THE SOCIAL RIGHT TO HOUSING AS A LIMIT ON ASSESSMENT OF THE ITCD TAX ON LOW-INCOME FAMILY RESIDENTIAL PROPERTIES

Social rights are enshrined in the Brazilian Constitution as fundamental rights. In this light, it is important to delimit principles on the legal effectiveness of the underlying rights. While minimum enforceability of the right to housing is controversial from a social assistance standpoint, there is no such controversy as to its negative effects, including as a limit on taxation. With this in mind, we conducted a review of the pertinent literature and identified and analyzed the applicable tax legislation adopted by individual States and the Federal District, with a view to delimiting the legal effectiveness of the social right to housing, at least in respect of its negative impact on assessment of the Tax on the Transmission of Property Causa Mortis and Donations for low-income family residential properties. The objective was to identify those local statutes most consistent with application of the social right in question and to provide a broader analysis centered on the potential of the fundamental right to housing to serve as an effective limit on taxation, including in the specific cases not covered by law. Based on our analysis, we argue that the causa mortis transmission tax should not be assessed where the respective obligation could affect the sole residential properties of low-income families that meet, in theory, at least, the criteria for inclusion in public housing policies.