In judgment held in June, the Federal Supreme Court (STF) decided by a majority of votes, that income tax is not levied on amounts received as alimony.
The current legislation provides that “food and pensions received in cash” represent the beneficiary’s gross income and, therefore, should be taxed by the income tax.
The result was simple and costly: beneficiaries of alimony were required to offer, on a monthly basis, the amounts received as alimony to taxation by means of a mandatory collection known as “carnê-leão”.
For the rapporteur of the case, Minister Dias Toffoli, the unconstitutionality of the taxation of alimony is evident when comparing (i) the situation of a couple who has a common child and the provider of the family is only one of the parents, and (ii) the situation where in a possible separation of this couple, alimony is fixed to be paid by the provider of the child and the separated parent, who now live in separate houses.
In both situations, the parent and the common child are financially dependent on the provider. What changes is the way in which the provider starts to meet the material needs of these two people: now, there is a civil obligation to pay alimony.
In this situation, there is no new wealth or increase in the net worth on part of the separated spouse and the common child, who start to receive alimony so that their needs continue to be financially supported.
Another important point highlighted by the STF decision is that in both situations, the amount destined for alimony of the family is the same and is taxed at source when it is received by the provider. Also, the possibility of deducting this expense is not impaired, as it is a mere tax benefit granted only to the provider, without harming the person being supported.
The decision may still have its effects modulated by the STF. Therefore, until the effects are modulated by the STF, great care is required before adopting any procedures without a prior judicial authorization.
