A eficácia do processo judicial na garantia de imunidade de ITBI na integralização de bens móveis em holdings patrimoniais

Abstract

The Federal Constitution provides that the incorporation of real estate in the form of share capital of legal entities is immune from the tax on the transfer of real estate “inter vivos” (ITBI). However, it is common for some to pay ITBI in these transactions, especially in the formation of family and asset holding companies, and this creates legal uncertainty, since it is not known exactly what the limits of the incidence of immunity are. To this end, the Federal Supreme Court and the Superior Court of Justice have established theses regarding the scope of this immunity, as well as defined the calculation basis, to allow fair taxation. In this sense, the analysis of how the Court of Justice of the State of Goiás deals with this immunity in relation to family and asset holding companies helps to ensure legal certainty. Thus, the contrast of the theory related to holdings and ITBI, as well as the analysis of Themes 796 of the STF, 1,113 of the STJ and 1,348 of the STF (still in progress), in addition to the evaluation of how the Court of Justice of the State of Goiás deals with the issue, allows for a more assertive understanding regarding the limits of the scope of ITBI immunity in the integration of real estate for the realization of corporate capital in holdings.