Tributação de bens na dissolução da sociedade conjugal: uma análise legislativa e jurisprudencial acerca da incidência do IR, ITCD e ITBI

Abstract

This article aims to analyze the tax obligations of ex-spouses resulting from the dissolution of the conjugal society in the Brazilian legal system. The origin of the property regime of the conjugal society is discussed and this is the basis for the patrimonial and tax effects at the fateful moment of dissolution of that society. This fact will be analyzed in the scope of civil law, both in terms of family law and inheritance law, as well as tax law. The general objective is to demonstrate the importance of the choice of the property regime by the betrothed and its intrinsic relationship with the tax obligations of the 3 (three) Federated Entities. As a specific objective, it will be demonstrated that tax understandings go beyond the limits of legality and the uniqueness of the legal system, as well as having harmful effects on the tax obligations of ex-spouses. It is studied from the hypothetical-deductive method, which is based on the understanding of the general rule to analyze specific hypothetical situations, to reach the conclusion of the incompatibility of tax impositions with the legal system. Finally, it is concluded that a detailed and contextualized analysis of the tax rules is necessary, with this analysis having the capacity to mitigate the tax cost of sharing goods in the dissolution of the marital society.