STJ RATIFICA ENTENDIMENTO DE QUE ITBI INCIDE SOBRE O VALOR “REAL” DA TRANSAÇÃO IMOBILIÁRIA, EM CASO DE ARREMATAÇÃO JUDICIAL

janeiro 26, 2012 by lmenezes
Filed under: Direito Imobiliário 

Escrito por Redação Qui, 28 de Julho de 2011 00:56

Qual a base de cálculo do ITBI: valor de mercado, valor “real” da transação, valor venal do IPTU ou valor declarado das partes?
Para Aires Barreto e Kiyoshi Harada, a base de cálculo do ITBI deve corresponder ao valor venal do ITBI, entendimento este que eu cheguei a ter no passado, mas que mudei desde a edição do livro “ITBI”, editora Edipro, escrito em coautoria com Francisco Ramos Mangieri.
Para Mangieri, a base do ITBI é o “valor de mercado”, aplicando esse valor ainda que o valor “real” seja inferior ou superior.
No entanto, não é este o entendimento do STJ, para quem a base do ITBI é o valor “real” da transação imobiliária, como se pode verificar no acordão abaixo, julgado em 28/06/2011 pela 2ª Turma do STJ.
Eu sempre defendi esse entendimento sacrament ado no STJ, não apenas para a hipótese de arrematação, mas sempre. Aliás, o próprio STJ limita o arbitramento com base no valor “de mercado” tão-somente quando não merecem fé ou sejam omissas as declarações prestadas pelo contribuinte, conforme expressamente autoriza o artigo 148 do CTN.
Portanto, quando o contribuinte declarar um valor real inferior ao de mercado e as informações prestadas convencerem a fiscalização municipal, não poderá haver o arbitramento do ITBI com base no valor de mercado. Faltará justificativa para o arbitramento.
No entanto, infelizmente, isso não vem sendo amigavelmente aceito por várias Prefeituras, forçando os contribuintes a buscarem guarida no Judiciário, até porque há jurisprudência consolidada no STJ, conforme exposto.
Abaixo, segue íntegra desse recente julgado do STJ.

 

AgRg nos EDcl no AGRAVO DE INSTRUMENTO Nº 1.391.821 – MG (2011⁄0027277-8)

 

 

RELATOR : MINISTRO HUMBERTO MARTINS
AGRAVANTE : MUNICÍPIO DE BELO HORIZONTE
PROCURADOR : LUCIÈNNE PITCHON E OUTRO(S)
AGRAVADO : CAPANONE EMPREENDIMENTOS E LOCAÇÕES LTDA
ADVOGADO : CLEITON MOURÃO FILIZOLA LIMA

 

EMENTA

 

TRIBUTÁRIO. MANDADO DE SEGURANÇA. DIREITO LÍQUIDO E CERTO. VERIFICAÇÃO. IMPOSSIBILIDADE. SÚMULA 7⁄STJ. ITBI. ARREMATAÇÃO JUDICIAL. BASE DE CÁLCULO. VALOR DA ARREMATAÇÃO, E NÃO DO VALOR VENAL.

 

1. Inexistente a alegada violação do art. 535 do CPC pois a prestação jurisdicional foi dada na medida da pretensão deduzida, como se depreende da leitura do acórdão recorrido, que enfrentou os temas abordados no recurso de apelação.

 

2. Não procede a alegação de ofensa aos arts. 165 e 458, incisos II e III, do Código de Processo Civil, pois o Tribunal de origem não pecou na fundamentação do acórdão vergastado, pois decidiu a matéria de direito valendo-se dos elementos que julgou aplicáveis e suficientes para a solução da lide. Assim,manifestou-se de maneira clara e fundamentada sobre as questões colocadas a julgamento, não obstante tenha entendido o julgador de segundo grau em sentido contrário ao posicionamento defendido pelo recorrente.

 

3. A iterativa jurisprudência desta Corte é no sentido de que avaliar os critérios adotados pela instância ordinária, que entendeu pela ocorrência ou não de direito líquido e certo, requer reexame dos elementos probatórios, o que não é possível em recurso especial dado o óbice do enunciado 7 da Súmula desta Corte.

