2023-10-26 18:56:16
One of the movements observed as a result of the approval of the PEC – Constitutional Amendment Proposal 45/2019, which is being processed in the National Congress and aims to simplify taxation on consumption under the responsibility of the Union, States and Municipalities, was the increase in the number of donations in life.
Data from CNB/CF – Colégio Notarial do Brasil/Conselho Federal (CNB/CF), an entity representing the more than nine thousand notaries in the country and bringing together notaries and protest notaries in each State, indicate that the number of donations increased from a monthly average of 11.6 thousand in 2022 for more than 14.2 thousand acts performed in Augustmonth of submission of the proposal.
“Concern regarding the impacts of tax reform has led many Brazilians to start planning in advance, with time and intelligence, for asset protection, opting for a living donation to heirs instead of waiting for the inventory to be carried out”, explains Angel Ardanaz, lawyer at Ardanaz Law Firm and University Professor in the disciplines of Business Law and Tax Law.
And this takes shape due to the forecast of a progressive increase in the tax rate paid to the government according to the assets involved, as the text of PEC 45/2019 determines that the ITCMD – Causa Mortis and Donation Transmission Tax must become a tax rate progressive up to 8%.
The ITCMD is provided for in article 155 of the Federal Constitution, and appears between articles 33 and 45 of the National Tax Code. The rates and forms of collection are established by the states. In other words, its legislation is created in the Legislative Assemblies of each federative unit in the country.
Holding company is a viable alternative for asset protection
One of the viable alternatives for asset protection is a holding companywhich participates in other companies, as a shareholder or shareholder, with the objective of holding assets, which may be shares in other companies and properties, in addition to other assets and rights.
“It is, therefore, an important tool in asset organization and succession planning, allowing the concentration of investments by individuals or legal entities, acting as an instrument of corporate control, in addition to promoting the segregation of assets or activities, thus being able to segment and protect heritage with special rules”, says Ardanaz.
The holding company may be constituted as a limited liability company or by shares and may be divided into:
Pure or Participation, when the investing company’s sole corporate objective is to participate in other companies as a shareholder or quotaholder; Mixed, when it has secondary activities, characterized by the payment of real estate or movable assets of quotaholders/shareholders, founders in the social capital of the legal entity; and Family, the one that supports the national business community with protection and guidelines in the face of everyday problems, such as family conflicts, separations and deaths, among others.
“In addition to enabling a reduction in the tax burden, asset protection through a holding company constitutes a preventive and effective measure in the face of future creditors and business risks, improving asset management, safeguarding economic activities and family problems”, he concludes. Ardanaz.
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