Since last year many people sought a lawyer to divide their assets in life and thus avoid increasing transmission tax causes mortis and donation (ITCMD). But in 10 states of the federation that differently tax inheritances and donations this anticipation may result in significant tax economies. This is what a survey by André Teixeira Rossi, Andrade & Saadi Advogados, who compared the tax rates that focus on in these cases, shows.
The states of Alagoas and Maranhão, for example, are among those who have the biggest difference in the rates for the transmission of goods. While in Maranhão the rate for donation ranges from 1%to 2%, depending on the value of the assets, the tax paid in the inventory can reach 7%. In Alagoas, where the donation is equally taxed from 1% to 2%, the rates applied on inheritance range from 4% to 8%.
Also in Bahia, higher values assets are already taxed by 8% in case of inheritance, while for donation a rate of only 3.5%, regardless of the value of the equity.
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The significant differences in the rates between donation and inheritance predominate in northern and northeastern states, but also occur in Rio Grande do Sul and the Southern Graso Mato, where the tax paid in the donation is 50 % lower than the inheritance.
“In these 10 states, in particular, there is room for families to have substantial tax economy, if there is anticipation of heritage to the next generation, considering the differences still in force in the donation and inheritance rates,” says Bernardo de Vilhena Saadi, partner of the office and responsible for the survey.
See the rates in each of the 10 states, according to the survey:
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The lawyer explains that the donation in life is also advantageous for agility in the transmission of goods: “Life donation avoids the bureaucratic process of inventory, which can be long and expensive, especially if there is a dispute between the heirs. In these cases, it is common for heirs of large assets to have effective access to goods, which remain unavailable until the inventory is closed,” he says.
According to the lawyer, there are a number of care that can be taken to ensure that effective control of heritage remains in the hands of those who anticipate it.
Among the instruments available to avoid this loss of control by anticipating succession, there is the inclusion of the enjoyment clause, which allows the donor or persons designated by him to remain in the power of the goods donated, for a fixed time or according to the agreement of shareholders/shareholders, who confirm all rights to a property or operational company, having no power or influence on goods.
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“Parents are often afraid of losing control over their own assets by anticipating it, but it is possible to include clauses to guarantee the right,” Said said.