Last Friday (26.02) the Supreme Federal Court concluded the trial, in terms of general repercussion, regarding the collection of ITCMD on assets abroad. By majority vote of the Plenary, it was decided that the States are not allowed to collect the tax on donations and inheritances originating from abroad.

The majority of ministers understood the need for a complementary law that defines the ITCMD taxable event, the calculation basis and the taxpayers affected by the tax, a law that is still pending publication by the National Congress.

The appeal (RE No. 851,108) discussed the constitutionality of Law No. 10,705/2000 of the State of São Paulo, which establishes the incidence of the tax on donations from abroad. Although the discussion revolves specifically around the São Paulo law, the Supreme Court's decision will have a national impact, since it was recognized that the issue has general repercussions and other states have laws on the incidence of ITCMD.

Thus, with the STF decision, 22 of the 27 federative units that currently have rules providing for the incidence of ICTMD on donations and inheritances of assets located abroad will no longer be able to charge it. However, it is worth noting that it was defined that the decision will only take effect after the publication of the ruling.

There is an exception, however, for taxpayers who have ongoing actions against the collection, who are exempt from paying tax on donations or inheritances of assets abroad made in the past.

It is important to mention that, in the State of São Paulo alone, there are currently at least 200 lawsuits discussing the collection of the tax in the TJ/SP, which were suspended awaiting the Supreme Court's decision. If added together, the ITCMD collection resulting from these lawsuits would result in a total amount estimated at approximately R$$ 5.5 billion.