A responsabilidade tributária pelo imposto sobre a propriedade predial e territorial urbana em contratos de promessa de compra e venda

Abstract

This article undertakes a critical examination of the legal and constitutional underpinnings of Special Appeals No. 1.110.551/SP and 1.111.202/SP, adjudicated by the Superior Tribunal de Justiça (STJ) under the repetitive‑appeal procedure, which recognize that in property‑sale‑promise agreements both the promissory vendor and the promissory purchaser may be designated as liable parties for the Urban Property and Territorial Tax (IPTU) depending on the convenience of the municipal Tax Administration. The jurisprudence is grounded in Articles 32 and 34 of the Código Tributário Nacional (CTN) and Article 156, I, of the Constitution of the Federative Republic of Brazil, which attribute to municipal legislation the power to choose the taxable subject. Nevertheless, this interpretation raises tension with constitutional principles such as tax‑legality, contributory‑capacity and the prohibition of confiscation. The present study argues that the STJ’s solution infringes fundamental constitutional guarantees: in allowing IPTU to be levied on a party who no longer holds the power of use, enjoyment or economic benefit from the property – typically the promissory vendor who has already transferred possession and received full payment – the decision undermines the material link between the tax burden and actual manifestation of economic capacity. The work therefore advocates for the overruling of the relevant jurisprudence and, subsidiarily, for its non‑application by first and second‑instance judges, pursuant to Article 489, § 1º, VI of the Código de Processo Civil (CPC/2015). By delimiting the empirical‑normative scope to the Municipality of Natal (RN) and its local tax regime (CTMN, arts. 18 and 21), the article shows how the practical implementation in the local context converts the alternative “or” into an effective “and” in the determination of tax liability, violating the very essence of the tax incident and placing the tax burden on the wrong subject. The findings reinforce that only the promissory purchaser, effectively exercising animus domini and economic use, properly fulfills the role of taxable subject under the IPTU regime; whereas the promissory vendor retains only a formal title, devoid of economic substance, and therefore should not answer for the tax liability.