Tributação na remessa ao exterior de criptomoedas

Abstract

The emergence of cryptocurrencies has generated several perplexities to the Law, which is why the present work proposes to analyze the tax effects resulting from the remmitance of cryptocurrencies abroad, identifying what would be the taxes levied on this operation. To this end, we investigate the functioning and legal nature of cryptocurrencies, analyzing whether they would be currencies, financial assets, securities, commodities or mere goods. After the analysis, what can be seen is that cryptocurrencies are embodied in intangible goods of undetermined species, which is a relevant premise for the determination of the tax effects arising from operations carried out with this figure. Placed these premises, starting from the conception of the legal system of Claus-Wilhelm Canaris, for whom the unity and the axiological ordering are essential elements of any order, proceeds with a deep investigation of the constitutional system and the constitutional tributary subsystem, outlining the norm of tax competence and drawing the limits that condition the tax norm in the strict sense (tax / exational), agreeing with Edvaldo Brito regarding the need to respect the "Taxpayer Statute", although the nomenclature adopted is not ideal. Before analyzing specifically the taxes that affect the remittance operation abroad of cryptocurrencies, we proceed with an investigation of how taxation occurs in remittance of money abroad, tracing the possible parallels with the operation object of this work. Closing the object of investigation, we analyze three different types of operation of remittance of cryptocurrency abroad, unilateral transfer to "wallet" owned by the sender himself, donation to someone with "wallet" abroad and remittance of cryptocurrency abroad in exchange for a merchandise or service. When inquiring about the tax effects of these operations, it is identified that each one of them has peculiarities, existing operations (widely considered) in which there will be no taxation and others in which up to two taxes may be levied. Having done this analysis, we proceed with a discussion about fiscal feasibility and the difficulties involving the supervision of cryptocurrency operations, which, although substantial, are not impeding the good use of the new technology.