ITBI IN THE PURCHASE OF PROPERTY IN THE SHARE CAPITAL OF A LEGAL ENTITY: CONTROVERSIAL ASPECTS OF THE IMMUNITY PROVIDED FOR IN ART. 156, §2, I, DA CF/88.

Abstract

This paper addresses the controversial aspects of the tax immunity provided for in article 156, paragraph2, I of the CF/88, notably regarding the inclusion or exclusion of the exception rule of immunity in cases of transfer of assets or rights incorporated to the equity of the legal entity in capital realization. To this end, the principal rule of ITBI's incidence was analyzed, along with the general rule of immunity provided for in article 156, §2, I of CF/88, in order to then address the exception to the rule. Next, we addressed the doctrinal divergence about the extent of the exception to the immunity rule based on the grammatical and teleological interpretation of the expression "unless, in those cases" contained in the constitutional provision under study. Finally, the opinion of Justice Alexandre de Moraes in the judgment by the STF of Extraordinary Appeal 796.376/SC was analyzed, which, in an obiter dictum character, consigned that the immunity from ITBI on the realization of capital would not be limited to the preponderant activity of the acquirer, restricting the exception to the immunity of article 156, paragraph 2, I of the Constitution to corporate reorganizations only.