A inconstitucionalidade na cobrança de IPTU ou ITR de proprietário de imóvel ocupado ilegalmente por terceiros

Abstract

This paper aims to substantiate the assertion that the tax collection of the Rural Territorial Tax or the Urban Property and Territorial Tax that falls on the owner of property illegally occupied by third parties (ie the property that suffered the possession foul) would be unconstitutional, for violating the limiting principles of the tax performance (the triad of Strict Legality, Tax Equality, and Contributory Capacity). We begin with a brief historical recapitulation, since the appearance in the history of the collection that falls (directly or indirectly) on the property (in the sense of immovable property), as well as we deal with the appearance of the Rural Territorial Tax and the Urban Property and Territorial Tax in Brazil and the evolution of these in time; encompassing the question of justification of taxes and their connection with the Democratic State of Law that we are inserted, which culminated in the election of certain specific principles that mark the tax relation. In the course of our work, we went into the specific study of unconstitutionality in the tax on the owner of deprived property, relating it to the three principles elected as indispensable for the execution of Tax Justice, analyzing them in connection with tax legislation, institutes of civil law, jurisprudence and constitutional rules. Finally, we explore the Jurisprudence of the Superior Court of Justice and the paradigm change of that in the course of time; in addition, we appreciate certain precedents of courts that displayed disagreement with the understanding defended in this monographic essay. After analyzing the decisions of the case-law, it can be seen that gradually the conjecture about the application of the law begins to turn to the reality of things, that is, to assess in the concrete case the assumptions of tax collection, so that, thereby, gains strength and value the aspects that guarantee the legitimacy of taxes.