Incorporation of shares is equivalent to the sale of assets and must be taxed

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In the share merger operation, the transfer of shares to the share capital of the incorporating company is a type of alienation of assets and rights. Therefore, the positive difference between the effective price of the transaction and the cost of acquiring the shares constitutes a capital gain and is subject to Income Tax taxation. This is what the 4th Chamber of the 2nd Ordinary Panel of the Administrative Council of Tax Appeals (Carf) established.


In the case analyzed, a tax assessment notice required the declaration of income on the capital gain on the sale of shares in a diaper company.

In practice, each share of a company B2B Lead would have been valued at a unit price higher than the acquisition cost declared in the Personal Income Tax Declaration (DIRPF).

For the board, income is effectively realized when the individual receives the new shares issued by the incorporating company, becoming the owner of the shares.

In the vote, the rapporteur, counselor Maurício Nogueira Righetti, states that the fact that there is a clause signed between the parties that creates restrictions on the sale of shares received does not mean that the deal had no effect.

"In other words, there was no condition that would suspend the gain experienced in receiving the shares of one company when compared to those it held with the other, so much so that the appellant, taking advantage of the availability of the shares it already were under its control, agreed/admitted said restriction."

According to the rapporteur, although article 123 of the National Tax Code refers textually to the modification of the legal definition of the taxable person through private conventions, it leaves implicit the rule that the contours of taxation are governed by law.

"And, of course, not for the convenience of those involved, making it apply, I think, to other circumstances where it is intended to modify, for example, the due date of the tax and the moment of the event generated", he explains.

For the rapporteur, the legal situation that represents the economic availability for the realization of income subject to taxation was definitively established at the time of transfer of ownership of the shares, when the increase in the individual's assets was configured.



"It is worth remembering that paragraph 3 of article 3 of Law 7,713/88 establishes that when calculating capital gains, transactions involving the sale, in any capacity, of assets or rights or the assignment or promise of assignment of rights to their acquisition will be considered. , such as those carried out by purchase and sale, exchange, adjudication, expropriation and the like", he points out.