A ilegalidade da incidência de imposto de renda pessoa jurídica e de imposto de renda retido na fonte sobre os ganhos auferidos pelos fundos de investimento imobiliário na venda de cotas de outros fundos de investimento imobiliário

Abstract

This research paper addresses the issue of the illegality of withholding income tax (WHT) and income tax on the gains obtained by a real estate investment fund from the sale of units of another real estate investment fund. The objective of this study is to analyze the current legislation, relevant case law, and doctrinal arguments to determine if this taxation violates the exemption provided by federal law. The analysis begins by understanding the legal foundations that justify the collection of these taxes, based on Brazilian tax legislation and regulations issued by the Brazilian Federal Revenue Service. Throughout the study, the divergences among experts and jurists regarding the interpretation of the legislation are discussed, as well as the lack of specific legislation to exclusively address this topic. The impacts of this controversy on the legal certainty for investors and the development of the real estate investment fund market are also examined. In conclusion, it is found that the illegality of collecting withholding income tax and income tax on the gains obtained by a real estate investment fund from the sale of units of another real estate investment fund still lacks a definitive position from the Judiciary and clear, unified legislation on the subject. The lack of consensus and the resulting legal uncertainty may hinder the growth and efficiency of the real estate investment fund market in Brazil. It is suggested that the debate on this topic be expanded to involve regulatory bodies, lawmakers, and stakeholders in the real estate investment fund market, in order to seek solutions that promote legal certainty and tax fairness in this specific context. The clarification of criteria and the establishment of an appropriate legal framework are essential to encourage investment and foster the sustainable development of this market in the country.