 

4. A jurisprudência desta Corte é no sentido de que “a arrematação corresponde à aquisição do bem vendido judicialmente, é de se considerar como valor venal do imóvel aquele atingido em hasta pública. Este, portanto, é o que deve servir de base de cálculo do ITBI.” (REsp 863.893⁄PR, Rel. Min. Francisco Falcão, Primeira Turma). Precedentes. Súmula 83⁄STJ.

 

Agravo  regimental improvido.

 

ACÓRDÃO

 

Vistos, relatados e discutidos os autos em que são partes as acima indicadas, acordam os Ministros da Segunda Turma do Superior Tribunal de Justiça: “A Turma, por unanimidade, negou provimento ao agravo regimental, nos termos do voto do Sr. Ministro-Relator, sem destaque.” Os Srs. Ministros Herman Benjamin (Presidente), Mauro Campbell Marques e Castro Meira votaram com o Sr. Ministro Relator.

 

Não participou, justificadamente, do julgamento o Sr. Ministro Cesar Asfor Rocha.

 

Brasília (DF), 28 de junho de 2011(Data do Julgamento)

 

MINISTRO HUMBERTO MARTINS

 

Relator

 

AgRg nos EDcl no AGRAVO DE INSTRUMENTO Nº 1.391.821 – MG (2011⁄0027277-8)

 

 

RELATOR : MINISTRO HUMBERTO MARTINS
AGRAVANTE : MUNICÍPIO DE BELO HORIZONTE
PROCURADOR : LUCIÈNNE PITCHON E OUTRO(S)
AGRAVADO : CAPANONE EMPREENDIMENTOS E LOCAÇÕES LTDA
ADVOGADO : CLEITON MOURÃO FILIZOLA LIMA

 

 

 

RELATÓRIO

 

 

 

O EXMO. SR. MINISTRO HUMBERTO MARTINS (Relator):

 

Cuida-se de agravo regimental interposto pelo MUNICÍPIO DE BELO HORIZONTE contra decisão de minha lavra que negou provimento ao agravo de instrumento.

 

A decisão ficou assim ementada: (fl.116-e)

 

“TRIBUTÁRIO. MANDADO DE SEGURANÇA. DIREITO LÍQUIDO E CERTO. VERIFICAÇÃO. IMPOSSIBILIDADE. SÚMULA 7⁄STJ. ITBI. ARREMATAÇÃO JUDICIAL. BASE DE CÁLCULO. VALOR DA ARREMATAÇÃO, E NÃO DO VALOR VENAL. AGRAVO IMPROVIDO.”

 

 

 

Para melhor compreensão da demanda, eis o relatório elaborado no decisum agravado:

 

“Vistos.

 

 

 

Cuida-se de agravo de instrumento tirado pelo MUNICÍPIO DE BELO HORIZONTE de decisão que obstou a subida do recurso especial interposto, com fundamento no art. 105, III, ‘a, da Constituição Federal, contra acórdão do Tribunal de Justiça do Estado de Minas Gerais, assim ementado (fl.54-e):

 

 

 

TRIBUTÁRIO – MANDADO DE SEGURANÇA – ITBI – BASE DE CÁLCULO – VALOR VENAL DOS BENS OU DIREITOS TRANSMITIDOS – VALOR DA ARREMATAÇÃO – FÉ PÚBLICA -CORRESPONDÊNCIA – ARBITRAMENTO – ART. 148 DO CÓDIGO TRIBUTÁRIO NACIONAL – IMPOSSIBILIDADE. 1 – A base de cálculo do ITBI é o valor venal dos bens ou direitos transmitidos devendo corresponder ao preço constante de carta de arrematação, documento que merece fé pública, não havendo falar em arbitramento. 2 – Sentença confirmada em reexame ne cessário, prejudicado o recurso voluntário.’

 

 

 

Opostos embargos de declaração, foram eles rejeitados (fl.70-e).

 

 

 

Sustentou o agravante, em recurso especial, preliminarmente, ofensa aos arts. 165, 458 e 535 do Código de Processo Civil, porquanto, apesar da oposição dos embargos de declaração, o Tribunal de origem não se pronunciou sobre as omissões suscitadas.

 

 

 

Alega, ainda, violação dos arts. 1º e 8º da Lei n. 1.533⁄51; 38, 142, parágrafo único, e 148 do Código Tributário Nacional.

