A imunidade do ITBI na integralização do capital social de empresas com atividade preponderantemente imobiliária através de bens imóveis sob o ponto de vista do STF e o que muda com a reforma tributária

Abstract

The purpose of this course conclusion is to analyze the immunity of the Tax on the Transfer of Real Estate Inter Vivos (ITBI), a tax that falls under municipal jurisdiction, when real estate is incorporated into the assets of a legal entity with a predominantly real estate activity as a capital realization, from the point of view of the Federal Supreme Court (STF). Initially, the general aspects of ITBI were analyzed, as well as its taxable event, calculation basis, active and passive subjects and its characteristics. In a second step, the central theme of this work was explored, showing how the tax authorities interpret article 156, §2, I, of the Federal Constitution, precisely the provision that deals with ITBI immunity, and, on the other hand, how the STF interprets it. This discussion will analyze the impact of the decision in Extraordinary Appeal 796.376/SC (Theme 796/STF of the general repercussion) on the application of ITBI immunity to companies whose main activity is real estate in capital realization. Finally, the general aspects of the Tax Reform will be brought to the attention of the reader, as well as the specific aspects regarding real estate transactions, in an attempt to clarify the impacts that the new taxes may have on these transactions.