{"id":3277,"date":"2026-04-01T10:30:21","date_gmt":"2026-04-01T13:30:21","guid":{"rendered":"https:\/\/oliveiraalves.com.br\/?p=3277"},"modified":"2026-04-08T16:50:49","modified_gmt":"2026-04-08T19:50:49","slug":"tjsp-afasta-cobranca-de-itbi-na-integralizacao-de-capital-por-empresas-inativas","status":"publish","type":"post","link":"https:\/\/oliveiraalves.com.br\/en\/tjsp-afasta-cobranca-de-itbi-na-integralizacao-de-capital-por-empresas-inativas\/","title":{"rendered":"S\u00e3o Paulo Court of Appeals (TJSP) Sets Aside ITBI Levy on Capital Contributions by Inactive Companies"},"content":{"rendered":"

The Court of Appeals of the State of S\u00e3o Paulo (TJSP)<\/strong> issued a highly relevant decision in tax litigation involving the Real Estate Transfer Tax (ITBI)<\/strong>, by establishing, in the context of an Incident for the Resolution of Repetitive Demands (IRDR)<\/strong>, that the levy of ITBI is not legitimate on capital contributions made with real estate assets<\/strong>, even when the legal entity is inactive or lacks operating revenue<\/strong>.<\/p>\n

Background of the Controversy<\/strong><\/p>\n

The controversy stems from the interpretation of the tax immunity provided in Article 156, \u00a72, I, of the Federal Constitution<\/strong>, which excludes the incidence of ITBI in cases of capital contributions and corporate reorganizations<\/strong>, except where the predominant activity of the acquiring entity is real estate-related<\/strong>.<\/p>\n

In recent years, however, several municipalities have argued that the absence of economic activity prevents the assessment of such predominance<\/strong>, thereby precluding the recognition of the immunity.<\/p>\n

This interpretation gained traction particularly during the COVID-19 pandemic<\/strong>, a period in which numerous companies operated without revenue. Based on this premise, tax authorities began to argue that inactivity would represent a misuse of the constitutional provision<\/strong>, which, under this view, was designed to promote economic activity and the circulation of wealth<\/strong>.<\/p>\n

TJSP\u2019s Position<\/strong><\/p>\n

In analyzing the matter, the TJSP directly addressed this line of argument and, by a narrow majority<\/strong>, adopted the opposite position.<\/p>\n

The Court held that the absence of operating revenue, including in cases of inactivity, cannot be interpreted as an obstacle to the recognition of the immunity<\/strong>, but rather should be understood as a situation in which no predominant real estate activity exists<\/strong>.<\/p>\n

Legal Grounds: Predominance Criterion<\/strong><\/p>\n

The decision is grounded on a key premise: the predominance test set forth in Article 37 of the National Tax Code (CTN)<\/strong> requires verification that more than 50% of the company\u2019s operating revenue derives from real estate activities<\/strong>.<\/p>\n

In this context, the absence of revenue logically precludes the characterization of such predominance<\/strong>. Therefore, there is no legal basis to presume predominant real estate activity in the absence of any revenue<\/strong>.<\/p>\n

The reporting justice further emphasized that neither the Federal Constitution nor the CTN conditions the enjoyment of the immunity on the company\u2019s effective activity or profitability<\/strong>, making it inadmissible to adopt restrictive interpretations that expand the scope of taxation to the detriment of taxpayers<\/strong>.<\/p>\n

In other words, it is not for the interpreter to create requirements not expressly provided by the constitutional legislator<\/strong>.<\/p>\n

Specific Case<\/strong><\/p>\n

The case involved a holding company<\/strong> that received real estate assets as a capital contribution through a partial spin-off<\/strong> and remained inactive for a certain period.<\/p>\n

Despite not engaging in predominant real estate activity, the company was assessed by the municipality, which demanded the payment of approximately R$ 4 million in ITBI<\/strong>.<\/p>\n

The TJSP overturned this assessment, fully setting aside the tax charge<\/strong>.<\/p>\n

Practical Implications<\/strong><\/p>\n

From a practical standpoint, the precedent is particularly relevant for corporate transactions involving real estate assets<\/strong>, especially in the formation of holding companies<\/strong> and the reorganization of corporate groups<\/strong>.<\/p>\n

The establishment of the thesis under the IRDR mechanism contributes to reducing legal uncertainty<\/strong>, which had been marked by divergent interpretations within the S\u00e3o Paulo judiciary itself.<\/p>\n

Moreover, the decision strengthens taxpayers\u2019 position in both administrative and judicial proceedings<\/strong>, by limiting attempts to unduly expand the scope of ITBI through interpretations not supported by the legal framework<\/strong>.<\/p>\n

Pending Review by the STF<\/strong><\/p>\n

It is important to note that the matter is still under review by the Brazilian Supreme Federal Court (STF)<\/strong>, within the scope of Theme 1348 of general repercussion<\/strong>.<\/p>\n

To date, there is a provisional majority in favor of taxpayers<\/strong>, indicating that the immunity may have an unconditional nature<\/strong>, not subject to the verification of predominant activity in certain cases.<\/p>\n

The final ruling by the STF will be decisive for the consolidation of the matter at the national level<\/strong>.<\/p>","protected":false},"excerpt":{"rendered":"

The Court of Appeals of the State of S\u00e3o Paulo (TJSP) issued a highly relevant decision in tax litigation involving the Real Estate Transfer Tax […]<\/p>\n","protected":false},"author":2,"featured_media":3279,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[1],"tags":[],"class_list":["post-3277","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-tributario"],"acf":[],"_links":{"self":[{"href":"https:\/\/oliveiraalves.com.br\/en\/wp-json\/wp\/v2\/posts\/3277","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/oliveiraalves.com.br\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/oliveiraalves.com.br\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/oliveiraalves.com.br\/en\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/oliveiraalves.com.br\/en\/wp-json\/wp\/v2\/comments?post=3277"}],"version-history":[{"count":3,"href":"https:\/\/oliveiraalves.com.br\/en\/wp-json\/wp\/v2\/posts\/3277\/revisions"}],"predecessor-version":[{"id":3309,"href":"https:\/\/oliveiraalves.com.br\/en\/wp-json\/wp\/v2\/posts\/3277\/revisions\/3309"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/oliveiraalves.com.br\/en\/wp-json\/wp\/v2\/media\/3279"}],"wp:attachment":[{"href":"https:\/\/oliveiraalves.com.br\/en\/wp-json\/wp\/v2\/media?parent=3277"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/oliveiraalves.com.br\/en\/wp-json\/wp\/v2\/categories?post=3277"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/oliveiraalves.com.br\/en\/wp-json\/wp\/v2\/tags?post=3277"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}