The Court of Justice of the State of São Paulo, in a preliminary decision issued in the proceedings of a writ of mandamus filed by a holding company, recognized the illegality of charging ITBI on an excess amount that had been unilaterally determined by the municipality in a capitalization transaction.

The municipality had demanded payment of the tax based on values set according to its own criteria, disregarding the amount declared by the company for the real estate assets that had been fully paid for.

Furthermore, the calculation basis used was based on generic parameters per hectare, resulting in a value almost twice as high as that actually attributed to the properties.

In this sense, the preliminary measure was granted, suspending the enforceability of the ITBI credits indicated in the municipal certificate, and authorizing the registration of the transfer of the properties without the payment of the complementary tax, ensuring the full exercise of the immunity provided for in art. 156, §2, I of the Federal Constitution.

The decision was based on the case law established by the Superior Court of Justice in Theme 1,113, according to which the value declared by the taxpayer enjoys a presumption of veracity and can only be rejected through regular administrative proceedings, under the terms of art. 148 of the CTN.

The precedent reinforces the need to observe due process for the arbitration of values by the Tax Authorities and represents an important victory for taxpayers who promote corporate reorganizations with the incorporation of real estate assets.