The Precedent Management Department of the Superior Court of Justice (STJ, Brazil’s highest appellate court for non-constitutional matters) published issue 903 of its Jurisprudence Bulletin. The document compiles key legal theses established in recent court rulings, selected for their impact on the legal landscape. For the corporate and investment market, the main highlight is a new definition regarding the taxation applicable to real estate funds.
Income Tax on Operations Between Real Estate Funds
The First Panel of the STJ ruled on a core issue for structuring investments in the Brazilian real estate sector. The case was analyzed in Special Appeal (REsp) 2,211,684, originally reported by Justice Regina Helena Costa, with Justice Gurgel de Faria designated as the author of the final decision.
The focus of the ruling was on transactions known in the financial market as Funds of Funds (FOF). This modality occurs when a Real Estate Investment Fund (FII) acquires or trades shares of other real estate funds, rather than investing directly in physical properties.
By a majority vote, the STJ panel ruled that capital gains obtained by a Real Estate Investment Fund during the disposal (sale) or redemption of shares in another FII are indeed subject to Income Tax (IR). In this context, capital gain represents the positive difference between the acquisition cost of the shares and the amount received at the time of their sale or redemption.
Market Relevance of the Precedent
Setting this thesis in the STJ Jurisprudence Bulletin brings greater predictability to fund managers and investors. By confirming the levy of Income Tax on capital gains in these specific FOF transactions, the court establishes a clear guideline to be observed in structuring and managing real estate fund portfolios.
Procedural Deadlines and the Public Defender’s Office
The second highlight of Bulletin 903 addresses a procedural issue ruled on by the Third Panel of the STJ. In a case processed under judicial secrecy, reported by Justice Nancy Andrighi, the justices unanimously defined a technical rule regarding the calculation of appeal deadlines.
The Panel decided that if the Public Defender’s Office is admitted to the proceedings while an appeal deadline is already running, this intervention does not change the initial start date of the timeframe nor restore elapsed days. However, the final deadline is extended. The end date is calculated considering the institution’s statutory right to double deadlines, counted from the original starting point, exactly as if the Public Defender’s Office had been acting since the publication of the decision.
This content is for informational purposes only and does not constitute legal advice. For guidance on specific matters, consult a qualified lawyer.
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