EN 
PT_BR 
The Court of Justice of the State of Goiás (TJGO) has ruled against the collection of the Tax on the Transfer of Real Estate (ITBI) in a capital increase transaction carried out through the transfer of rural property, when there is no formation of a capital reserve. The decision was issued by the 2nd Civil Chamber, when judging an appeal in a writ of mandamus against an act of the municipality of Rio Verde.
In the case analyzed, the municipality demanded the ITBI (Property Transfer Tax) based on the difference between the property value declared by the taxpayer and a market value unilaterally determined by the tax administration. The panel, however, overturned the first instance ruling and recognized the tax immunity provided for in article 156, §2, item I, of the Federal Constitution, declaring the tax unenforceable in the transaction.
The ruling highlighted that when real estate is incorporated into the share capital without any surplus allocated to capital reserves, the ITBI (Property Transfer Tax) exemption is unconditional, and the collection of any alleged difference in value is not legitimate. This understanding also reinforces the application of Article 23 of Law No. 9.249/1995, which guarantees taxpayers the option of contributing assets at the value stated in their income tax return.
According to tax lawyer Leonardo Amaral, the decision brings predictability to rural producers and agribusiness companies. "The Court made it clear that the ITBI (Property Transfer Tax) exemption protects capital contributions when there is no formation of reserves. The attempt to collect tax based on a unilateral assessment by the municipality distorts the constitutional objective of encouraging the formalization and growth of companies," he states.
According to the lawyer, the ruling also makes an important distinction in relation to Supreme Court Precedent 796 and Superior Court of Justice Precedent 1,113. “These precedents do not authorize the automatic collection of ITBI (Property Transfer Tax) on the difference between the declared value and the market value. The decision of the Court of Justice of Goiás reaffirms that, if there is no surplus to the subscribed share capital, there is no taxable event,” explains Leonardo Amaral.
The decision is considered relevant to the agribusiness sector, especially for rural producers and family groups that use the incorporation of real estate as an instrument for corporate reorganization, succession, and estate planning, bringing greater legal security in the face of municipal tax assessments.
Farmers, agribusiness entrepreneurs, and accountants should closely monitor the evolution of case law regarding ITBI (Property Transfer Tax) and capital contributions, a strategic issue for protecting assets and organizing businesses in the agricultural sector.
