STF judges if it is levied on real estate capital integration

The Federal Supreme Court (STF) began judging this Friday, 3, an action that discusses the incidence of the Tax on Transmission of Real Estate (ITBI) in real estate transactions to integrate capital of companies in the real estate sector. The trial is made in general repercussion, that is, the result must be followed in all instances of the judiciary.

The current discussion derives from a judgment held by the Supreme Court in 2020. At the time, the Court defined the reach of the exemption to up to 100% of the capital’s capital capital. That is, if the price of the property is greater than the value of the company, the tax will apply to the difference.

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The rapporteur’s vote, Edson Fachin, was favorable to companies. He understood that tax immunity in capitalizing capital does not depend on the company’s preponderant activity.

“The prohibition of taxation, far from configuring any privilege, translates a legitimate constitutional option aimed at the protection of the freedom of action of legal entities in certain economic areas, including construction and real estate participation and incorporation, determining instruments for the guarantee of the right to access to housing,” said the minister.

The relevance of the theme goes beyond the interests of municipalities – which are responsible for the collection of ITBI – and real estate. Some families, who have property in real estate, create holdings to facilitate their succession planning. This avoids the incidence of taxes expected for real estate transfers between individuals.

The trial is held at the virtual plenary that began this Friday and runs until next Friday, 10. So far, he has been accompanied by Minister Alexandre de Moraes.