On 03.10.2025, the Supreme Federal Court – STF began the trial of Topic No. 1348 (General Repercussion), which will determine whether the ITBI tax exemption, referred to in art. 156, §2, I, of the Federal Constitution, on the capitalization of assets and values is unconditional, therefore, regardless of the main business activity.

The Reporting Minister of the trial voted in favor of the taxpayer, stating that the right to ITBI exemption on the transfer of assets or rights incorporated into a company's assets in the capitalization process is unconditional, that is, regardless of the main business activity, even if it involves the purchase and sale of such assets or rights, rental of real estate, or leasing, proposing the following thesis:

“The ITBI tax exemption, provided for in art.156, §2, I, in the capitalization of social capital through assets and values, is unconditional, therefore, regardless of the mainly real estate activity.”

However, it clarifies that the rule does not exempt any incorporation of assets or rights into the company's assets, but exclusively the payment, in assets or rights, that the partner makes for the capitalization of the subscribed social capital.

Therefore, the difference in value of real estate exceeding the subscribed capital to be incorporated will be subject to ITBI taxation.

In practical terms:

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  If the partner contributes R$ 5 million in real estate to fulfill subscribed capital of R$ 5 million → full exemption.

  
  


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  If the transferred property is worth R$ 8 million and only R$ 5 million correspond to the subscribed capital → ITBI taxation on the difference of R$ 3 million.

  
  

It also states that the constitutional restriction (“mainly real estate activity”) applies only to merger, incorporation, division, or extinction operations of a company.

So far, the thesis has 3 votes (out of 11 in the plenary) in favor of unconditional exemption, and the trial was suspended on 07.10.2025 at the request of Minister Gilmar Mendes.

Although not yet concluded, the trial of Topic No. 1348 by the STF will have significant impact on the organization of Holdings, especially those created for succession planning, asset protection, and asset organization, as well as companies in the real estate sector.

Impacts for Holdings:

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  Greater legal certainty, as municipalities can no longer deny the exemption to holding companies under the argument of real estate activity;

  
  


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  Succession and asset planning: properties can be incorporated into the holding capital without ITBI taxation (up to the amount of subscribed capital);

  
  


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  Reduction of costs and litigation in corporate and family restructuring.

  
  

Impacts for the real estate sector:

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  Incorporation and construction: the decision favors the capitalization of land and properties in SPEs and incorporation companies;

  
  


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  Project feasibility: reduces the capitalization cost of real estate companies, encouraging new developments;

  
  


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  End of uncertainty: municipalities can no longer condition exemption on the analysis of main activity, which previously caused assessments and litigation.

  
  

If the decision favorable to the taxpayer prevails in the STF trial of Topic No. 1348, it will represent a milestone in Brazilian tax law, eliminating barriers previously imposed by municipalities and ensuring legal certainty for holdings and real estate companies.

The Dupont Spiller Fadanelli Advogados Team is closely monitoring the matter and is fully available to clarify any questions regarding the issue.