Definição do marco inicial de contagem do prazo decadencial do ITCD na hipótese de transmissão causa mortis

Abstract

The decadence, in its primary function, aims to prevent legal relations from lasting indefinitely, while ensuring the observance of the Principle of Legal Security and the balance between the subjects from which the bond is made of. In this context, this work has as its goal to analyze the institute of decadence under the Tax Law, once the expiry prevents the procrastination over time from the duty to act of the administrative authority, setting the period the State has to make the taxes liable, in order for them to be paid by the taxpayers. Thereby, the study is restrained to determine the most appropriate moment for the counting of the decaying deadline of the Tax over Causa Mortis Transfer or Donation to begin, in the specific case of transfer of goods as a consequence to the death of the author of the inheritance, due to conflicts present in the doctrine and jurisprudence on this matter. Therefore, the work was developed by analyzing discrepancies in the Brazilian legal system concerning the topic. In the first chapter, concepts relative to the main institutes of Tax Law were discussed, whose understanding has been proved as essential to define the moment when the decadence occurs. In the next chapter, the Tax over Causa Mortis Transfer or Donation was analyzed and its characteristics were detailed. Furthermore, the positioning present in the doctrine concerning the milestone of the counting of the decaying deadline of this tax in the case of Causa Mortis transfer was demonstrated, emphasizing in the article 173, item I, of the National Tax Code and in the one provided by the Precedent 114 of the Supreme Court. At last, an analysis of jurisprudence was performed, in which the decisions from the Superior Court and the Court of Justice of Rio Grande do Sul State were compared, in order to establish the most appropriate understanding existing in the Brazilian legal system on this matter, which was concluded to be the disposed in the article 173, item I, of the National Tax Code.