Holding · SPD Advocacia

Putting real estate into a holding? The STF confirmed the ITBI immunity

The Brazilian Constitution rules out ITBI (the municipal real estate transfer tax) when real estate is contributed to a company as capital. In October 2026, the STF (Brazil's Supreme Federal Court) ruled that this immunity also covers holdings that buy, sell and lease real estate. The points that need care are the contribution value and the capital limit.

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Constitution

The immunity rule

Under art. 156, § 2º, I, of the Constitution, ITBI does not apply to the transfer of assets incorporated into the net worth of a legal entity to pay up its capital. Constitutional Amendment 132/2023 (EC 132/2023) did not change this provision.

STF

Temas 1.348 and 796

Tema 1.348. Thesis: the ITBI immunity on paying up share capital through the contribution of assets is unconditional and therefore does not depend on whether the main activity is real estate, except in cases of sham transactions or fraud against the law aimed at improperly enjoying the immunity (RE 1.495.108, judgment concluded on October 19, 2026). As of the date of this page, the judgment (acórdão) had not yet been published.

Tema 796. The immunity does not reach the value of the assets that exceeds the limit of the share capital to be paid up (RE 796.376). If the property goes in at a value higher than the subscribed capital, ITBI applies to the difference.

Income tax

Which value to use for the contribution

Art. 23 of Law 9,249/1995 allows the contribution at the value stated in the assets schedule of the income tax return or at market value. At the return value, there is no capital gain, and the quotas received are reported at that same value (§ 1º). At market value, the positive difference is taxed as a capital gain (§ 2º).

The choice affects the tax on a future sale, the ITCMD (the state tax on inheritance and gifts) when the quotas are donated, and the Tema 796 limit. For this reason, the decision is made together with the accountants, property by property.

Requirements

What is reviewed

Property records

Registry status of each property (matrícula).

Assets schedule

Value reported in the income tax return.

Share capital

Amount to be subscribed and paid up.

Purpose

Real use of the holding, to rebut any claim of a sham transaction.

Source: CF, art. 156, § 2º, I; STF, Temas 1.348 (RE 1.495.108) and 796 (RE 796.376); Lei 9.249/1995, art. 23.

What is your case?

Situations the firm handles

Leasing

Holding that will lease out properties

Immunity even with a real estate activity.

STF, Tema 1.348

Value

Property with a high market value

Choice of value and capital limit.

Lei 9.249, art. 23; Tema 796

City government

The municipality charged ITBI on the contribution

Request for recognition of the immunity.

CF, art. 156, § 2º, I

Already paid

ITBI paid before the STF decision

Review of a possible refund claim.

Case review

Rural

Rural properties in the holding

Same immunity on the contribution.

CF, art. 156, § 2º, I

Succession

Properties that will later pass to the heirs

Contribution and donation of quotas.

Planning

This page provides general information, does not replace an analysis of the case and there is no guarantee of results.

Step by step

How the firm works

Fact-finding. Property records, assets schedule and the family goals.
Design. Capital, contribution value and clauses of the articles of association.
Registration. Amendment filed with the Board of Trade (Junta Comercial) and registration at the real estate registry offices, with the immunity request to the city government.
Succession. Donation of the quotas with the clauses defined by the family.

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Case review

Let us review the contribution

Answer the questions, one at a time. At the end you can attach documents, which go straight to a folder in the firm's Drive, and send the summary via WhatsApp. Everything is protected by attorney-client confidentiality.

Common questions

Frequently asked questions

Does a real estate holding also have the immunity?

Yes. Under Tema 1.348, the immunity on the contribution does not depend on the real estate activity, except in cases of sham transactions or fraud.

What if the property is worth more than the capital?

Under Tema 796, ITBI applies to the value that exceeds the paid-up capital.

Is it allowed to contribute at the value in the tax return?

Yes. Art. 23 of Law 9,249/1995 allows either the tax return value or market value. At market value, the difference is taxed as a capital gain.

I already paid ITBI on a contribution. Can I recover it?

It depends on the case, the municipality and the time limit. The firm reviews the documents before pointing out the path.

Do you serve clients outside Goiás?

Yes. Service is online for the whole country and also for Brazilians who live abroad.

How much does it cost?

After the review, the firm sends a written fee proposal, before any engagement.

Lawyer for contributing real estate to a holding company

SPD Advocacia, based in Anápolis-GO, structures and reviews family and asset holding companies for clients across Brazil and abroad, together with their accountants.

STF Tema 1.348

The ITBI immunity on the contribution is unconditional and does not depend on the real estate activity.

Contribution value

Tax return value or market value, under Law 9,249/1995, art. 23.

Informational content, in accordance with OAB (Brazilian Bar) Provision 205/2021. Each case depends on a review of the documents, and no result is promised.