Special Taxation Regime for Real Estate Developments: an Analysis of CARF Rulings

Lívia De Moraes Pindaíba; Raissa Alvares De Matos Miranda

DOI: 10.22167/2675-6528-202603147

Article derived from a Final Course Work (TCC), with content based on the student’s original work and adapted to the editorial format of the E&S Magazine with the support of the ResumeAI tool, an artificial intelligence solution developed by the Pecege Institute for textual synthesis and organization.

Abstract

The Special Taxation Regime (RET) applicable to real estate incorporations was analyzed, comparing it with the regimes of Actual Profit and Presumed Profit, in light of the jurisprudence of the Administrative Council of Tax Appeals (CARF). The research was characterized as qualitative, descriptive, and exploratory. It was developed through bibliographic review, legislative analysis, and documentary examination of five administrative rulings issued between 2018 and 2025, collected from the official CARF portal. The results revealed a predominance of restrictive decisions regarding the application of tax benefits, with a favorable trend towards the National Treasury, especially in defining the tax base and in fulfilling the legal requirements for adherence to the regime. It was identified that CARF adopts a restrictive interpretation of tax benefits and requires formal rigor in the constitution of the affected property. Additionally, a relevant interpretative tension was found between precedents from the Superior Court of Justice (STJ) and the Supreme Federal Court (STF) regarding gross real estate revenue in exchange operations, which represents a structural legal risk for taxpayers. It was concluded that the adoption of RET, although advantageous in terms of simplicity and tax predictability, requires strict compliance with regulatory requirements and continuous monitoring of administrative jurisprudence, with its choice being conditioned by the specificities of the development and the legal risks involved. The research contributed to deepening the analysis of taxation in the real estate sector, offering subsidies for professionals in the field.

Keywords: CARF; Real estate incorporations; Tax planning; Special Taxation Regime.

1. Introduction

The civil construction sector plays a relevant role in Brazilian economic development, standing out for its job creation capacity, investment dynamism, and direct impact on urban infrastructure (Alexandre, 2022). In this context, real estate developments assume a prominent position, demanding not only financial and operational planning but also adequate tax management, given the complexity of the national tax system (Machado, 2022).

The high tax burden and the multiplicity of calculation regimes make the choice of tax framework a decisive factor for the economic viability of real estate ventures (Amaro, 2021). Among the available alternatives, the Special Taxation Regime (RET), established by Law No. 10.931/2004, stands out, with the purpose of simplifying the calculation of taxes on real estate developments subject to the patrimônio de afetação, promoting greater predictability and legal certainty (Brasil, 2004).

However, despite the inherent advantages of the aforementioned regime, its practical application demonstrates relevant challenges, especially concerning the interpretation of legal requirements and the definition of the calculation basis (Paulsen, 2023). Such issues highlight the existence of legal controversies that directly impact the tax planning of real estate developers, requiring careful analysis by the professionals involved (Greco, 2020).

The choice for the RET must be analyzed carefully when compared to traditional taxation regimes, such as the Lucro Real and Lucro Presumido, involving not only economic aspects but also legal risks arising from the interpretation of tax legislation by administrative bodies (Coêlho, 2021). In this scenario, the performance of the Administrative Council of Tax Appeals (CARF), responsible for judging tax disputes at the federal level, stands out, whose rulings help understand how the legislation is being interpreted, revealing decision-making trends that directly impact the tax planning of real estate incorporations (Harada, 2021).

The relevance of the topic is justified by the need to deepen the study of taxation in the real estate sector, especially regarding the legal and economic impacts arising from the choice of the tax regime (Torres, 2020). Additionally, the present study identifies a relevant and as yet unresolved interpretive tension in the doctrine, arising from the coexistence of precedents from the Superior Court of Justice (STJ) and the Supreme Federal Court (STF) on gross real estate revenue in the context of property exchange, which, although dealing with formally distinct objects, have material connection and generate legal uncertainty for taxpayers (Paulsen, 2023).

