Holding familiar como instrumento de mitigação de riscos em sucessões onerosas: análise de sua eficácia diante da progressividade do ITCMD introduzida pela Emenda Constitucional nº 132/2023

Abstract

This study analyzes the family holding company as a legal instrument for succession planning, aimed at preserving and ensuring the continuity of family wealth across generations, in light of the changes introduced by the tax reform, particularly regarding the progressivity of the ITCMD (Inheritance and Gift Tax) authorized by Constitutional Amendment no. 132/2023. The research addresses the problem of whether the costs arising from a succession process with a high financial impact can be mitigated, questioning to what extent the establishment of a family holding company can reduce the risks of such burden in view of the progressive ITCMD rates authorized by Constitutional Amendment no. 132/2023. The methodology adopts a qualitative approach, based on bibliographic and documentary research, grounded in the deductive method, through the analysis of the relevant legislation, legal doctrine, and case law. As a complementary procedure, a hypothetical case study is employed, in which an estate of R$ 14,697,146.00, is structured, with a comparative simulation between traditional succession and asset structuring through a family holding company. The results indicate that, although the progressivity of the ITCMD represents a potential increase in the tax burden, the family holding company remains a relevant planning instrument, being, in fact, one of the main factors distinguishing families that manage to preserve and organize their wealth efficiently, as it proves capable of mitigating risks and optimizing the transfer of assets, provided that the applicable regulatory specificities and proper legal structuring are observed.