SEFAZ-SP positions itself by increasing the ITCMD tax calculation base
The legislation is clear: in the State of São Paulo, the calculation basis for the Inheritance and Donation Tax (ITCMD) on the donation of limited liability company quotas has always been and continues
to be the book value of the transferred quotas. So far, nothing has changed.
Without any basis and contrary to the law and the understanding of the Superior Court of Justice of the State of São Paulo (TJ/SP), which recognizes that taxpayers may adopt the book value of the quotas as a basis for calculation, the Secretary of Finance and Planning of the State of São Paulo (SEFAZ-SP) issued the Reply to Consultation No. 24,429/21 with the “guidance” that the value to be considered would be “the book value, provided that the real book value is taken into account, i.e., the one that most approximates the market value (value at which said quotas could be traded on the market – in other words, their sale price)”.
It is possible to identify that this interpretation, which forcibly expands the calculation basis of the ITCMD, is wrong, with a simple consultation to the Legislative Assembly of the State of São Paulo. How? There are two bills (PL nº 250/20 and 529/20) that propose that the calculation basis in the donation of quotas be the “value of the book value adjusted by the revaluation of assets and liabilities, including the
updating of assets at market value on the date of the triggering event”.
If the current rule already brought the market value as a basis for calculation, what is the reason for legislators to present projects with different wordings from the current one? It wouldn’t make sense. The objective is to change the current rule. Changing the rule is only possible through legislation. SEFAZ-SP goes beyond any reason in its manifestation. This is really scary.
Despite this type of misguided orientation by SEFAZ-SP giving force to unreasonable assessments, all that is left to the taxpayer is to continue using the book value, as authorized by the current law,
and the broad and favorable jurisprudence of the TJ/SP.
