Property tax liability in fiduciary alienation: recent STJ decision and its practical implications.

A fiduciary transfer of ownership as collateral is a widely used instrument in the financial market, especially in real estate credit operations. Recently, the First Section of the Superior Court of Justice (“STJ”), under the repetitive appeals procedure (Topic 1,158), settled a relevant issue regarding responsibility for the payment of property tax (IPTU) in these cases, establishing that the fiduciary debtor remains obligated to pay the tax until the creditor bank is effectively put in possession of the property.

This understanding has significant implications for debtors, creditors, and even land registry offices, reinforcing the need to pay attention to tax obligations even during enforcement proceedings. The central basis of the decision rests on the real nature of the IPTU (Property Tax), which, according to Article 156, item I, of the Federal Constitution, applies to the ownership or possession of real estate. Thus, even if the property is linked to the creditor as collateral, full ownership is only consolidated after possession is granted.

Article 34 of the National Tax Code defines the taxpayer liable for IPTU (Property Tax) as the owner, the holder of the beneficial ownership, or the possessor of the property with “intention to own.” The Superior Court of Justice (STJ), in turn, reinforced that the fiduciary creditor does not fall under these hypotheses before the consolidation of ownership and its entry into possession, since it only holds a resolvable and indirect ownership, without the intention of effectively being the owner of the property.

Furthermore, Law 9.514/1997, in article 27, § 8, already expressly assigned to the debtor the obligation to bear charges such as property tax (IPTU). This responsibility was reinforced by Law 14.620/2023, which consolidated the debtor’s obligation until the creditor effectively takes possession.

A practical example of the application of this understanding occurred in a case judged by the Superior Court of Justice (STJ) involving the Municipality of São Paulo and a fiduciary creditor bank. The city sought to collect property tax (IPTU) from the financial institution on a property that was under fiduciary alienation. However, the state court recognized the bank’s lack of standing to be sued, an understanding that was upheld by the STJ. The rapporteur of the case, Minister Teodoro Silva Santos, emphasized that the fiduciary creditor only holds a resolvable property for guarantee purposes and does not have direct possession or ” animus domini ,” and therefore cannot be held liable for the tax.

For land registry offices, the decision reinforces the importance of keeping records updated and issuing certificates that accurately reflect the property’s tax status. Since the debtor remains responsible for the property tax (IPTU) until the effective transfer of ownership, registry offices must advise those involved about this obligation, avoiding inconsistencies that could lead to future problems. Furthermore, the recent discussion regarding the waiver of tax clearance certificates in some property registries may require revisions, as the debtor’s payment of the IPTU remains essential for the regularization of the property.

For banks and financial institutions, the Superior Court of Justice’s (STJ) understanding imposes a duty of diligence in monitoring the payment of property tax (IPTU) by the debtor. If the tax is not paid, the property may be registered as delinquent, which can hinder or even prevent its sale in case of foreclosure. On the other hand, debtors should be aware that non-payment of IPTU may result in asset freezes and other coercive measures, even if the property is already in the process of being recovered by the creditor.

The Superior Court of Justice’s decision, by standardizing the understanding on the subject, contributes to the reduction of litigation and increases predictability in credit operations with fiduciary guarantees. However, its effectiveness depends on efficient coordination between the Judiciary, registry offices, and municipal tax authorities. Modernizing registration systems and integrating databases can facilitate debt verification and expedite procedures, avoiding surprises for creditors and debtors.

In short, the STJ (Superior Court of Justice) ruling represents progress in consolidating clear jurisprudence on tax liability in fiduciary alienation. At the same time, it reinforces the role of notaries as essential agents in guaranteeing legal certainty and the correct publicity of registration acts. For the decision to produce its full effects, it is fundamental that all those involved – debtors, creditors, and court officials – are aligned with the new guidelines, thus ensuring greater stability in the real estate and financial markets.