A RESTRIÇÃO DA IMUNIDADE DE ITBI (ART. 156, § 2º, DA CF) FRENTE AOS DESDOBRAMENTOS DO RE 796.376

Abstract

The topic in question deals with a discussion regarding the restriction of ITBI immunity (art. 156, § 2, of the Federal Constitution) in view of the developments of RE 796,376. In a succinct debate, the arguments are that the case tried by the Supreme Federal Court refers to properties paid in full at the value declared in the assets, and, in this scenario, ITBI should be levied on the difference between the paid-in and subscribed value up to the property's market value, which serves as the basis for calculating the tax. Based on clarifications of legal hermeneutics, this article aims to analyze the interpretation techniques. This work will closely examine the Minister's decision in the RE, especially because municipal entities have interpreted the issue in different ways, presenting arguments based especially on the author Sacha Camon Navarro Coelho in order to clarify the reason for deciding the original process, and recent decisions. And by investigating the methods of interpretation and specific issues, such as the concept of ITBI immunity, the distinction between exemption and strict non-incidence, and the application of the tax incidence matrix rule, we seek to determine whether the method used in the STF decision is in compliance with the essential legal aspects related to the subject. The objectives were based on finding an understanding of the main controversy surrounding the scope of the quantitative criterion of the immunizing rule, especially on the scope of the realization of capital defined in the decision of Extraordinary Appeal 796,376/SC, of 2020. Furthermore, we intend to present on the superficiality verified how much it harms the decisions of the lower judicial instances. The construction of the rule from the point of view of Logical-Semantic Constructivism is also included, notably in the field of linguistic spin and the path generating meaning. In conclusion, the research concluded, with technical notes and based on the path traced within the scope of the interpretation of ITBI immunity of art. 156, §2, item I of the Federal Constitution, that the TJMS rulings contradict the judgment of RE 796,376/SC, whose decision defined that the transfer of real estate in realization of capital is immune, which, pragmatically, occurs whenever the property is paid in full for the DIRPF value or a higher amount, according to the judgment of RE 796,376/SC of the STF.