A incidência do ITBI nas operações de realização de capital com valor excedente, conforme análise do tema 796 do STF

Abstract

This work aims to promote an examination of the decision issued by the Supreme Federal Court, which originated Theme 796, by investigating the arguments developed by the ministers, and subsequently, proposing a different approach that better relates to the national legal system, especially regarding constitutional norms. To achieve this, an analysis of the predominant doctrine in the tax and business scope was carried out, seeking to recognize the limits of the ITBI immunity present in Article 156, Paragraph 2, Section I of the Federal Constitution, related to the operation of capital realization through real estate, as well as understanding the concept of capital reserve, relevant to the study of the subject at hand. From this, it was possible to conclude the inconsistency of the votes, emphasizing the lack of specific treatment for relevant issues of the decision, such as bad faith configuration and the effective allocation of the excess value to the social capital at the time of integration through real estate. Finally, two of the main impacts resulting from the judgment carried out by the Supreme Federal Court were verified, focusing on the emergence of a new tax legal thesis from the obiter dictum present in the winning vote. The argument in question refers to the unconditionality of immunity in relation to the exception provided at the end of the constitutional provision, which deals with predominantly real estate activities, resulting in the perception that the thesis still has little impact within the Court of Justice of the State of Ceará.