A AUSÊNCIA DE REGULAMENTAÇÃO TRIBUTÁRIA DOS CRIPTOATIVOS NO BRASIL: UMA ANÁLISE DO BITCOIN À LUZ DO IOF E DO IMPOSTO SOBRE A RENDA

Abstract

The purpose of this article is to analyze and explore the lack of tax regulations in Brazil for the taxation of cryptocurrencies, especially Bitcoin. The aim is to analyze the effects of this legislative gap for tax purposes, especially those relating to the Financial Operations Tax (IOF) and Income Tax (IR). To this end, the taxation of cryptocurrencies, especially bitcoin, will be analyzed from the perspective of tax jurisdiction rules and certain principles limiting the exercise of tax jurisdiction, all provided for in the Federal Constitution. Despite the constant innovations brought about by cryptoassets, tax uncertainty persists, because the lack of a clear rule clashes with the principle of legality or conflicts of tax jurisdiction, and there is a need to revise the rule. There are currently some normative instructions issued by the Federal Revenue Service regarding bitcoins. However, it is understood that these may conflict with the constitutional limits imposed on the exercise of the Union's tax powers, as well as exceeding the agency's own regulatory powers. For the purposes of delimitation, this work is restricted to the analysis of the incidence of cryptocurrencies, bitcoin, from the perspective of IOF and IR. Therefore, although it is extremely relevant, the taxation of bitcoins will not be analyzed from the perspective of other taxes, nor from the perspective of new taxes, such as the IBS and CBS - Tax on goods and services and Contribution on goods and services, included in the constitutional text on the occasion of Constitutional Amendment 132/2023. Therefore, considering the delimitation presented and based on reflection from bibliographic reviews, the work aims to defend the incidence of Income Tax on operations with cryptocurrencies, concluding that the State must urgently update its tax rules, especially in relation to Income Tax, so that it is taxed and calculated through it, in order to deal with the peculiarities of Bitcoin and guarantee tax justice.