Given this context, the present work aims to generally analyze the application of the Special Taxation Regime (RET) in real estate developments, in comparison with the Real Profit and Presumed Profit regimes, in light of the jurisprudence of the Administrative Council of Tax Appeals (CARF), with a view to identifying the main interpretative controversies and their repercussions on tax planning in the real estate sector. The relevance of the study is justified by the complexity of the Brazilian tax system and the existence of divergences in administrative interpretation regarding tax incidence in real estate operations, especially concerning the definition of gross revenue and the application of the RET. In this sense, the research seeks to contribute to the systematization of jurisprudential understanding, providing greater legal certainty to taxpayers and supporting decision-making in tax management.

2. Material and Methods

This research was characterized as qualitative in nature, with the purpose of deepening the understanding of the theme. A descriptive and exploratory approach was adopted, aiming to analyze the Special Taxation Regime (RET) applied to real estate incorporations. The study compared this regime with the Actual Profit and Presumed Profit, in light of administrative jurisprudence, according to the methodological guidelines for studies of this nature (Gil, 2002).

Regarding the methodological procedures, initially, a comprehensive bibliographic research was carried out. This stage was based on doctrinal works, scientific articles, and academic publications. The focus was on Tax Law and the specific taxation of the real estate sector, with the objective of establishing the necessary theoretical foundation for an in-depth understanding of the analyzed tax regimes.

In addition to the literature review, documentary research was carried out with an examination of the relevant legislation. Special attention was given to Law No. 10.931/2004, which established the Special Taxation Regime. Complementary regulations issued by the Tax Administration were also analyzed, allowing for the identification of the legal requirements, characteristics, and limitations inherent to the aforementioned regime.

For the collection of rulings from the Administrative Council of Tax Appeals (CARF), the jurisprudence search system available on the official CARF portal (https://acordaos.economia.gov.br) was used. The search was conducted using specific keywords, including “Special Taxation Regime”, “RET”, “real estate incorporation”, and “affected property”, in order to cover the universe of relevant decisions.

Decisions issued between 2018 and 2024 were prioritized, seeking to ensure the currency of the collected data. Of the total number of judgments identified, those with greater thematic relevance were selected. Decisions dealing with merely procedural issues or that did not directly address the application of the Special Taxation Regime were excluded.

At the end of the selection process, 5 rulings considered representative of the main controversies identified were analyzed. Although numerically reduced, this number was based on the criterion of thematic saturation. The located precedents reproduced recurrent argumentative patterns, both in the taxpayer’s thesis and in the National Treasury’s position, so that additional decisions would tend to reinforce the already identified patterns.

Additionally, the selected judgments were chosen to represent the widest possible time interval within the researched scope (2018-2025). This breadth encompassed decisions before and after the issuance of Normative Instruction RFB No. 2.179/2024, allowing for observation of CARF’s understanding’s stability over time. It is emphasized that the qualitative nature of the research did not aim for statistical exhaustiveness, but for interpretive deepening of the identified decision-making patterns (Gil, 2002).

For the analysis of the collected data, the qualitative documentary analysis method was adopted. Through this method, the selected judgments were subjected to a systematic reading and an in-depth interpretation of their legal content. This procedure aimed to extract the relevant information for the study, without anticipating conclusions or results.

The analysis focused on identifying the main arguments presented by the parties involved, namely, the taxpayer and the National Treasury. It also sought to understand the consolidated understanding of the Administrative Council of Tax Appeals (CARF) in each decision. Subsequently, the data were organized and systematized in an analytical matrix, facilitating the identification of decision patterns and jurisprudential trends related to the application of the Special Taxation Regime (Gil, 2002).

