ITBI EXEMPTION IN CAPITAL CONTRIBUTIONS: LIMITS, TECHNICAL EVIDENCE AND DUE PROCESS IN THE ARBITRATION OF THE EXCESS VALUE

Abstract

The article examines the immunity of the Tax on the Transfer of Real Estate (ITBI) in capital-contribution transactions, with particular emphasis on its objective limits, the definition and measurement of the “excess value,” and the due-process safeguards involved in determining the taxable base through official appraisal. A dogmatic-analytical approach is adopted, grounded in the Constitution (art. 156, §2, I), the general rules of the National Tax Code (especially art. 148), and recent case law from the higher courts (STF Theme 796; decisions on predominant activity; and precedents concerning the rebuttable presumption of the declared value and the requirement of adequate technical reasoning). The article argues that immunity is strictly limited to the amount effectively allocated to the formation of the company’s capital; that taxation of any excess depends on a reliable assessment of fair market value at the date of the transaction; and that official appraisal is an exceptional measure, contingent on specific justification and meaningful adversarial participation. It concludes by proposing an interpretive and evidentiary framework for tax authorities and taxpayers aimed at reducing litigation and promoting replicable, technically verifiable decisions.