The emergence of a type of non-business legal entity sui generis to the unconstitutionality of granting immunity from tax on transfer of assets inter vivos to administrative, patrimonial and family holding companies

Abstract

The issue of the creation of legal entities, called patrimonial or family holding companies for the transfer of assets or succession planning, has gained prominence based on the analysis of the prevailing Jurisprudence, especially themes 796 and 1348 of the Federal Supreme Court. In this context, this article aims to discuss whether this "corporate transformation" of legal entities without organized economic activity, as defined in art. 966 of the Civil Code, benefits or not from the tax immunity of art. 156, § 2, Clause II, of the Federal Constitution. To this end, exploratory, bibliographical and documentary research on the subject is carried out, so that the data collected is analyzed through the hypothetical-deductive method. The research resulted in the identification that companies established under the idea of ​​holdings intend to centralize the assets of individuals in a complete corporate administration focused on the management of their own assets or even a centralization of assets structured in a corporate organization, intending, with this, to anticipate the patrimonial succession of those involved or merely the corporatization of the assets built by individuals or a complex legal arrangement in order to effectuate the “patrimonial shield” against groups of creditors. Based on this panorama, the issue brings doctrinal and jurisprudential divergence, especially when discussing the knowledge that tax immunity must have a social counterpart, which is often not identified in legal organizations that only organize and manage their own assets. Finally, the limits of the discussion will be outlined to define the constitutionality of structuring holding companies for the transfer of assets and succession planning in Brazil, focusing on the controversy over their eligibility for tax immunity according to Article 156, § 2, II, of the Federal Constitution.