3. Results and Discussion

The analysis of the rulings of the Administrative Council for Tax Appeals (CARF), collected through the official portal of administrative jurisprudence, allowed for the identification of relevant interpretive patterns regarding the taxation of real estate incorporations, with direct implications for the application of the Special Taxation Regime (RET). The results revealed a predominance of decisions that tend towards a restrictive interpretation of tax regulations, especially concerning the definition of the tax base and the inclusion of revenues in the calculation of taxes, crucial aspects for the operationalization of the RET. This CARF stance directly impacts the tax planning of developers, requiring caution and rigor in compliance with legal requirements.

The documentary research of the rulings, issued between 2018 and 2025, showed that the CARF, predominantly, adopts a restrictive stance in the interpretation of tax regulations applicable to the real estate sector. This trend is particularly evident in controversies involving the definition of the tax base and the inclusion of revenues in the calculation of taxes, aspects directly related to the operationalization of the RET (Paulsen, 2023). The systematization of these judgments allowed for the identification of coherence and divergences in the theses presented by both taxpayers and the National Treasury, as well as the Council’s final position.

Restrictive interpretation of tax benefits

The analysis of the examined rulings shows that the CARF predominantly adopts the principle of restrictive interpretation of tax benefits. The RET, being considered a favored regime, must be applied only when all legal requirements are rigorously met, with any interpretative doubt being resolved in favor of the Tax Administration (Coêlho, 2021). This stance aligns with the general orientation of tax administrative jurisprudence, which seeks to preserve strict legality and prevent undue application of tax benefits, ensuring the integrity of revenue collection.

A clear example of this trend is Ruling No. 9101-004.363, judged in September 2019, which denied the taxpayer’s appeal by casting vote, reaffirming the restrictive understanding regarding the gross revenue calculation in real estate activities (CARF, 2019). In this case, the National Treasury’s thesis, which advocated for the inclusion of all amounts received, including properties in exchange, prevailed over the taxpayer’s thesis, which sought to adopt distinct regimes for the same activity, resulting in an unfavorable, pro-Tax Authority decision.

Calculation basis and revenue inclusion

Regarding the definition of the calculation base, the results indicate the consolidation of understanding towards the inclusion of ancillary revenues in the taxation of real estate developments. This interpretation broadens the concept of gross revenue for the purpose of applying the unified RET rate, resulting in an increase in the effective tax burden borne by developers (Alexandre, 2022). The National Treasury frequently argues for the full taxation of all amounts received, seeking an extensive interpretation of the concept of gross revenue.

However, it is observed that the CARF has also recognized, in certain situations, the application of interpretations more favorable to the taxpayer, especially in cases of real estate exchange. Ruling No. 9101-005.204, judged in November 2020, resulted in a decision favorable to the taxpayer due to a tie in the judgment, according to art. 19-E of Law No. 10.522/2002. In this precedent, the CARF recognized that the exchange of real estate does not constitute gross real estate revenue for taxation purposes under the Presumed Profit regime, aligning with the taxpayer’s thesis that the exchange does not represent income or an increase in assets (CARF, 2020).

In the same vein, Ruling No. 1201-006.812, of June 2024, recognized by majority that only the “torna” – the complementary cash payment – constitutes taxable income in exchange operations (CARF, 2024). This decision reinforces the understanding that the value of the property received in exchange does not constitute taxable revenue or income, but only the cash difference. Such decisions, although specific, indicate an openness to more restrictive interpretations of the concept of gross revenue in specific operations, benefiting the taxpayer in certain contexts.

Still on the subject of exchange, Ruling No. 1402-003.585, from November 2018, which dealt with taxable income in the exchange of real estate, had its clarifying appeals granted without infringing effects, reaffirming the internal coherence of the previous decision. The National Treasury’s thesis, which advocated for the full inclusion of the exchange value in the IRPJ tax base, was maintained, indicating that, despite some favorable decisions for taxpayers, the general trend is still broad inclusion of income (CARF, 2018).

