*By Paulo Rogério Magri
The São Paulo Government has been monitoring operations carried out by taxpayers that, due to their characteristics, could be generating ITCMD – Death and Donation Transmission Tax.
Once “suspicious” operations have been identified, taxpayers have been alerted so that they can review the information provided to the São Paulo tax authorities and thus, if they perceive something to be incorrect, they can regularize their situation.
How well treated in Tax Bulletin of July 2, 2024 of PLKC Advogados in a matter prepared by its lawyers José Henrique Longo, Luiz Henrique Mazetto Veronezi, Priscilla Pasqualin and Camila Aparecida Silva Spilari, there is the possibility of regularization and payment of the tax with fine and interest, as this is not yet an inspection process, but a warning statement:
Thus, they emphasize: “These communications suggest a re-analysis of the transaction carried out by the taxpayer, as well as the collection of any applicable ITCMD, and provide the possibility of completing and paying the tax arrears, with the incidence of late payment fines (20%) and interest, which is the case.
However, the aforementioned communication is clear in mentioning that it does not constitute the beginning of a tax action and, therefore, will not generate, in itself, any type of official assessment, the taxpayer simply needs to verify whether or not there was a donation, whether the ITCMD was due , and make the ITCMD declarations, as well as payment or installments of the tax due, if applicable.
These inspection plans arise from information shared as a result of the Technical Cooperation Agreement between the Union, represented by the Federal Revenue Secretariat of Brazil, and the State of São Paulo, published in August 2018, which aimed to exchange economic and fiscal information and the provision of mutual assistance in monitoring the taxes they administer.
Thus, seven inspection operations are currently in force in the State of São Paulo, with a distinct and specific purpose:
Operation Crossover: the purpose of the operation is to transfer vehicles between people who show signs of kinship (same declared address or same surname) whose acquirer does not have income declared to the Federal Revenue Service of Brazil that demonstrates the financial capacity for the expensive acquisition of the vehicle and for which no ITCMD declarations were found.
Operation Donatio: the purpose of the operation is Donation(s) declared to the Federal Revenue Service of Brazil in the Personal Income Tax Declaration (IRPF) and has the purpose of verifying the payment of ITCMD due to São Paulo.
Operation Vaisyas: the purpose of the operation is the donation(s) of quotas and shares of companies declared to the São Paulo State Revenue Service and its purpose is to verify the payment of ITCMD due to São Paulo.
Operation Mendacium: the purpose of the operation is to verify the existence of a court order to pay the tax without incurring interest and fines, in accordance with article 17, § 1, of Law No. 10,705/00, as taxpayers declared in the ITCMD declarations.
Operation Loki: the operation aims to transfer quotas and company shares and aims to verify possible purchase and sale simulations to cover up donations of company quotas without payment of the ITCMD owed to São Paulo.
Operation Calabar: the operation aims to transmit causa mortis extrajudicially and aims to verify the correct declaration of causa mortis transmissions that lead to the payment of the ITCMD owed to São Paulo.
Please be aware that ITCMD is not always due. There are some hypotheses of exemption or non-incidence, such as, for example, for donations to cultural, environmental and human rights institutions, as well as recognizing the immunities of educational, social assistance and religious institutions. Transmissions made to people who do not reside in SP deserve special attention, as São Paulo's ITCMD legislation provides that the tax is due in SP."
Given these checks, we suggest that you seek professional help to analyze and confirm the correct information to the tax authorities.
*Paulo Rogério Magri is Director of ASPR
Notice: The opinion presented in this article is the responsibility of its author and not of ABES - Brazilian Association of Software Companies
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