In this Tax Law newsletter, you will read:
- Federal Court sets aside restrictions imposed by the Federal Revenue Service on the recognition of tax credits in class actions
- ITBI immunity for real estate companies to be reviewed in an in-person plenary session of the Supreme Federal Court (STF)
- STJ rules out social security contributions on private pension plans limited to certain employees
1. Federal Court sets aside restrictions imposed by the Federal Revenue Service on the recognition of tax credits in class actions
A decision was rendered by the 10th Federal Civil Court of São Paulo in case No. 5006665-47.2026.4.03.6100, in a collective writ of mandamus filed by the Center of Industries of the State of São Paulo (CIESP), which challenged the legality of requirements introduced by Normative Instruction RFB No. 2,288/2025 for the recognition of tax credits arising from collective judicial decisions.
NI RFB No. 2,288/2025 began requiring, among other points, individual proof of membership in the entity that filed the action, the Federal Revenue Service’s analysis of subjective criteria regarding the beneficiaries’ standing, and the limitation of credits to taxable events occurring after membership.
The decision found that the rule exceeds regulatory authority by imposing conditions not provided by law, particularly by limiting the temporal scope of credits and requiring prior membership, in violation of the principles of legality, separation of powers, and res judicata. It was also reaffirmed that, in collective writs of mandamus, the entity acts as a procedural substitute, so that the effects of the decision extend to the entire category, regardless of individual authorization or prior membership.
The Federal Government has filed an appeal against this decision, which is still pending judgment.
2. ITBI immunity for real estate companies to be reviewed in an in-person plenary session of the STF
The Supreme Federal Court has begun the trial of Extraordinary Appeal No. 1,495,108 (Topic 1348), which discusses the scope of ITBI immunity in cases involving the contribution of real estate assets to share capital, particularly when the company’s main activity is the purchase and sale or leasing of real estate. The case had been under review in the virtual plenary, but a request for further consideration by Justice Flávio Dino moved it to the in-person plenary, resetting the vote tally.
Before the suspension, the vote stood at 4–1 in favor of taxpayers. The reporting Justice, Edson Fachin, joined by Justices Alexandre de Moraes, Cármen Lúcia, and Cristiano Zanin, held that ITBI immunity does not depend on the company’s main activity and applies even if the company engages in the purchase and sale, leasing, or financial leasing of real estate. Justice Zanin, however, noted that municipalities may still investigate, based on concrete evidence, potential cases of fraud or simulation.
Dissenting, Justice Gilmar Mendes argued that immunity should not apply when real estate activity is predominant, on the grounds that this could undermine the taxable basis of ITBI and enable abusive tax planning.
The trial will resume in the in-person plenary, with no scheduled date yet, and the matter remains unsettled.
3. STJ rules out social security contributions on private pension plans limited to certain employees
The 2nd Panel of the Superior Court of Justice, in the judgment of Special Appeal No. 2,142,645/PE, unanimously ruled out the incidence of social security contributions on amounts paid as complementary private pension, even when the benefit is granted only to a portion of employees. The case originated from a tax assessment in which the National Treasury argued for taxation based on Article 28 of Law No. 8,212/1991, claiming that exclusion from the calculation basis would depend on offering the plan to all employees.
The reporting Justice, Afrânio Vilela, prevailed with the understanding that Complementary Law No. 109/2001 changed this scenario by removing the requirement of universality. Therefore, the non-incidence of social security contributions is not conditioned on extending the benefit to all employees, recognizing that such contributions do not have a salary nature.
The decision is not binding, and the ruling does not establish a practical distinction between open and closed plans for purposes of incidence. However, Complementary Law No. 109/2001 provides for a universality requirement in cases involving closed complementary pension entities (such as company pension funds), in which the plan must be offered equally to employees within that group.
