One of the core principles of tax law is non-retroactivity, which prohibits the application of taxes on events that occurred before the creation of the law.
In this context, the attempt to tax earnings obtained prior to the legalization of the sector and before the existence of specific regulations for this activity “breaks with the principle of legal certainty” and may be considered unconstitutional, Brandão argues.
The attorney notes that if the government’s intention were merely to regularize unpaid amounts from past operations during a transitional regulatory period, the proposal could be interpreted differently.
“However, establishing a retroactive tax collection without a legal basis in force at the time is legally questionable,” she affirms.
On the other hand, Brandão highlights that the text maintained key exemptions for instruments such as real estate funds and agribusiness securities, which should help preserve the attractiveness of these investments. Even so, some capital may shift toward other assets in search of higher returns.
For the expert, the reaction to the proposal reflects a broader trend in Brazil’s National Congress: resistance to measures that increase the overall tax burden.
“This attempt at retroactive taxation reinforces the importance of preserving predictability and stability within Brazil’s tax system,” she concludes.
Source: Money Report
