Reservas quanto à incidência do imposto predial e territorial urbano sobre o direito de superfície: a inconstitucionalidade da atual inclusão do superficiário como contribuinte do IPTU

Abstract

The Urban Property Tax is a municipal tribute mainly charged over the property of urban real estate, being also observed, for the purpose of tax incidence, the civil public use domain or the possession with intent of ownership. The present monograph aims to study the referred tax incidence on the building lease, reintegrated into Brazilian law system by the Civil Code and by the City Statute, in order to work as an alternative solution to the housing crisis which takes place in the large urban centers. Basically consisting on a contractual relation where the property owner allows a third party to build or to plant on it, building lease brings to its beneficiary, among other peculiarities, the duty of bearing the property incident taxes’ payment, including the so-called IPTU. Through an analysis of the legal determinations that so established the aforesaid onus, it brings to the surface the existing unconstitutionality about the civil legal determinations that frame the building leaser as an IPTU’s taxpayer, rules which tackle the correct legislative process established by Brazilian Federal Constitution to deal with the direct passive subjection in the tributary ambit.