Another relevant case was Ruling No. 9101-007.448, of September 2025, which dealt with the omission of revenue in real estate exchanges for IRPJ, CSLL, and COFINS under the Presumed Profit regime. There was a partial granting of the appeal, with the exclusion of the omission related to the exchange, aligning with the understanding of the Superior Court of Justice (STJ). The taxpayer’s argument, which defended that the value of the property received did not constitute taxable revenue or income, was partially accepted, reinforcing the interpretive complexity of these operations (CARF, 2025).

The tension between the precedents of the STJ and the STF: a critical reading

In this context of defining the calculation basis, the jurisprudence of the Superior Court of Justice (STJ) deserves attention. In the judgment of Appeal Special No. 1,733,560/SC, it was decided that an exchange contract should not be equated with a purchase and sale contract in the tax sphere. The STJ recognized that the value received in real estate in exchange operations does not fit the concept of gross revenue, therefore not integrating the calculation basis of the Corporate Income Tax (IRPJ), the Social Contribution on Net Profit (CSLL), the Social Integration Program (PIS), and the Contribution for the Financing of Social Security (COFINS). Only the “turna” (cash difference) eventually received should be subject to taxation (STJ, Appeal Special No. 1,733,560/SC, 2018).

Within the scope of the Supreme Federal Court (STF), the judgment of RE 599.658 and RE 659.412 (Themes 630 and 684, General Repercussion) established a thesis stating that the incidence of PIS and COFINS on revenues earned from real estate activities is constitutional when these constitute the taxpayer’s main business activity. This decision reinforces the broad concept of gross revenue for tax purposes (STF, RE 599.658, 2024), without specifically addressing the exchange of real estate, but establishing a comprehensive understanding of the nature of gross revenue in real estate activities.

An aspect little explored by specialized doctrine, and which constitutes one of the analytical contributions of the present study, refers to the latent tension between these precedents of the Superior Court of Justice and the Supreme Federal Court applicable to the taxation of real estate exchange in the context of RET. In isolation, the two decisions do not seem conflicting: the STJ ruled specifically on the legal nature of the exchange, excluding it from the concept of gross revenue, except for the “torna” (difference paid); whereas the STF established a thesis on the constitutionality of the incidence of PIS and COFINS on revenues from principal real estate activities, adopting a broad concept of gross revenue, without specifically addressing the exchange.

However, when analyzed together in the context of the taxation of incorporations subject to RET, these two theses generate a relevant and as yet unresolved interpretive tension. The STJ’s logic allows the taxpayer to exclude the value of the exchanged property from the tax base, while the broad concept of gross income consolidated by the STF can be invoked by the National Treasury to support an opposite interpretation, especially in future assessments. This tension, unresolved in the context of repetitive appeals or specific general repercussion on the exchange, keeps taxpayers in the real estate sector in a state of uncertainty even in the face of apparently favorable precedents (Paulsen, 2023).

This is a reading that advances in relation to the consulted literature (Machado Meyer, 2026; Paulsen, 2023), which deals with the aforementioned decisions in isolation, without problematizing the interaction between them in the specific scope of the taxation of real estate incorporations by the RET. The systematization of this tension thus constitutes an original contribution of the present work, as it highlights a latent legal risk that does not arise from legislative omission, but from the coexistence of precedents from superior courts with formally distinct, yet materially connected, objects, generating a scenario of unpredictability for the taxpayer.

Asset allocation as a requirement of the RET

In the judgments analyzed, it is observed that the CARF rigorously treats the requirement of the affected property as an indispensable condition for adhesion to the RET. The analysis of precedents demonstrates that any formal flaws or irregularities in the constitution of the affected property have been sufficient to prevent the application of the regime, even when there is no material prejudice to the protective purpose of the institute (Greco, 2020). This rigidity in the interpretation of formal requirements reflects the Tax Authority’s concern to ensure the correct application of tax benefits.

