the municipalities and the actual market value, STJ's decision is seen as favorable to taxpayers.
The Municipality of São Paulo had already tried to take the discussion to the STF before, but the request had been denied. Now, the previous decision was overturned, and the matter should be analyzed again by the STF.
SUPERIOR COURT OF JUSTICE DECIDES THAT SOCIAL SECURITY CONTRIBUTIONS ARE LEVIED ON THE TOTAL REMUNERATION OF EMPLOYEES
The 2nd Panel of the Superior Court of Justice (STJ) decided that amounts withheld by companies as Social Security Contributions (INSS) and Withholding Income Tax (IRPF) represent remuneration for the employee and, thus, must be included in the calculation basis of social contributions on payroll borne by the company.
The judges concluded that the contributions are levied on the total remuneration paid to workers, and not just on the net salary. The 2nd Panel of the STJ had already established guidance that the amounts withheld as INSS are part of the employee's remuneration and, therefore, must be taxed.
However, it is still expected that the Court will analyze the matter in the future with binding effects to establish a precedent to be followed by all judges and courts.
SUPERIOR COURT OF JUSTICE OVERTURNS THESIS ON UPDATE OF COURT DEPOSITS
The Special Court of the Superior Court of Justice (STJ) decided to update the thesis set out in Theme 677 on repetitive appeals. The Court had ruled on the matter in 2014, when the Court had established that the court deposit of the amount (in whole or in part) of the conviction extinguishes the debtor's obligation, within the limits of the amount deposited.
The issue revolves around the discussion on whether the court deposit made in the judicial execution phase releases the debtor from the late payment charges (monetary adjustment and interest) on the deposited debt.
In October 2020, however, Minister Nancy Andrighi claimed that the thesis was not properly fulfilling its purpose, because there were misunderstandings throughout the judiciary.
Revisiting the subject, the STJ established a new thesis. To justify her vote, Minister Nancy Andrighi, the proponent of the winning vote, explained that the total release of the debtor after depositing the debt would cause a series of problems, such as (i) the stimulus to the perpetuity of the execution; (ii) losses to the creditor, since the rates used by banks are those applied to savings accounts, considerably lower than the interests used in the market; and (iii) would make the seizure of amounts more harmful to the interest of the creditor compared to the pledge of other less liquid assets, such as real estate.
In principle, the decision does not apply for tax debts, given that the National Tax Code establishes that the full deposit of the debt suspends its enforceability, in addition to the fact that the STF has already declared, in different opportunities, that the court deposit of the full amount removes the responsibility for the fine, interest on late payment and monetary correction.
The whole content of the decision has not yet been published so it is not possible to analyze the effects of this new theme yet.
RELEVANCE OF THE SPECIAL APPEAL WILL BE REQUIRED ONLY AFTER FUTURE REGULATORY LAW
The Plenary of the Superior Court of Justice (STJ) approved an Administrative Statement determining that it will only require the new criterion of relevance for the admissibility of special appeals after the enacting of future regulation.
The relevance criterion for admission of the special appeals – known as the relevance filter – was established by Constitutional Amendment No. 125/2022, which altered article 105 of the Constitution. The proposal for the law regulating the constitutional amendment must be prepared by the STJ and sent to the Congress for deliberation.
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