Por MRNews
THE Plenary of the Federal Supreme Court (STF) approved last Friday (25) the general repercussion of a Appeal in which the Union seeks to charge the income tax of a taxpayer who donated a property to his daughter as a way to anticipate the inheritance of the property.
The theme is controversial, being the target of divergent decisions within the Supreme itself. In recent years, the Two Court classes gave cause to both union and taxpayers, in a very similar case. Now, the Ministers have decided to unify the understanding, choosing a case whose outcome will result in a thesis to be followed by all the country's courts.
The subject mobilizes above all Tax lawyers, who serve thousands of individuals every year who seek to block the IR charging on the anticipation of inheritance. THE main argument is that there is no income to be taxedsince in Donation of a good actually occurs a subtraction of equity, and not addition.
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Another argument It is that the donor already pays the transfer tax causes mortis or donation (ITCMD), a state tax and cannot be taxed twice by the same transaction.
To the supreme, the Attorney General of the National Treasury-PGFN It claims that the charge of IR is justifiedbecause in Moment of donation is verified a capital gain with the appreciation of the good, which is the generating fact of the collection, not the donation transaction itself.
Understand
The so -called “anticipation of legitimate ”is provided for in the Civil Code. By legislation, to DPraying a good to a direct descendant or spouse, the donor actually performs, before he dies, the early distribution of his heritage among the heirs. THE Practice is seen as a way of facilitating succession and avoiding conflicts.
The problem occurs, however, when there is the update of the value of the good to be donated. This is because the donor is allowed, for example, to update the value of a property to market conditions at the time of transfer.
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For example, in the case chosen as a paradigm by the Supreme, the Taxpayer bought a house for decades for R $ 17 thousand, but at the time of Doing it, he exercised the right to update the market value to R $ 400 thousand, according to the official appraisal.
Upon learning of the donation, the Federal Revenue charged from the donor about R $ 26 thousand of income tax on the transactionconsidering only that the Taxpayer obtained a property at a lower value and broke out of the same good at greater value, without observing if there was in fact a sale that generated assets.
Disagreeing, OCOntribunte filed the court and obtained a favorable decision in the Federal Regional Court of the 4th Region (TRF4), which considered unconstitutional the collection of income tax on the anticipation of inheritance. Then the PGFN resorted to the Supreme. There is no definite deadline for ministers to make a final decision on the subject.