Such understanding reinforces the prevalence of the principle of strict legality in the scope of tax administrative litigation, demanding a high degree of legal compliance from developers in structuring their ventures (Paulsen, 2023). The constitution of the affected property, although it is a protection mechanism for purchasers of real estate units, is seen by CARF as an unavoidable formal requirement for the enjoyment of RET, and any deviation may compromise adherence to the regime and expose the taxpayer to tax assessments.

Decisional trend and practical impacts

Based on the analysis of precedents, it is possible to identify a consolidated trend within CARF: predominance of decisions favorable to the National Treasury, recognition of tax incidence even in controversial situations, expansion of the calculation basis, and rigorous enforcement of legal requirements. Recent studies indicate that administrative jurisprudence tends to confirm tax assessments in a large part of cases, especially when it involves the interpretation of tax benefits (Machado Meyer, 2026). This general trend reinforces the need for robust and preventive tax planning.

More than a one-off trend, the results suggest that the restrictive interpretation of the RET stems, in part, from a structural pattern in administrative tax litigation: the casting vote mechanism, provided for in art. 19-E of Law No. 10.522/2002, tends to systematically favor the National Treasury in cases of a tie. This institutionally amplifies the pro-Tax Authority trend identified in the analyzed precedents, beyond the merits interpretation of each specific case, generating a higher risk environment for taxpayers.

From a practical perspective, the results obtained indicate that the adoption of the RET, although advantageous in terms of operational simplification and tax predictability, involves relevant legal risks. The possibility of tax assessments arising from divergent interpretations, especially regarding the composition of the calculation basis and compliance with legal requirements, imposes on developers the need for greater rigor in structuring their ventures (Torres, 2020). The choice of the tax regime must, therefore, be preceded by an in-depth analysis of risks and benefits.

On the other hand, the RET remains a relevant tax policy instrument, especially for ventures subject to the asset securitization regime, in which the predictability of the tax burden and the simplification of tax compliance represent significant competitive advantages (Harada, 2021). In this sense, its use remains advisable, provided it is accompanied by adequate legal and accounting analysis, considering the specificities of each project and jurisprudential trends.

Thus, the results demonstrate that the RET is configured as a regime that combines operational benefits with interpretative challenges, requiring taxpayers to adopt a strategic and preventive stance. The effective advantage of the regime depends, to a large extent, on the correct fulfillment of legal requirements and the adequate understanding of administrative jurisprudence (Amaro, 2021). The comparison with the Real Profit and Presumed Profit regimes reveals that the RET is advantageous in ventures with regular revenues and predictable margins, while Real Profit may be more suitable for situations with high deductible costs (Alexandre, 2022).

Research Limitations

The present study presents some limitations that should be considered when interpreting the results. Initially, the use of a reduced number of analyzed judgments – five decisions in total – stands out, which may not reflect the entirety of the consolidated understanding by the Administrative Council of Tax Appeals (CARF) on the matter (Paulsen, 2023). Although thematic saturation was the criterion for selection, a larger universe of cases could offer additional nuances.

Furthermore, the constant evolution of tax legislation, recently evidenced by the changes introduced by Normative Instruction RFB No. 2.179/2024 and by the discussions arising from the Tax Reform, may impact the presented results, requiring periodic updates on the subject (Brazil, 2024). The dynamism of the Brazilian tax system imposes a continuous challenge for the analysis of administrative jurisprudence, which adapts to new regulations and interpretations.

It should also be noted that the analysis was based exclusively on administrative decisions, not encompassing the understanding of the Judiciary, which represents a limitation regarding the scope of the conclusions obtained. The inclusion of judicial decisions, especially from the Superior Court of Justice (STJ) and the Supreme Federal Court (STF), could significantly enrich the research results, offering a more complete perspective on legal certainty (Machado, 2022). However, the focus on the CARF allowed for an in-depth view of administrative interpretation.

