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Recent Decision of the Court of Justice of Goiás Defines Who Should Bear the IPTU on Financed Properties and Changes the Way Municipalities Can Collect the Tax in Cases of Fiduciary Alienation.
The 3rd Panel of the 8th Civil Chamber of the Court of Justice of Goiás ruled that the property buyer, even when the transaction is secured by fiduciary alienation, is responsible for the payment of the IPTU.
With this understanding, the judges dismissed a collection action from the municipality of Goiânia against a developer, recognizing the illegitimacy of the company to be part of the passive pole.
Understanding of TJ-GO About the IPTU Responsible
In the judgment, the panel applied the rule that, as long as the property remains in the possession of the fiduciary debtor, the burden of the IPTU falls on him, and not on the creditor or on the developer who sold the unit.
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The rapporteur, Judge Ronnie Paes Sandre, stated in his vote that, “as long as the fiduciary debtor is in possession of the asset, and does not default, which would lead to the consolidation of ownership in the name of the fiduciary creditor, the purchaser, as the possessor, is the taxpayer of the IPTU and is legitimized to be part of the passive pole of any collection action”.
Even if the contract is financed and the resolvable property has been registered in the name of the creditor, the direct possession of the purchaser prevails.
Therefore, according to the decision, the municipality should direct the collection to the buyer who occupies the property, except in specific cases provided by law.
The Case that Led to the Decision
The action was brought by the City Hall of Goiânia against the developer to recover overdue IPTU from a property that had already been sold and financed.
The company argued that it had no legitimacy to respond for the debt, as the asset was in the possession of the buyer.
In the first instance, the argument was rejected.
Subsequently, the developer filed an appeal to TJ-GO, arguing that the seller cannot be held liable for the tax obligation after the transfer of possession.
The appeal was initially denied on the grounds that, without the registration of the purchase and sale, the seller remains as the formal owner and, therefore, responsible for the tax.
Later, the developer submitted a motion for clarification, arguing that the contract signed with the buyer had the nature of fiduciary alienation and that, under this regime, the responsibility for the IPTU lies with the fiduciary debtor, who holds direct possession.
This time, the panel accepted the arguments, recognized the illegitimacy of the company, and dissolved the case.
What the Legislation Says About the Subject
The decision is based on the Law 9.514/1997, which establishes fiduciary alienation of real estate.
According to the law, the fiduciary debtor (buyer/debtor) remains in direct possession of the asset and assumes the burdens inherent to this condition, including taxes.
The fiduciary creditor retains only the resolvable ownership as collateral.
Additionally, the understanding follows Theme 1.158 of the Superior Court of Justice (STJ), which defines that the fiduciary creditor, when not in possession of the property, cannot be held responsible for the IPTU.
This interpretation harmonizes with the National Tax Code, which considers the property owner, the holder of beneficial ownership, or the possessor as the taxpayer, along with the specific rules of fiduciary alienation.
When the Responsibility Changes
The buyer’s responsibility remains as long as he is in possession of the property and compliant with the contract.
If there is default that leads to the consolidation of ownership in the name of the creditor, according to Article 26 of Law 9.514/1997, the scenario changes.
In this case, the creditor becomes responsible for the IPTU from the consolidation, and not retroactively.
In contracts without fiduciary alienation, the lack of registration may keep the seller as the formal owner, which, according to tax law specialists, can lead to discussions about who should be liable for the tax.
In the analyzed case, however, the fiduciary structure was decisive in shifting the tax burden to the purchaser.
Impacts of the Decision for Buyers and Developers
For those who purchased property with financing secured by fiduciary alienation, the decision reinforces that the IPTU is the responsibility of the occupant of the property.
According to consulted lawyers, this interpretation should also apply to financed commercial or residential properties.
For developers and financial institutions, the ruling increases legal certainty, confirming that the fiduciary creditor is not liable for the IPTU while not in possession of the asset.
The understanding also guides municipalities to check who is in possession of the property before initiating collections.
Tax law specialists assert that this prior analysis may reduce cases dismissed for passive illegitimacy and prevent waste of public resources.
Situation of Properties Sold Without Registration
The case judged specifically dealt with fiduciary alienation.
In common sales without this type of guarantee, the absence of registration of the transfer can, in some contexts, keep the seller as the formal owner, even for tax purposes.
Nonetheless, the effective possession of the buyer is usually decisive in defining the taxpayer of the IPTU, according to the National Tax Code.
The decision of TJ-GO reinforces this criterion, highlighting the role of possession in the fiduciary regime.
The Vote That Synthesized the Understanding
The rapporteur, Judge Ronnie Paes Sandre, emphasized in the vote that the taxpayer of the tax is the possessor of the asset as long as there is no default leading to the consolidation of ownership.
He stated that “the purchaser, as the possessor, is the taxpayer of the IPTU and is legitimized to be part of the passive pole of any judicial or extrajudicial collection of this tax,” until legal transfer occurs to the creditor.
Practical Guidelines for Those with Financed Property
Those paying financing should include the IPTU in the annual planning, considering possible interest and fines for delays.
Lawyers advise that the buyer keeps the property registration updated with the municipality, indicating who occupies the property.
This update prevents incorrect charges and facilitates regularization in case of discrepancies.
In situations of doubt about possession, it is advisable to gather proof of occupancy, such as contracts, key delivery terms, and utility bills, which serve to demonstrate who is the taxpayer of the tax.
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