Over the past few weeks, I have been frequently asked about the judgment of Extraordinary Appeal No. 1,495,108, in which the Supreme Federal Court (STF) is analyzing General Repercussion Topic No. 1,348. The judgment began on 16 September 2026 and resumed on 9 October 2026. So what is it about, and what could it change for you? Let's explain, without too much legalese.
I. How it was until now
The Federal Constitution (art. 156, § 2, I) provides that ITBI, the real estate transfer tax, does not apply when a property is transferred to a company to pay up (contribute) its share capital. There is, however, an exception: the immunity does not apply if the company's main activity is the purchase and sale of real estate, leasing, or financial leasing.
In practice, in many cases municipalities charged the tax to companies falling under this exception, including equity holding companies, treating the operation as an ordinary purchase and sale.
Transferring real estate from an individual to a company, especially so-called "pure holdings" that manage their own assets, brings several advantages: asset organization, reduced tax burden, and protection against the risks the business owner faces on a daily basis.
It also facilitates succession planning and can even avoid probate in the event of the business owner's death.
One of the costs of this planning was precisely the ITBI, paid at the time of transfer. The formalization, on the other hand, is simple: since a public deed is no longer required, it is enough to amend the articles of organization by private instrument, register it with the Commercial Registry, and take it to the Real Estate Registry.
II. What the Supreme Court is deciding
So far, a majority favorable to taxpayers has formed, with the votes of Justices Edson Fachin, Cristiano Zanin, André Mendonça, Nunes Marques, and Luiz Fux. To them is added the vote, already cast in the same direction, of Justice Alexandre de Moraes, who requested a review of the case (pedido de vista) and interrupted the judgment.
The prevailing understanding is that the immunity covers the transfer of assets or rights incorporated into a legal entity's equity as a capital contribution, regardless of the company's main activity, including when it involves the purchase and sale of such assets or rights, real estate leasing, or financial leasing. In other words, the exception in the constitutional text would be set aside in these cases.
The final thesis, however, will only be known at the end of the judgment. It is also worth remembering that ITBI on the value of the real estate that exceeds the contributed capital is a separate discussion, addressed in Topic No. 796.
III. What may change in practice
If this understanding is confirmed, those who intend to transfer real estate to a company as a capital increase will be able to do so without the cost of ITBI, regardless of the legal entity's activity. For those considering setting up a holding company, it is a good time to reassess their asset planning.
Those who contributed capital with real estate and paid ITBI in the last five years, counted from the date of payment, may be entitled to a refund, provided the tax was charged based on the exception regarding the company's main activity. However, the Supreme Court may still modulate the effects of the decision, which may limit the refund of past amounts and also reach future operations.
Therefore, even amid the legal, political, and economic uncertainty we currently live in, here is at least some good news to celebrate!
Ricardo Petereit
Founding Partner of Petereit Advogados Associados
12 October 2026
