The tax reform, through PLP 68/2024, has brought to light important debates regarding the incidence of taxes on the purchase and sale of real estate. One of the central points of this debate is the possible concurrent incidence of the Contribution on Goods and Services (CBS) and the Tax on Goods and Services (IBS), with the Tax on the Transmission of Real Estate (ITBI).
PLP 68/2024 provides for the incidence of CIBS on the sale of real estate, including in cases of real estate incorporation (Article 234). The calculation basis for this contribution is the value of the transaction (Article 239), the same used for ITBI. However, the calculation basis for CIBS is broader, including even the interest on real estate financing (Article 239, paragraph 1, I). This creates a wide scope of overlap, where the calculation basis for CIBS is more comprehensive than that of ITBI.
This simultaneous incidence of CBS/IBS and ITBI on the same transaction can be considered unconstitutional. PLP 68 is still pending approval in the Senate, but if approved as proposed, it could conflict with various constitutional norms and jurisprudence established by the Supreme Federal Court (STF).
PLP 68 also brings some new regulations for ITBI, stipulating that the moment of taxation becomes the execution of the onerous act or title transferring the real estate, and not the moment of the actual registration in the real estate registry.
Thus, the possible double taxation on the purchase and sale of real estate by CIBS and ITBI represents a delicate issue for taxpayers. It is essential that the new norms established by the tax reform be clear to avoid conflicts and litigation, ensuring legal certainty for the real estate market. The standardization of ITBI rules and the correction of the simultaneous incidence of calculation bases are indispensable steps for a fairer and more efficient taxation of the sector.