Theme 1,348 (binding precedent) resumed on September 2, 2026, and the session ended without a single vote. The previous vote count, favorable to the taxpayer, no longer exists — and the window to establish a position before the holding is announced is likely to be short.
What happened
Theme 1,348 addresses the "Scope of immunity from the municipal real estate transfer tax (ITBI) for transfers of assets and rights as contributions to share capital when the company's predominant activity is buying and selling or leasing real estate." The leading case is RE 1,495,108, with Justice Edson Fachin as reporting justice.
The disputed provision is Art. 156, § 2, I, of the Constitution: ITBI "does not apply to transfers of assets or rights contributed to the assets of a legal entity as capital contributions, nor to transfers of assets or rights resulting from a merger, absorption, spin-off, or dissolution of a legal entity, unless, in these cases, the acquirer's predominant activity is buying and selling those assets or rights, leasing real estate, or financial leasing."
Course of the proceedings:
- October 3, 2025 — proceedings begin in the virtual plenary session. The reporting justice's vote proposed unconditional immunity for capital contributions. Justice Gilmar Mendes requested additional time to review the case.
- March 2026 — resumption interrupted by Justice Flávio Dino's request to move the case to an in-person session, which referred it to the physical plenary and nullified the votes already cast.
- September 2, 2026 — reading of the report and oral arguments. In favor of taxation, Ricardo Almeida Ribeiro da Silva (Abrasf) argued that the immunity was designed to encourage productive activity, not an administrative structure. In favor of immunity, Misabel Derzi argued that excluding real estate companies creates unequal treatment. Proceedings suspended, with no resumption date and no votes cast.
The technical reading
The crux lies in the words "in these cases." One reading holds that the predominant-activity exception covers all situations in the clause, including capital contributions — and this is the reading municipalities have applied for decades. The other holds that the exception refers only to corporate reorganizations (merger, absorption, spin-off, dissolution), because immunity for capital contributions has its own purpose: not to burden the formation of companies. It is this second reading that the reporting justice's vote endorsed in 2025.
The issue is not academic. A typical Brazilian family holding company (holding patrimonial, a company holding family assets) includes leasing its own real estate in its corporate purpose, and it is precisely this purpose that leads the municipality to deny immunity and assess ITBI on the contribution — often years later, with a penalty. The test for determining predominance is in Arts. 36 and 37 of the National Tax Code (CTN): more than 50% of operating revenue in the two years before and the two years after the acquisition, with a specific rule for companies with less than two years of activity.
Theme 796 (RE 796,376, decided on August 5, 2020) also bears on this framework: it held that immunity does not cover the value of assets exceeding the subscribed share capital — the so-called "capital reserve." The two holdings will have to coexist: the first determines whether there is immunity; the second, how far it extends.
The practical point is timing. With the vote count back to zero, everything is open — including an unfavorable outcome. And in tax matters, when a holding runs counter to settled expectations, the Supreme Court commonly limits the temporal effects of its rulings and makes an exception for those already challenging the assessment administratively or in court on the date of the decision. Anyone outside that snapshot tends to be excluded from the exception.
Who this reaches
- Families that have already formed a family holding company with contributions of real estate, especially with leasing included in its corporate purpose
- Families planning to form a holding company that have not yet made contributions
- Business owners who contributed real estate to an operating company with a real estate classification under the National Classification of Economic Activities (CNAE)
- Anyone who paid ITBI on a capital contribution in the past five years
- Anyone facing an ongoing notice of tax assessment, tax enforcement action (execução fiscal, judicial collection of tax debt), or municipal denial of immunity
What to do, and by when
- Review the corporate purpose, CNAE classification, and revenue composition for the two fiscal years before and after each contribution already made, to determine which side of the line drawn by Art. 37 of the CTN the company falls on.
- Identify the ITBI actually paid on capital contributions in the past five years. The deadline for a tax refund claim is set by Art. 168 of the CTN and runs independently of the proceedings — recovery of amounts already time-barred will not be possible later.
- Assess the appropriate administrative or judicial avenue before the holding is announced. Challenging the tax now is what preserves one's position in the event of a limitation on the ruling's temporal effects; challenging it later may be too late.
- Review the appraisal reports and contribution values in light of Theme 796, clearly distinguishing share capital from any premium or reserve.
- For contributions not yet made, treat the timeline as a legal variable, not merely an accounting one, and provide for the treatment of tax risk in the articles of organization and the members' agreement.
The cost of inaction
If the holding is unfavorable and its temporal effects are limited, those who were not challenging the tax lose both the tax paid in the past and their present structure.
