Lei 14.754/23: análise de (in)adequação da tributação dos fundos de investimento de condomínio fechado pelo IRRF Come-Cotas

Abstract

This study focuses on the system for assessing the Income Tax and Tax on Any Income, specifically the semiannual application of the mechanism known as "come-cotas" to investment funds structured as closed-end condominium companies, as regulated by Law No. 14.754, enacted on December 12, 2023. The objective was to analyze the application of the "come-cotas" to these closed-end funds, examining its compliance with the legal framework of the Income Tax established by the Brazilian Federal Constitution and the National Tax Code. To achieve this, the study relied on legal doctrine regarding Investment Funds and Income Tax in Brazil, as well as a detailed review of the relevant legal norms. The research was conducted using the deductive approach method, supported by complementary methods such as historical, monographic, statistical, typological, and propositional methods. It was found that the application of the Income Tax and Tax on Any Income through the "come-cotas" assessment system is inconsistent with the legal framework of the Income Tax. This inconsistency relates both to the definition of the concept of income and the general principles of Tax Law outlined in the Federal Constitution, as well as to the elements of the taxable event described in Article 43 of the National Tax Code. Due to the unconstitutionality and the inadequacy of the "come-cotas" incidence rule concerning the taxable event of income tax on investment funds structured as closed-end condominiums, the revocation of the norm that established it is necessary to restore normalcy to the tax legal order.