The First Section of the Superior Court of Justice (STJ), in ruling on Repetitive Theme 1371, consolidated the understanding that state tax authorities may assess (arbitrate) the tax base of the Inheritance and Gift Tax (ITCMD) when they disagree with the value declared by the taxpayer. This prerogative, however, is not unrestricted: the assessment requires the initiation of an individualized administrative proceeding, with observance of due process of law, full defense, and adversarial proceedings, as well as objective proof that the declared value falls outside market parameters.
The decision was rendered by majority vote, with the dissenting opinion of Justice Marco Aurélio Bellizze prevailing, and must be mandatorily observed by all courts, as it was issued under the repetitive appeals procedure.
- Legal Basis: Article 148 of the National Tax Code and State Autonomy
The core issue submitted to the STJ was whether the prerogative to assess the ITCMD tax base derives from the National Tax Code (CTN) or exclusively from state legislation.
Justice Bellizze held that the normative basis for assessment stems from Article 148 of the CTN, which authorizes the tax authorities to assess values in cases of inconsistencies, omissions, or lack of reliability in the declared amount. Accordingly:
- State legislation is free to choose the method for determining the ITCMD tax base;
- The existence of an administrative assessment procedure is valid and compatible with the CTN;
- The Judiciary may not, in a generic manner, deprive the State of its legal prerogative to verify the assessed value.
This understanding contradicts the long-standing case law of the São Paulo Court of Justice (TJSP), which historically barred such assessments—particularly where taxpayers used the IPTU assessed value as the reference.
- Limits on Assessment: Technical Demonstration and Regular Procedure
While recognizing the possibility of assessment, the STJ decision imposes clear limits on the actions of tax authorities:
2.1. Existence of an Individualized Administrative Proceeding
The tax authorities must initiate a specific procedure to verify the asset’s value, ensuring:
- notification of the taxpayer;
- the opportunity to submit arguments and counter-evidence;
- access to the opinions and appraisal reports used.
2.2. Burden of Proof Lies with the State
A mere subjective disagreement is insufficient. The tax authorities must demonstrate:
- why the value declared by the taxpayer does not reflect market value;
- which method was used to determine the assessed value;
- which objective parameters justify the adoption of a different value.
The STJ expressly stated that “the amount thus determined must be absolutely outside the market value.”
2.3. Assessment Must Be Exceptional
Legal commentators emphasize that assessment cannot be used on a large-scale basis. The State must demonstrate the inadequacy of the initial criterion and the impossibility of accurately determining value based on the documents provided—an approach consistent with the STF’s position in ADI 2,446, which recognized the legitimacy of tax authorities verifying manipulation of asset values.
- Practical Repercussions: Impact on the TJSP and on Inheritances Involving Real Estate
The ruling has significant practical impact, particularly in the State of São Paulo:
- The TJSP traditionally rejected the so-called “Reference Assessed Value (VVR)” in favor of the IPTU assessed value;
- With the repetitive ruling, São Paulo case law is likely to be revised, allowing the STJ to review and overturn local decisions;
- Probate and donation proceedings involving real estate—which represent a substantial share of litigation—will be directly affected.
The decision also compels improvements in the administrative practices of state finance departments (especially São Paulo’s), which often carried out assessments based on informal price research on real-estate websites, without presenting technical appraisal reports.
This precedent tends to standardize the issue nationwide, particularly in São Paulo, where there had been a marked divergence between local case law and the understanding now consolidated by the STJ.