 

 

 

Sem contrarrazões, sobreveio juízo de admissibilidade negativo da instância de origem (fls. 43⁄45-e), o que deu ensejo à interposição do presente agravo.”

 

 

 

Irresignado, opõe embargos de declaração, os quais foram rejeitados (fl.135-e).

 

Nas razões do agravo regimental, assevera que “à evidência, a existência ou não da demonstração de plano, nos autos, do direito líquido e certo é fato absolutamente relevante para o deslinde da controvérsia e suficiente, por si, a por termo final ao processo, sobre o que a legislação de regência não deixa margem a dúvidas” (fl.145-e).

 

Dispensada a oitiva da agravada.

 

É, no essencial, o relatório.

 

AgRg nos EDcl no AGRAVO DE INSTRUMENTO Nº 1.391.821 – MG (2011⁄0027277-8)

 

 

EMENTA

 

TRIBUTÁRIO. MANDADO DE SEGURANÇA. DIREITO LÍQUIDO E CERTO. VERIFICAÇÃO. IMPOSSIBILIDADE. SÚMULA 7⁄STJ. ITBI. ARREMATAÇÃO JUDICIAL. BASE DE CÁLCULO. VALOR DA ARREMATAÇÃO, E NÃO DO VALOR VENAL.

 

1. Inexistente a alegada violação do art. 535 do CPC pois a prestação jurisdicional foi dada na medida da pretensão deduzida, como se depreende da leitura do acórdão recorrido, que enfrentou os temas abordados no recurso de apelação.

 

2. Não procede a alegação de ofensa aos arts. 165 e 458, incisos II e III, do Código de Processo Civil, pois o Tribunal de origem não pecou na fundamentação do acórdão vergastado, pois decidiu a matéria de direito valendo-se dos elementos que julgou aplicáveis e suficientes para a solução da lide. Assim,manifestou-se de maneira clara e fundamentada sobre as questões colocadas a julgamento, não obstante tenha entendido o julgador de segundo grau em sentido contrário ao posicionamento defendido pelo recorrente.

 

3. A iterativa jurisprudência desta Corte é no sentido de que avaliar os critérios adotados pela instância ordinária, que entendeu pela ocorrência ou não de direito líquido e certo, requer reexame dos elementos probatórios, o que não é possível em recurso especial dado o óbice do enunciado 7 da Súmula desta Corte.

 

4. A jurisprudência desta Corte é no sentido de que “a arrematação corresponde à aquisição do bem vendido judicialmente, é de se considerar como valor venal do imóvel aquele atingido em hasta pública. Este, portanto, é o que deve servir de base de cálculo do ITBI.” (REsp 863.893⁄PR, Rel. Min. Francisco Falcão, Primeira Turma). Precedentes. Súmula 83⁄STJ.

 

Agravo  regimental improvido.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

VOTO

 

 

 

 

 

O EXMO. SR. MINISTRO HUMBERTO MARTINS (Relator):

 

Não prospera o inconformismo. Mantenho a decisão agravada.

 

DA INEXISTÊNCIA DE VIOLAÇÃO DO ART. 535 DO CPC

 

Inexistente a alegada violação do art. 535 do CP, uma vez que a prestação jurisdicional foi dada na medida da pretensão deduzida, como se depreende da leitura do acórdão recorrido, que enfrentou os temas abordados no recurso de apelação, qual seja, a demostração do direito líquido e certo do ora agravado, não necessitando de dilação probatória, como deseja o agravante.

 

É o que se infere dos seguintes excertos do voto condutor do acórdão recorrido (e-STJ fl.57-e):

 

“Antes de mais nada, importa dizer que é o caso de mandado de segurança, tendo havido a juntada, à inicial, de documentos, em tese, capazes de demonstrar o direito do impetrante, como a cópia da carta de arrematação e a guia de ITBI, não havendo falar em necessidade de dilação probatória, como alega o apelante”.

