IOF does not apply to loan extension

Dołączył: 09 Mar 2024 Posty: 2

In recent months, important changes have taken place in the Tax on Financial Operations (IOF) regime, especially in foreign exchange operations. This was the case with the change enacted by Decree ,/, with effect from April , , the content of which determined the collection of the aforementioned tax, at the rate of %, in the settlements of exchange transactions contracted for the inflow of resources into the country arising from an external loan, with a minimum average term of up to days.

The practice of these operations in the national market has raised doubts among several multinational groups, especially regarding the applicability of this new rule to requests for extension of deadlines for payment of foreign loans, which are extremely common in their routine.

The problem we face is that in order to formalize, prepare and finalize the extension request, the Central Bank system is obliged to create (simulate) an exchange operation for the purposes of monitoring and controlling the flow of foreign capital in this country.

Therefore, the concern that continues to bother companies BTC Number Data is the correct entry that will be made of the IOF-exchange in this extension request, when made less than two years after its original maturity. Is this incidence legal, however?

In a literal interpretation of the exegesis, the taxation of the mentioned extension operations at % would be indisputable, as long as they were contracted from April , and with a minimum average term of up to days. It is not, however, the best explanation.

In order to reach this conclusion, it is necessary to make it known what the national legislator understands as an exchange transaction. We have, then, under the terms of articles et seq. and article of the New Civil Code, that the exchange transaction is nothing more than a purchase and sale contract, in which one of the contracting parties undertakes to transfer the domain of a certain thing and the other to pay a certain price in money.

With this concept of private law in hand, we can enter the tax area, for the purposes of levying IOF on these operations. Article , item V, of the Federal Constitution, states that " the Union is responsible for imposing taxes on credit, exchange and insurance operations, or relating to bonds or securities ". The National Tax Code (CTN), in its article , item II, provides that the IOF will be levied " in relation to exchange operations, their execution through the delivery of national or foreign currency, or a document that represents it, or its placement available to the interested party in an amount equivalent to the foreign or national currency delivered or made available by the interested party.

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