On October 9, the Federal Supreme Court (STF) finalized its ruling on Theme 104 (Extraordinary Appeal No. 590.186/RS), which discussed the constitutionality of article 13 of Law No. 9.779/1999, since this provision provides for IOF to be levied on “credit operations” granted by legal entities not classified as financial institutions.
The Court unanimously dismissed the extraordinary appeal, on the grounds that there is no restriction in the Federal Constitution or the National Tax Code on the levy of the IOF on these operations, as well as considering that loan agreements aim to obtain financial resources from a third party, which will be paid back/returned after a certain period, and are therefore similar to credit operations practiced by financial institutions.
It was therefore decided that IOF will be levied on loan agreements entered into between legal entities or between legal entities and individuals, due to the recognition of the constitutionality of article 13 of Law 9779/1999.
As a result, the following thesis was established: “IOF is constitutionally levied on credit operations corresponding to the lending of financial resources between legal entities and individuals, and is not restricted to operations carried out by financial institutions.”
It is worth mentioning that the paradigm appeal has recognized general repercussion, so this understanding is applicable in all cases dealing with the matter.
It is worth noting that the judgment was limited to an analysis of the constitutionality of article 13 of Law 9.779/1999, leaving the discussion on the levying of IOF on current account contracts between companies in the same economic group still undefined, since in these cases what is being discussed is not the constitutionality of the tax requirement, but the legal nature of the contract.
