GT Lawyers – Tax Team
The Federal Supreme Court (“STF”) denied the Extraordinary Appeal filed by the State of São Paulo against the Court of Justice decision that excluded the levy of the Tax on Causa Mortis Transfers and Donations (“ITCMD”) on donations originating from abroad. The single-judge decision by Justice Cármen Lúcia, issued on June 14, 2025 in RE 1.553.620, reaffirms the understanding that the advent of Constitutional Amendment No. 132/2023 does not automatically validate the collection of the state tax in the absence of a valid state law.
The case concerned the receipt of donations from abroad by a donee residing in the State of São Paulo. The State Treasury argued that Article 16 of CA 132/2023 had overridden the need for a federal supplementary law governing that taxable situation, thereby allowing the immediate collection of ITCMD on donations from abroad made after the constitutional amendment entered into force.
This argument was expressly rejected by Justice Cármen Lúcia. The decision clarifies that CA 132/2023 establishes a transitional competence only until the enactment of the supplementary law required by Article 155, paragraph 1, item III, of the Federal Constitution, but it neither dispenses with that requirement nor validates state legislation declared unconstitutional.
In São Paulo’s case, the situation is aggravated by the declaration of unconstitutionality of Article 4 of Law No. 10,705/2000, issued both by the São Paulo Court of Justice (in 2011) and by the STF (ADI No. 6,830/SP). That provision, which dealt with the taxation of donations with an international connecting factor, remains without effect and cannot serve as a basis for levying ITCMD.
Practically speaking, in the absence of a valid provision in São Paulo’s legislation enacted after CA 132/2023, donations received from abroad remain outside the scope of ITCMD.
Complementary Bill No. 108/2024, currently pending in the National Congress, seeks to fill this regulatory gap. Even so, even after its possible approval, a new state statute will still be required.
The decision directly affects taxpayers engaged in international estate and succession planning, consolidating the impossibility of charging ITCMD on donations originating from abroad.
For further information on the subject, we remain at your disposal.
