The Brazilian Federal Revenue has changed the rules regarding the transfer of shares in closed investment funds, often associated with high-income individuals, to heirs.
According to Consultation Solution No. 21, issued by the General Coordination of Taxation (Cosit), it will no longer be possible to transfer these shares at their historical value, a practice previously used to avoid the incidence of Income Tax Withheld at Source (IRRF).
The new interpretation requires that the shares be transferred considering the capital gain, subject to progressive rates ranging from 15% to 22.5%. This measure aims to curb the use of such funds as a means of tax avoidance in transfers by donation or succession.
Unlike open funds, these investment vehicles do not allow redemption before the end of the investment period and are taxed only at the time of liquidation, a practice altered with the implementation of Law No. 14,754 of 2023, which introduced the “come-cotas” regime for these funds.
The change in legislation, evidenced by Consultation Solution No. 21, clarifies that in cases of transfer of shares by inheritance or early donation, the calculation of capital gains follows the same rules applicable to the sale of assets, eliminating the possibility of assessing the shares at market value or as declared by the donor. Additionally, the responsibility for withholding and collecting the due tax is assigned to the fund administrator or the intermediary institution.
This revision, which diverges from previous positions that allowed the assessment of shares at the acquisition cost, raises questions about the original intention of the legislator and the implications for heirs, who now face the likelihood of taxation even without the sale of the received shares, a practice that previously avoided Income Tax charges if carried out before the death of the holder.
This new guidance from the tax authority may encourage investors to reassess the convenience of maintaining investments in closed funds, especially considering the impact of the “come-cotas” and the new requirements for taxation on donations and transfers by succession. Furthermore, although there is the possibility of judicial contestation of the charge, the structure of responsibility for tax withholding makes it difficult for individual taxpayers to evade this tax obligation.