In a recent decision handed down in Special Appeal No. 1.733.560/SC, the Second Panel of the Superior Court of Justice (STJ) recognized the non-applicability of the Corporate Income Tax (IRPJ), Social Contribution on Net Income (CSLL), PIS and COFINS on real estate swap arrangements carried out by companies opting for the presumed profit taxation regime.
In analyzing the Special Appeal of the National Treasury, the decision by the STJ established that swap arrangements involving real estate units do not represent an increase in revenue, income, or profit, but rather a substitution of assets.
The decision is important because it contradicts the understanding adopted by the Federal Revenue Service of Brazil (RFB) to compel real estate companies to withhold amounts required for IRPJ, CSLL, PIS, and COFINS in these transactions.
II. Analysis of swap arrangements in Civil Law
The National Treasury maintains that "real estate swaps produce the same effects as the purchase and sale, including as regards the entry of income for legal entities engaged in real estate activities and which calculate income tax based on presumed profit regime."
In general, swaps may be defined as contracts that involve the exchange of assets (assets and rights) that may be appraised in cash. It is not necessary that the assets exchanged have the same value.
Although it does not contain a definition of a swap contract, the Civil Code recognizes the transaction as a legitimate legal deal, to which the general rules of purchase and sale transactions apply. Even so, this institute has specific characteristics, such as, in general, the inexistence of payment in cash, as opposed to a purchase and sale. In this sense, Orlando Gomes clearly describes this relevant distinction between the institutes: "In swaps, one of the parties promises one thing in exchange for another. In purchases and sales, the consideration must necessarily consist of cash. In the swap, there is no price, as in purchases and sales, but it is irrelevant that the things exchanged have unequal values."
In fact, a swap involves an exchange of goods and rights, and the payment of any difference in the value of the assets with money (called torna [“returns”]) is an occasional element of this legal deal.
Thus, Orlando Gomes clarifies that the analogy between a purchase and sale and a swap (exchange) does not mean identity, and it is not possible to fully subject the swap to the legal regime for purchases and sales.
Based on this rationale, it is possible to say that swap arrangements should be considered to be exchanges of assets between the parties, with a nature different from that of purchases and sales.
III. Comments on the tax treatment of real estate swap arrangements
In relation to legal entities adopting the real profit regime, the tax treatment of real estate swap arrangement was ruled by SRF Normative Instruction No. 107/88 (IN 107/88). For the purposes of income tax calculated according to the real profit regime, this instruction ruled swap arrangements carried out between legal entities or between legal entities and individuals.
Pursuant to item 1.1 of IN 107/88, a swap is considered to be any and all transactions aimed at the exchange of one or more real estate units with another or other units, even if one of the parties to the contract makes payment of a supplementary installment in cash (torna [”returns”]).
The tax treatment for swaps provided for by IN 107/88 will depend on the existence or lack thereof of the payment of returns, as set out below:
As provided by Items 2.1.1. and 3.2.1 of IN 107/88, under a swap arrangement with no additional payment in return the parties shall have no result to determine, considering that each party will attribute to the asset received the same accounting value recorded for the asset disposed.. In this scenario, the exchanger that promises to deliver a real estate unit to be built should consider the cost of producing it as being part of the cost of the unit purchased.
In the event of a swap with payment of a return (items 2.1.2 and 3.2.2 of IN 107/88), the party that receives the additional payment shall consider this corresponding amount as income of the assessment period of the transaction, and may deduct from that revenue the portion of the cost of the unit given in a swap that corresponds to the return received or receivable. In turn, the party who pays the return should consider it in the cost of the real estate unit delivered.
It follows from the foregoing that the purpose of taxation in swap transactions is the return, that is, the cash value delivered to one of the swapping parties. This is because, specifically in the case of swapped goods, the acquisition costs are maintained, and therefore, there is no increase in value.
Although not expressly justified, it can be said, based on the concept of a swap mentioned above, that the legal basis for such tax regime is the fact that the mere exchange of assets does not result in the acquisition of economic or legal availability of income, as provided for in section 43 of the National Tax Code (CTN), which is a taxable event for the IRPJ and, indirectly, also for the CSLL. Thus, the availability of income or taxable profit would not be the result of a swap arrangement.
Considering the concepts outlined regarding the nature of swaps and the provisions of IN 107/88, it is clear that swaps (without receiving returns) carried out by companies that calculate the IRPJ and CSLL based on actual profit are not subject to taxation.
At the time of the issuance of IN 107/88, however, although the presumed profit regime already existed, companies that conducted real estate activity were obliged to calculate the IRPJ and CSLL based on real profit regime. Only after the enactment of Law No. 9,718/98, legal entities that carry out the activities of purchase and sale, subdivision, development, and construction of real estate were able to opt for the presumed profit regime.
