Charging IR on the settlement of swap contracts for hedging is constitutional
Article of Law No. is constitutional, which authorizes the collection of Income Tax on financial results verified in the settlement of swap contracts for hedging purposes." Dollar Photo ClubThis was the thesis unanimously established by the ministers of the Federal Supreme Court, when deciding, with general repercussion, that the collection of income tax on the settlement of swap contracts for hedging purposes is constitutional. In the case analyzed, the petitioning party, Playcenter, claimed that it assumes financial obligations fixed in foreign currency, mainly in dollars, such as the import of inputs, machinery and equipment. However, most of its commercial operations take place in the domestic market. Therefore, to protect itself from a possible mismatch between obligations in foreign currency and revenues in reais, the company carried out operations to protect itself from fluctuations in the dollar. Playcenter then entered into swap contracts with the BBA bank, exchanging the risk of exchange rate devaluation for the risk of rising internal interest rates in Brazil, represented by the variation in the CDI (Interbank Deposit Certificate, which follows the variation in the Selic, the rate basic interest rate of the economy). Under the contract, each party committed to paying the other the difference between the variation in the dollar and the variation in the CDI over the predetermined period.Thus, Playcenter claimed that, if it Greece Phone Number were to receive money for the difference in the variation, this money could not be considered an increase in capital, "since its function is solely to restore the company's assets" in the event of an increase of the dollar. Therefore, he claimed that the charge provided for in article of Law , is unconstitutional, due to violation of article , III, of the Federal Constitution, as well as article of the CTN. The attacked article states that "the income earned in any application or financial operation of fixed income or variable income is subject to the incidence of income tax at source, even in the case of hedging operations, carried out through operations swaps and others, in the derivatives markets". If there is wealth, there is tax Upon settlement of the hedge contract, if there is a positive balance for the company, then there is support for collecting Income Tax, as defended by the rapporteur of the case in the Supreme Court, Minister Marco Aurélio. "If wealth is acquired through the swap operation, tax is levied at source, regardless of the destination given to the amounts. Even if aimed at neutralizing the increase in debt arising from the main contract, due to the appreciation of foreign currency, it is necessary to tax the income", he points out in his vote.
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The doctrine points out, in turn, that the "subsequent application of the income earned, whether in a new financial operation or to cover possible commitments, does not eliminate the occurrence of the tax-generating event." The rapporteur, therefore, dismissed the arguments raised by the parties. "Once the materiality of Income Tax in relation to operations is established, the allegations regarding compulsory loan or illegitimate exercise of the Union's residual tax jurisdiction — articles and of the Federal Constitution — are unfounded. There is no confiscation either", he stated. When accompanying the rapporteur's vote, Minister Alexandre de Moraes highlighted that "the taxable event does not occur at the time of signing the swap contract for hedging purposes, as the contract itself does not generate any pecuniary advantage subject to taxation — in other words, only at the time of contractual settlement will it be possible to verify the receipt of any amounts by the company". "In this way, tax will be withheld at source only if, at the time of settlement of the swap contract, a gain is determined in favor of the taxpayer", he concluded.
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