A landmark decision by the Court of Justice of the State of Mato Grosso (TJMT) has ruled out the levy of ITBI (Real Estate Transfer Tax) on the contribution of real estate assets to the share capital of a family holding company, on the grounds that, in the absence of the formation of a capital reserve, the constitutional tax immunity applies. The case involved the transfer of six properties at their historical value of BRL 1.8 million, while the Municipality of Cuiabá sought to impose the tax based on their market value (BRL 3.6 million), alleging a taxable difference under STF Precedent (Topic 796).
The reporting judge, Luis Otávio Pereira Marques, emphasized that, unlike the case decided by the Supremo Tribunal Federal (STF), there was no allocation of excess value to the formation of a capital reserve—an essential element for the application of that precedent. In addition, the judge identified a violation of due process, as the tax was assessed without prior administrative proceedings, contrary to the settled case law of the Superior Tribunal de Justiça (STJ).
Tax practitioners consider the decision a milestone, as it challenges the common practice of municipalities which, following the STF’s ruling, began assessing taxes based on market value even in the absence of a capital reserve. The precedent may pave the way for a reassessment of this interpretation by state courts and for a potential review of the controversy by the STJ, as suggested by a recent statement from Justice Alexandre de Moraes in a similar case.