The Advent of Progressive ITCMD as a Limitation to the Effectiveness of the Principle of Contributive Capacity

Abstract

Constitutional Amendment No. 132/2023 in Brazil added item VI to §1 of Art. 155 of the Federal Constitution, establishing that the ITCMD will be progressive based on the value of the share, legacy or donation. The progressivity of the ITCMD had already been recognized by the STF in RE No. 562.045/RS, even without express provision in the Constitution. The decision was in line with the STF's jurisprudence, which, after EC 29/2000, admitted the progressivity of real taxes such as IPTU, adjusting the rates according to the value of the property, its location and use. The enactment of EC 132/2023 raises doubts about the need to regulate progressive rates for real taxes. If the STF had already recognized this progressivity after EC 29/2000, its enactment would seem unnecessary. On the other hand, EC 132/2023 may signal the need for a specific provision to reaffirm constitutionality, in line with the STF's understanding prior to EC 29/2000. It seems to us that the first hypothesis is in line with the Brazilian legal system, since progressivity is an essential mechanism for realizing the principle of ability to pay. In the end, EC 132/2023 came to restrict the dimension of the ability to pay, establishing only the estate and inheritance as criteria for limiting the ability to pay.