Recent decrees issued by the federal government continue to face widespread criticism, even prompting legislative proposals to nullify the effects of increased Tax on Financial Transactions (IOF) rates. From a legal standpoint, one of the weakest aspects of these government decrees is the expansion of IOF incidence to cover so-called drawn risk operations.
In simplified terms, a drawn risk transaction involves a financial institution advancing payment to a supplier for a debt that its customer (the buyer) would otherwise pay in the future. This is facilitated by using the buyer's credit standing as collateral, allowing the supplier to receive cash immediately while the buyer maintains their extended payment terms. These operations are particularly vital for retail businesses, benefiting all three parties: the supplier receives payment earlier, the buyer retains extended payment deadlines, and the financial institution intermediates, assuming the risk of the paying company (the drawee).
While this practice has recently faced misapplication due to issues unrelated to its core financial solution, its taxation cannot be allowed to exceed constitutional limits. It is undeniable that the IOF should be levied exclusively on credit operations where co-obligation—the sharing of default risk—is an essential element defining the operation. The crux of the matter is simple and clear: the IOF should focus solely on credit operations, not on mere assignment de jure.
The Federal Revenue Service's consolidated understanding clarifies that for an assignment of rights operation to be configured as a credit transaction, it must include, among other elements, the existence of co-obligation—that is, the sharing of default risks between the parties. Without this characteristic, the act constitutes a simple assignment de jure, lacking the inherent commitment that justifies the incidence of the IOF.
Beyond a strict reading of the legal provision, this distinction preserves the principles of validity and legal certainty that govern Brazil's legal and tax system. By imposing IOF incidence in situations that do not fit the definition of a credit operation, the recently issued decrees exceed the limits of tax competence outlined by the Federal Constitution. They constitute a form of collection that could only be foreseen under a different type of hypothesis. This expansive interpretation not only distorts the tax's original aim but also jeopardizes the stability of market relations that rely on this crucial financial tool.
The attempt to transmute any and all assignment de jure into a credit operation merely to expand the collection base represents a further setback. It risks the clarity and efficiency of the Brazilian tax system and generates increased litigation and uncertainty for all involved.
It is urgent that the federal government reassess the constitutionality of the decrees in question and acknowledge that the IOF cannot be levied on drawn risk operations where the assigning parties do not have a co-obligation. Only by preserving the clear delimitation between credit operations and assignments de jure will it be possible to ensure that the IOF operates within its legal scope and aligns with constitutional precepts, thereby preventing the arbitrary imposition of taxes. This critical analysis is essential to ensure that emergency measures or those justified by collection needs do not serve as a pretext for the undue expansion of tax comprehensiveness.