 

Verifica-se, também, que nos embargos de declaração o relator tratou expressamente da matéria tida por omissa (fl.71-e):

 

“Isto porque o acórdão deu solução suficiente e fundamentada ás questões trazidas, tendo asseveradoexplicitamente ser o caso de mandado de segurança, pois houve juntada à inicial de documentos, em tese, capazes de demonstrar o direito da impetrante (f. 100)…”

 

 

 

Vê-se, na verdade, que no presente caso a questão não foi decidida conforme objetivava o recorrente, uma vez que foi aplicado entendimento diverso.

 

É cediço, no STJ, que o juiz não fica obrigado a manifestar-se sobre todas as alegações das partes, nem a ater-se aos fundamentos indicados por elas ou a responder, um a um, a todos os seus argumentos, quando já encontrou motivo suficiente para fundamentar a decisão, o que de fato ocorreu.

 

Ressalte-se, ainda, que cabe ao magistrado decidir a questão de acordo com o seu livre convencimento, utilizando-se dos fatos, provas, jurisprudência, aspectos pertinentes ao tema e da legislação que entender aplicável ao caso concreto.

 

Nessa linha de raciocínio, o disposto no art. 131 do Código de Processo Civil:

 

“Art. 131. O juiz apreciará livremente a prova, atendendo aos fatos e circunstâncias constantes dos autos, ainda que não alegados pelas partes; mas deverá indicar, na sentença, os motivos que lhe formaram o convencimento.”

 

Em suma, nos termos de jurisprudência pacífica do STJ, “o magistrado não é obrigado a responder todas as alegações das partes se já tiver encontrado motivo suficiente para fundamentar a decisão, nem é obrigado a ater-se aos fundamentos por elas indicados” (REsp 684.311⁄RS, Rel. Min. Castro Meira, DJ 18.4.2006), como ocorreu na hipótese ora em apreço.

 

Nesse sentido, ainda, os precedentes:

 

 

 

“PROCESSUAL CIVIL E TRIBUTÁRIO –  VIOLAÇÃO DO ART. 535 DO CPC NÃO CARACTERIZADA – EXECUÇÃO FISCAL – DECRETAÇÃO DA PRESCRIÇÃO.

 

1. Não ocorre ofensa ao art. 535, II, do CPC, se o Tribunal de origem decide, fundamentadamente, as questões essenciais ao julgamento da lide.

 

2. É inviável a aplicação do art. 8º, § 2º, da Lei 6.830⁄1980, tendo em vista a prevalência do art. 174 do CTN, para os executivos fiscais ajuizados antes da LC 118⁄2005. Precedentes do STJ.

 

3. Recurso especial não provido.”

 

(REsp 1.142.474⁄RS, Rel. Min. Eliana Calmon, Segunda Turma, julgado em 23.2.2010, DJe 4.3.2010.)

 

 

 

“PROCESSUAL CIVIL. OFENSA AO ART. 535 DO CPC NÃO CONFIGURADA. MULTA ADMINISTRATIVA. PRESCRIÇÃO. APLICABILIDADE DO DECRETO 20.910⁄1932.

 

1. A solução integral da controvérsia, com fundamento suficiente, não caracteriza ofensa ao art. 535 do CPC.

 

2. Ausente previsão em lei específica, o prazo prescricional nas ações de cobrança de multa administrativa é de cinco anos, nos termos do art. 1º do Decreto 20.910⁄1932, à semelhança das ações pessoais contra a Fazenda Pública.

 

3. Orientação reafirmada pela Primeira Seção, no julgamento do REsp 1.105.442⁄RJ , submetido ao rito do art. 543-C do CPC.

 

4. Agravo Regimental não provido.”

 

(AgRg no Ag 1.000.319⁄SP, Rel. Min. Herman Benjamin, Segunda Turma, julgado em 23.2.2010, DJe 4.3.2010.)

 

DA VIOLAÇÃO AO ARTS. 165 E 458 DO CPC

 

Também não procede a alegação de ofensa aos arts. 165 e 458, incisos II e III, do Código de Processo Civil, pois o Tribunal de origem não pecou na fundamentação do acórdão vergastado, uma vez que decidiu a matéria de direito valendo-se dos elementos que julgou aplicáveis e suficientes para a solução da lide. Assim, manifestou-se de maneira clara e fundamentada sobre as questões apresentadas a julgamento, não obstante tenha entendido o julgador de segundo grau em sentido contrário ao posicionamento defendido pela ora recorrente.

