The São Paulo State Finance Department clarified that the transfer of company ownership between spouses, even under the partial community property regime, may result in the incidence of
ITCMD (Tax on Transfers by Death and Donations), if the company was established with the transferor spouse’s private assets. The understanding is that, in the partial community property regime, common assets and private assets coexist, which are not automatically transferred.
In the case analyzed, a woman received shares in the company from her husband in 2020, after which the husband withdrew from the partnership. The husband later returned to the partnership, and the woman withdrew. She claimed that, under the marital property regime, the transfer did not constitute a donation, but the Treasury Department emphasized that it is necessary to prove that the funds used to form the company are common to the couple to avoid the tax liability.
The decision reinforces the importance of carefully analyzing the origin of assets in similar cases. When there is doubt about the incidence of ITCMD, it is essential to seek legal advice and gather the necessary documentation to avoid future tax problems.