Editorial record
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Pillar: 1 — Assets under tax pressure
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Related service (performed in Brazil): formation and review of a family holding company (holding patrimonial), municipal tax advice and litigation concerning ITBI, tax refund claims
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Editorial tier: Gold
Sources: STF restarts hearing on ITBI immunity for real estate companies’ share capital — ConJur, September 2, 2026 (in Portuguese) · STF begins review of ITBI immunity for capital contributions to real estate companies — IRIB, September 3, 2026 (in Portuguese) · Docket of RE 1,495,108 / Theme 1,348 — STF Portal (in Portuguese) · Theme 1,348 — official description (NUGEP/TJPE) (in Portuguese) · ITBI on capital contributions: a hearing without a single vote — PAtaX, September 2026 (in Portuguese) · Theme 1,348: reporting justice’s vote proposes unconditional immunity; proceedings suspended — Pimentel e Rohenkohl, October 10, 2025 (in Portuguese)
Verification record
This week's coverage was checked against primary and official sources on September 7, 2026: the docket of Extraordinary Appeal (RE) 1,495,108 (Theme 1,348, binding precedent) on the Supreme Federal Court (STF) portal, with the September 2, 2026, plenary session ending without a vote, following the request to transfer the case to an in-person session that nullified the previous vote count; Federal Constitution, Art. 156, § 2, I; National Tax Code (CTN), Arts. 36, 37, and 168; STF Theme 796 (RE 796,376, decided on August 5, 2020); National Council of Justice (CNJ) Resolution No. 695/2026 and CNJ Resolution No. 35/2007, Art. 15; Request for Administrative Action (Pedido de Providências) No. 0008622-24.2025.2.00.0000, reporting Justice Mauro Campbell Marques, 12th Ordinary Session of August 18, 2026; Law No. 6,015/1973, Arts. 129, 148, 198, and 289; CTN, Arts. 134, VI, 151, VI, and 192; São Paulo State Law No. 10,705/2000, Arts. 8, I, 18, § 1, 21, and 25; Code of Civil Procedure (CPC), Art. 611; Central Bank of Brazil (BCB) Resolution No. 561, dated April 30, 2026, amending BCB Resolution No. 277/2022, effective October 1, 2026; Law No. 9,249/1995, Art. 18; Federal Revenue Secretariat (SRF) Normative Instruction No. 208/2002, Art. 26; Law No. 13,259/2016, Art. 21; Law No. 9,250/1995, Art. 23; Law No. 11,196/2005, Arts. 39 and 40; Decree No. 8,660/2016.
Recorded cautions. The hearing of Theme 1,348 is suspended, with no resumption date and no votes cast — any prediction of the outcome is conjecture, and the prospect of limiting the temporal effects of the ruling is a possibility, not a decision. The waiver of advance payment of the state inheritance and gift tax (ITCMD) applies to the notarial office; the Real Estate Registry officer's duty to verify compliance and the state laws requiring payment in full to record the instrument remain intact, with uneven application among states. The exclusion of nonresidents from capital gains exemptions and reduction factors is the tax authorities' position, with scholarly disagreement noted. The U.S. 1% tax on remittances appears as factual context, not as guidance on foreign law.
Excluded by choice: attachment of wages for debt unrelated to support obligations (a trial court decision without sufficient precedential weight); disclosure of an insured person's data and presumed nonpecuniary damages (the underlying decision is from 2025, not a new development); annulment of a gift of real property following a DNA test (no case number disclosed, awaiting confirmation); death of the purchaser under a purchase agreement and court-ordered conveyance to the estate (a synthesis article, not a new decision); a collective writ of mandamus concerning an ICMS state value-added tax benefit in relation to corporate income tax (IRPJ) and the Social Contribution on Net Profit (CSLL) (a topic suited to a large company's legal department); the September 2026 Visa Bulletin and remittance excise tax regulations (no effect on assets, family, or business in Brazil, or already published outside the coverage window).
About the firm
Andrade & Cintra Advogados is a boutique law firm dedicated to Civil, Corporate and Real Estate Law, with a focus on Family and Succession Law, concentrated on estate and succession planning, the structuring of family and asset-holding companies, corporate governance and the organization of wealth for succession purposes — always with business purpose, substance and legal compliance. International practice in cooperation with Sintra Legal & Partners.
About the author
Dr. J. Guilherme de Andrade Cintra — Founding Partner · OAB/SP nº 220.915. Editorial co-authorship assisted by artificial intelligence (Anthropic Claude) as editor, under the review and responsibility of the signing attorney.
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