STJ dismisses obligation of fiduciary creditor to pay IPTU of alienated property

When judging Theme 1,158, the Superior Court of Justice (STJ) consolidated the understanding that the fiduciary creditor is not responsible for IPTU debts levied on the alienated property until he assumes effective ownership of the asset given as collateral.

This is because, although the fiduciary debtor temporarily transfers ownership of the property to the fiduciary creditor, until the debt is paid in full, he continues to be the taxpayer of the taxes and charges levied on the property, as he still maintains all the characteristics of an owner, that is, the one with direct ownership and possession of the property, in light of the provisions of article 34 of the National Tax Code (CTN).

On the other hand, in the case of a fiduciary alienation contract, the creditor holds the resolvable ownership of the asset, that is, precarious and temporary, only for the purpose of guaranteeing the financing contracted, without there being any intention of being the owner of the thing (art. 22 of Law No. 9,514/97), an essential subjective element for the recognition of possession subject to taxation.

Based on this reasoning, the ministers unanimously decided to remove the joint liability and passive legitimacy of the fiduciary creditor in the tax execution for the collection of IPTU (property tax) on a sold property, due to the lack of legal provision in the CTN to include the fiduciary creditor in the passive pole of the tax obligation before the consolidation of ownership and entry into possession of the property.

The fiduciary alienation is a legal guarantee institute in which the debtor (trustor) transfers the resolvable ownership of the property to the fiduciary creditor until the debt is paid in full. Until the property is consolidated, the trustor remains in direct possession of the property and is therefore responsible for the charges levied on the property.

In the case analyzed by the Superior Court, the Municipality of São Paulo filed a tax enforcement action against Itaú Unibanco, as fiduciary creditor, alleging its liability for payment of the IPTU (property tax) levied on the property sold. The financial institution argued that Article 23 of Law No. 9,514/1997 should be applied, which expressly assigns to the fiduciary the obligation to pay taxes and charges on the property until the property is consolidated.

In the judgments of Special Appeals (REsps) 1949182/SP, 1959212/SP and 1982001/SP, registered as Theme 1,158 of the repetitive ones, the STJ established the understanding that the fiduciary creditor cannot be held responsible for the payment of IPTU before the consolidation of the property in his name.

This decision is based on the lack of legal provision in the CTN, whose article 34 defines as the IPTU taxpayer the owner of the property, the holder of its beneficial ownership or the possessor in any capacity, not expressly including the fiduciary creditor before the consolidation of the property. Furthermore, Law No. 9,514/1997 reinforces that the liability for the IPTU remains with the fiduciary until the definitive transfer of the property to the fiduciary creditor.

Rapporteur Minister Teodoro Silva Santos emphasized that the passive subjection of the legal-tax relationship cannot be attributed to the fiduciary creditor, since the effective and qualified possession of the asset remains with the fiduciary. Furthermore, he emphasized that, in the unfolding of possession, characteristic of fiduciary alienation, it is not up to the municipality to arbitrarily elect the fiduciary creditor as the IPTU taxpayer, since this taxation criterion must be expressly provided for in complementary law.

The thesis established by the 1st Section of the STJ, under the procedure of repetitive appeals, has binding force on other special appeals based on an identical question of law, pacifying a topic of great relevance, providing more legal certainty and predictability for legal transactions involving the constitution of fiduciary alienation of real estate.

Prepared by Marcela Martins and Tiago Villa Chan

Email: tributario@mellopimentel.com.br and imobiliario@mellopimentel.com.br