Through the Inquiry Solution of the General Coordination of Taxation (Cosit) No. 86/2024, the Brazilian Internal Revenue Service understood that the remuneration for the onerous assignment of crypto assets should be taxed by income tax as earning from fixed income application.
From the standpoint of the inquirer company, opting for the National Simplified Taxation Regime, the temporary assignment of crypto assets should be considered a rent, lasting 1 year. It stated that, in exchange for the assignment, as a lessee, it receives a remuneration of 8% of the leased amount.
The tax repercussion is relevant. If considered rent, the company would be subject to a taxation of 6% to 33% under the National Simplified Regime. In turn, if it is considered as financial earning, taxation through income tax is performed outside the Simplified Regime and can vary between 15% and 22.5%.
According to the Internal Revenue Service, the crypto asset examined in the inquiry is a fungible asset. Therefore, its assignment does not constitute the rent referred to in Article 565 of the Civil Code, which can only involve non-fungible assets. As a result, its remuneration does not constitute rent.
Once other hypotheses were also ruled out, the Internal Revenue Service considered the inquirer’s contract as a loan of money with interest because it has as its object fungible assets (Article 586 of the Civil Code), with the fixed monthly remuneration, called “rent” actually standing as compensatory interest (Article 591).
Based on this premise, the taxation of such compensatory interest, through income tax, is made outside the calculation basis of the National Simplified Regime according to the provisions of Supplementary Law 123/2006 and Internal Revenue Service’s Normative Instruction No. 1585/2015.
Lastly, the Internal Revenue Service concluded that the tax base in this case is the amount of interest, even if it happens to be above the legal limit (Article 591 of the Civil Code), and, if interest is paid in crypto assets, taxation does not depend on its prior conversion into fiat, and should be valued in cash, at the market value they have on the date of receipt, pursuant to the Income Tax Regulation (RIR).
Available in: https://www.lexlatin.com/opinion/criptoactivo-tributa-como-inversion-financiera-hacienda-federal-brasil
Autor: Flávia Sant'Anna Benites • email: flavia@ernestoborges.com.br • Tel.: +55 67 99984 1406
