In a recent decision, the 1st Panel of the Federal Supreme Court (STF) ruled out the incidence of income tax on capital gains resulting from the appreciation of assets transmitted by inheritance or donation (ARE 1.387.761, reported by Justice Barroso).
The STF concluded that, as the transmission of assets by inheritance or donation is already constitutionally subject to ITCMD (CF, article 155, I), to admit the IR levy on the same facts implies double taxation and transgression of the constitutional rule of distribution of tax competence
ITCMD is levied on the transfer of ownership of goods and rights resulting from inheritance or donation, with the heir or donee as the taxpayer. The rates vary from state to state, and may reach 8%.
The income tax, required by the Federal Government, is levied on any capital gain earned from updating the value of the asset at the time of transfer of ownership, with the donor or estate heirs as the taxpayer, the rate varying between 15% and 22%.
This decision, although not binding, favors taxpayers who can use their arguments to request in court the removal of the requirement of income tax on capital gains resulting from the appreciation of assets transmitted by inheritance or donation, and may even request the refund of the tax collected on this basis in the last 5 years.
For more information, please contact our Tax team at [email protected]).