 

DA SÚMULA 7 E OCORRÊNCIA DE DIREITO LÍQUIDO E CERTO

 

Ainda que assim não fosse, a iterativa jurisprudência desta Corte é no sentido de que avaliar os critérios adotados pela instância ordinária, que entendeu pela ocorrência ou não de direito líquido e certo, requer reexame dos elementos probatórios, o que não é possível em recurso especial, dado o óbice do enunciado 7 da Súmula desta Corte.

 

Nesse sentido, os seguintes precedentes:

 

PROCESSUAL CIVIL E TRIBUTÁRIO. MANDADO DE SEGURANÇA. PROVA PRÉ-CONSTITUÍDA. DIREITO LÍQUIDO E CERTO. VERIFICAÇÃO.IMPOSSIBILIDADE. SÚMULA 7⁄STJ. ICMS. DEMANDA CONTRATADA. INCIDÊNCIA SOBRE ENERGIA ELÉTRICA EFETIVAMENTE CONSUMIDA.

 

1. A análise da alegada violação do art. 1º da Lei 1.533⁄1951, por suposta ausência de direito líquido e certo, demanda, como regra, reexame fático-probatório dos autos, o que atrai o óbice da Súmula 7 do Superior Tribunal de Justiça. Precedentes do STJ.

 

2. O ICMS incide apenas sobre energia elétrica efetivamente consumida, ainda que o valor da demanda contratada seja maior.

 

3. Orientação reafirmada no julgamento do REsp 960.476⁄SC, sob o rito dos recursos repetitivos.

 

4. Agravo Regimental não provido.”

 

(AgRg no Ag 1.148.478⁄MA, Rel. Min. Herman Benjamin, Segunda Turma, julgado em 15.9.2009, DJe 25.9.2009.)

 

PROCESSUAL CIVIL. AGRAVO REGIMENTAL. AGRAVO DE INSTRUMENTO. AUSÊNCIA DE VIOLAÇÃO AO ART. 535, II, DO CPC. MANDADO DE SEGURANÇA. DIREITO LÍQUIDO E CERTO. AUSÊNCIA DE PROVA PRÉ-CONSTITUÍDA. REEXAME FÁTICO-PROBATÓRIO. RESOLUÇÃO DO CONFAZ. NÃO-ENQUADRAMENTO NO CONCEITO DE LEI PREVISTO NO ART. 105, III, ‘A’, DA CF⁄88.

 

1. Não há violação ao art. 535, II, do CPC no acórdão a quo, o qual está devidamente fundamentado. A jurisprudência uníssona do STJ firma entendimento de que o magistrado não está obrigado a responder a todos os argumentos trazidos pela parte, desde que sua decisão possua fundamentos suficientes para dirimir a controvérsia. Precedentes da Primeira Turma.

 

2. Os dispositivos legais concernentes à matéria de mérito referem-se ao suposto direito líquido e certo à compensação tributária de crédito de ICMS.

 

3. O Tribunal a quo, soberano na análise do acervo fático-probatório dos autos, entendeu que não foi comprovado o direito líquido e certo. Revisar esse entendimento é inadmissível na via especial, pois demandaria o revolvimento de matéria fático-probatória, o que é vedado pela Súmula 7⁄STJ.

 

4. Possíveis violações a resoluções do Confaz não podem ser analisadas em sede de recurso especial porque esses atos normativos não se enquadram no conceito de lei previsto no art. 105, III, ‘a’, da CF⁄88.

 

5. Agravo regimental não-provido.”

 

(AgRg no Ag 1.019.886⁄GO, Rel. Min. Benedito Gonçalves, Primeira Turma, julgado em 4.11.2008, DJe 12.11.2008.)

 

PROCESSUAL CIVIL. AGRAVO REGIMENTAL NO AGRAVO DE INSTRUMENTO. AUSÊNCIA DEPREQUESTIONAMENTO. SÚMULAS 282 E 356⁄STF. MANDADO DE SEGURANÇA. DIREITO LÍQUIDO E CERTO. VERIFICAÇÃO. IMPOSSIBILIDADE.REEXAME DE MATÉRIA FÁTICO-PROBATÓRIA. SÚMULA 7⁄STJ. PRECEDENTES DO STJ. DESPROVIMENTO DO AGRAVO REGIMENTAL.

