Crypto sector reacts to IOF on Bitcoin: “illegal and unconstitutional”

When we report on the Lula government's proposal of equating the purchase of cryptoassets to foreign exchange transactions for the purposes of charging IOF of 3.5%, the government had not yet released the formal details of the public consultation.

In the following days, the sector reacted intensely. In Cointelegraph Brazil interviews, executives, legal experts and representatives of crypto market associations converged on two lines of argument: the proposal is technically wrong and, from a constitutional perspective, it cannot be implemented by decree.

The legal question

The point most repeated by the experts heard by Cointelegraph is that the IOF exchange tax, by legal definition, is levied on operations that represent the actual exchange between a Brazilian currency and a foreign currency. Stablecoins and crypto-assets in general are not currency. They are goods.

Thiago Barbosa, ABToken's tax coordinator, got straight to the point. According to him, the market already expected that the government would try to extend the incidence of the IOF on foreign exchange to cover operations with stablecoins, but the path chosen creates an immediate constitutional problem: stablecoins are not currency, and “in order to extend the incidence of the Foreign Exchange IOF, a change in the law would be necessary, and it is not possible to make such a change by decree alone.”

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Diego Perez, president of ABFintechs, followed the same line. He recognized the importance of the public consultation announced by the government, but was emphatic: “any creation or expansion of the hypotheses of incidence must go through the National Congress, since a decree cannot create new hypotheses of incidence not provided for by law.“

In Perez's opinion, forcing this collection through an infralegal act “could create legal uncertainty and questions in the Judiciary, bringing instability precisely at a time of regulatory consolidation in the sector.”

“Cryptoassets are assets, not financial transactions”

Vanessa Butalla, VP of Legal, Compliance and Risks at Mercado Bitcoin, took the technical argument a step further. For her, the purchase of crypto-assets constitutes the purchase and sale of goods, not financial transactions subject to the IOF. “To equate these operations with financial transactions distorts the legal nature of the asset and creates an incoherence in the tax system,” he said.

Butalla also points out a concrete economic distortion in the proposal: taxing the transaction itself, regardless of whether there is a profit. “An investor could pay 3.5% even at a loss. The international standard is to tax the capital gain, i.e. the positive result of the operation, and not the simple exchange of assets. The opposite penalizes economic activity and disregards the principle of ability to pay.”

The argument has practical weight for any Brazilian who has ever made monthly investments in Bitcoin, regardless of the outcome. With the IOF levied on entry, those who buy during market corrections would pay the tax even if they sell at a loss months later.

The risk of operations leakage

Fabio Plein, regional director for the Americas at Coinbase, brought the prospect of international competitiveness into the discussion. In an interview with Cointelegraph, he pointed out that stablecoins fulfill specific operational functions: they are used as a settlement mechanism, a tool for managing currency exposure and a way of reducing friction in cross-border transactions. Indiscriminately taxing these uses could have consequences that the government is not taking into account.

“Coinbase believes there is a constructive path forward through institutional dialog that preserves legal certainty, supports responsible innovation and reinforces Brazil's leadership in financial innovation,” said Plein, citing the process of building the regulatory framework for cryptoassets with the Central Bank as a positive precedent for how this type of discussion can be conducted.

In other words, what has been painstakingly built up in recent years could be jeopardized by a hasty government measure.

Finally, Nicolás Alonso, Bitso Brazil's Country Manager, summed up the sector's feelings with a phrase that summarizes the impasse: “the implementation of a new IOF tax without the necessary broad technical and legislative dialogue would be a major strategic mistake, capable of discouraging innovation and jeopardizing Brazil's leading role in the future of finance.”

What's next

The public consultation promised by the Ministry of Finance had not yet been formally published by the time this edition went to press. ABToken has confirmed that it will actively participate in the process, raising the technical points it has identified about the impossibility of changing the IOF exchange rate by decree.

The government, for its part, has the IOF as a tool of executive prerogative: rate changes do not need to go through Congress. But creating a new hypothesis of incidence - equating cryptoassets with foreign exchange when they legally are not - is legally different from adjusting an existing rate. This is the argument that the sector intends to take to the courts if the measure goes ahead by decree.

For the individual investor, the practical message has not changed since our previous coverage: the proposal is not yet in force, and any implementation will meet with organized legal resistance. But the political signal is unmistakable. The government wants to tax entry into crypto, and is looking for the shortest way to do so.