Repercussões tributárias do mercado de crédito de carbono no Brasil

Abstract

The tax repercussions of the carbon credit market in Brazil are examined, considering the post-tax reform context, as well as the enactment of Law 15.042, of December 11, 2024, which institutes the Brazilian Greenhouse Gas Emissions Trading System (SBCE). A critical and multidisciplinary approach is used, made possible through bibliographic, documentary, legislative and electronic research; based on the hypothetical-deductive scientific method, presenting inferences and intervention proposals based on the established premises. The core aspect of the work is developed from the understanding of the legal nature most appropriate to the basic characteristics of carbon credit, which is identified as intangible, intangible, with a low level of fungibility, individualizable, exhaustible and tradable. With this scope, the analysis begins from the categories legally defined in the aforementioned Law 15.042, of December 11, 2024, namely: civil fruit and security. The latter is attributed in the case of negotiations in the financial and capital markets. Next, the following legal features, which are commonly attributed to carbon credits, are also examined: commodity, environmental commodity, financial asset, environmental service, title to a right over an intangible and intangible tradable asset, and intangible asset. When analyzed accurately, one disagrees with the legal natures established in the law, to the extent that it is identified that the attributes of carbon credits are supported by the legal feature of an intangible asset, whose inseparable elements consist of identification, control over a resource, and the existence of future economic benefits. Based on this legal character, the tax repercussions are examined, considering the influences of the tax reform on transactions involving carbon credits. Finally, once these guidelines have been established, we move on to the analysis of ecological extrafiscality, with the aim of presenting an extra-fiscal proposal for the segment in question in Brazil, oriented towards environmental sustainability. It is clear, therefore, that there is a relevant potential for extra-fiscal promotion of the desired carbon neutrality, as government and private efforts are made with emphasis on the balance of ecosystems, which is at the very core of the existence of the carbon credit market.