Finally, it should be noted that the selected judgments predominantly deal with controversies related to gross real estate revenue and the exchange of properties, not exhausting all controversial issues related to the RET, such as the taxation of financial income and discussions about the timing of adherence to the regime (Greco, 2020). This delimitation, although necessary for the depth of the analysis, means that other aspects of the RET were not addressed with the same detail, paving the way for future investigations.

In summary, the research results indicate that the application of the Special Taxation Regime in real estate incorporations, although offering advantages in terms of simplification and predictability, is marked by a predominantly restrictive interpretation by CARF. This stance is manifested in the rigorous demand for legal requirements, the expansion of the calculation base to include ancillary revenues, and the tendency for decisions favorable to the National Treasury, often influenced by the quality vote mechanism. The interpretative tension between the precedents of the STJ and STF on the exchange of properties represents a structural legal risk, reinforcing the need for rigorous compliance with regulatory requirements and continuous monitoring of administrative jurisprudence for effective and secure tax management.

4. Conclusion

This study analyzed the application of the Special Taxation Regime (RET) in real estate developments, comparing it with the Real Profit and Presumed Profit regimes, in light of the jurisprudence of the Administrative Council for Tax Appeals (CARF), with the aim of identifying the main interpretative controversies and their repercussions on the sector’s tax planning. It was found that CARF adopts a predominantly restrictive interpretation of tax benefits, requiring formal rigor in the constitution of the affected property and in the definition of the tax base, which frequently results in decisions favorable to the National Treasury. It was observed, however, that in property exchange operations, CARF, in some precedents, aligned itself with the understanding of the Superior Court of Justice (STJ) that only the “payment difference” constitutes taxable income. An original analytical contribution of the work was the identification of a latent interpretative tension between the precedents of the STJ, which excludes the value of the exchanged property from the tax base, and the broad concept of gross income consolidated by the Supreme Federal Court (STF) for main real estate activities, generating a structural legal risk for taxpayers.

The adoption of the RET, although it offers advantages in terms of operational simplification and tax predictability, requires strict compliance with regulatory requirements and continuous monitoring of administrative jurisprudence, with its choice being conditioned by the specificities of the undertaking and the legal risks involved. The study contributes to a deeper analysis of taxation in the real estate sector, offering subsidies for professionals in the accounting, legal, and business fields. Limitations include the small number of judgments analyzed, the constant evolution of tax legislation, and the exclusive focus on administrative decisions. For future studies, it is suggested to increase the number of judgments, include decisions from the Judiciary, and conduct comparative studies between different segments of the real estate sector, in order to enrich the debate on the topic.

Bibliographic References

Alexandre, Ricardo. Direito Tributário Esquematizado. 10.ed. São Paulo: Método 2022. SP, Brasil.

Amaro, Luciano. Direito Tributário Brasileiro. 25.ed. Saraiva, São Paulo, SP, Brasil.

Brasil. 2004. Lei nº 10.931, de 2 de agosto de 2004. Dispõe sobre o patrimônio de afetação de incorporações imobiliárias e institui o Regime Especial de Tributação. Diário Oficial da União, Brasília, DF, 3 ago. 2004.

Coêlho, S.C.N. 2021. Curso de Direito Tributário Brasileiro. 15ed. Forense, Rio de Janeiro, RJ, Brasil.

Greco, M.A. 2020. Planejamento Tributário. Dialética, São Paulo, SP, Brasil.

Harada, K. 2021. Direito Financeiro e Tributário. 30ed. Atlas, São Paulo, SP, Brasil.

Machado, H.B. 2022. Curso de Direito Tributário. 43ed. Malheiros, São Paulo, SP, Brasil.

Paulsen, L. 2023. Direito Tributário: Constituição e Código Tributário à luz da doutrina e da jurisprudência. 17.ed. Livraria do Advogado, Porto Alegre, RS, Brasil.

Article originating from the Final Course Work of the Specialization in Tax Management of the MBA USP/Esalq

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