Nevertheless, the RFB has consolidated its understanding that such transactions involving companies that adopt the presumed profit regime are subject to IRPJ, CSLL, PIS and COFINS taxation, since the arrangement results in the recognition of taxable gross income, regardless of the receipt of a return.
In this context, the RFB issued Answer to Advance Tax Ruling Request No. 207, published on July 11, 2014 (SC Cosit 207/2014), ruling that both the value of the unit received and payments in cash of any additional amount should be considered as gross revenue for CIT purposes (i.e., on which the percentages of that regime shall be applied) in real estate swap arrangement performed by real estate companies opting for the presumed profit regime.
Confirming its previous binding position, the RFB issued Cosit Normative Opinion No. 09/2014 (Cosit PN 09/2014) to the effect that both the value of the unit received in a real estate swap arrangement and the additional payment in cash, if applicable, should be considered gross income of real estate companies opting for the presumed profit regime. In general terms, the conclusions of PN 09/2014 are based on the following arguments of the RFB:
- The provisions of IN 107/88 are applicable exclusively to companies assessing CIT under the real profit regime, such that item 2.1.1 ("in the event of a real estate swap without any additional payment in return, the parties shall have no result to determine, considering that each person will attribute to the asset received the same accounting value recorded for the asset disposed”)") should not be extended to real estate swap arrangements involving companies taxed based on the presumed profit regime;
- Pursuant to section 533 of the Civil Code, the provisions relating to purchases and sales shall be applicable to swap arrangements, which indicates that these transactions are legally similar. Therefore, since the purchase and sale is subject to taxation, real estate swap arrangements should have an equivalent tax treatment; and
- In real estate swap arrangements involving companies adopting the presumed profit regime, the cost of the unit received in exchange will not affect the taxable result, so that the total revenue should be considered as taxable.
In addition, the RFB recently published Answer to Advance Tax Ruling RequestNo. 339, on December 28, 2018 (SC Cosit 339/2018), analyzing real estate swap arrangements without additional payments in return, executed by real estate companies taxed based on the presumed profit regime. Following the position of PN 09/2014, SC Cosit 339/2018 maintains that the value of the property received in a swap is included in gross revenue and must be taxed in the period of calculation of the receipt.
IV. Administrative Precedents on the subject
The levying of federal taxes on swap arrangements for real estate units carried out by companies opting for the presumed profit regime has also been the subject of analysis in administrative precedents.
The Administrative Tax Court (Conselho Administrativo de Recursos Fiscais - Carf), in line with the current position of the tax authorities, explained above, has been adopting an understanding unfavorable for taxpayers, since its position is that the value of the unit received in a real estate swap arrangement will be considered gross revenue for real estate companies opting for the presumed profit regime, since tax neutrality, as provided in IN 107/88, does not apply to companies adopting such a regime.
In a decision issued in February of 2018, the Carf was of the position that, for companies that adopt the presumed profit regime, the value of the goods sold in the form of a swap should be treated as income and subjected to taxation. If the transaction involves a return, such amount is added to the revenue and should also be taxed. The decision was based on the premises established in IN 107/88 and in PN Cosit 09/2014 to equate swaps to purchases and sales, concluding that the value of the property, received by means of a swap, should be included in the gross revenue of companies engaged in real estate activities and, therefore, the calculation of the IRPJ and CSLL taxable basis
In addition, in analyzing the levying of the PIS and COFINS, the Carf adopted an even more restrictive understanding regarding the potential application of IN 107/88 for companies that adopt the presumed profit regime. This is because IN 107/88 would have three limits of applicability defined: it is only applicable to the IRPJ and CSLL; it exclusively covers periods in which the taxation follows the real profit regime; and has effects only on the value of the properties received in a swap. In this sense, the swap would be subject to the levying of PIS and COFINS, since the taxable basis of these contributions is revenue, understood as the total income earned by the legal entity, thus not allowing a transaction equated to a purchase and sale to be included within this total.
From an analysis of the precedents on the subject under discussion, it is not possible to extract a consolidated position on the topic, since the subject was dealt with in isolated decisions by the RFB and, later, the Carf. Such decisions, however, indicate a position equally unfavorable to taxpayers, on the same grounds as those established by the tax authorities in their formal responses and which are binding in nature.
V. Decision handed down by the STJ in Special Appeal No. 1.733.560/SC
The Second Panel of the STJ, in the decision handed down in Special Appeal No. 1.733.560/SC, recognized the non-applicability of the IRPJ, CSLL, PIS, and COFINS on real estate arrangements carried out by companies opting for the presumed profit taxation regime, thus diverging from the RRB's current position on the subject.
