O alcance da imunidade constitucional tributária do imposto sobre a transmissão de bens imóveis na integralização para a realização de capital social

Abstract

The work investigates the scope of the constitutional immunity set forth in the article 156, second paragraph, item I of the Brazilian Constitution, which guarantees no incidence of the real state transfer tax when the business partner transfers the real state to a company, in payment for his share capital. The work studies the question if the immunity includes the whole value of the real state or only the value that corresponds to the paid-up share capital. In order to reach a solution for this problem, the work used bibliographic and documental methodology, with the analysis of the studies developed by renowned authors in the Tax and Constitutional field and with the analysis of judicial decisions on the subject. The work shows that specific constitutional immunities, such as the immunity of the real estate transfer tax, must be interpreted according to their purpose, which in this case is to encourage entrepreneurial activity in the country by facilitating the creation and expansion of companies and the consequent generation of jobs for the population. From this perspective, the work approached the different positions on the controversy, analyzing point by point the arguments that base each one to achieve the best solution. It was concluded that the most appropriate way to achieve the purposes of the specific immunity of the real estate transfer tax is by granting full immunity in pay-up share capital operations with real states, thus not affecting any excess value.