The São Paulo State Finance Department (*Sefaz-SP*) determined that the net asset value of a quota (an equity interest in a limited liability company), for state inheritance and gift tax (ITCMD) purposes, is its real net asset value — close to market price. Two days later, it recharacterized a father's loan to his child as a gift where there was no proof of repayment.
What happened
Tax Consultation Response No. 33625/2026, dated August 12, 2026 (published on August 13, 2026), addressed the ITCMD tax base for gifts of quotas in a company not traded on a stock exchange. The São Paulo tax authorities determined that the net asset value provided for in Art. 14, § 3, of State Law No. 10,705/2000 is a fallback option, not the general rule, and that it "must be understood as the real net asset value, approximating the selling price prevailing in the market." Restricting the analysis to book equity, the tax authorities said, is a "simplistic" solution because it ignores expected profitability, the economic environment, and intangible assets not reflected in ordinary accounting records. The response relies on Art. 9 of Law 10,705/2000, Art. 155, § 1, II, of the Constitution, and, expressly, Art. 154 of Complementary Law No. 227/2026.
The following day, Tax Consultation Response No. 33156/2026, dated August 13, 2026 (published on August 14, 2026), addressed the boundary between a loan (mútuo) and a gift in a real estate purchase financed by a relative. Applying Arts. 538 and 586 of the Civil Code and the sole paragraph of Art. 116 of the National Tax Code (CTN), it established three criteria: absence of animus donandi, intent to make a gift; a genuine obligation to repay; and a demonstrable time frame. A permanent transfer with no provision for repayment is a gift — and is subject to ITCMD.
The technical reading
The two responses are not new rules. They are the interpretation the São Paulo tax authorities will apply in audits, and that is the interpretation taxpayers will encounter on the other side of the table. The practical effect is the reversal of an established practice: for years, holding company quotas were given away at book net asset value because that was the figure available on the balance sheet and no one asked questions. Now they do.
The technical issue is the scope of the word "option." Art. 14, § 3, of Law 10,705/2000 allows the tax authorities to accept net asset value when there is no stock exchange quotation. SEFAZ-SP clarifies that this permission does not require it to accept just any net asset value — and that the legally relevant net asset value is the real one, determined using a consistent methodology that combines equity at market value with cash-generation capacity. When taxpayers do not provide that determination, what remains is assessment by estimation, together with the accompanying penalty.
The reference to Art. 154 of Complementary Law 227/2026 is not decorative. The complementary law regulating ITCMD after Constitutional Amendment 132/2023 provides federal support for stricter valuation criteria at a time when progressive tax rates have ceased to be an option for the states and have become a constitutional mandate. A larger tax base combined with a progressive rate does not produce an arithmetic increase: it produces a leap.
The second response closes the obvious escape route. If giving away quotas has become expensive, the temptation is to transfer money and call it a loan. SEFAZ-SP anticipates this: without a written contract, without a schedule, and without a banking trail of actual repayment, the transaction is recharacterized. And recharacterization under the sole paragraph of Art. 116 of the CTN comes with a dispute over concealment — territory in which taxpayers find themselves arguing more than they would like.
Who this reaches
- Owners of family holding companies (holdings patrimoniais ou familiares) in São Paulo who were planning to give quotas to their children during 2026
- Business-owning families undergoing corporate succession, with operating-company quotas to transfer
- Parents who have financed, or intend to finance, a child's real estate purchase "by way of a loan," without a formal instrument
- Equity holders who have already made gifts of quotas at book value within the last five years and are still within the audit period
- Heirs in probate proceedings involving company quotas among the estate assets
What to do, and by when
- Before filing any ITCMD return involving quotas, obtain a valuation report with a stated methodology — equity at market value plus projected cash generation — and retain the assumptions. The report does not prevent a challenge; it prevents unilateral assessment by estimation.
- Review gifts of quotas already made within the statutory period for tax assessment, checking which valuation criterion was declared and what documentation supports that figure today.
- Formalize every advance of funds between parents and children in writing: a loan agreement with a term, an adjustment method, and a schedule, plus bank records of the installments actually repaid. A loan without documented repayment is a gift for the tax authorities.
