Loans are called “mútuo” in Brazilian Law, and
are defined as the transferences of fungible goods, that can be changed by
others of the same gender, quality and quantity. The rules over the money loans
are disposed in Brazilian Civil Law Code. Money loans are a special kind which
has the incidence of a specific tax.
Over the money loans there is the incidence of
the IOF (Financial Operations Tax), as a general rule, like disposed in the
section 2 of the Decree 6.306, from December the 14th of 2007. The tax
shall be paid by the taxpayer at the date it receives the values, total or
partially.
On the other hand, international money loans have
different rules about the taxation by the Financial Operations Tax.
The Federal Government, by the Decree 8.325,
from October the 07th of 2014, changed the rules about the IOF, by
adding the section 15-B and revoking the section 15-A, of the Decree
6.306/2016. Posteriorly, the section 15-B was changed by the Decree 8.731, from
April the 30th from 2016, but the changes brought was not about the
aliquot over the international loans.
The section 15-B, in its subsection XI, determines
that in the settlements of foreign exchange operations of inflow and outflow of
funds in Brazil, referring to funds raised as loans and external financing,
except the operations referred in subsection XII, will have a zero aliquot.
The operations described in the subsection XII
of the section 15-B are the liquidations of exchange operations to the inflow
of resources in Brazil, including by simultaneous operations, referring a
foreign loan, with the obligation of information to the Brazilian Central Bank,
contracted directly or through the issuance of securities in the international
market with a minimum average term of up one hundred and eighty days, which
will be taxed at the rate of 6% (six percent).
It is important to say that according the § 2º
of the section 15-B, of the Decree 6.306/2016, when the operation of
international loan is contracted by a term, superior of 180 days, but is
liquidated before the term of subsection XII, the taxpayer shall pay the IOF,
plus interest and monetary restatement, in addition to being subject to the penalties
of section 23 of Law 4.131, from September the 3rd of 1962.
This measure, by the Brazilian Government,
between others, have the purpose of facilitate the fund-raising in the
international market, to bring positive results to the economy, by the better
offer of funding to the national agents.
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