Brazilian Supreme Court (STF) upheld the Direct Action of Unconstitutionality by Omission (ADO) n.67, declaring unconstitutional the omission of Congress in the edition of the complementary law to regulate the collection of Estate/ Gift tax (so called “ITCMD”) on foreign assets received as donation or inheritance. The Supreme Court established a period of 12 (twelve) months for Congress to adopt the necessary legislative measures to edit said complementary law.
In view of the judgement set out in Theme 825/STF “the states and the Federal District are prohibited from charging the ITCMD in the cases referred on article 155, § 1, III, of the Federal Constitution without the intervention of complementary law required by said constitutional provision“, the Attorney General’s Office filed a Direct Action of Unconstitutionality by Omission, in view of the delay of the National Congress in making effective article 155, § 1, III, of the Federal Constitution, which provides that the following situations should be regulated by complementary law:
(i) if the donor is domiciled or resident abroad;
(ii) if the deceased was resident or domiciled or had his probate processed abroad;
Therefore, in view of the absence of a complementary law to regulate the aforementioned situations, STF declared unconstitutional the omission in the enactment of the complementary law and established a period of 12 months, counting from the date of publication of the judgment, for National Congress to adopt the necessary legislative measures to supplement the omission.