The plaintiff, a company engaged in the rendering of construction and real estate development services, filed a declaratory lawsuit under the Federal Court of Blumenau/SC aiming at the recognition of the illegality and unconstitutionality of the levying of said federal taxes on such swap promises, even when carried out by a party opting for the presumed profit regime (as already stated, legal entities that opt for the real profit regime already enjoy such neutrality per an express legal provision). The right to refund or offset taxes unduly collected by virtue thereof was also demanded. In the concrete case, the plaintiff entered into swap contracts through which it received the ownership and possession of certain land and, in return, committed to build residential projects, delivering to the parties some units of the development at a value corresponding to that of the land.
The claim was granted by the 1st Federal Court of Blumenau, and the trial decision was upheld by the 4th Federal Court of Appeals (TRF4). The court was of the understanding that swap arrangements without return involving real estate units does not represent an increase in revenue, income, or profit, as it is a mere replacement of assets.
In view of these decisions favorable to the taxpayer, the National Treasury appealed to the STJ. In its Special Appeal, it argued that swap arrangements, in accordance with section 533 of the Civil Code, are subject to the same provisions regarding purchases and sales and, therefore, would give rise to taxation on the same terms.
In reviewing the Special Appeal of the National Treasury, the STJ’s appellate decision fully accepted the understanding established by the TRF4, stating that the interpretation given to the swap contracts is correct. In this sense, it was concluded that "there will not be, in most cases, revenue, billing, or profit in the exchange." Per the terms of the decision, in the opposite sense to what was argued by the National Treasury, the STJ was of the understanding that section 533 of the Civil Code only reinforces that "the legal provisions related to purchases and sales are applied insofar as they are compatible with the exchange in the civil sphere, defining their general rules," concluding that swap contracts should not be compared in the tax sphere to purchase and sale contracts.
According to the understanding of the Second Panel of the STJ, swap arrangements are considered to be a mere replacement of assets, which will be booked by the parties with the same cost and, consequently, these transactions do not lead to the availability of income that would call for the levying of the IRPJ (even if the legal entity has opted for the presumed profit regime, since section 43 of the CTN would prevent such taxation).
Finally, as regards the argument that IN 107/88 is directed only at legal entities adopting the real profit regime, the decision emphasized that, at the time of the issuance of IN 107/88, legal entities dedicated to the purchase and sale, development, and construction of real estate could not opt for the presumed profit regime, which only occurred with Law No. 9,718/1998, for which reason this normative instruction could not restrict the taxpayer’s right.
On the basis of what has been set out above, it is verified that the position of the RFB is unfavorable to the taxpayer, based on IN 107/88, on PN 09/2014, and on the issuance of binding formal opinions issued by the RFB according to which the value of the real estate units subject to a swap should be considered gross revenue subject to taxation by the IRPJ, CSLL, PIS, and COFINS.
Following the position adopted by the tax authorities in their binding responses, the understanding extracted from the administrative decisions issued by the Carf also indicates that the value of the unit received in a real estate swap arrangements will be factored into the gross income of companies opting for the presumed profit regime, since the tax neutrality provided for in IN 107/88 does not apply to companies adopting such a regime.
In this context, although it has no binding effects and cannot be considered representative of the STJ's settled case law, the appellate decision handed down in Special Appeal No. 1.733.560/SC sets a major precedent for real estate companies, especially those that opt for the presumed profit regime, who are not able to enjoy the benefits provided for by IN 107/88.
The companies in this sector now have a precedent that capable of counterbalancing the unfavorable position adopted by the RFB in its last responses and also by the administrative courts to the effect that the real estate swap arrangements carried out by companies adopting the presumed profit regime give rise to the recognition of taxable income, regardless of the payment of a return.
 Section 533. Provisions relating to purchases and sales shall apply to the swap, with the following modifications:
l - unless otherwise provided for, each party to the contract shall pay for one half of the expenses with the swap instrument;
II - the exchange of unequal amounts between ascendants and descendants, without the consent of the other descendants and the spouse of the seller, is nullified.
 Orlando Gomes in Contratos [“Contracts”]. 23rd ed. Rio de Janeiro: Forense, 2001. p. 268).
 Pursuant to the terms of section 9 of RFB Normative Instruction No. 1.396/2013, "Cosit Consultation Resolutions and Resolutions of Divergence, as of the date of their publication, have binding effect in the scope of the RFB, support the covered persons who apply them, regardless of whether it is an inquirer, provided that it fits within the scenario covered by them, without prejudice to the tax authority’s prerogative to, in an audit proceeding, confirm its actual classification.”
 As already mentioned, the levying of IRPJ, CSLL, PIS, and COFINS is debated.
 Appellate Decision No. 1302/001.2017 (November 8, 2013); Appellate Decision No. 1302/003.007 (August 15, 2018); Appellate Decision No. 1802-00.769 (February 25, 2011); Appellate Decision No. 1802-00.770 (January 25, 2011); and Appellate Decision No. 1201-001.813 (July 26, 2017).
 Appellate Decision No. 1402-003.585.
 Decisions No. 3301-002.052 (September 25, 2013) and 3301-002.053 (September 25, 2013).