The Superior Court of Justice (STJ), in the judgment of Repetitive Topic 1,142/STJ, put an end to the following controversies:

  • "define whether the scenario for unenforceability of collection provided for in the final part of article 47, paragraph 1, of Law 9,636/98 covers or does not cover the Federal Government's credits related to sporadic revenue, notably that related to annual land rent;" and
  • "assess whether lack of real estate registration of the transaction (drawer agreements) prevents finding of taxable event of annual land rent and, therefore, prevents the flow of the lapse period for it to be levied."

In the case in question, the Federal Government lodged the respective special appeals on the grounds that the provision of article 47, paragraph 1, of Law 9,636/98 covers only periodic revenue of the Federal Government, not applying to occasional revenue, such as annual land rent.

Revenues from annual land rent, therefore, should not be included in the rule of unenforceability of the debts mentioned in the rule, according to recommendations provided in internal memoranda and opinions.[1]

The Federal Government also argued that legal transactions between private individuals allow the collection of annual land rent. Therefore, the taxable event is independent of real estate registration. The private transfers (drawer agreements) are characterized as a sufficient fact justifying the levy of annual land rent.

Finally, the special appeals argue that the initial term for counting the statute of limitations for the collection of annual land rent should be based on the moment when the Federal Government becomes aware of the taxable event.

The judgment, with the vote of the reporting justice Gurgel de Faria, partially met the Federal Government's requests, admitting that lack of real estate registration for the transaction would not prevent finding of the taxable event of the annual land rent, since, if it prevented, it would result in encouraging illegality to avoid its collection.

The decision also indicated that reading article 3 of Decree-Law 2,398/87, as amended by Law 13,465/17, could only result in the interpretation that the legislator established two alternative forms of levy: transfer for consideration of the equitable ownership of Federal Government land or assignment of rights related to it.

In addition, the request that the limitation period should start from the date of formal knowledge of the transaction by the Public Administration was accepted. In addition, it was pointed out that the topic had already been previously mentioned by the Second Panel in REsp 1.765.707/RJ.[2] 

In this special appeal, the theory was established that the triggering event for counting the limitations period corresponds to the moment when the Federal Government becomes aware of the sale, instead of the date on which the legal transaction between the individuals was consolidated or, even, the date of registration of the transaction in the real estate registry.

The STJ, however, held that the final provision of paragraph 1 of article 47 of Law 9,636/98 applies to cases of annual land rent. The reason for the understanding is that the legislator did not differentiate between periodic revenue and sporadic revenue, and therefore the issue of lapse and the statute of limitations of non-taxable asset revenues of the Federal Government must follow the rules established in the provision, regardless of qualification.

In this context, from the judgment of Repetitive Topic 1,142, the interpretation that must be given to the subject was standardized, thus making it unequivocal that:

  • private contracts, even without real estate registration, are facts that generate annual land rent;
  • computation of lapse periods and statutory limitations periods follow the rules of article 47, paragraph 1, of Law 9,636/98; and
  • the collection of the annual land rent must be limited to the five years preceding the knowledge, by the Public Administration, of the legal business entered into between individuals.

[1] Memorandum 10,040/2017 of the Ministry of Planning, Development, and Management, Circular Memorandum 372/2017-MP, Opinion 0088 - 5.9/2013/DPC/CONJUR-MP/CGU/AGU, Opinion/MP/CONJUR/DPC/N. 0471 - 5.9/2010

[2] REsp 1765707/RJ, opinion drafted by Justice Herman Benjamin, Second Panel, decided on August 15, 2019, DJe of October 11, 2019