News

The Brazilian Federal Supreme Court (STF) concluded, on October 19, 2026, its judgment of General Repercussion Theme No. 1,348 (RE 1,495,108), recognizing that the immunity from the Real Estate Transfer Tax (ITBI) also applies to the transfer of real estate properties for the purpose of paying up a company’s share capital, even when the company’s main business activity is the purchase, sale, or leasing of real estate.

In practice, this means that a company’s predominant economic activity does not, in itself, prevent the application of tax immunity when a property is transferred to form part of its share capital.

The prevailing interpretation was that the restriction set forth in Article 156, Paragraph 2, Item I, of the Brazilian Federal Constitution, concerning the predominant real estate activity, applies only to transfers resulting from mergers, incorporations, spin-offs, or the dissolution of legal entities, and does not extend to transactions involving the contribution of assets to share capital.

The STF emphasized, however, that the immunity remains limited to the amount effectively allocated to the payment of the share capital, in accordance with the understanding established under Theme No. 796. Furthermore, the decision does not preclude municipal authorities from conducting inspections in cases involving potential fraud or simulated transactions.

The ruling represents a significant development for the real estate sector and asset-holding companies, providing greater legal certainty for transactions involving the contribution of real estate to share capital. Under the STF’s interpretation, the tax immunity may apply even when a company primarily engages in real estate activities, provided that the limits established by the Court are observed.