- In transactions involving real estate, assess whether the appropriate instrument is a gift with reservation of usufruct, the right to use the property and receive its income; a secured loan; or a purchase and sale using demonstrably independent funds — the choice changes the tax incidence, and the documentation must come into existence along with the transaction, not afterward.
- For those with an established holding company, reexamine provisions in the articles of association concerning the determination of an equity holder's entitlement and quota valuation criteria: the figure the company chose for internal use tends to be the first figure the tax authorities will look at.
The cost of doing nothing
A gift declared at book value and subsequently reassessed by the tax authorities turns succession planning into a tax assessment notice, with additional tax, a penalty, and interest imposed on a transaction that has already been recorded and has already produced corporate effects.
Editorial record
-
Pillar: 1 — Assets under tax pressure
-
Related service (performed in Brazil): succession planning and valuation of quotas for gifts; family holding company review; formalization of loans (mútuos) between relatives; administrative defense in ITCMD matters
-
Editorial tier: Ruby
Sources: SEFAZ-SP, Tax Consultation Response No. 33625/2026, dated August 12, 2026 (in Portuguese) · SEFAZ-SP, Tax Consultation Response No. 33156/2026, dated August 13, 2026 (in Portuguese) · São Paulo State Law No. 10,705/2000 (in Portuguese) · Complementary Law No. 227/2026 (Office of the President) (in Portuguese) · National Tax Code, Art. 116 (in Portuguese)
Verification record
This week's topics were checked against primary and official sources on August 17, 2026: the text of Tax Consultation Responses Nos. 33625/2026 and 33156/2026 issued by the São Paulo State Finance Department (Sefaz-SP); São Paulo State Law No. 10,705/2000; Complementary Law No. 227/2026; the National Tax Code; the Civil Code; the Code of Civil Procedure; Law No. 8,009/1990; Law No. 6,015/1973; Decree No. 8,660/2016; the official Superior Court of Justice (STJ) news release of August 13, 2026, concerning AREsp 2.791.033, an appeal challenging the denial of a special appeal; and Ministry of Foreign Affairs data released on August 15, 2026.
The week's context. The STJ was closed on August 10 and 11, and Congress is operating at a pre-election pace. The three topics were selected because they change what the client needs to do now, not because of the amount of attention they received.
Two deliberate exclusions, recorded for rigor:
- The Senate's approval of Complementary Bill (PLP) 124/2022 — a new framework for tax proceedings, submitted for presidential assent on August 12, 2026 — will enter the radar only once presidential assent and an effective date have been established.
- A report of a decision that purportedly ruled out state inheritance and gift tax (ITCMD) on a US$ 600,000 gift made through an account abroad did not have its origin, court, or case number confirmed. What has not been checked is not published.
Nonbinding: AREsp 2.791.033 is a panel decision with persuasive authority; it is not a precedent statement (súmula), a repetitive-appeals ruling, or a binding holding. The Piracicaba judgment is a trial court decision. SEFAZ-SP consultation responses bind the São Paulo administration in the matter submitted for consultation and disclose its audit criteria without changing the law.
About the firm
Andrade & Cintra Advogados is a boutique law firm dedicated to Civil, Corporate and Real Estate Law, with a focus on Family and Succession Law, concentrated on estate and succession planning, the structuring of family and asset-holding companies, corporate governance and the organization of wealth for succession purposes — always with business purpose, substance and legal compliance. International practice in cooperation with Sintra Legal & Partners.
About the author
Dr. J. Guilherme de Andrade Cintra — Founding Partner · OAB/SP nº 220.915. Editorial co-authorship assisted by artificial intelligence (Anthropic Claude) as editor, under the review and responsibility of the signing attorney.
Talk to us
- WhatsApp: (11) 92499-0086
- E-mail: contato@cintraadvogados.com
- Address: Av. João Paulo Ablas, 1575 — Granja Viana — Cotia/SP — CEP 06711-250
- Website: www.andradecintra.com.br
Need a reading of your specific matter? Contact the firm and schedule a diagnosis.
Informational content. It does not constitute legal advice and does not create an attorney-client relationship. Matters under U.S. law are handled by attorneys licensed in the relevant jurisdiction.
