Incidência do imposto de renda sobre ganho de capital decorrente da alienação de empresas: aspectos da capacidade contributiva, da progressividade e da equidade aos contribuintes

Abstract

The objective of this work is to briefly discuss the tax called income taxes, constitutionally instituted, according to item III of article 153 of Brazilian Federal Constitution from 1988, where we read: “It is the Union's responsibility to institute taxes on income and earnings of any nature ”, and in § 2 of the same article it is established that income tax “will be informed by the criteria of generality, universality and progressiveness, in accordance with the law”. I intend to demonstrate the incidence of this tax on capital gains on the sale of companies, focusing on the rates applied and whether they comply with tax principles, observing the aspects of progressivity, contributory capacity and fairness to taxpayers, the taxpayers of this operation. According to article 148 of the 2018 Income Tax Regulation (RIR/2018), “The capital gain will be determined by the positive difference between the disposal value and the acquisition cost, determined under the terms established in art. 134 to art. 147”. The RIR/2018 establishes, in its article 128, that “A natural person who receives capital gains from the sale of assets or rights of any nature is subject to payment of the income tax referred to in this Title”