Aspectos tributários nas relações inerentes à atuação do fundo fomentador no âmbito do programa de arrendamento residencial, criado pela lei 10.188 de 2001

Abstract

The dictates imposed by the current legal framework suggest the need for structural adaptations of the State, generating the appearance of figures, not so traditional in the scope of the state organization, as is the case of public funds. The presence of these special entities matters in different circumstances as well, with regard to Law in its most varied fields and, as an example of this, there are the impacts of its performance in Tax Law, as it presents itself as an activity directly linked to the functioning and organization of state activities. Thus, when considering the complexity of the impacts of such entities in the way of acting in the Brazilian state today, the present work, through bibliographic research with a deductive method, aims to deepen analysis of peculiar tax aspects, within the scope of the tax immunity institutes and double taxation, assessing these in relation to the circumstances inherent to the Residential Lease Fund (FAR), in the activity of promoting popular housing. The questions analyzed here start from the decision of the judgment of an Extraordinary Appeal (RE 928.902 / SP) by the STF, arising doubtful situations as to some institutes related to real and succession rights, which bring a necessary discussion about legal concepts and doctrinal positions about the Law Tax, analyzing the pertinence of recognizing the immunity of the FAR's assets in cases of transfer of ownership of properties linked to the Residential Leasing Program (PAR), specifically dealing with the situation of contractual liquidation by insurance indemnity in the event of the holder's death, further taking the questioning of the tax due and the possible occurrence of double taxation, with regard to the process of the inventory of the deceased and the moment of registration of the transfer of ownership of the property. At first, the characteristics of elements related to the problem were approached, and the judgment of the extraordinary appeal mentioned above was analyzed, in order to point out certain inconsistencies, especially regarding the decisions of the ministers and their relationship with the condition of the FAR and its property immunity, culminating in the verification, soon after, of the taxes involved in the issues raised. As a final moment in the development of the work, there was a brief debate on double taxation, in order to establish its characteristics and its relationship with the problem under analysis. The conclusions obtained led to the understanding of the pertinence of the recognition of the immunity attributed to the FAR's assets, as well as the collection of ITCMD from the heirs of the property, in addition to the non-occurrence of double taxation, considering a restrictive interpretation of the classic definition of such phenomenon. , with the collection of ITIV by the municipality of the location of the property, upon registration of the transfer of ownership after completion of the inventory where the ITCMD is also charged on the value of the property.