ITBI - NO IMPACT ON THE TRANSMISSION ENTITY MAKING IN CAPITAL.
Based on the precepts of the Brazilian Federal Constitution of 1988, in his art. 156, No. 2, I, is not tax exempt (ITBI) on transfer of immovable assets of the incorporated legal entity holding capital.
Corollary of the above is the obligation to payment of the above mentioned tax on the part of (the) Author (a), for its corporate and trade comprises the food industry, holding in another company in the food industry and asset management own, according to the social contract or the corresponding additive which defines the goal of the company.
STANDARDS OF THE CONFRONTATION
The Standard Local regulations - Decree No. 10827 of 18.07.2000 which includes the Municipal Tax Consolidation Legislation Fortaleza / Ce, which regulates the collection of ITBI (inter vivos) in his art. 170 provides for the benefit of "no impact" of the tax on the transfer of assets and rights (Article 2 of Law No. 6.421/89) so providing, ex vi:
IMPLICATION OF NOT
"Article 170 - The tax is not levied on the transfer of assets and rights, when (Article 2 of Law No. 6.421/89):
I - assets held for incorporation into a legal entity in payment of subscribed capital in it;
II - due to consolidation, merger, division or dissolution of legal person.
§ 1 - The provisions of this Article shall not apply when the person has legal acquirer main activity is buying and selling real estate and real rights, the lease of real property or leasing.
§ 2 - It is characterized the predominant activity when more than 50% (fifty percent) of operating revenue from corporate purchaser, in the 24 (twenty four) months and in 24 (twenty four) months after the acquisition, course of the transactions mentioned in the previous paragraph.
§ 3 - If the corporate purchaser to start its activities after the acquisition or less than 24 (twenty four) months before it, determine to dominance under the preceding subparagraph taking into account the 36 (thirty six) months following the date of acquisition.
§ 4 - Should the preponderance referred to in paragraph one, the tax is payable under the applicable law at the acquisition date, calculated on the value of assets or rights on the date of payment of their tax credit.
§ 5 - Verification of the presence or absence of a preponderance referred to in paragraph 2 of this article, be up to the Tax Administration (added by Law No. 8.254/99). "
Unless better judgment, we believe that the municipality by applying the power of police and surveillance creates standards not supported by the Constitution.
The Constituent Power Originating in our highest law, namely the 1988 Constitution in its article. 156, § 2, item I, NO IMPACT applies to the transfer of property tax when they are incorporated into the assets of a legal realization of capital, as noted below:
"Art 156. It is up to municipalities to institute taxes on: (...)
II - transmission "inter vivos" in any capacity, by onerous acts, real estate, by nature or physical accession, and real property, except the warranty, and assignment of rights to purchase. (...)
§ 2 - The tax established in item II:
I - not levied on the transfer of goods or rights incorporated into the assets of a legal realization of capital, nor on the transfer of assets or rights arising from consolidation, merger, division or dissolution of legal person, unless, in such cases, predominant activity of the purchaser is the purchase and sale of such property or rights, the lease of real property or leasing; "(gn)
The Municipality previously used the nomenclature of "Immunity" (art. 17, Municipal Law No. 6.421/89), currently in the form of Decree No. 10,827 of 18.07.200 - Consolidation Noras of Tax Legislation in force dealing with the matter now comes with the Naming "NO IMPACT" in this sense does not examine the impact of standard versus non-local effect imposed by the Federal Constitution.
Are required to pay all those taxes covered by the hypothesis of incidence (art. 169 of the Municipal Decree No. 10827), ie, all persons or entities who are liable to pay the tribute. However, there are two cases that the obligation does not occur, or when the person is excluded from this hypothesis, or EXEMPTION IMMUNITY (art. 171 of the same Decree Hall), generating the hypothesis of no effect.
In the same decree, or Consolidation of Tax Legislation (Fortaleza / Ce) around the municipality to address the IMMUNITY, NO IMPACT and EXEMPTION (art. 334 and SS), however, in Section II is entitled "Processing Immunities and Exemptions" (Article 337 of Decree) hurts head on the Brazilian Constitution, the pace at which states there is a constitutional tax immunity, while linking this constitutional law the compulsory examination in each case by order of the Administrative Authority, or That is, the constitutional principles and concepts were succumbed by the standard city.
The only rule with the power to generate immunity is our highest law, ie, the Federal Constitution. The other rules infra, of any nature, only create exemption from tax. Thus Municipal Law, where he observes people immune to properly read people free. EXEMPTION, in turn, is the exclusion of the obligation owed by someone.
In the exemption, the person shall be excluded from fulfilling their obligation, which in the case of this standard city, every person who is exempted from payment of ITBI (inter vivos) should thus provide a Municipal Certificate to replace the guide the payment of the tax, certifying the exemption given. Thus, we find that the exemption is an exception to the given ruled by law, worth mentioning that the aforementioned certificate must be signed by a person entitled to representation on behalf of the municipality, thus also request a copy of the term of appointment of the secretary of finance in financial . This is what provides the standard municipal force, which establishes rules for the imposition of the tax in Fortaleza / Ce.
