{"id":8661,"date":"2026-10-09T11:19:57","date_gmt":"2026-10-09T14:19:57","guid":{"rendered":"https:\/\/araujopolicastro.com.br\/?p=8661"},"modified":"2026-10-09T17:07:43","modified_gmt":"2026-10-09T20:07:43","slug":"supreme-federal-court-forms-majority-in-favor-of-itbi-exemption-for-share-capital-contributions","status":"publish","type":"post","link":"https:\/\/araujopolicastro.com.br\/en\/supreme-federal-court-forms-majority-in-favor-of-itbi-exemption-for-share-capital-contributions\/","title":{"rendered":"Supreme federal court forms majority in favor of ITBI exemption for share capital."},"content":{"rendered":"\n

Possible adjustment raises concerns among taxpayers and reinforces the urgency of evaluating legal actions.<\/em><\/p>\n\n\n\n

The Federal Supreme Court (STF) formed a majority in favor of recognizing immunity from the Real Estate Transfer Tax (ITBI) in the case of capital contributions made in the form of real estate, even if the receiving company is primarily engaged in real estate activities<\/strong>.<\/p>\n\n\n\n

With Justice Alexandre de Moraes\u2019s opinion\u2014made available after the request for further review was returned\u2014 the<\/strong> vote<\/strong> stood at<\/strong> 6 to 2 in favor of the taxpayers<\/strong>. The trial will continue in a virtual session scheduled for October 9\u201319<\/strong>, when it may be formally concluded. <\/p>\n\n\n\n

This definition may have significant implications for holding companies<\/em>, companies that manage their own assets, real estate developers, companies formed for estate planning purposes, and other structures<\/strong> in which real estate has been or may be used to contribute to the company\u2019s capital stock.<\/p>\n\n\n\n

What’s Under Discussion<\/strong><\/p>\n\n\n\n

The Federal Constitution provides that the ITBI is not levied on the transfer of assets or rights incorporated into the assets of a legal entity for the purpose of capital formation. The controversy stems from the interpretation of the constitutional exception regarding the primary activity of buying and selling, leasing, or leasing under a commercial lease of real estate. Several municipalities interpret this exception as also precluding tax exemption for capital contributions, requiring the payment of ITBI when the receiving corporation engages in real estate activities<\/strong>. <\/p>\n\n\n\n

In the ruling on Extraordinary Appeal No. 1,495,108\/SP, which is the subject of Theme 1,348 of the general repercussion, the reporting justice, Justice Edson Fachin, concluded that the immunity applicable to capital contributions is unconditional and cannot be set aside solely on the basis of the company\u2019s primary business activity. This opinion was joined by Justices Cristiano Zanin, Andr\u00e9 Mendon\u00e7a, Nunes Marques, Luiz Fux, and Alexandre de Moraes, forming a majority of six votes. Justices Gilmar Mendes and Fl\u00e1vio Dino dissented. <\/p>\n\n\n\n

Although a majority has already been reached, the ruling has not yet been formally finalized. Until the session adjourns, there may still be changes in voting, motions to highlight specific points, or debates regarding the wording of the ruling and any potential adjustment of its effects<\/strong>. <\/p>\n\n\n\n

Which transactions are eligible for benefits?<\/strong><\/p>\n\n\n\n

If the prevailing majority opinion prevails, immunity may be recognized for capital contributions made with real estate, even when the receiving company\u2019s primary business activity is:<\/p>\n\n\n\n