Levy of tax on gifts and inheritance abroad
The Federal Supreme Court (STF) set a deadline of 12 months for the National Congress to enact a supplementary law with general rules defining the Tax on Transmission Causa Mortis and Gift (ITCMD) on gifts and in cases of inheritance abroad.
The deadline begins to run from the date of publication of the minutes of the judgment of Direct Action of Unconstitutionality by Omission (ADO) 67, filed by the Attorney General of the Republic.
Unanimously, the Plenary declared that there is a legislative omission in the regulation of Article 155, paragraph 1, item III, of the Federal Constitution, regarding the rules for the states and the Federal District to be able to institute the levy of the tax when the donor is domiciled or resident abroad or if the deceased person owned assets, was a resident or domiciled, or had their estate proceedings carried out abroad.
The decision was made in the virtual session concluded on 6/3, in the judgment of ADO 67.
Precedent
The panel followed the vote of the rapporteur, Justice Dias Toffoli, who recalled that the STF, in the recent judgment of Extraordinary Appeal (RE) 851108 (Theme 825 of general repercussion), established the impossibility of the states and the Federal District instituting the ITCMD without the enactment of a national supplementary law on the matter.
This law, according to the justice, aims to avoid a potential federative conflict.
Toffoli recalled the existence of legislative proposals to regulate the levy of the ITCMD, but pondered that none of them was converted into law.
Therefore, as argued by the Attorney General of the Republic, he highlighted that, more than 33 years after the Federal Constitution, the supplementary law in question has still not been enacted, which harms the coffers and the autonomy of the states and the Federal District and makes it impossible for them to exercise their taxing prerogative.
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ITCMD cannot be levied on inheritance and gifts abroad
Source: STF
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