On the other hand, the constitutional rule applies to NO IMPACT tax in certain cases, fulfilling us note that the incidence does not mean "should not focus", ie, one framed IS NOT OBLIGATED TO PAY tax simply because the NEVER HAVE BEEN DUE same.
Take lessons with the brilliant Professor. Hugo Machado de Brito, a renowned tax expert of our country, holder of "Notorious Legal Know" from the Federal University of Ceará in "Tax Law Course," 12th. Ed, Ed Malheiros: New York, 1997, p. 153-154, expounds on the theme, ratified in all our positioning, verbatim:
"It is distinguished from non-levy exemption. Exemption is the exclusion, by law, a portion of the hypothesis of incidence, or factual support of the tax rule, the subject of the exemption amount that the law takes hold of the facts that the hypothesis of incidence of the tax rule. The non-impact, otherwise, set up in view of the proper standard of taxation, not the subject of the impact all the facts that are not covered by the very legal definition in the event of impact. "
"... The rule of law exemption does not constitute a waiver of tax legally due, but a legal exception to the rule of taxation (...) Since the incidence is not all that is out of the hypothesis of incidence. It was not covered by this. Clear from the legal rule of taxation, setting the event that the tax is due, excluding those in defining what is not. "
"... Even if the Constitution is written that a situation is the exemption, the exemption does not really care, but immunity. And perhaps if the law refer to the possibility of immunity without just be playing, unsuccessfully, to rule the Constitution unless the hypothesis of immunity, but the exemption. "
CONSTITUTIONAL HIERARCHY OF THE STANDARD
Further, even with the citation of Professor. Hugo de Brito Machado, we have: "It can also happen that the law of taxation is prohibited by the Constitution of the device, to focus on certain facts. There is in this case immunity. The constitutional provision prevents the incidence of taxation of the legal rule. "(...)
"A) Exemption except by law is the legal rule of taxation."
"B) No effect is the situation where the legal rule of taxation does not fall because it fulfill its chance of incidence, or, in other words, do not set your factual support."
"C) immunity is the obstacle created by a provision of the Constitution that prevents the incidence of ordinary law of taxation on certain fact, and without the expense of a particular person or class of persons."
"You can say that qualified immunity is a form of no effect. Indeed, if there is immunity, tax law does not fall, because it is prevented from doing so by the standard higher, ie, the norm of the Constitution. "
You should check that the power granted by the Constitutional Charter Municipal Legislator was just so-"ESTABLISH" TAX, as evidenced in the above articles transcribed.
"Establish" means "build", ie, establish the duty on the transfer inter vivos. However, the legislative hall, as if that were not confusing enough immunity, exemption or no impact, which are not the same thing, rather than impose the tax, as established by the Constitution, makes it different, creates a substitution, ie an adverse obligation or, even better, alternatives (as if it had paid the tax, would have their situation resolved!) forcing the debtor taxpayer fails to comply with an obligation to the detriment of another, namely, to present a certificate in lieu of payment. But his task was not only set up? Who granted the same powers to create new obligation rather than one that should have created? Be clearly extrapolating believe in its power to police the municipal taxes.
Note also that the constitutional rule, hierarchically superior to the standard of municipal nature, requires no registration certificate for presentation to real estate, so the city of Fortaleza directly confronts the norm since the Federal Constitutional, Public Administration, which is based the Principle of Legality, or can only do or not do that established by law and can not legislate beyond what was allowed, beyond the limits that the Constitution allows only "set" and not "replace" or obligation to create adverse as the fulfillment of obligation rather than another.
PRECEDENCE OF
Through research conducted for the foundation of this defense, similar to what happens here requestado precedence, many Brazilians are the registers, surely the most part, available to apply the constitutional standard.
On this matter, we find a similar case tried in the 1st. Public Records of the Court of the District of Fortaleza / Ce, Case No. 2000.02.19862-2, where the decision was favorable to the non-necessity of presenting the certificate prefalada city, dismissing the question raised by an Officers' Registers of Fortaleza / Ce, following MM is also the decision. Judge of the 2nd. Public Records of the Court of the District of Fortaleza / Ce, now Judge of the Court of the State of Ceará - Dr. Raymond Eymar Mulberry.
For third party liability, the Registrar would be liable to be punished by not requiring the certificate of no effect, framed in the art. 134, inc. VI, the National Tax Code, in verbis.
"Art 134. In cases of failure to comply with the requirement of the principal obligation by the taxpayer, jointly and severally liable with this in that intervening acts or the omissions that are responsible for: (...)
VI - notaries, clerks and other clerks from office of the taxes due on the acts performed by them or before them, by reason of his office. "
Unless better judgment, we believe that this device does not apply to the case, section VI is very clear when he says "the taxes due" and DOES NOT IMPACT no corresponding tax due to the contrary.
We hope that these considerations serve as a research resource for notaries and registrars Brazilian lawyers and activists in this area so specific and yet comprehensive because the obligation to examine systematically various standards that are in some way linked to the Real Estate Law registrars.
Article published in the Journal Scope law.
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