 

1. A ausência de prequestionamento do dispositivo legal tido como violado torna inadmissível o recurso especial. Incidência das Súmulas 282 e 356⁄STF.

 

2. Efetivamente, para a configuração do questionamento prévio, não é necessário que haja menção expressa do dispositivo infraconstitucional tido como violado. Todavia, é imprescindível que no aresto recorrido a questão tenha sido discutida e decidida fundamentadamente, sob pena de não-preenchimento do requisito do prequestionamento, indispensável para o conhecimento do recurso especial.

 

3. A análise da suposta violação do art. 1º da Lei 1.533⁄51, com a conseqüente verificação da existência ou não de direito líquido e certo amparado por mandado de segurança, não tem sidoadmitida em sede de recurso especial, pois exigiria o reexame de matéria fático-probatória, o que é vedado ao Superior Tribunal de Justiça, nos termos da Súmula 7⁄STJ.

 

4. Agravo regimental desprovido.

 

(AgRg no Ag 1.043.508⁄PE, Rel. Ministra Denise Arruda, Primeira Turma, julgado em 9.9.2008, DJe 24.9.2008.)

 

PROCESSUAL CIVIL. MANDADO DE SEGURANÇA. MATÉRIA FÁTICA. REEXAME DE PROVAS. SÚMULA 7⁄STJ.

 

1. O Tribunal a quo valeu-se da análise das provas dos autos para reconhecer a existência de direito líquido e certo apto a possibilitar o manejo adequado da ação de mandado de segurança.

 

2. Impossível alterar as premissas fixadas no acórdão recorrido, em face do comando da Súmula 7⁄STJ (“A pretensão de simples reexame de prova não enseja recurso especial”).

 

3. Agravo regimental não provido.”

 

(AgRg no Ag 1.031.629⁄SP, Rel. Min. Castro Meira, Segunda Turma, julgado em 5.8.2008, DJe 19.8.2008.)

 

DA SÚMULA 83⁄STJ

 

A jurisprudência desta Corte é no sentido de que “a arrematação corresponde à aquisição do bem vendido judicialmente, é de se considerar como valor venal do imóvel aquele atingido em hasta pública. Este, portanto, é o que deve servir de base de cálculo do ITBI.”(REsp 863.893⁄PR, Rel. Min. Francisco Falcão, Primeira Turma).

 

“TRIBUTÁRIO. RECURSO ESPECIAL. AÇÃO DECLARATÓRIA. ITBI. ARREMATAÇÃO JUDICIAL. BASE DE CÁLCULO. VALOR DA ARREMATAÇÃO E NÃO O VENAL. PRECEDENTE. DISSÍDIO JURISPRUDENCIAL DEMONSTRADO. DIREITO LOCAL. SÚMULA 280 DO STF. OMISSÃO – ART. 535, CPC. INOCORRÊNCIA. RECURSO PROVIDO PELA ALÍNEA ‘C’.

 

1. A arrematação representa a aquisição do bem alienado judicialmente, considerando-se como base de cálculo do ITBI aquele alcançado na hasta pública. (Precedentes: (REsp 863.893⁄PR, Rel. Ministro FRANCISCO FALCÃO, PRIMEIRA TURMA, DJ 07⁄11⁄2006; e REsp 2.525⁄PR, Rel. Ministro ARMANDO ROLEMBERG, PRIMEIRA TURMA, DJ 25⁄06⁄1990).

 

2. Nesse sentido, o precedente: TRIBUTÁRIO. IMPOSTO DE TRANSMISSÃO INTER VIVOS. BASE DE CÁLCULO. VALOR VENAL DO BEM. VALOR DA AVALIAÇÃO JUDICIAL. VALOR DA ARREMATAÇÃO.

