By Fernando Villela de Andrade Vianna
It is a known fact that public service concessionaires have been facing a challenge in the tax field due to charges related to IPTU (Tax on Urban Territorial Property) carried out by Municipal Public Treasuries from 2017, when the Federal Supreme Court (STF) judged the Appeals Extraordinary No. 594.015 and 601.720. These are the cases considered exemplary by the municipalities for levying the tax on areas under public concession (federal, state or municipal).
These decisions had general repercussion recognized by Themes 385 and 437, respectively: (i) “[the] reciprocal immunity, provided for in art. 150, VI, a, of the Constitution does not extend to a private company that leases public property, when it is an exploiter of economic activity for profit. In this case, the collection of IPTU by the Municipality is constitutional”; and (ii) “[i]ncides the IPTU, considered property of a legal entity governed by public law, transferred to a legal entity governed by private law, debtor of the tax”.
It must be recognized, however, that the matter decided by the Supreme Court in Items 385 and 437 is materially different from that of interest to the Federal Government and public service concessionaires of airport infrastructure. This distinguishing is relevant, to the extent that (i) a public service concessionaire does not carry out an economic activity in the strict sense, in competition with third parties, but rather provides a public service, under the regime of public law; (ii) the IPTU taxable event is ownership of the property, pursuant to art. 156, I, of the Federal Constitution, or the exercise of possession as an expression of ownership (animus domini), which does not occur with precarious possession resulting from a concession contract, given that real estate allocated to the public service are considered assets reversible and are returned to the Granting Authority upon termination of the public-private contractual relationship; (iii) even though part of the properties are commercially exploited by the concessionaire, the fact is that it is an exploration that favors low tariffs and an increase in variable revenues by the delegating federal entity; (iv) there is no market value of these properties due to their connection to the provision of public service and their unavailability for sale in the market; and (v) recognizing the incidence of a municipal tax on a federal public concession can lead to discussions about the Federative Pact, since it would be admitting the artificial encumbrance of a public service of a federated entity by a tax measure of other.
