The Federal Supreme Court (STF) scheduled for judgment Topic 1,348 of general repercussion, which discusses whether ITBI's immunity provided for in art. 156, § 2, I, of the Federal Constitution, applies to the transfer of properties for payment of share capital when the company carries out predominantly real estate activities, such as purchasing, selling or leasing properties. The controversy is especially relevant for equity holdings and companies in the real estate sector.

     The judgment presents, so far, a favorable scenario for taxpayers. The majority of ministers have already taken a stand for the application of immunity in these operations, on the grounds that the constitutional reservation relating to the preponderant real estate activity would not achieve the payment of capital. The trial will continue in a virtual session scheduled to take place between 10/09/2026 and 10/19/2026.

     The STF's definition could benefit both companies that intend to make new payments and those that have already collected ITBI in operations of this nature and are evaluating the possibility of recovering the amounts paid. In this context, the risk of modulating the effects of the decision deserves special attention, which could temporarily limit the scope of the understanding to be reached by the Court.

     As the conclusion of the trial approaches, companies that have carried out or intend to pay for properties must immediately assess their situation. The filing of a judicial measure before the definition of the STF may be relevant to preserve the taxpayer's legal position and protect any right to recovery of amounts, if the effects are subsequently modulated.

By Matheus Gehring