Mercardo financeiro e extrafiscalidade: uma análise crítica da tributação dos fundos imobiliários no Brasil

Abstract

This research conducted a study on the functions of tax norms, specifically focusing on the extra fiscal function, in the context of the financial and capital markets. The research centered on the taxation of income from Real Estate Investment Funds. As developed throughout the dissertation, tax norms play various roles within the legal framework. In addition to serving as regulatory instruments for tax obligations between the state and the taxpayer, they also have the capacity to play a role in state intervention in the economic domain, promoting the induction of desired behaviors. Furthermore, it was observed that Real Estate Investment Funds are a type of investment fund specialized in the real estate sector of the economy. This class of financial asset has its own regulation and tax regime, distinguishing it from other types of investment funds. The dissertation begins with an analysis of tax norms and their functions, emphasizing the extrafiscal function. Subsequently, the research turns to the examination of the tax in focus, the income tax, seeking to examine and understand legal norms related to income taxation. To achieve this, legislation, jurisprudence, and specialized doctrine were analyzed to define the object of income tax and comprehend the concept of "income and profits of any nature." Later, the regulation and taxation of Real Estate Investment Funds were examined. It was identified that the Real Estate Fund is characterized by a rule and two exceptions. The rule is the exemption from income tax on income and capital gains earned by the Real Estate Investment Fund, according to Article 16 of Law 8,668/93. The exceptions are (i) the taxation of the real estate fund as a legal entity and (ii) the withholding tax on income and capital gains earned by the fund in fixed or variable income investments. Finally, a study was conducted to identify the functions of tax norms in the taxation of income from Real Estate Investment Funds. To achieve this purpose, applicable legislation, specialized literature, and a practical case study were analyzed.