In a judgment concluded on April 24 in the virtual plenary, the Federal Supreme Court (STF) recognized the general repercussion in the discussion regarding the incidence of Individual Income Tax on capital gains obtained by donors in transactions involving the early distribution of inheritance.
In his vote, Justice Gilmar Mendes argued that the Court’s case law is not yet settled. On the one hand, there are precedents that uphold the tax levy, based on the interpretation that the donor’s capital gain constitutes a taxable increase in assets.
On the other hand, there are decisions to the effect that the tax assessment amounts to double taxation, since the transfer is already taxed by the States through the ITCMD (Estate and Gift Tax), and that the donor does not receive any additional income, but rather experiences a reduction in assets.
Given the existence of divergent interpretations and the potential impact of the issue on thousands of taxpayers and inheritance transactions throughout the country, the rapporteur proposed the recognition of general repercussion, through RE 1.522.312.
