A tributação de ganhos de capital em operações com criptomoedas no Brasil: uma análise crítica da constitucionalidade da incidência do IRPF na permuta de criptoativos

Abstract

This study analyzes the constitutionality of the interpretation adopted by the Brazilian Federal Revenue Service (Receita Federal do Brasil – RFB) regarding the taxation of crypto asset exchanges, as set forth in Ruling COSIT No. 214/2021. It starts from the premise that equating exchanges (permuta) with sales (alienação) for income tax purposes may violate fundamental constitutional principles, especially in the absence of conversion into fiat currency and, consequently, of actual economic availability. The objective is to critically examine the RFB’s interpretation in light of the principles of legality, tax typicity, ability to pay, and the constitutional concept of income. This qualitative research is based on bibliographic, legislative, and case law analysis. It demonstrates that, due to the absence of specific legislation on crypto assets, the RFB assumed a regulatory role through infra-legal acts, resulting in an extensive interpretation that equates economically distinct operations. The study argues that exchanges merely substitute assets within the taxpayer’s patrimony, without generating realized income, rendering such taxation unconstitutional. Ruling COSIT No. 214/2021, by expanding taxable events not expressly provided by law, violates the principles of legality and ability to pay, and unequally treats crypto asset exchanges compared to other asset classes, thus infringing the principle of equality. As a result, legal uncertainty and barriers to the national crypto asset market arise. The study proposes the enactment of specific legislation to tax only the conversion into fiat currency, establishing clear rules aligned with international best practices. It concludes that the current interpretation of the RFB is legally questionable and detrimental to the sector’s development, calling for a legislative solution that reconciles revenue collection with constitutional principles