DA (IN)CONSTITUCIONALIDADE DA COBRANÇA DO ITCMD SOBRE BENEFÍCIOS ORIUNDOS DOS PLANOS PGBL E VGBL

Abstract

This research had as main objective to analyze how some units of the Federation have been increasing the incidence of the ITCMD for the collection of the tax on the values deriving from the PGBL and VGBL pension plans, when the holder's death. Such charge is unconstitutional, due to the social purpose of the open supplementary pension, which is corroborated by the decisions of the STJ, when considering the amounts of the pension plans unattainable, due to their food nature. The unconstitutionality is also confirmed by the legal framework that permeates the Institute of Complementary and Social Welfare Plans, object of this research, among which, the provisions that say they are not considered inheritance of insurance values. In part, this undue charge is due to a CTN that is outdated in relation to the articles that regulate the ITCMD and, therefore, does not fulfill its role as a complementary law in order to avoid conflicts of jurisdiction and establish general rules. This work was built in three chapters: in the first, the beginnings of the social protection provided to ancient peoples and the topography of the researched plans were presented; in the second chapter, we discuss the institution of the ITCMD, its position in the tax system and its incidence matrix rule, under the aspects of taxable event, calculation basis, rate, income, taxpayer and spatial criterion, that is, in which it informs the tax due; and, in the third and last, the (un)constitutionality of the collection was faced, considering the research result with the social purpose of the supplementary pension, with the specific legislation on the subject, as well as, in the analysis of court decisions in the lawsuits filed. by taxpayers, when defending themselves against the collection of the tax. The present study was elaborated through a bibliographic survey and data analysis, in the portals of the 26 states' treasuries, in addition to the Federal District, as well as in consultations with the Courts of Justice, to analyze the paths chosen by the jurisprudence to deal with. with this new tax collection. It is proposed here, in addition to achieving the presented objective, to serve as auxiliary material for further studies, adding scientific knowledge to the academic community. Finally, through the aforementioned methodology, this research concluded that charging the ITCMD was unconstitutional, in the same line that, with good reason, most courts have decided. Thus, it is expected that this practice will be banned from the tax system, forcing entities to replace tax collection with efficient management in the execution of public expenditures.