The impossibility of teleological interpretation limiting the unconditional immunity provided for in Article 156, Paragraph 2, I, of the Federal Constitution

Abstract

This article endeavors to contribute towards resolving technical challenges by evaluating the best hermeneutic criterion applicable to the immunity provided for in Article 156, Paragraph 2, I, of the Federal Constitution, by which the Constituent stipulated that all the transfer of real estate for the purpose of paying in the share capital of a legal entity is immune to the levy of ITBI (Real Estate Conveyance Tax). The hypothetical-deductive method was used, capable of producing theoretical knowledge with the possibility of practical application of the knowledge acquired, through doctrinal, legislative bases and jurisprudential survey, in which it will be verified, by using an interpretative evaluation aimed at extracting the content of the immunizing norm, that we are dealing with unconditional immunity and, therefore, full effectiveness and direct and immediate enforceability. In contrast, judgments from various Courts of Justice are presented, of which the analysis of the hermeneutic criterion used by their respective interpreters reveals that the search for the norm ended up bringing limitations that were not foreseen or even desired by the Constituent.