Tributação no agronegócio: incidência do ITR frente a perda da propriedade pela renúncia

Abstract

The Rural Territorial Tax, as the “rural” linguistic symbol itsel prescribes, was created by the constitucional legislator ir order to grant the Union, the competence to legislate, supervise and collect a cash benefit, linked to the property of the owner of a real estate that is located in the rural area, located far from the urban perimeter, “excluded” from the IPTU incidence,which is the responsibility of the Municipality. You see, the rural is, technically, neighbor of the urban. Constitutionally attributed the competence to the Union today, the ITR was created in 1891, with the purpose of stimulating agricultural production, at that time the active responsibility for the collection and administration of the tax was of the States, thus remaining in the Constitutions of 1934, 1937 and 1946 in 1964 the competence was transferred to the Municipaity and, subsequently with the advent of Amendmend no. 10, passed on to the Union. In the same year 1964, on November 30, the Land Statute Law no. 4.504, which started to regulate the rights and obligations concerning rural real estate, stimulating policies in Agrarian Reform. From that moment on, the ITR started to have extra-fiscal functions, with Incra being responsible for the collection, which would be modified with the 1988 Constitution, which maintained the competence attributed to the Union by the previous Constitution, but allowed Ente to assign active capacity to the Municipality to inspect and collect the tax, through an agreement signed between the Federal Revenue of Brazil and the Municipality, whch chose to choose and assume this capacity. Still, the Municipality can only assume part of these 3 attributions, when it only charges the tax and, thus, it will have the corresponding 50% of what is collected, but it can have the totality, in case it chooses to collect and inspect. The duties of the taxpayer of the tax legal relationship, born which the incidence of the ITR, that is, being the owner, are the duty to make the entry by approval, as well as the instrumental duty to inform the VTNt, through DIAT. However, if the owner property of the wishes to expressly waive it, he could still be obliged to pay the ITR. In order for the waiver, as voluntary act, to be valid and effective and therefore opposed to the requirement of the tax, the waiver must record this act, making the respective registration later. Notably, this has been understanding of the Superior Court of Justice and, with regard to the understanding of the CARF – Administrative Council For Tax Appeals, in na analogous case, some instrumental duties may be waived