The Superior Court of Justice (STJ), while judging the Special Appeal No. 1,733,560-SC (REsp. No. 1,733,560-SC), at a meeting held on May 17, 2018, understood that the exchange transactions should not be equated to, for tax purposes, to purchase and sale since, in the majority of the times, there will be no collection of revenue, billing or profit in the exchange.

The ruling dismissed the appeal filed by the Ministry of Finance Attorney General, unanimously, which uprooted the decision of the a quo court (TRF of the 4^th Region), which had ruled that “the exchange operation involving real estate units does not imply the income / revenue, income and profit, but mere replacement of assets (…)”.

The entire legal discussion began with the filing of an recovery of undue payments  action filed by the construction company FRECHAL CONSTRUÇÕES E INCORPORAÇÕES LTDA. (taxpayer) who entered into an exchange agreement, exchanging future apartments for the land where the building would be built.

Depending on certain conditions, including tax ponctuality in the collection of taxes, construction companies may benefit from a more beneficial tax regime called the Special Tax Regime (RET).

Considering that the performance of the Brazilian Federal Revenue is in accordance with the provisions of the Normative Norm COSIT No. 9 of 2014, which equates the exchange to a purchase and sale, the taxpayer opted to compute the value of the land received as income, being subject to a series of taxes such as Corporate Income Tax (IRPJ), Social Contribution on Net Income (CSLL), Social Integration Program (PIS) and Contribution for the Financing of Social Security (COFINS), thus avoiding tax questions that could, exclude it from the most beneficial RET tax regime.

Once the aforementioned taxes were collected and the taxpayer was retained in the RET tax regime, a lawsuit was filed claiming that the value of the land received in the exchange should not be included in the taxpayer’s income.

It is worth noting the excerpt from the vote of Minister Herman Benjamin in REsp No. 1,733,560-SC, when reviewing the matter in the STJ, when he understood that “a quo Court of origin correctly interpreted art. 533 of the Civil Code, since the exchange agreement shall not be equated for tax matters to a purchase and sale agreement, since there will be, in most cases, no revenue, income or profit in exchange”.

This ruling could serve as an argument to exclude IRPJ, CSLL, PIS and COFINS tax from the exchange operations in general, since the decision was based on the doctrine of Roque Antônio Carrazza for whom “income and proceeds of any kind are the net equity increases occurring between two legally predetermined dates”.

Therefore, it is arguable that, in the absence of a net equity increase in the exchange operation, it is not necessary to mention taxation by IRPJ, CSLL, PIS and COFINS.

We remain at your disposal for any questions or clarifications that may be required.

Tax Practice of Zancan Advogados.