Brazilian States and the Federal District (“States”) do not have the legislative competence to institute the collection of the Tax on Inheritance / Gift (“ITCMD”) in the case of donations and inheritances instituted abroad.
Superior Federal Court (“STF”) judged item 825 with general repercussion (valid to all taxpayers – Extraordinary Appeal No. 851.108/SP) and decided that States were unable to supplementarily legislate on the matter based on article 155, Paragraph 1, III, of the Federal Constitution (“CF”), which provides for the need for a Complementary federal law in order to regulate the jurisdiction to institute the ITCMD in cases where the donor has a domicile or residence abroad or the person who has the goods, whether resident or domiciled or have their inventory processed abroad. It happens that, due to the inertia of the national legislator in what concerns the edition of the referred Complementary law, the majority of the States enacted their own State Laws instituting its collection.
It should be noted that the STF also modulated the effects of the decision, stating, in summary, that its effects are only valid as of the date of publication of the judgment, except for the cases in which there was an ongoing legal action on the subject.
We remain available for any clarification.