 

I – O fato gerador do ITBI só se aperfeiçoa com o registro da transmissão do bem imóvel. Precedentes: AgRg no Ag nº 448.245⁄DF, Rel. Min. LUIZ FUX, DJ de 09⁄12⁄2002, REsp nº 253.364⁄DF, Rel. Min. HUMBERTO GOMES DE BARROS, DJ de 16⁄04⁄2001 e RMS nº 10.650⁄DF, Rel. Min. FRANCISCOPEÇANHA MARTINS, DJ de 04⁄09⁄2000. Além disso, já se decidiu no âmbito desta Corte que o cálculo daquele imposto “há de ser feito com base no valor alcançado pelos bens na arrematação, e não pelo valor da avaliação judicial” (R Esp. n.º 2.525⁄PR, Rel. Min. ARMANDO ROLEMBERG, DJ de 25⁄6⁄1990, p. 6027). Tendo em vista que a arrematação corresponde à aquisição do bem vendido judicialmente, é de se considerar como valor venal do imóvel aquele atingido em hasta pública. Este, portanto, é o quedeve servir de base de cálculo do ITBI.

 

II – Recurso especial provido.

 

(REsp 863.893⁄PR, Rel. Ministro FRANCISCO FALCÃO, PRIMEIRA TURMA, DJ 07⁄11⁄2006, p. 277) 3. Deveras, é cediço que o Tribunal a quo assentou: ‘Instituído o ITBI pelo Município de Porto Alegre, ‘A base de cálculo do imposto é o valor venal do imóvel objeto da transmissão ou da cessão de direitos reais a eles relativos, no momento da estimativa fiscal efetuada pelo Agente Fiscal da Receita Municipal’ (caput do art. 11 da LCM Nº 197⁄89).

 

Já, o art. 12 da referida legislação dispõe o seguinte: ‘Art. 12 – São, também, bases de calculo do imposto: [...] IV – a estimativa fiscal ou o preço pago, se este for maior, na arrematação e naadjudicação de imóvel’.

 

No caso, cuida-se de arrematação judicial efetuada por R$ 317.000, 00. O arrematante tem responsabilidade tributária pessoal relativamente a esse tributo, que tem por fato gerador atransmissão do domínio (art. 35, I, do Código Tributário Nacional), prevalecendo, portanto, a legislação municipal.’ (fls. 114 e ss.) 4. A Súmula 280⁄STF dispõe que: ‘Por ofensa a direito local não cabe recurso extraordinário’.

 

5. O acórdão recorrido, em sede de embargos de declaração, que enfrenta explicitamente a questão embargada não enseja recurso especial pela violação do artigo 535, II, do CPC.

 

6. Ademais, o magistrado não está obrigado a rebater, um a um, os argumentos trazidos pela parte, desde que os fundamentos utilizados tenham sido suficientes para embasar a decisão.

 

7. Recurso especial parcialmente conhecido e provido.”

 

(REsp 1.188.655⁄RS, Rel. Min. Luiz Fux, Primeira Turma, julgado em 20.5.2010, DJe 8.6.2010)

 

 

 

“TRIBUTÁRIO. IMPOSTO DE TRANSMISSÃO INTER VIVOS. BASE DE CÁLCULO. VALOR VENAL DO BEM. VALOR DA AVALIAÇÃO JUDICIAL. VALOR DA ARREMATAÇÃO.

 

I – O fato gerador do ITBI só se aperfeiçoa com o registro da transmissão do bem imóvel. Precedentes: AgRg no Ag nº 448.245⁄DF, Rel. Min. LUIZ FUX, DJ de 09⁄12⁄2002, REsp nº 253.364⁄DF, Rel. Min. HUMBERTO GOMES DE BARROS, DJ de 16⁄04⁄2001 e RMS nº 10.650⁄DF, Rel. Min. FRANCISCOPEÇANHA MARTINS, DJ de 04⁄09⁄2000. Além disso, já se decidiu no âmbito desta Corte que o cálculo daquele imposto ‘há de ser feito com base no valor alcançado pelos bens na arrematação, e não pelo valor da avaliação judicial’ (REsp. n.º 2.525⁄PR, Rel. Min. ARMANDO ROLEMBERG, DJ de 25⁄6⁄1990, p. 6027). Tendo em vista que a arrematação corresponde à aquisição do bem vendido judicialmente, é de se considerar como valor venal do imóvel aquele atingido em hasta pública. Este, portanto, é o que deve servir de base de cálculo do ITBI.

 

II – Recurso especial provido.”

 

(REsp 863.893⁄PR, Rel. Min. Francisco Falcão, Primeira Turma, julgado em 17.10.2006, DJ 7.11.2006, p. 277.)

