Análise acerca da (in)constitucionalidade do inciso v, artigo 3° da lei n°. 5.123 do estado da Paraíba

Abstract

The present work discusses the Tax on cause mortis transmission and donation, of any assets or rights - ITCMD -, state tax according to constitutional command, whose generating event is the transmission, by the death event, of real estate and the donation of any assets or rights. Law nº 5.123/89 of the state of Paraíba instituted said tax, providing in its article 3, item V, as a hypothesis of incidence the verdict of usucaption. The present work has as objective to analyze the (un)constitutionality of the state device, which establishes ITCMD. As a methodology, the method of approach is the deductive, since it departs from a general and generic situation to a particular. In order to achieve the proposed objective, the constitutional principles related to the Tax Law will be worked out as constitutional principles, limiting the Power of the State and assecuratorial instruments to the taxpayers. It was also necessary to have in-depth knowledge about the ITCMD, its characteristics and constituent elements, emphasizing the analysis of its generating facts. Finally, it is discussed the legal institute of usucaption, as well as the Tax Jurisdiction and the hypotheses of incidence of ITCMD, analyzed under the prism of the Federal Constitution of 1967 and the Federal Constitution of 1988, and also analyzing subsection V, art. 3, of Law 5.123/89 of the State of Paraíba, establishing parameters of (un)constitutionality