Thamara M. Belinatti and Heloisa Nogueira
In the latest developments regarding the succession of the iconic TV host and businessman Silvio Santos, one of the challenges faced by the family—which made headlines a few weeks ago—concerned the applicability of the Tax on the Transfer of Assets or Rights *Causa Mortis* and by Donation (ITCMD). Following the patriarch's passing, his estate was valued at an impressive R$ 6.4 billion, according to the heirs. However, the judiciary made access to a portion of the inheritance conditional upon the payment of ITCMD, a tax that directly impacts the cost of the probate process.
ITCMD is levied in cases of both death and the gifting of assets or rights, with the tax burden falling on the recipient of the inheritance or gift. The tax rate varies by state; in São Paulo, where the probate proceedings took place, the rate is 4% (four percent).
Consequently, the amount owed by the successors would be approximately R$ 17 million to access a significant sum of R$ 429.9 million held in offshore accounts. To mitigate this impact, the family's lawyers petitioned the São Paulo Court of Justice (TJSP) for a tax exemption, arguing that the assets were located outside Brazil.
The legal argument centers on the Federal Constitution, which requires a supplementary law for states to levy taxes on assets located outside Brazil—a law that has not yet been enacted. Although the Supreme Federal Court (STF) declared state laws mandating such levies unconstitutional (Ruling 825, 2020), many states, including São Paulo, continue to demand ITCMD, leading to legal disputes—such as the one involving the "Patrão" (Boss).
Constitutional Amendment 132, passed in December 2023, attempted to address the issue; however, because it has not yet been incorporated into state legislation, its effectiveness remains limited. Currently, Supplementary Bill 108 is making its way through Congress and could potentially regulate the matter.
Tax experts point out that prior state laws declared unconstitutional cannot be validated—even following the constitutional amendment—and that new state laws will be required to legitimize the levy. The São Paulo Court of Justice recently ruled that, in the absence of a supplementary law, the collection of the ITCMD tax is invalid (Case No. 1047533-70.2023.8.26.0053); however, conflicting views persist across administrative and judicial courts.
This scenario highlights the importance of estate planning as a strategic tool to reduce costs, protect family assets, and facilitate the swift and efficient transfer of property. A well-structured succession plan enabled the discussions that likely led to the successful transfer of assets in this case.
The Silvio Santos case underscores the need for family businesses—including small and medium-sized ones—to consider estate planning, as it prevents future conflicts and ensures the continuity of both the business and the family assets.
