The Full Bench of the STF, by majority of votes, deemed unconstitutional the article in São Paulo Law No. 10,705/2000 which established the need to collect ITCMD on donations and/or inheritances from abroad.
The vote of Minister Dias Toffoli prevailed, on the grounding that states and the Federal District do not have the competence to institute the collection of ITCMD on inheritances and donations from abroad, since, to date, there has been no complementary law establishing the parameters for collecting this tax, as required by art. 155, §1º, III, of CF/88.
According to Minister Toffoli, due to the element of extraterritoriality linked to the discussion, it is necessary to amend the complementary law to establish the criteria for the incidence of this tax on assets and rights located abroad, in order to avoid conflicts of competence that generate double taxation of the states of the Federation and between countries with which Brazil has agreements. As such discussion has not occurred so far, states and the Federal District cannot fill this gap, resulting in a direct violation of CF/88.
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