Imunidade Tributária de ITBI: reflexões sobre a tese fixada pelo STF no tema Nº 796 sob a perspectiva dos direitos fundamentais

Abstract

The present work aims to analyze the thesis established by the Brazilian Supreme Court (Supremo Tribunal Federal - STF) in Theme nº 796, which dealt with the tax immunity of the Real Estate Transfer Tax (ITBI) when real state is incorporated as subscribed capital of a legal entity, from the perspective of guaranteeing fundamental rights. In the first chapter, a brief conceptualization of fundamental rights and their relationship with taxation, or the lack of it, in the case of tax immunitie. For this purpose, the development of fundamental rights and, more closely, tax immunities were analyzed, emphasizing their connection to certain fundamental rights by preventing the State from hindering the exercise of rights through excessive taxation. In the second chapter, an account of the STF's decision in Extraordinary Appeal 796,376/SC, reported by Alexandre de Moraes, is presented. The purpose of this account is to highlight the Supreme Court's reasoning for adopting the understanding established in Thesis nº 796. Subsequently, the STF's decision is related to the rationale behind the existence of tax immunities, as discussed in the first part of the work. To this end, the research utilized a hypothetical-inductive approach method, as well as monographic procedural methods and bibliographic and jurisprudential research techniques. In conclusion, it is observed that although the tax immunity of ITBI aims to protect values and fundamental rights of great importance, such as free enterprise and the social function of property, the STF's decision placed excessive importance on the intention to prevent tax avoidance through immunity, thereby undermining the purpose of said institution