Government prepares project to regulate cryptoassets; understand what can change

The president’s government Luiz Inácio Lula da Silva (PT) should forward, in the next few days, a bill to the National Congress with a series of measures with relevant impacts on the functioning of the capital market.

Among the actions covered in the text, the one that the InfoMoney had access, is the regulation of operations with cryptoassets. The PL was prepared by the Ministry of Finance and has already been sent to the Civil House, which analyzes the matter. According to a source from the economic team interviewed by the report, the idea of ​​the text is to harmonize rules and stimulate the capital market, without generating new tax burden impacts on the sector.

In the case of virtual assets, the project aims to offer “definitive” regulation, as the folder points out in the explanatory memorandum that accompanies the text. The movement starts from a tax perspective on the issue and considers such instruments as “vehicles”, whose treatment varies according to the backing.

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The idea would be to include virtual assets in the definition of financial investments, when they are backed by operations of this nature, and maintain the other hypotheses of application of these instruments under the taxation rules on capital gains.

In other words, in cases that deal with digital assets representing financial applications, such as share tokens − a market operating in a sandbox environment of the Securities and Exchange Commission (CVM) since 2022 −, the tax collection rule will be the same as that applicable to mobile values. If the cryptoactive is not related to financial assets, such as NFTs, the rule is the same as that adopted for capital gains.

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In the case of Bitcoin, the trend is an application similar to foreign exchange operations in the financial market, but some details of the project are still under discussion.

The reference to virtual assets appears in the general provisions of the proposition – the first chapter. In this section, a new definition is presented for financial investments in the country and their income, for the purposes of applying Income Tax (IR), based on an exemplary list of practical cases. The objective here was to update concepts used by 1995 legislation, considered “outdated” by the Treasury.

The excerpt clarifies that net gains from asset negotiations on the stock exchange and organized over-the-counter markets are considered income from financial investments and excludes from the project’s scope of application the taxation of dividends and interest on equity (JCP), capital gains in the sale, write-off and liquidation of assets traded outside regulated markets and investments in investment funds (except when shares are traded on stock exchanges and over-the-counter markets).

The text also defines the hypotheses in which virtual assets and financial arrangements with virtual assets will be included in the definition of financial investments in the country, for IR purposes. The device establishes the criteria for determining the location of the asset within the national territory.

The measure seeks to address a gap in Brazilian legislation for the application of taxation rules for cryptoactives – a challenge faced by several countries with the advancement of instruments such as Bitcoin.

Last year, the Federal Revenue published a normative instruction delimiting the situation of individuals or legal entities, who carried out operations related to cryptoactives. By law, they are obliged to provide this information to exchange domiciled for tax purposes in Brazil and the individual or legal entity resident or domiciled in Brazil whenever transactions exceed R$30 thousand in a month.

This rule, however, opened loopholes for taxpayers to adapt their transfers to the exemption ceiling, in order to avoid paying taxes. The idea of ​​the government’s economic team now is to correct this distortion, providing the same rule for financial investments in most cases. The rate on capital gains is progressive and varies from 15% to 22.5%.

Furthermore, the project that should soon be sent to the National Congress says that the exemption from capital gains on the sale of small-value assets “does not apply to gains related to financial investments, in Brazil or abroad” − closing the doors for virtual assets with backings that fall into these categories.