By Tax Area

The Federal Revenue Service reinforced the incidence of IRPF on the exchange of cryptocurrencies, provided that the exemption limit of R$ 35,000.00 is exceeded in one operation or several in the same month.

In December 2021, in the Answer to Inquiry 214/2021, the Federal Revenue Service had already determine its position in favor of the taxation of the capital gain calculated on the sale of cryptocurrencies, even in the absence of prior conversion into reais or another currency. In 2021, the taxpayer who made the inquiry was referring to the exchange using bitcoin, on the exchange platform (foreign crypto assets broker), to acquire stablecoin.

Although the variation in the price of the two crypto assets is different, the Federal Revenue Service did not differentiate between the exchange between crypto assets.

In the DISIT/SRRF06 Answer to Inquiry No. 6008, the Federal Revenue Service repeated the understanding, failing to analyze the part of the consultation on the taxation of investments in cryptocurrency mining, since it did not understand the requirements of Art. 27 of the Federal Revenue Service Normative Instruction No. 2.058/2021, that is, the inquiry formulated by the taxpayer would have failed to describe, in a complete and precise way, the hypothesis to be analyzed, without the elements necessary for the tax authority's answer to inquiry. Furthermore, the inquiry would have sought to obtain the provision of legal or accounting-tax advice from the Federal Revenue Service, prohibited by the same Art. 27, item XIV, of the INRFB, which regulates the inquiry process within the scope of the Federal Revenue Service.

Although cryptocurrencies or crypto assets are extremely volatile, some more than others, depending on whether or not there is a link to the currency, considering as realized income an amount that has not yet been converted into reais, in a system that does not allow the deduction of possible losses by an individual - different from the taxation of stock market operations by an individual, which allows the deduction of losses - can violate the ability-to-pay principle. The elements to consider the realized income would be measurability, liquidity, and certainty and, in particular to the last two requirements, these would not be present in the exchange operation between crypto assets.