 

Das razões acima expendidas, verifica-se que o Tribunal a quo decidiu de acordo com jurisprudência desta Corte, de modo que se aplica à espécie o enunciado da Súmula 83⁄STJ, verbis:

 

“Não se conhece do recurso especial pela divergência, quando a orientação do Tribunal se firmou no mesmo sentido da decisão recorrida.”

 

Ressalte-se que o teor do referido enunciado aplica-se, inclusive, aos recursos especiais interpostos com fundamento na alínea “a” do permissivo constitucional. Confira-se os excertos dos seguintes julgados:

 

“1. O Enunciado nº 83 da Súmula desta c. Corte também se aplica aos recursos interpostos sob o fundamento do art. 105, III, alínea ‘a’, da Constituição Federal. 2. O entendimento adotado pelo e. Tribunal de origem encontra-se em consonância com a jurisprudência firmada nesta Corte Superior de Justiça”

 

(AgRg no Ag 921.314⁄RJ, Rel. Juiz Federal convocado Carlos Fernando Mathias, Segunda Turma, julgado em 25.3.2008, DJ 15.4.2008, p. 1).

 

 

 

“É pacífico o entendimento do STJ no sentido de que a Súmula 83 incide igualmente nos recurso especiais fundamentados na alínea ‘a’ do permissivo constitucional.”

 

(AgRg no Ag 958.448⁄MG, Rel. Ministra Nancy Andrighi, Terceira Turma, julgado em 21.2.2008, DJ 10.3.2008, p. 1.)

 

Ante o exposto, não tendo o agravante trazido qualquer argumento que pudesse infirmar a decisão agravada, nego provimento ao agravo regimental.

 

É como penso. É como voto.

 

MINISTRO HUMBERTO MARTINS

 

Relator

 

CERTIDÃO DE JULGAMENTO

 

SEGUNDA TURMA

 

AgRg nos EDcl no

 

Número Registro: 2011⁄0027277-8
PROCESSO ELETRÔNICO
Ag     1.391.821 ⁄ MG

 

Números Origem:  10024082337742005     24082337742005

 

PAUTA: 28⁄06⁄2011 JULGADO: 28⁄06⁄2011

 

Relator

 

Exmo. Sr. Ministro HUMBERTO MARTINS

 

Presidente da Sessão

 

Exmo. Sr. Ministro HERMAN BENJAMIN

 

Subprocuradora-Geral da República

 

Exma. Sra. Dra. ELIZETA MARIA DE PAIVA RAMOS

 

Secretária

 

Bela. VALÉRIA ALVIM DUSI

 

 

 

AUTUAÇÃO

 

AGRAVANTE : MUNICÍPIO DE BELO HORIZONTE
PROCURADOR : LUCIÈNNE PITCHON E OUTRO(S)
AGRAVADO : CAPANONE EMPREENDIMENTOS E LOCAÇÕES LTDA
ADVOGADO : CLEITON MOURÃO FILIZOLA LIMA

 

ASSUNTO: DIREITO TRIBUTÁRIO – Impostos – ITBI – Imposto de Transmissão Intervivos de Bens Móveis e Imóveis

 

 

 

AGRAVO REGIMENTAL

 

 

 

AGRAVANTE : MUNICÍPIO DE BELO HORIZONTE
PROCURADOR : LUCIÈNNE PITCHON E OUTRO(S)
AGRAVADO : CAPANONE EMPREENDIMENTOS E LOCAÇÕES LTDA
ADVOGADO : CLEITON MOURÃO FILIZOLA LIMA

 

 

 

CERTIDÃO

 

Certifico que a egrégia SEGUNDA TURMA, ao apreciar o processo em epígrafe na sessão realizada nesta data, proferiu a seguinte decisão:

 

“A Turma, por unanimidade, negou provimento ao agravo regimental, nos termos do voto do Sr. Ministro-Relator, sem destaque.”

 

Os Srs. Ministros Herman Benjamin (Presidente), Mauro Campbell Marques e Castro Meira votaram com o Sr. Ministro Relator.

 

Não participou, justificadamente, do julgamento o Sr. Ministro Cesar Asfor Rocha.

 

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